Appellants Brief — Diamond v. Charles

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No. 84-1379 ©

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IN THE

Supreme Court of the United States

OcTOBER TERM, 1984 —

EUGENE F. DIAMOND, M.D. and

JASPER F. WILLIAMS, M.D.,

Appellants,

VS.

ALLAN G. CHARLES, M.D., et al.,

Appellees,

AND

THE HOPE CLINIC FOR WOMEN, Litd., et al.,

Appellees.

On Appeal from the United States Court

of Appeals for the Seventh Circuit

Brief of Appellants

Eugene F. Diamond, M.D.

and Jasper F. Williams, M.D.

DENNIS J. HORAN

Victor G. ROSENBLUM

EDWARD R. GRANT

*MAURA K. QUINLAN

CLARKE D. FORSYTHE

Americans United for Life

Legal Defense Fund

343 S. Dearborn St. No. 1804

Chicago, Ill. 60604

312/786-9494

Counsel for Appellants

*Counsel of Record

July 15, 1985

CHAS. P. YOUNG CHICAGO

QUESTIONS PRESENTED

1. Whether the State of Illinois may require physicians

who prescribe or administer abortifacients to inform their

patients that they have done so, when the physician is given

broad discretion in determining the manner in which that

information is conveyed to the patient?

2. Whether a justiciable case or controversy was present

in this facial challenge to Sections 6(1) and 6(4) of the Illinois

Abortion Law when the relevant statutory provisions had

been amended?

3. Whether the court of appeals, if it did not err in

addressing the unamended version of Section 6(1), neverthe-

less erred in disregarding settled precedent on statutory

construction and vagueness to strike down a statute that

established a standard of care applicable to viable fetuses?

4. Whether the State of Illinois may further its compel-

ling interest in protecting fetal life by requiring a standard

of care applicable to any fetus when there is a possibility of

his or her sustained survival outside the womb?

No. 84-1379

In THE

Supreme Court of the United States

OCTOBER TERM, 1984

EUGENE F. DIAMOND, M.D. and

JASPER F. WILLIAMS, M.D.,

Appellants,

ALLAN G. CHARLES, M.D. et. al.,

Appellees,

AND

THE HOPE CLINIC FOR WOMEN, Lid., et al.,

Appellees.

On Appeal from the United States Court

of Appeals for the Seventh Circuit

Brief of Appellants

Eugene F. Diamond, M.D.

and Jasper F. Williams, M.D.

Appellants, Eugene F. Diamond, M.D., and Jasper F.

Williams, M.D., appeal from the final judgment of the

United States Court of Appeals for the Seventh Circuit,

dated November 30, 1984, holding that Sections 2(10), 6(7)

6(4) and 11(d) of the Illinois Abortion Law unconstitution-

ally infringed upon a woman’s fundamental right of privacy

as secured by the Fourteenth Amendment of the

Constitution.*

* In addition to the parties named in the caption, the follow-

ing were also parties to the proceedings in the court below: Neil

F. Hartigan, Attorney General for the State of Illinois, Richard

M. Daley, State’s Attorney for the County of Cook, Marvin

Rosner, M.D., David Zbaraz, M.D., Martin Motew, M.D., Hector

N. Zevallos, M.D., National Health ( Care Services of Peoria,

Inc., Arthur C. Watson, M.D., and Robert C. Steptoe, M.D. All

of these parties are appellees in this Court.

INDEX

ES Ee eee

ee ss 4s baa eablk® Seb saeltee es akeeean va wes

FE a 5 = ee ee

Constitutional and Statutory Provisions Involved ...

a Or Ce

UO GE GO AAPUIOME onc ck ccc cc cceeess

Argument

THE STATE OF ILLINOIS MAY REQUIRE

PHYSICIANS WHO PRESCRIBE OR AD-

MINISTER ABORTIFACIENTS TO INFORM

THEIR PATIENTS THAT THEY HAVE

DONE SO, WHEN THE PHYSICIAN IS

GIVEN BROAD DISCRETION IN

DETERMINING THE MANNER IN WHICH

THAT INFORMATION IS CONVEYED TO

eo NE ie eee re bear

A. The State May Require That Abortifacients

Are Administered to Women Only with

Se CE 6 ocho h cera can eae eee ce

1. The Decisions of this Court Support the

State’s Right to Require that Consent Be

Obtained Prior to the Use of Abor-

a Se Cee ee ee Pee

Under its Broad Police Powers, a State

May Regulate the Medical Profession and

Require the Disclosure of Accurate In-

formation that Is Necessary to Obtain Con-

sent to the Use of Abortifacients .......

B. The Seventh Circuit’s Decision Is Contrary

to the Decisions of This Court and Infringes

Upon the State’s Power to Regulate the

Medical Profession in a Manner Consistent

with the Health and Welfare of Its Citizens

[I.

IT.

1. Sections 2(10) and 11(d) Do Not Make

the Physician the Mouthpiece for the

og yk a errr ree

Physicians Do Not Have a Right, At

Their Discretion, to Administer Abor-

tifacients to Women Without Their

Knowledge and Consent .............

3. It Is Not Inequitable to Protect the

Right of Women Who Are Opposed to

the Use of Abortifacients By Requiring

That All Women Be Informed When

Abortifacients Are Prescribed for or Ad-

PIE GE ND 6k 9 6 ob. 0te se cc emess

4. Sections 2(10) and 11(d) Do Not Infringe

Upon the Woman’s Right of Private

Decision-Making in Matters Relevant to

Se eee ee ee ee ee

A JUSTICIABLE CASE OR CONTROVERSY

DID NOT EXIST WITH RESPECT TO

UNAMENDED SECTIONS 6(1) AND 6(4) IN

yy) Meelis 7) ly ) ) eee

A. A Live Case or Controversy Remains With

Respect to Amended §§6(1) and 6(4)......

B. The Court of Appeals Erred in Reviewing

Unamended §§6(1) and 6(4)..............

THE UNAMENDED VERSION OF SECTION

6(1) IS CONSTITUTIONAL BECAUSE IT IS

REASONABLY DRAWN TO PRESERVE THE

COMPELLING STATE INTEREST IN PRO-

TECTING VIABLE UNBORN LIFE, AND

PLACES NO OBSTACLE IN THE PATH OF A

WOMAN EXERCISING HER RIGHT TO

TERMINATE A PREGNANCY..............

PAGE

IV.

ill

The State Interest in Protecting Fetal Life

Subsequent to Viability Is Compelling and

Permits Regulation of Methods of Abortion

in Order to Enhance the Likelihood of Fetal

Survival Where Such Regulations Do Not

Increase Any Risk to the Woman........

The Court of Appeals Erred in Holding §6(1)

to Be Unconstitutional on Grounds of

Vagueness and Chilling Effect...........

1. Under §6(1), the Viability Determina-

tion of the Physician Performing the

Abortion Is Determinative ...........

The Standard of Care Required by §6(1)

ee ee. WOE 6 o'6 6 ae S585 nds Sines

3. Since § 6(1) Is Not Vague and the State

Interest in Protecting Fetal Life after

Viability Is Compelling, §6(1) Has No

Impermissible “Chilling Effect” Upon

any Constitutional Right ............

SINCE UNAMENDED SECTION 6(4)

PLACES NO BURDEN UPON A WOMAN

SEEKING TO OBTAIN AN ABORTION AND

IS SUPPORTED BY A COMPELLING OR, AT

LEAST, VERY SUBSTANTIAL STATE IN-

TEREST IN THE PROTECTION OF FETAL

LIFE, IT IS CONSTITUTIONAL ...........

Section 6(4) Does Not Burden the Woman’s

Right to Terminate Pregnancy ..........

The State Interest in Protecting Fetal Life

Is Compelling, or at Least Very Substantial,

Whenever There Is a Possibility of Sus-

tained Survival of the Fetus Outside of the

ao gat bans ara bee 6 he 6 de a

1. The State’s Interest in the Fetus Is Com-

pelling When the Fetus is Potentially

Able to Survive Outside the Womb...

PAGE

2. Even if the State Interest in Protecting

Fetal Life When There is a Possibility

of Sustained Survival of the Fetus Is

Not Deemed Compelling, It Is Neverthe-

less Very Substantial and, Therefore,

Sufficient to Uphold a Regulation, Such

as §6(4), That Imposes No Burden Upon

a Woman’s Right to an Abortion.....

V. THE AMENDED VERSION OF SECTION 6(1)

fee oy ath, f \ Sree

VI. THE AMENDED VERSION OF SECTION 6(4)

fee ety tS) | ee

I 2. (Ae ee ee ee eek ee eee

PAGE

TABLE OF AUTHORITIES

Cases PAGE

Akron v. Akron Center for Reproductive Health, 462

EE ate eee ce be bewees wk des bee exe passim

Allee v. Medrano, 416 U.S. 802 (1974) .......... >

Barsky v. Board of Regents, 347 U.S. 442 (1954) ...... 12

Brockington v. Rhodes, 396 U.S. 41 (1969) ........... 24, 25

Charles v. Daley, 749 F.2d 452 (7th Cir. 1954) ....... passim

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ..... 29

City of Mesquite v. Alladin’s Castle, Inc., 455 U.S. 283

I tal oC drt ee Ne see ge je, 28

Colauthi ». Franklin, 439 U.S. 379 (1979). ........ 33, 44, 47

Connecticut v. Menillo, 423 U.S. 9 (1975) ......... 35, 38, 42

County of Los Angeles v. Davis, 440 U.S. 625 (1979) .. 27

Doe v. Bolton, 410 U.S. 179 (1973) ................. 20

F'EA v. Algonquin SNG, Inc., 426 U.S. 548 (1976) .... 24

Fusari v. Steinberg, 419 U.S. 379 (1975)............. 7, 23

Hall v. Beals, 396 U.S. 45 (1969) .................. 24, 25

Harris v. McRae, 448 U.S. 297 (1980).......... —

Hines v. Davidowitz, 312 U.S. 52 (1941)............. 24

In re R.M.J., 455 U.S. 191 (1977) .................. 15

Maher v. Roe, 432 U.S. 464 (1977).............. 5, 9, 11, 43

Pacific Steamship Co. v. Joliffe, 69 U.S. 450 (1864) .... 24

Planned Parenthood v. Ashcroft, 452 U.S. 476 (1983) . . passim

Planned Parenthood v. Ashcroft, 655 F.2d 848

YE a i il og ok ee 2. Ol, oe, 24, 47

Planned Parenthood v. Danforth, 428 U.S. 52 (1976) . . . passim

Roe v. Wade, 410 U.S. 113 (1973)... 2... ........ .. . passim

Schall v. Martin, 104 S.Ct. 2403 (1984)... .... eal 23

United States v. Munsingwear, 340 U.S. 36 (1950 | 23

United States v. Vuitch, 402 U.S. 362 (1971 36

Village of Hoffman Estates v. Flipside, Hoffman Estates,

155 U.S. 489 (1982) Neteieriisiwarearkduts

Whalen v. Ree, 429 U.S. 589 (1977)... 2... eee eee. 12, 20

Wynn v. Scott, 449 F.Supp. 1302 (N.D.IIl. 1978), aff'd

sub nom. Wynn v. Carey, 599 F.2d 193

7th Cir. 1979 eeeenn oe be . 2... + passim

Zauderer v. Office of Disciplinary Council, 105 S.Ct.

2265 (1985 | errr 6,15

Constitutional

Provisions

U.S. Const. Amend. X (179] l2

Statutes

ll. Rev.Stat. ch. 38, 181-22(10) (1983 passim

Ill.Rev.Stat. ch. 38, 181-26(1) (1983 passim

[ll.Rev.Stat. ch. 38, 181-26(1) (1984 Sup, passim

[li.Rev.Stat. ch. 38, 981-26(4) (1983 passim

Ill. Rev.Stat. ch. 38, 9181-26(4) (1984 Su; passin

[ll.Rev.Stat. ch. 38, 9181-26(5) (1983 passim

Ill.Rev.Stat. ch. 38, 181-26(5) (1984 Sup} 17

[ll.Rev.Stat. ch. 38, 181-31(d) (1983 passin

[ll]. Rev.Stat. ch. 38, 181-22(9) (1983 17

[1l.Rev.Stat. ch. 38, 181-22(6) (1984 Sup L7

Ill.Rev.Stat. ch. 38, 181-26(2) (1984 Supy 28

[ll.Rev.Stat. ch. 38, 181-22(2) (1983 34, 35

[ll.Rev.Stat. ch. 38, 181-23.1 (1983 35

[1l.Rev.Stat. ch. 38, 181-31(3) (1984 Supp J

Other Authorities

Dorland’s Illustrated Medical Dictionary (25th ed. 1974

Haning & Peckham, Evaluation of Intra-Amniotic Ad

ministration of 120 gm of Urea with 5 mg of Pr

laglandin F'2 alpha for Midirimester Termination

Preqnan y Between 20 and 24 Weeks’ Gest 1110?

Am.J .Obstet.Gynecol. 92 (1985 +)

(grimes, Second Trimester 1 hbortions mn ihe l nite 1 Ntate

6 Family Planning Perspectives 260 (1984 :

Hern, First Trimester Abortion: Complications and

Thew Vana Jement, in 6 Gyneco 74 and Ubstetr

J. Seiarra ed. 1982 \4

Johnson, Contraception—The Morning After, 16 F

Planning Perspectives 266 (1984

Kaja 1oja, Induction of Abortion by Prost igianains

the Second Trimester of Pregnancy, 113 Acta Ot

stet.Gynecol. Scandinavica Supp. 145 (1953 10)

Laufe, Menstrual Regulation, in 6 Gyne gy and Ut

sletrics 1 (J. Sciarra ed. 1982 \4

Postconial Contraception, 1:3329 Lancet 855

Rhein, et al., A Pill That ‘Might Defuse the Abortion

Issue,’ Bus.Wk.. April 1, 1985, p 85 14

Stroh & Hinman, Reported lave Births Follou Lng

duced 4A bortion: Two and ne Half Years’ Ez pe TICTICE

in Upstate New York, 126 Am.J.Obstet.Gynecol. 83

1976 1()

The American Heritage Dictionary of the English Lan

guage (1975)... | +4

Webster’s New Collegiate Dictionary (1956 +4

Webster’s New Twentieth Ce ntury Dictionary Unabridged

(2d ed. 1983) .. a 13, 14, 22

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

EUGENE F. DIAMOND, M.D. and

JASPER F. WILLIAMS, M.D

Appellants

ALLAN G. CHARLES, M.D., et al

Appellees

ANI

THE HOPE CLINIC FOR WOMEN, Ltd., et al

Appellees

On Appeal from the United States Court

of Appeals for the Seventh Circuit

OPINIONS BELOW

The opinion of the Court of Appeals for the Seventh

Circuit permanently enjoining Sections 2(10), 6(1), 6(4) and

ll(d) of the Illinois Abortion Law, which appears in the

appendix to the Jurisdictional Statement, App. 1-49, is

reported at 749 F.2d 452 (7th Cir. 1984

The opinion of the District Court for the Northern District

of Illinois permanently enjoining sections 2(10), 6(4) and

ll(d) of the Illinois Abortion Law, which appears in the

Joint Appendix at 77-130, is reported at 579 F.Supp. 464

(N.D. Ill. 1983).

The opinion of the District Court for the Northern District

of Illinois issuing a preliminary injunction against certain

sections of the Illinois Abortion Law on renewed motion for

preliminary injunction is reported at 579 F.Supp. 377 (N

Ill. 1983

The opinion of the Court of Appeals for the Sevent!

Circuit granting a preliminary injunction against cert

sections of the Illinois Abortion Law is reported at 627 F

772 (7th Cir. 1980

The opinion of the District Court for the Northern Dist

of Illinois issuing a preliminary injunction agair

sections of the Illinois Abortion Law is not re]

printed in the Appendix to Appellees’ Motion to Disn

Affirm.

JURISDICTION

The final judgment of the Court of Appeals f

Seventh Circuit holding Sections 2(10), 6(1), 6(4) and 11

the Illinois Abortion Law unconstitutional as violative of the

Fourteenth Amendment of the Constitution was entered

November 30, 1984. Suit was brought pursuant to 42 U.S.C

§ 1983. Notice of appeal to this Court was duly filed in th

Court of Appeals for the Seventh Circuit on February 2

1985. This appeal is being docketed within 90 days of the

entry of final judgment. The jurisdiction of this Court

invoked under 28 U.S.C. § 1254(2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. amend XIV, § 1

[1l.Rev.Stat. Ch. 38, 9 81-22(10) (1983

[1].Rev.Stat. Ch. 38, 9 81-26(1) (1983)

[1l.Rev.Stat. Ch. 38, 1 81-26(1) (1984 Supp.)

[1l.Rev.Stat. Ch. 38, 9 81-26(4) (1983)

[1l.Rev.Stat. Ch. 38, 1 81-26(4) (1984 Supp.

[ll.Rev.Stat. Ch. 38, 1 81-31(d) (1983)

Ill. Rev.Stat. Ch. 38,

[ll.Rev.Stat. Ch. 38, 1 81-22(6) (1984 Sup,

The text of these provisions is set forth in the appendix

STATEMENT OF THE CASE

This is an appeal from a decision of the United States

Court of Appeals for the Seventh Circuit granting a

permanent injunction against Sections 2(10), 6(1), 6(4) and

ll(d) of the Illinois Abortion Law of 1975, as amended

Jurisdictional Statement (J.S.) at App. 1

On October 30, 1979, the appellees filed a complaint in the

United States District for the Northern District of Illinois

for declaratory and injunctive relief against enforcement of

S.B. 47, a bill amending the Illinois Abortion Law of 1975,

that had been passed that same day by the General

Assembly of Illinois. Suit was filed against the Attorney

General of Illinois and the State’s Attorney for the County of

Cook, as representative for the class of State’s Attorneys in

Illinois. On November 13, 1979, then-District Judge Flaum

granted the motion of appellants Eugene F. Diamond, M.D..,

and Jasper F. Williams, Sr. M.D., to intervene as defendants

in this matter

On November 16, 1979, Judge Flaum entered an order

granting in part and denying in part plaintiffs’ motion for a

preliminary injunction against the enforcement of S.B. 47 in

its entirety. Among the provisions enjoined by the court

were Sec. 6(1) and Sec. 6(4). These provisions were enjoined

because they incorporated a definition of viability that was

held to be invalid by the court. Among the provisions

upheld were Sec. 2(10), which is a definition of abortifacient.

and Sec. 11(d), which requires physicians who prescribe abor-

tifacients to inform their patients that they are doing so.

The court of appeals reversed the judgment with respect to

Sees. 2/10) and 11(d), and entered a preliminary injunction

against those sections. Charles v. Carey, 627 F.2d 772 (7th Cir.

1980) (Charles I

Appellees’ Renewed Motion for Preliminary Injunction

was granted in part and denied in part by District Judge

Kocoras on July 14, 1983. Charles v. Carey, 579 F.Supp. 377

N.D.I1l. 1983) (Charles 11). None of the sections now on

appeal was the subject of that ruling. Illinois House Bill 666,

which amended the definition of viability that had been

enjoined by Judge Flaum and certain language of § 6(4),

became law on September 17, 1983, after briefing had been

completed on cross-motions for summary judgment. Judge

Kocoras’ decision of October 14, 1983, as amended on

November 2, 1983, issued a permanent injunction against

§§ 2(10), 11(d) and 6(4), but upheld § 6(1) and dissolved the

preliminary injunction that had been entered against it.

Charles v. Carey, 579 F.Supp. 464 (N.D.ILL. 1983) (Charles I11)

Joint Appendix (J.A.) at (1

On December 2, 1983, defendants Daley and Hartigan and

appellants timely filed separate motions of appeal from those

aspects of the final judgment permanently enjoining Secs.

2(10), 11(d) and 6(4). On December 16, 1983, appellees cross-

appealed from the District Court’s refusal to issue a

permanent injunction against Sec. 6(1).

On June 30, 1984, after the issues were fully briefed in the

court of appeals but before oral argument, the General

Assembly enacted H.B. 1399. That bill amended several

sections of the Illinois Abortion Law, including §§ 6(1) and

6(4). Appellants notified the court of appeals and appellees

of the amendments prior to oral argument and, at oral

argument, the court directed the parties to file supplemental

briefs on the issue of mootness.

On November 30, 1984, the court of appeals affirmed the

entry of a permanent injunction against Secs. 2(10) and 11(d).

The court also ruled that the amendments to Sees. 6(1) and 6(4)

did not moot those issues and proceeded to rule upon the

constitutionality of those provisions in their unamended ver-

sions. The court reversed the denial of an injunction as to Sec.

6(1) and affirmed the injunction against Sec. 6(4). Charles v.

Daley, 749 F.2d 452 (7th Cir. 1984) (Charlies IV). Appellants

filed their notice of appeal with the court of appeals and their

Jurisdictional Statement in this Court on February 28, 1985.

This Court noted probable jurisdiction on May 20, 1985.

SUMMARY OF THE ARGUMENT

The State of Illinois has indicated a desire to regulate

abortion in a manner protective of both maternal health and

fetal life. While Illinois seeks to regulate abortion to the

greatest extent permissible, it has stated its intent to do so in

a manner consistent with Roe v. Wade, 410 U.S. 113 (1973)

and its progeny. I1l.Rev.Stat. ch. 38, 181-21 (1983). The

provisions on appeal were enacted to protect maternal health

and fetal life and they do so in a manner that is consistent

with the prior decisions of this Court.

Sections 2(10) «nd 11(d) protect the right of women to

choose not to use abortifacients by requiring physicians who

prescribe them to inform their patients that they are doing

so. The precise manner in which the doctor discloses this

information is left entirely to his discretion.

The Seventh Circuit’s decision striking down §§ 2(10) and

11(d) is in direct conflict with the decisions of this Court and

acts impermissibly to restrain the State of Illinois from

enacting legitimate health regulations pursuant to its police

powers.

This Court has held that women have a fundamental right

to choose not to have an abortion. Maher v. Roe, 432 U.S. 464

(1977). It has also upheld the right of States to protect a

woman’s choice by requiring that her consent be obtained

prior to the performance of an abortion upon her. Planned

Parenthood v. Danforth, 428 U.S. 52 (1976); Akron v. Akron

Center for Reproductive Health, 462 U.S. 416 (1983). Since it is

impossible for a woman to choose not to use a drug or device

which causes abortion if she is unaware that one is being

offered to her, she must be informed when such drugs and

devices are administered to her. Many women would use

contraceptive methods of birth control but would never use

abortifacients because they believe that the fetus should be

valued from the time of fertilization forward. Failure to

inform those women that an abortifacient is being adminis-

tered to them would violate their freedom of choice.

Furthermore, it is clear that some physicians, including

appellees, would prefer not to inform women of the abor-

tifacient effect of drugs and devices that they prescribe and

administer. Also, medical journals and the popular press

often blur the distinction between abortifacients and con-

traceptives by referring to both as “contraceptives.” Refer-

ence to drugs and devices which induce abortion at early

stages of pregnancy as “contraceptives” is inaccurate and

misleading since contraception is the artificial prevention of

the fertilization of the human ovum. The State may, pur-

suant to its police powers, regulate its licensed professionals

in a manner that prevents the dissemination of such decep-

tive and misleading information. Zauderer v. Office of Discipli-

nary Counsel, 105 S.Ct. 2265 (1985).

The court of appeals erred in construing §§ 2(10) and 11(d)

to require that a physician inform his patient that “abor-

tifacients cause the death of unborn children.” Those provi-

sions do not require any such thing. Rather, they leave

broad discretion to the physician in his choice of words.

Thus, they do not foist a theory of life upon the physician

and his patient. Moreover, these provisions do not burden

any fundamental right. The only possible burden that these

sections might impose would be to make women who would

like to use abortifacients, but would prefer to do so in

ignorance, realize what they are doing. Women do not have

a fundamental right to obtain abortions in ignorance. Th

State need not abandon its compelling interest in protecting

women from unwittingly submitting to abortions simply

because some women might wish to use abortifacients in

ignorance. The fundamenial right to choose not to use an

abortifacient outweighs any right to use abortifacients in

ignorance.

Sections 6(1) and 6(4) were amended prior to the court of

appeals’ decisions. The court of appeals should not have

reviewed those sections as they stood prior to amendment

because there was no reasonable likelihood that they would

be reenacted and no continuing adverse effect of the alleged

violation exists. Also, federal courts should review lower

court holdings in light of presently existing law, not the law

that was in effect when the judgment below was rendered.

Fusari v. Steinberg, 419 U.S. 379 (1975). A live case or con-

troversy existed with respect to those sections, as amended,

since the legal issues remained the same and no factual

issues were in dispute. The court of appeals should have

reviewed the amended provisions and so should this Court.

Whether the amended or unamended version of § 6(1) is

reviewed, it is constitutional. The State has a compelling

interest in protecting the viable fetus. Roe, 410 U.S. at 164.

The State may regulate abortions performed on viable

fetuses by requiring that a standard of care be used to protect

the life of the fetus when no increased risk to the mother

would be caused. Neither the amended nor unamended ver-

sion is vague on its face. The good faith viability determina-

tion of the physician performing the abortion is final under

both versions. And, the conduct required of the physician is

not difficult to understand—physicians routinely apply the

standard of care applicable to their specialty. Since these

provisions are not vague, are supported by a compelling

interest in protecting fetal life, and have no impermissible

chilling effect on doctors or their patients, they are

constitutional.

Section 6(4) requires that the method of abortion most

likely to preserve feta! life be used when, in the physician’s

judgment, there is a possibility of fetal survival. It does not

apply when the fetal survival method of abortion would

increase risk to the mother. Nor does it prohibit any abor-

tion. In short, it does not restrict the woman’s ability to

obtain an abortion in any way. She remains free to consult

with her doctor and to legally terminate her pregnancy for

whatever reason they decide upon.

Since a woman does not have a right to terminate her

pregnancy in a manner that ensures fetal death, the fact that

this provision prevents her from doing that does not violate

her rights. In addition, the State has a compelling or, at

least, very substantial interest in protecting fetal life when

there is a possibility that the fetus can survive. Given the

importance of the State’s interest and the lack of burden

imposed on the woman by § 6(4), it is constitutional.

ARGUMENT

I. THE STATE OF ILLINOIS MAY REQUIRE PHYSI-

CIANS WHO PRESCRIBE OR ADMINISTER ABOR-

TIFACIENTS TO INFORM THEIR PATIENTS THAT

THEY HAVE DONE SO, WHEN THE PHYSICIAN IS

GIVEN BROAD DISCRETION IN DETERMINING THE

MANNER IN WHICH THAT INFORMATION IS CON.

VEYED TO THE PATIENT.

The State of Illinois has determined that it is necessary to

protect the right of its female citizens to choose not to use

abortifacients. To this end, the State enacted § 11(d) of the

Illinois Abortion Law.' That section requires physicians

‘Section 11(d) states:

Any person who sells any drug, medicine, instrument or

other substance which he knows to be an abortifacient and

which is in fact an abortifacient, unless upon prescription

of a physician, is guilty of a Class B misdemeanor. Any

person who prescribes or administers any instrument,

(footnote continued on next page)

who administer or prescribe abortifacients to inform their

patients that they are doing so. Nothing in § 11(d) requires

the physician to describe an abortifacient in any particular

manner.” He may use whatever language he chooses in

describing it. Thus, the State leaves broad discretion to the

physician to determine the manner in which the required

information will be disclosed to his patient.

The decision of the Court of Appeals for the Seventh

Circuit striking down §§ 11(d) and 2(10) is in direct conflict

with the decisions of this Court and acts impermissibly to

restrain the State of [llinois from enacting legitimate health

regulations pursuant to its police powers.

A. The State May Require That Abortifacients Are

Administered to Women Only with Their Consent.

1. The Decisions of This Court Support the State’s

Right to Require that Consent Be Obtained Prior to

the Use of Abortifacients.

Women have a right to choose not to have an abortion that

is at least as fundamental as the right to choose abortion.

Maher v. Roe, 432 U.S. 464, 472 n.7 (1977). It is utterly

impossible for a women to choose not to submit to an abortion

footnote continued from preceding page)

medicine, drug or other substance or device, which he

knows to be an abortifacient, and which is in fact an

abortifacient, and intentionally, knowingly or recklessly

fails to inform the person for which it is prescribe i or upon

whom it is administered that it is an abortifacieni commits

a Class C misdemeanor.

[ll.Rev.Stat. ch. 38, 181-31, § 11(d) (1983). Section 11(d) was

renumbered as § 11(3) by House Bill 1399. Ill.Rev.Stat. ch. 38,

11 81-31(3) (1984 Supp.).

*Section 2(10) defines “abortifacient” so that doctors will

know under what circumstances § 11(d) applies. Section 11(d)

does not, however, require physicians to use the term “abor-

tifacient” or to describe an abortifacient by using the language

set forth in § 2(10).

if she is unaware that an abortion is being performed upon

her or will occur to her. The State has a compelling interest

in requiring that women be told when an abortion is about to

be performed upon them so that their consent to that

procedure may be obtained.

This Court’s decisions in Planned Parenthood v. Danforth,

428 U.S. 52 (1976), and Akron v. Akron Center for Reproductive

Health, 462 U.S. 416 (1983), have upheld the right of States to

protect the woman’s fundamental right of choice by requir-

ing that her consent be obtained prior to the performance of

an abortion upon her. In Danforth, the Court held that it is

permissible for a State to require a woman’s prior written

consent to an abortion. In so doing, the Court stated:

‘Ijt is desirable and imperative that [the abortion deci-

sion} be made with full knowledge of its nature and

consequences. The woman is the one primarily con-

cerned, and her awareness of the decision and its signifi-

cance may be assured, constitutionally, by the State.

428 U.S. at 67. While there are limitations on the amount of

information that may be required to be given, it is clearly

permissible for the State to require that a woman be

informed “as to just what would be done and as to its

consequences.” Jd. at 67 n.8. Consistent with Danforth,

§ 11(d) requires that a woman be told just what is being done

(a drug or device which is known to cause abortion is being

prescribed for her) and what the consequences are (an abor-

tion might result if she is pregnant).

More recently, in Akron, this Court stated: “Consistent

with its interest in ensuring informed consent, a State may

require that a physician make certain that his patient under-

stands the physical and emotional implications of having an

abortion.” Akron, 462 U.S. at 445. Thus, a provision that

merely describes in general terms the information to be

disclosed is permissible because it leaves the “precise nature

and amount of this disclosure to the physician’s discretion

and ‘medical judgment.’” Jd. at 447.

The principles set forth in Maher, Danforth and Akron

govern this case with equal force. Abortifacients, by defini-

tion,” are drugs and devices which cause abortions when used

by pregnant women. Since abortifacients cause abortions,

the State’s interest in enacting § 11(d) and thereby ensuring

that abortifacients are administered cnly with the woman's

informed consent is as important as the State’s interest was

in Danforth. In both instances, the State is ensuring that a

woman’s consent to an abortion be secured.*

Affidavits submitted in the district court by appellants

demonstrate that many women believe that the life of the

fetus should be valued from the time of fertilization forward.

See Affidavits of Dianna Shark, Debra Evans, and Mary

Gaspar. Joint Appendix (J.A.) at 57-62. These women would

use contraceptive methods of birth control but would never

knowingly choose to use an abortifacient method of birth

control because that would cause the death of an organism

already in existence. Plainly, failure to inform a woman

who is opposed to abortion that a drug or device being

administered to her will cause an abortion would be an

egregious violation of her freedom of choice

On its face, § 11(d) requires ne more than is permissible

under Danforth and Akron. It describes in general terms that

the doctor must inform his patient that he is prescribing an

abortifacient for her if he knows he is doing this. The

*According to Dorland’s medical dictionary, an “abor-

tifacient” is “an agent which causes abortion.”’ Dorland’s Illus-

trated Medical Dictionary 4 (25th ed. 1974).

‘The State’s interest in enacting § 11(d) may be even more

important because there is a greater need for information when

a woman is seeking “birth control” rather than an abortion. In

Danforth, the informed consent provision applied to women wh:

presumab!y knew they were pregnant and were seeking an

abortion. Here, however, § 11(d) applies to women who are

seeking birth control and who may never even suspect that an

agent which causes an aborticn is being prescribed for them

precise manner in which the doctor discloses this informa-

tion is left entirely to his discretion. No specific language is

required. A physician is free to inform the patient that a

drug or device is being prescribed or administered that

“prevents birth after fertilization has taken place,” that

“eauses the premature expulsion from the uterus of the

products of conception,” that “causes an abortion,” that

“causes fetal death,” or that “kills unborn children.” The

law simply does not penalize the physician for his choice of

words. It does, however, penalize him for his intentional

failure to inform the woman of the abortifacient effect of the

drug or device that is being administered so that she may

choose not to use it.

In summary, § 11(d) furthers the State’s compelling inter-

est in protecting the fundamental right of women to choose

not to use abortifacients. It requires only that women be

informed about the effects of drugs and devices that are

being prescribed for them. And, it allows the physician the

necessary flexibility that Akron requires. Therefore, § 11(d)

is constitutional under this Court’s prior holdings.

2. Under Its Broad Police Powers, a State May Regu-

late the Medical Profession and Require the Dis-

closure of Accurate Information That Is necessary

to Obtain Consent to the Use of Abortifacients.

The Tenth Amendment to the Constitution reserves to the

States broad police powers to protect the health and welfare

of their citizens. It is beyond dispute that these police

powers extend to regulation of the medical profession. Bar-

sky v. Poard of Regents, 347 U.S. 442, 449 (1954). See also

Whalen v. Roe, 429 U.S. 589, 603 n.30 (1977) (“the State has

broad police powers in regulating the administration of

drugs by the health profession’”’).

Through its licensing procedures, the State empowers phy-

sicians to give professional advice to women on the choice of

birth control they might use. Having placed physicians in

this position of responsibility, the State has a right to ensure

that they disclose accurate information necessary for a

woman to choose between contraceptive and abortifacient

methods of birth control.

Physicians who administer abortifacient methods of birth

control do not have a right to do so without the consent of

their patient. As with other drugs or devices that a

physician may prescribe, the patient has a right to know

what their effect will be and to reject their use. Since it is

impossible for a woman to give consent to the use of an

abortifacient if she does not know that an abortifacient is

being prescribed or administered, it is essential that she at

least be informed of that fact.

Many forms of “birth control” are practiced in this coun-

try today. Some prevent conception and are contraceptives;

others prevent birth after conception has taken place and are

abortifacients. Yet many still think of “birth control” only

as a method of preventing conception since that is its custom-

ary usage.” They are not aware that both abortifacients and

contraceptives are now sometimes considered methods of

“birth control.” Nor are they aware that some physicians

have begun blurring the distinction between abortifacients

and contraceptives by referring to both as “contraceptives.”

Recent articles in medical journals® and the popular press

show that abortifacients are sometimes called “contracep-

tives.” For example, one article states that two pharmaceuti-

cal companies “are both testing a new class of contraceptives

> Webster’s New Twentieth Century Dictionary Unabridged (2d ed.

1983), for example, defines “birth control” as follows: “the act of

regulation of childbearing, esp. by contraceptives.” Jd. at 186.

Also, “contraception” is “often called ‘birth control.’” Jd. at

396.

"See, eg., Johnson, Contraception—-The Morning After, 16

Family Planning Perspectives 266 (1984) (referring to drug

which prevents implantation of already fertilized ovum as

“contraceptive’’); Postcoital Contraception, 1:8329 Lancet 855

(1983) (suggesting use of term “contraceptive” to describe drug

which acts between fertilization and implantation of

blastocyst).

that promise to reduce drastically the number of clinic abor-

tions performed each year.”’ Rhein et al., A Pill that ‘Might

Defuse the Abortion Issue, Bus. Wk., Apr. 1, 1985, at 85

(emphasis added). The next sentence, however, states that

“(tlhe drugs induce abortion, |and| can halt pregnancies in

very early stages with minimal side effects.” /d. (emphasis

added).

Some doctors also perform “menstrual extraction” on their

patients without informing them of the abortifacient effect

such procedures will have if the woman is already

pregnant.’ Dr. Warren Hern, who regularly performs abor-

tions, has pointed out that menstrual extraction is a “euphe-

mism for early abortion,” and that the “{uljse of menstrual

extraction to deny the emotional implications of pregnancy

and the decision to abort is a practice that must be deplored.”

Hern, First Trimester Abortion: Complications and Their Man-

agement, in 6 Gynecology and Obstetrics 1, 2 (J. Sciarra ed.

1982).

Reference to drugs and devices which induce abortion at

earlv stages of pregnancy as contraceptives is simply inac-

curate and misleading. “Contraception” is the “artificial

prevention of the fertilization of the human ovum.” Webster’s

New Twentieth Century Dictionary Unabridged 396 (2d ed. 1983).

Abortifacients do not prevent fertilization and are not con-

traceptives since they operate after fertilization has taken

place. Given the common meaning of contraception, a

woman would naturally believe that the “contraceptive” she

is receiving prevents fertilization. She would have no reason

to suspect that the drug or device was not a contraceptive;

that instead, it was something that causes an abortion.

"The deceptive character of such practices is highlighted by

the fact that doctors have stated that the use of the term

“menstrual regulation” is preferable “in those countries where

pregnancy termination is illegal.’’ Laufe, Menstrual Regulatiwn,

in 6 Gynecology and Obstetrics 1 (J. Sciarra ed. 1982). Laufe also

suggests that this terminology allows women “to avoid con-

fronting the issue of abortion.” /d. at 6.

The State is entitled to require disclosure of information

that is necessary to prevent deception. While “truthful

‘information| related to {| | lawful activities” is entitled to

First Amendment protection, “|fljalse, deceptive, or mislead-

ing {information| remains subject to restraint.” Jn re R.M.J.,

455 U.S. 191, 200 (1982). This is especially true in the case of

information disseminated by professionals—in this case,

doctors. Such information “poses special risks of deception”’

since the patient’s comparative lack of knowledge makes it

likely that she will accept the doctor’s description as entirely

accurate. Jd.° Because of the great potential for confusion

and deception associated with information disseminated by

professionals, and the “limited ability of the professions to

police themselves,” the State has a legitimate interest in

regulating the content of their speech in a manner which

prevents such abuses. /d. at 202. That interest becomes

compelling when such deception deprives a woman of her

fundamental right to choose not to have an abortion per-

formed upon her.

In Zauderer v. Office of Disciplinary Council, 105 S.Ct. 2265

(1985), this Court reaffirmed the above principles, holding

that the right of a professional to refrain from “divulgiing)

accurate information regarding his services is not{ | a funda-

mental right.” Jd. at 2282 n.14. The Court also stated that

the interest in failing to provide factual information is

minimal, and it is adequately protected if the disclosure

requirements are reasonably related to the State’s interest in

preventing deception. /d. at 2282. Thus, the State has the

power to require its licensed professionals to disclose accurate

information concerning their services.

Just as in Zauderer, the possibility for deception and result-

ing harm is self-evident in this case. First, it is clear that a

number of doctors, including appellees, would prefer not to

inform women of the abortifacient effect of drugs and

*Minors, who account for approximately one-third of the

abortions performed each year, are especially susceptible in this

regard.

devices that they prescribe. Second, it is essential that a

women be given such information in order for her to be able

to choose not to use abortifacients. Finally, the failure to

inform a woman of the abortifacient effect of a drug deprives

her of her fundamental right to continue her pregnancy and

may cause her emotional distress when she later learns what

has been done to her.

In summary, § 11(d) requires only that accurate informa-

tion, of the physician’s own choosing, be disclosed. It

prevents misleading information from being disseminated.

It also protects women from unwittingly violating their

deepest moral beliefs and thereby incurring psychological

harm. Thus, it is a permissible exercise of the State’s police

power.

B. The Seventh Circuit’s Decision Is Contrary to the Deci-

sions of This Court and Infringes Upon the State’s

Power to Regulate the Medical Profession in a Manner

Consistent with the Health and Welfare of Its Citizens.

In spite of the State’s compelling interest in protecting the

fundamental right of its female citizens to choose between

contraceptive and abortifacient methods of birth control, and

tne fact that § 11(d) requires no more than what is permis-

sible under Danforth and Akron, the court of appeals struck it

down.” In so doing, the court failed to give that section

principled constitutional analysis. The court’s opinion is so

cursory that it fails even to articulate the rights that were

"Section 2(10), which is only definitional, was also struck by

the court of appeals. However, the court did not give a specific

reason for striking this definition. Section 2(10) states:

“Abortifacient” means any instrument, medicine, drug, or

any other substance or device which is known to cause

fetal death when employed in the usual and customary use

for which it is manufactured, whether or not the fetus is

known to exist when such substance or device is employed.

Ill.Rev.Stat. ch. 38, 9 81-22(10) (1983).

supposedly infringed upon. Nor does it indicate the manner

in which this provision supposedly burdens any such rights.

The court apparently struck §§ 2(10) and 11(d) for several

reasons. First, they impermissibly impose the State’s theory

of when life begins upon the physician and his patient. JS.

at App. 40-41. Second, they intrude upon the medical discre-

tion of the attending physician. J.S. at App. 41. Third, they

act inequitably to protect women who are opposed to the use

of abortifacients by requiring that women who prefer to use

abortifacients be told that they are doing so. J.S. at App. 42.

Finally, they infringe upon the woman’s right of private

decision-making in matters relevant to contraception. J'S. at

App. 43. Each of these reasons is discussed below.

1. Sections 2(10) and 11(d) Do Not Make the

Physician the Mouthpiece for the State’s Theory of

Life.

In striking §§ 2(10) and 11(d), the court held that they

unconstitutionally “force|d| the physician to act as the

mouthpiece for the State’s theory of life.” J.S. at App. 40.

Citing Akron for the proposition that the State may not

“foist | upon the pregnant woman its view that life begins

at conception,” the Seventh Circuit reasoned that “sections

2(10) and 11(d) constitute such an attempt by the State of

Illinois because the terms incorporate a definition of ‘fetus’ in

which the State classifies a fetus as a human being from

fertilization until death {sic|.” Jd. at 39-40."

“Fetus” was formerly defined as a human being from fer-

tilization until birth. I1l.Rev.Stat. ch. 38, 1 81-22(9) (1983). That

definition of “fetus” was amended by House Bill 1399 prior to

the court’s ruling to mean “an individual organism of the

species homo sapiens from fertilization to live birth.”’

Ill.Rev.Stat. ch. 38, 181-22(6) (1984 Supp.). Thus, under the

present law, the definition of fetus does not use the term

“human being” or “human.” Since the court seemingly did not

base its decision on.the presence or absence of the term

“human” in the definition of fetus, that change is not relevant.

The language of Akron on which the court relied, however,

is inapposite. That statement was made in the context of an

ordinance that specifically required a doctor to tell a woman

that “the unborn child is a human life from the moment of

conception.” Akron, 462 U.S. at 423 n.5. Nothing in either

§ 2(10), which is merely definitional, or § 11(d), the regu-

latory provision, requires the doctor to state any such thing.

Indeed, in the court’s own words, the plain language of

§ 11(d) “requires physicians who prescribe or administer

abortifacients to inform their patients that they have done

so.” J.S. at App. 37. However, the court went beyond that

language and proceeded to construe § 11(d) to require that

physicians also inform their patients that “abortifacients

cause the death of unborn children.” J.S. at App. 42.

Certainly, had the General Assembly wished to foist a

theory of life upon women and force physicians to act as a

mouthpiece for that theory, it could have drafted § 11(d) to

specifically require that the physician tell his patient that he

is administering an abortifacient and that abortifacients

“cause the death of unborn children.” The General

Assembly, however, did not do this. It merely required

physicians to inform their patients when they are a ninis-

tering abortifacients to them. Section 11(d) does not 1 strict

the physician’s choice of words, nor does it mandate the use

of any specific words. See this Brief at 12.

“Where fairly possible, courts should construe a statute to

avoid the danger of unconstitutionality.” Planned Parenthood

v. Ashcroft, 462 U.S. 476, 493 (1983). The Seventh Circuit’s

unwarranted construction of this provision clearly did not

attempt to avoid the danger of unconstitutionality. Rather,

the court read language, not enacted by the legislature, into

§ 1l(d) for the express purpose of striking that provision

down. Ashcroft teaches that such actions are entirely

inappropriate.”

''In addition, the court’s construction was contrary to the

construction giver. by appellants in both the district court and

court of appeals. In those courts, appellants argued that to

‘footnote continued on next page)

Since neither § 11(d) nor § 2(10) requires a physician to

espouse a theory of life, it cannot be said that they foist such

a theory of life on the physician’s patient. Therefore, it was

error for the court of appeals to strike these provisions as

impermissibly foisting a theory of life upon the physician

and his patient.

2. Physicians Do Not Have a Right, at Their Discre-

tion, to Administer Abortifacients to Women

Without Their Knowledge and Consent.

The second reason given by the court of appeals for strik-

ing §§ 2(10) and 11(d) was that they “intrude upon the

medical discretion of the attending physician.” J.S. at App.

41. Since the court does not delimit the right of doctors to

exercise “medical discretion,” or explain how these provi-

sions infringe upon it, it may be assumed that the court felt

that doctors somehow have an untrammelled right to

exercise their discretion and that any requirement which

relieves them of a portion of such discretion infringes upon

that right.

It is clear, however, that physicians have no such

independent right. They are not free to administer abor-

tifacients without the knowledge and consent of their

patients any more than they are free to perform an abortion

upon a woman without her consent and against her will.

Danforth, 428 U.S. at 67. See Part I A of this Brief.

(footnote continued from preceding page)

comply with § 11(d), doctors need only inform their patients

that they are administering abortifacients and nothing more.

State’s Attorney Daley and Attorney General Hartigan are

responsible for enforcement of these provisions. In both the

district court and the court of appeals, they adopted the briefs

of appellants as their own. See J.A. at 73-76, 135-138. This is a

limiting construction by the State which the court of appeals

was not free to ignore. Village of Hoffman Estates v. Flipside,

Hoffman Estates, 455 U.S. 489, 494 (1982).

Doctors have, on occasion, claimed that Doe v. Bolton, 410

U.S. 179 (1973), recognized a fundamental right “to practice

medicine free of unwarranted state interference.” Whalen,

429 U.S. at 604. However, such claims have been flatly

rejected by the Court. Speaking for an unanimous Court,

Justice Stevens stated:

The constitutional right vindicated in Doe was the right

of a pregnant woman to decide whether or not to bear a

child without unwarranted state interference. The

Statutory restrictions on the abortion provisions were

invalid because they encumbered the woman’s exercise of

that constitutionally protected right by placing obstacles in

the path of the doctor upon whom she was entitled to

rely for advice in connection with her decision. If those

obstacles had not impacted upon the woman’s freedom

to make a constitutionally protected decision, if they

had merely made the physician’s work more laborious

or less independent without any impact on the patient,

they would not have violated the Constitution.

Id. (emphasis added). See also Harris v. McRae, 448 U.S. 297,

318 n.21 (1980).

Accordingly, in order for §§ 2(10) and 11(d) to be unconsti-

tutional, they must place an obstacle in the path of the

physician and that obstacle must, in turn, encumber the

woman’s right “to decide whether or not to bear a child.”

Whalen, 429 U.S. at 604. The only possible “obstacle” that

§ 11(d) imposes is that it requires a physician to inform his

patient when he is giving her an abortifacient. However, the

court of appeals does not explain how this “obstacle” can be

said to “encumber” the woman’s right to choose abortion. It

never even addresses the question. Had it done so, it would

have been compelled to find that these sections do not encum-

ber the woman’s right at all since it is impossible for a

woman to choose an abortion when she does not know that

one is being offered to her.

It is not-surprising that no woman is before the Court

challenging the operation of § 11(d). Only appellees, physi-

cians and abortion clinics, are challenging it. These appel-

lees claim to represent the interests of their patients. Yet,

their claim must reduce to an argument that their female

patients have a right to obtain abortions by using abor-

tifacients in ignorance and that appellees have a derivative

right to keep them in ignorance. This Court has never

enunciated such a right and none exists. Thus, these sections

cannot be held unconstitutional on this basis.

3. It Is Not Inequitable to Protect The Right of

Women Who Are Opposed to the Use of Abor-

tifacients By Requiring That All Women Be

Informed When Abortifacients Are Prescribed for

or Administered to Them.

The court of appeals suggested that §§ 2(10) and 11(d) are

unconstitutional because it is inequitable to require that

women wishing to use abortifacients be told that they are

using them. J.S. at App. 42. The court fails to specify what

supposed burden is imposed upon these women and no such

burden is set forth in the record. A woman who is not

opposed to abortion would not be burdened by being

informed that an abortifacient has been prescribed for her.

If, indeed, distress is caused to a woman from knowledge

that an abortifacient has been prescribed for her, then it

must be because she has reservations about abortion.

Sections 2(10) and 11(d) are designed to protect the funda-

mental rights of women who are opposed to abortion by

allowing them to choose intelligently to refrain from using

abortifacients. Thus, these provisions protect those women

most likely to experience harm: those who unknowingly

would accept abortifacienis and later learn that what they

thought was a contraceptive or other medication was, in fact,

an article violating their most deeply held beliefs.

The only possible burden imposed by § 11(d) would be to

women who would like to use abortifacients but would prefer

to do so in ignorance. Such an interest in using abor-

tifacients in ignorance is neither fundamental nor sufficient

to strike this statute. The fundamental right of women who

are opposed to abortion to choose not to use abortifacients

must be given greater protection. The inequity of the situa-

tion is not, as the court below suggested, in protecting the

fundamental rights of women opposed to abortion. Rather,

the inequity lies in the court’s holding. That holding

requires the State to subordinate its compelling interest in

protecting the fundamental right of choice to the right of

some women to remain ignorant. The court of appeals

should not have invalidated §§ 2(10) and 11(d) in order to

protect such a speculative and spurious interest.

4. Sections 2(10) and 11(d) Do Not Infringe Upon the

Woman's Right of Private Decision-Making in Mat-

ters Relevant to Contraception.

The Seventh Circuit’s final reason for striking these sec-

tions was that they infringed upon the woman’s right to use

contraception. J.S. at App. 43. This statement, alone,

demonstrates the failure of the court to grasp the funda-

mental difference between contraceptives and abortifacients.

Section 11(d) applies only when an abortifacient (not a con-

traceptive) is being prescribed.

The only conceivable way that this section could infringe

upon a woman’s right to use contraceptives would be if the

State were to classify certain contraceptives as abortifacients

in an attempt to dissuade women from using those contracep-

tives. This the State has not done. Contraception refers to

the “artificial prevention of the fertilization of the human

ovum.” Webster’s New Twentieth Century Dictionary Unabridged

396 (2d ed. 1983). In contrast, abortifacients, because they

cause abortions, do not prevent fertilization. Rather, they

prevent birth after fertilization has taken place.

Section 2(10) does not define abortifacient in a manner that

would include methods of contraception. It applies only to

drugs that prevent birth after fertilization has taken place.

Only those drugs which the physician knows are abor-

tifacients and are in fact abortifacients are covered by § 11(d).

Therefore, it would be impossible for this section to infringe

upon a woman’s right to use contraceptives. Since these

sections do not even apply to contraception, they cannot be

held unconstitutional on this last ground.

II. A JUSTICIABLE CASE OR CONTROVERSY DID NOT

EXIST WITH RESPECT TO UNAMENDED SECTIONS

6(1) AND 6(4) IN THE COURT OF APPEALS

On June 30, 1984, after the issues were fully briefed in the

court of appeals but before oral argument, the General

Assembly enacted H.B. 1399. That bill amended a number of

provisions of the Illinois Abortion Law, including §§ 6(1) and

6(4). See Appendix to this Brief (App.) at 5a-7a.

A. A Live Case or Controversy Remains With Respect to

Amended §§ 6(1) and 6(4).

An amendment to a challenged law during the pendency

of litigation raises questions of mootness. Schall v. Martin,

104 S.Ct. 2403, 2405 n.2 (1984). “In the federal system an

appellate court determines mootness as of the time it was

filed.” Allee v. Medrano, 416 U.S. 802, 818 n.12 (1974). Conse-

quently, it is well-settled that federal appellate courts “must

review |lower court holdings] in light of presently existing | |

law, not the law in effect at the time that judgment was

rendered.” Fusari v. Steinberg, 419 U.S. 379, 387 (1975).

A change in law that so substantially alters the law as to

eliminate the questions under review moots those questions.”

In Allee, an amendment to a statute which was challenged on

vagueness grounds substantially altered the vagueness issue

The proper course of action for the reviewing court in such

circumstances is to vacate the lower court judgment with direc-

tions to dismiss the complaint as moot. Uniled States v.

Munsingwear, 340 U.S. 36, 39-40 (1950).

since the amended language was narrower than its predeces-

sor. 416 U.S. at 818. In such a case, “if there are no pending

prosecutions under the old statutes, the portion of the {lower

court’s| judgment relating to them {is} moot.” /d.

A change in law that does not moot all of the issues on

appeal requires the reviewing court to resolve those questions

which are not moot. FEA v. Algonquin SNG, Inc., 426 U.S.

548 (1976); Hines v. Davidowitz, 312 U.S. 52 (1941); Pacific Mail

Steamship Co. v. Joliffe, 69 U.S. 450 (1864). However, should

the reviewing court find that additional facts are necessary

in order to review the amended law, it may vacate the lower

court’s judgment and “remand for reconsideration in light of

the intervening changes in {the| law.” Fusari, 419 US. at

390. |

The Court’s decisions in Brockington v. Rhodes, 396 U.S. 41

(1969), and Hall v. Beals, 396 U.S. 45 (1969), illustrate the

governing principles for determining whether a live case or

controversy exists with respect to an amended law. In Brock-

ington, an Ohio statute that required the signatures of 7% of

the voters before a name could be placed on the election

ballot was challenged by a prospective candidate who had

obtained only 1% of the voters’ signatures. While the appeal

was pending before the Court, the relevant statute was

amended, reducing the signature requirement to 4%. In

response to a suggestion of mootness, the Court stated:

We do not think the recent statutory amendment has

rendered this case moot. For the appellant has consist-

ently urged the unconstitutionality of any percentage

requirement in excess of the 1% that Ohio imposed prior

to 1952, and he obtained the signatures of only about 1%

of the voters in his district. He thus could not have won

a place on the ballot even under the statute as currently

written.

Brockington, 396 U.S. at 43.

In contrast, in Hall v. Beals, a Colorado law requiring six

months residency prior to voting in a presidential election

was challenged by a class of persons who had resided in

Colorado for only five months and wished to vote in the

election. After probable jurisdiction had been noted, the law

was amended to require only two months in-state residency.

Reviewing “the judgment below in light of the Colorado

Statute as it now stands, not as it once did,” Hall, 396 U.S. at

48 (citations omitted), the Court held that the case was moot

since “under the statute as currently written, the appellants

could have voted in the 1968 presidential election.” Jd. Even

though appellants also opposed the two month residency

requirement, the court stated: “{Ajppellants’ opposition to

residency requirements in general cannot alter the fact that

so far as they are concerned nothing in the Colorado legisla-

tive scheme as now written adversely affects either their

present interests, or their interests at the time this litigation

was commenced.” Jd. at 48-49.

In applying the above principles to amended § 6(1), it is

not entirely clear whether a case or controversy continues to

exist. Whether appellees’ challenge of § 6(1) has been

mooted entirely depends upon whether appellees, in their

challenge of prior § 6(1), quesiioned the State’s ability to

regulate abortion on behalf of fetal life after viability, or

whether they based their challenge solely on vagueness

grounds. If the former, a live case or controversy remains

with respect to amended § 6(1) because appellants clearly

argue that the State has a right to regulate in that manner.

Application of Brockington and Hall to § 6(4) indicates that

a live case or controversy remains with respect to amended

§ 6(4). As in Brockington, appellees continue to urge the

unconstitutional.ty of the amended provision and appellants

continue to claim that it is constitutional. Appellees allege

that HB 1399 only “superficially” amended § 6(4) and that

the new language “retains the very standard held unconsti-

tutional by both the Court of Appeals and the District

Court.” ' Motion to Dismiss or Affirm (Motion) at 8. In

short, appellees maintain that the amended version of § 6(4)

eontains the same constitutional deficiencies as its

predecessor. ss

The existence of a live case or controversy with respect to

the amended law does not, however, mean that the court of

appeals was at liberty to review §§ 6(1) and 6(4) as they stood

unamended. If the court intended to render an opinion

affecting the rights of the litigants, it ought to have decided

the constitutionality of those sections as they stood amended.

This Court has jurisdiction to review the amended provi-

sions and sheuld do so. They present questions of law, not

fact, and there is no need to remand so that the record can be

expanded. Neither justice nor judicial economy would be

served by remanding this case. The State of Illinois has

already had its legitimate attempts to regulate in this area

frustrated by injunction since 1979. A remand would only

result in further delay with the same legal issues coming

before this Court at a later date.

‘* Apparently, appellees do not understand the term

“standard of care” used in old § 6(4) to be different from the

term “method of abortion” used in the amended version. It is

assumed that they base their statements on the fact that those

terms were equated by the court in Wynn v. Scott, 449 F.Supp.

1302 (N.D.I11. 1978), aff'd sub nom. Wynn v. Carey, 599 F.2d 193

(7th Cir. 1979).

‘In their Motion to Dismiss or Affirm appellees state that:

the] new section 6(4) continues to impose criminal! liability

on physicians who fail to act on behalf of a pre-viable fetus

with only a “possibility of survival” outside the womb.

Section 6(4) thus continues to contravene the prior holdings

of this Court barring regulation of previability abortions

unless that regulation is narrowly structured to protect

maternal health.

Motion at 10-11.

B. The Court of Appeals Erred in Reviewing Unamended

§ § 6(1) and 6(4).

In spite of the amendments to these provisions and the

mootness holdings of this Court, the court of appeals held

that the old sections were not moot. In so holding, it applied

the “voluntary abandonment” exception to mootness.

While it is true that voluntary cessation of allegedly

illegal conduct will not, standing alone, dispel a controversy,

it will have this effect if “(1) it can be said with assurance

that ‘there is no reasonable expectation ...’ that the alleged

violation will recur, and (2) interim relief or events have

completely and irrevocably eradicated the effects of the

alleged violation.” County of Los Angeles v. Davis, 440 U:S.

625, 631 (1979) (citation omitted).

There is no reasonable expectation that the alleged viola-

tion will recur because it is unreasonable to suggest that the

General Assembly would ever re-enact the old provisions

which it recently amended. The amendment of these sec-

tions did not constitute an abandonment by the State of any

regulation of abortion. Rather, it consisted entirely of “fine-

tuning” which left fully intact the substantive protection of

the life and health of the fetus which were afforded by

unamended §§ 6(1) and 6(4). Under both the old sections and

the new, the General Assembly sought to maximize the

chances of fetal survival after abortion. It did not simply

repeal certain language in anticipation of litigation in an

attempt to moot a consitutional challenge, and then re-enact

the same language at a later date. Cf. City of Mesquite v.

Aladdin’s Castle, 455 U.S. 283, 289 (1982).

As the court of appeals acknowledged, “the State has

attempted repeatedly to alter the con‘ urs of {the Illinois

Abortion Law] to reflect the latest judicial pronouncements

It should be noted that the amendment to § 6(1) followed a

favorable decision in the district court. Thus, it can hardly be

claimed that the State was attempting to avoid an unfavorable

ruling by the courts.

y.” JS. at App. 20. Far

from indicating malice, such actions indicate only a good

faith attempt by the legislature to conform its laws to the

holdings of this Court."* The General Assembly, in the

contu*xt of abortion regulation, has never repealed a chal-

lenged provision and subsequently re-enacted that same

provision at a later date. Thus, Mesquite is inapplicable. In

Mesquite, the city had a history of repealing its laws and later

reenacting them. 455 U.S. at 289. In addition, it openly

acknowledged that it intended to re-enact the challenged

provision in that case. /d. at 289 n.11.

in the area of abortion and privacy.”

Furthermore, the General Assembly clearly has no inten-

tion to re-enact unamended §§ 6(1) and 6(4) since the amend-

ments to those sections were made, in large part, because of

the addition of new § 6(2) providing for a second physician to

be present during post-viable abortions. See App. at 6a. The

language of the’ new section tracks the language of the

Missouri statute that was upheld in Planned Parenthood v.

Ashcroft, 462 U.S. 476, 479 n.3 (1983). The language of

unamended §§6(1) and 6(4) is inconsistent with § 6(2). It is

ludicrous to suggest, as appellees do, that the State of Illinois

would perform the arduous task of enacting a provision over

gubernatorial veto with the intent of later re-enacting its

prior provisions.’ Common sense requires that such a

scenario be rejected.

Moreover, appellees have offered no evidence that would

support such a conclusion. Thus, there is no reasonable

expectation that the State will reenact unamended §§6(1) or

6(4).

‘© H.B. 1399 was enacted after this Court’s holdings in Akron

and Ashcroft in 1983.

‘7 Unlike the municipal ordinance in Mesquite, a state statute

is far more difficult to enact. This is especially so in the

sensitive area of abortion where, as here, a 3/5 majority vote

was necessary to override the gubernatorial veto of H.B. 1399.

ane Nel ect Ee tS NR eT ae emt a

le en OR OY A ee Be OO

2 tees a

Finally, since appellees’ challenge to these sections was

purely facial, amendment of those provisions necessarily has

cured whatever “chilling” effect the unamended provisions

may have had upon appellees.” See Allee, 416 U.S. at 818.

This Court, in Cuiy of Los Angeles v. Lyons, 461 U.S. 95

(1983), recently held that, in order to meet the case or con-

troversy requirement of Article III of the U.S. Constitution,

(tlhe plaintiff must show that he ‘has sustained or is

immediately in danger of sustaining some direct injury’

as the result of the challenged official conduct and the

injury or threat of injury must be both ‘real’ and

‘immediate,’ not ‘conjectural’ or ‘hypothetical.’

Lyons, 461 U.S. at 101-102 (citations omitted).

There has been no showing, indeed appellees cannot show,

that unamended §§ 6(1) and 6(4) have a continued “chilling

effect” on their ability, presently or in the future, to perform

late term abortions. Late term abortions performed now or in

the future are governed by the amended provisions.

No person has ever been prosecuted under prior § 6(1) and

no prosecutions are now pending. Nor is there evidence that

any abortions were performed on a viable fetus during the

time when that section was enforceable in a manner inconsis-

tent with its dictates. The purely theoretical possibility of

prosecutions for violations of § 6(1) in its prior form which

might have occurred during the few months that that provi-

sion was enforceable, is not sufficient to establish a case or

controversy. Thus, the court of appeals erred in addressing

unamended §§ 6(1) and 6(4).

“Whatever “chilling effect” the unamended provisions may

have had on abortions performed during the months when

those provisions were. in effect, they do not now have a chilling

effect since they are no longer on the statute books.

Ill. THE UNAMENDED VERSION OF SECTION 6(1) IS

CONSTITUTIONAL BECAUSE IT IS REASONABLY

DRAWN TO PRESERVE THE COMPELLING STATE

INTEREST IN PROTECTING VIABLE UNBORN

LIFE, AND PLACES NO OBSTACLE IN THE PATH

OF A WOMAN EXERCISING HER RIGHT TO

TERMINATE A PREGNANCY

A. The State Interest in Protecting Fetal Life Subsequent

to Viability Is Compelling and Permits Regulation of

Methods of Abortion in Order to Enhance the Like-

lihood of Fetal Survival Where Such Regulations Do

Not Increase Any Risk to the Woman

Section 6(1)'® of the Illinois law presents this issue for

resolution: whether, in the exercise of its compelling interest

in the life cf the viable fetus, the State of Illinois may

regulate abortions performed after viability by requiring

employment of a standard of care to protect the life of the

fetus.”

'’Unamended § 6(1) states:

No person who intentionally terminates a pregnancy after

the fetus is known to be viable shall intentionally fail t

exercise that degree of professional skill, care and diligence

to preserve the life and health of the fetus which such

person would be required to exercise in order to preserve

the life and health of any fetus intended to be born and not

aborted. Any physician or person assistiag in such a

pregnancy termination who shall intentionally fail to take

such measures to encourage or to sustain the life of a fetus

known to be viable before or after birth commits a Class 2

felony if the death of a viable fetus or infant results from

such a failure.

Ill.Rev.Stat. ch. 38, 181-26(1) (1983).

Section 6(1) does not require the employment of any

measure to encourage or sustain the life of the fetus “which, in

the medical judgment of the physician performing the abortion

based on the particular facts of the case before him, would

‘nerease medical risk to the mother.” Ill.Rev.Stat. ch. 38, 1 81-

26(5) (1983).

Such regulation of abortion is constitutional given the

compelling state interest in fetal life at viability. “{Tjhe

State in promoting its interest in the potentiality of human

life may, if it chooses, regulate, or even proscribe, abortion

except where it is necessary, in appropriate medical judg-

ment, for the preservation of the life or health of the

mother.” Roe v. Wade, 410 U.S. 113, 164-165 (1973): Planned

Parenthood v. Ashcroft, 462 U.S. 476, 482 (1983). Regulation of

abortion after viability is valid if it “reasonably furthers the

State’s compelling interest in protecting the lives of viable

fetuses....” Ashcroft, 462 U.S. at 486. Furthermore, such

legislation “need not accommodate every conceivable contin-

gency.” Jd. at 485 n.7.

In Ashcroft, this Court upheld a provision that required the

attendance of a second physician during the abortion of a

viable fetus. Noting that the second physician will be able to

assure that the interest in preserving life is more fully

served than the physician performing the abortion alone

would be able to do, this Court concluded that the Missouri

provision “reasonably furthers the State’s compelling inter-

est in protecting the lives of viable fetuses.” Jd. at 486.

The provisions at issue here, prescribing a standard of care

toward viable fetuses, are no more burdensome than Mis-

souri’s second-physician requirement. The Missouri second-

physician provision requires that certain measures be taken

to preserve the life of any child which survives an abortion

performed after viability. Section 6(1) requires that fetal

protection measures be taken during the course of the abor-

tion performed after viability. In both instances, the State is

regulating when it has a compelling interest to do so and in a

manner that does not impermissibly burden the woman

Furthermore, two courts of appeals, including the Seventh

Circuit, have upheld provisions similar to § 6(1).

In Planned Parenthood v. Ashcroft, 655 F.2d 848, 863-864 (8th

Cir. 1981) affd in part and rev'd in part on other grounds, 462

U.S. 476 (1983), the Eighth Circuit found no constitutional

infirmity in Missouri’s requirement of the use of “fetal

survival methods” of abortion after viability. 655 F.2d at

863.

This is clearly within the State’s power, as long as it

does not interfere with medical judgment as to the

method necessary for the preservation of the life or

health of the mother.... Thus, the Missouri statute is

clearly constitutional in requiring use of a fetal survival

method when the risks of that method to the woman are

lower than alternatives. The oniy remaining question is

whether the State can constitutionally require the use of

the fetal survival method where the risk is equal. By

definition, if the risk is absolutely equal, the life and

health of the mother are subjected to no greater risk by

requiring use of the fetal survival method. By requir-

ing use of the fetal survival method when the risks from

it are less than or equal to the risk cf alternatives,

Missouri is within permissible bounds of regulation.

655 F.2d at 863 (citations and footnotes omitted). In addition,

the Seventh Circuit previously upheld a standard of care

virtually identical to the one at issue here. Wynn v. Scott, 449

F.Supp. 1302, 1321 (N.D.II1. 1978) (three-judge court), aff'd sub

nom., Wynn v. Carey, 599 F.2d 193 (7th Cir. 1979). Thus, state

regulation of the manner of performing an abortion after

viability is a valid exercise of the state interest in protecting

fetal life.

B. The Court of Appeals Erred in Holding § 6(1) to Be

Unconstitutional on Grounds of Vagueness and Chilling

Effect

The court of appeals “{did] not hold that the State may

never prescribe standards of care to physicians, or their

assistants, who perform abortions on a fetus which has

attained viability.” J.S. at App. 28. Nevertheless, the court

held the unamended version of § 6(1) unconstitutional. The

court found § 6(1) to be vague for two reasons: 1) it failed to

“specify that the attending physician’s viability determina-

tion alone shall govern,” J.S. at App. 28 and 2) it

“imprecisely informs physicians and their assistants as to

what conduct by them the State prohibits.” J.S. at App. 31.

The court then held that the vagueness of § 6(1) threatened

to chill the exercise of the physician’s best medical judgment

and thereby chill the exercise of the woman’s fundamental

right to consult her doctor about abortion and to receive her

doctor’s unimpeded medical judgment.

In reaching these conclusions, the court of appeals misap-

plied basic constitutional doctrines pertaining to vagueness.

As a three-judge federal panel wrote in upholding a prior

version of § 6(1), “{a] statute is not unconstitutional because

someone does not understand it.” Wynn v. Scott, 449 F.Supp.

at 1316. To be void for vagueness, “{a] criminal statute (must)

‘fail to give a person of ordinary intelligence fair notice that

his contemplated conduct is forbidden by the statute’ or (be!

so indefinite that ‘it encourages arbitrary and erratic arrests

and convictions.’” Colautti v. Franklin, 439 U:S. 379, 390

(1979) (citations omitted). No such danger is presented by

§ 6(1).

1. Under § 6(1), the Viability Determination of the

Physician Performing the Abortion Is

Determinative

Despite plain statutory language that only intentional

failure to provide the requisite standard of care on a fetus

known to be viable is subject to prosecution, the court of

appeals speculated that the term “known to be viable” may

not be limited to the knowledge of the physician who is

performing the abortion. “Section 6(1) does not specify...

which party, physician or assistant, must make this viability

determination....In addition, the section could make

criminal a physician’s failure to observe the required

standard of care in situations where some other physician,

but not the treating physician, believes that the fetus is

viable.” J.S. at App. 26.

Other provisions in the Illinois Abortion Law reveal that

this construction is untenable. Section 2(2), as amended in

1983, defines “viability” as follows:”

(That stage of fetal development when, in the medical

judgment of the attending physician based on the particular

facts of the case before him, there is a reasonable likelihood

of sustained survival of the fetus outside the womb,

with or without artificial support.

[ll.Rev.Stat., ch. 38, 1 81-22(2) (1983) (emphasis supplied).

In light of § 2(2), the only reasonable construction of the

phrase “known to be viable” is that it refers to a determina-

tion by the attending physician that the fetus is capable of

sustained survival outside of the womb.

Prosecution of the attending physician under § 6(1) would

require that he or she made the judgment of viability before

the abortion was performed but nevertheless intentionally

failed to comply with the standard of care requirements of

§ 6(1). Prosecution of one assisting the attending physician

would require that he or she knew that the attending

physician had made a determination of viability before the

abortion was performed, and that he or she nevertheless

intentionally failed to comply with the standard of care

requirements of § 6(1). The only determination of viability

that has any application under § 6(1) is the determination

made by the attending physician prior to the performance of

the abortion. A good faith judgment of nonviability will not

be second-guessed by the State. Cf. Ashcroft, 655 F.2d at 863-

864. However, if a physician has made a judgment that the

fetus is viable, the State may prohibit the use of an “abortion

method [which] is not necessary for the life or health of the

woman.” Id. at 864.

21'The preamble to the definitions in Section 2 of the Abortion

Law states that “{ujnless the language or context clearly indt-

cates a different meaning is intended, the following words or

phrases for the purpose of this Law shall be given the meaning

ascribed to them.” (Emphasis supplied),

In its opinion the court of appeals stated that a determina-

tion of viability by “others,” meaning non-physicians “who

assist physicians in the performance of abortions on a viable

fetus,” J.S. at App. 25, may bring § 6(1) into operation. The

court then reasoned that § 6(1) is unconstitutional because it

“could make criminal an assistant’s failure to use the

requisite standard of care in aborting a fetus which the assist-

ant but not the physician believes is nonviable.” J.S. at App.

26 (emphasis supplied). This holding demonstrates the con-

fusion in the analysis of the court of appeals. First, only a

physician can legally perform an abortion in Illinois.

Ill.Rev.Stat. ch. 38, 181-23.1 (1983); see also Connecticut v.

Menillo, 423 U.S. 9 (1975). Second, as previously established,

only a physician in the exercise of his medical judgment can

make a determination of viability. Ill.Rev.Stat. ch. 38, 1 81-

22(2). To construe § 6(1) otherwise is to ignore explicit lan-

guage in the remainder of the Illinois law, and to defy

common sense.

As this Court held in Ashcroft, “(where fairly possible,

courts should construe a statute to avoid a danger of uncon-

Sstitutionality.” 462 U.S. at 493. In this case, the court of

appeals did precisely the opposite. The Court ignored a

controlling statutory provision, and then proceeded to give a

twisted reading to a straightforward criminal provision,

which provision requires both prior knowledge and specific

intent before criminal liability could attach. The court thus

plainly erred in holding that § 6(1) does not specify that the

determination of viability of the attending physician shall

govern its operation.

2. The Standard of Care Required by § 6(1) Is Not

Vague.

The court also erred in holding that § 6(1) fails to give

adequate notice of the conduct that it requires of physicians

and their assistants. The standard of care imposed by § 6(1)

is not difficult to understand or apply. Physicians apply the

standard of care applicable to their particular specialty and

geographical location day in and day out in their practice.

In United States v. Vuitch, 402 U.S. 62 (1971), this Court

rejected a vagueness challenge to a statute which prohibited

abortions except where necessary to preserve maternal life or

health. Ruling that the term “health” did not render the

statute unconstitutionally vague, this Court stated “whether

a particular operation is necessary for a patient’s physical or

mental health is a judgment that physicians are obviously

called upon to make routinely whenever surgery is con-

sidered.” Jd. at 72. Thus, a regulation of abortion is not void,

as the court of appeals suggests, because it fails to state the

“precise” responsibilities of physicians. J.S. at App. 31. It is

permissible for States to set forth a general standard of care

and require physicians to exercise their medical judgment in

deciding how best to abide by that standard.

Indeed, a three-judge panel upheld an earlier version of

the Illinois law, prescribing a nearly identical standard of

eare, as follows:

(The statute] does not require that the physician

increase the risk to the woman in order to save the fetus.

If, however, there are instances where a physician has a

choice of procedures, both of equal risk to the woman,

the physician must choose the procedure which is least

likely to kill the fetus.

Wynn v. Scott, 449 F.Supp. at 1321.

Section 6(1), as it must, leaves the choice of procedures and

measures to be taken in any particular case to the medical

judgment of the attending physician. It penalizes only an

intentional failure, to make use of available measures to

preserve fetal life or health, provided such measures would

pose no increased risk to maternal life or health.”

In striking § 6(1) on grounds of vagueness, the court of

appeals adopted a standard of review that is far more hostile to

state regulation of abortion after viability than any which has

been adopted by this Court:

In addition, the State must precisely tailor its standards of

care to the particular State interest at stake so that its

statute precisely notifies physicians and their assistants as

” (footnote continued on next page)

3. Since § 6(1) Is Not Vague and the State Interest in

Protecting Fetal Life After Viability Is Compelling,

§ 6(1) Has No Impermissible “Chilling Effect” Upon

Any Constitutional Right.

Finally, the court of appeals erred in holding that § 6(1)

has a chilling effect upon the right to abortion because it

“abuts upon” the exercise of this right and prevents the

woman’s access to the physician’s advice and unimpeded

medical judgment. This holding is wrong on several counts.

First, § 6(1), standing alone, places no obstacle in the path of

a woman seeking an abortion. She is free to consult with her

physician and obtain an abortion based on his best medical

judgment. It merely regulates the manner in which the

physician may perform a post-viable abortion. Thus, § 6(1)

does not unconstitutionally “chill” the procurement of an

abortion.

Second, any impact which § 6(1) has upon the consultation

between a woman and her physician is plainly justified by

the compelling state interest in the life of the viable fetus

she is carrying. To say that this section “abuts upon” the

ability to obtain an abortion is to ignore the fact that the

State is empowered by its compelling interest in the fetus to

prohibit abortion altogether after viability, except where

necessary in medical judgment to preserve maternal life or

health. Roe, 410 U.S. at 164-165. Clearly, if the State can

(footnote continued from preceding page)

to what conduct by them the State purports to condemn.

Section 6(1) fails to give physicians and their assistanis

such explicit notice.

J.S. at App. 29 (emphasis supplied). In Ashcroft, this Court

indicated that a statute which operates after viability is consti-

tutional if it “reasonably furthers the State’s compelling inter-

est.” 462 U.S. at 486. Satisfaction of the standard proposed by

the court of appeals would effectively require the State to

legislate the parameters of medical judgment, contrary to the

opinions of this Court which require deference to the

physician’s medical judgment and the standards of accepted

medical practice. Akron, 462 U.S. at 431.

prohibit such abortions, it may take the less restrictive

measure of restricting harmful activity directed at the fetus

during the course of those abortions that are performed after

viability.

Third, the bare existence of a criminal penalty does not

produce an impermissible chilling effect. Many forms of

regulation of abortion impose some form of criminal liabil-

ity. This fact, in and of itself, does not constitute an uncon-

stitutional burden on the right to abortion. Menillo, 423 U.S.

at 10 (1975). Indeed, to suggest that a regulation of abortion

impermissibly “chills” the exercise of a constitutional right

merely because criminal sanctions attach if it is violated

would obliterate the ability of the State to regulate on behalf

of maternal health and fetal life and require that most of

this Court’s prior abortion decisions be overruled. Accord-

ingly, the court of appeals was in error when it invalidated

§ 6(1) on grounds of vagueness.

IV. SINCE UNAMENDED SECTION 6(4) PLACES NO

BURDEN UPON A WOMAN SEEKING TO OBTAIN

AN ABORTION AND IS SUPPORTED BY A

COMPELLING OR, AT LEAST, VERY

SUBSTANTIAL STATE INTEREST IN THE

PROTECTION OF FETAL LIFE, IT IS

CONSTITUTIONAL

The State has a legitimate interest in protecting fetal life

throughout pregnancy which grows in substantiality as the

pregnancy advances. Roe v. Wade, 410 U.S. 113, 163-164

(1973). The State of Illinois has sought to further its interest

in fetal life by regulating the method by which an abortion

may be performed in order to maximize the chances of fetal

survival. To this end, § 6(4)” requires that the method of

*>Unamended §6(4) states:

No person who intentionally terminates a pregnancy sha.

intentionally fail to exercise that degree of professional -

skill, care and diligence to preserve the life or health of the

fetus which such person would be required to exercise in

t (footnote continued on next page)

abortion most likely to preserve the life and health of the

fetus be used when, in the physician’s judgment, there is a

possibility of fetal survival. Section 6(4) does not apply

when the fetal survival method of abortion would increase

risk to the mother. I1].Rev.Stat. ch. 38, 1 81-26(5) (1983), App.

at 4a. Thus, the State has sought i» further its interest in

protecting the fetus without infringing upox the woman’s

right to terminate her pregnancy in any way.

The court of appeals invalidated § 6(4) for two reasons: 1)

it places a burden on the woman’s right to abortion by

placing the possibility of criminal sanctions against her

physician, and 2) it applies to certain previability abortions.

and is not supported by a compelling state interest. The

court of appeals erred on both counts.

A. Section 6(4) Does Not Burden ine Woman's Right to

Terminate Pregnancy

Section 6(4) regulates abortion when there is a possibility

known to the physician performing the abortion of sustained

survival of the fetus apart from the body of the mother with

or without artificial support. In such situations, the

physician and those assisting him must employ the same

degree of professional skill, care and diligence to preserve the

life and health of the fetus to be aborted as they would be

(footnote continued from preceding page)

order to preserve the life and health of any fetus intended

_ to be born and not aborted when there exists in the medical

judgment of the physician performing the pregnancy

termination based on the particular facts of the case before

him a possibility known to him of susiained survival of the

fetus apart from the body of the mother with or without

artificial support. Any physician or person assisting in

such a pregnancy termination who shall intentionally fail

to take such measures to encourage or sustain the life of

such a fetus before or after birth is guilty of a Class 3

felony if the death of a viable fetus or an infant results

from such failure.

Ill.Rev.Stat. ch. 38, 181-26(4) (1983).

required to exercise toward a fetus intended to be born and

not aborted. This standard of care has been construed to

mean that the physician must choose the method of abortion

most likely to cause fetal survival. See Wynn v. Scott, 449

F.Supp. 1302, 1321 (N.D.Ill. 1978), affd sub nom. Wynn v.

Carey, 599 F.2d 193 (7th Cir. 1979).

Section 6(4) does not, therefore, restrict in any way the

ability of a woman to obtain an abortion. It merely regulates

the manner in which a physician may perform an abortion

once he knows that there is a possibility of sustained

survival for the fetus without increasing risk to the mother.

The various methods of abortion cause greater or lesser

complications for the fetus. Dilatation and evacuation,

which entails dismemberment of the fetus, ensures fetal

death. Planned Parenthood v. Ashcroft, 462 U.S. 476, 483 n.7

(1983). A fetus may, however, survive a saline or pros-

taglandin abortion and the medical literature shows that

prostaglandin abortions have a greater incidence of live

birth. See, eg., Stroh & Hinman, Reported Live Births Follow-

ing Induced Abortion: Two and One-Half Years’ Experience In

Upstate New York, 126 Am.J.Obstet. & Gynecol. 83 (1976).

Moreover, in order to prevent the “complication” of live birth

following abortion, new technologies have been developed

which are designed solely to ensure the death of the fetus.

For example, toxic compounds such as urea are administered

prior to the performance of an instillation abortion to ensure

fetal death and avoid live birth.™ This is in spite of the fact

that such drugs may increase risk to the mother’s physical

health.”

4 See e.g., Haning & Peckham, Evaluation of Intra-amniotic

Adminstration of 120 gm of Urea with 5 mg of Prostaglandin F2

alpha for Midtrimester Termination of Pregnancy between 20 and 24

Weeks’ Gestation, 151 Am.J.Obstet. & Gynecol. 92 (1985); Grimes,

Second-Trimester Abortions in the United States, 16 Family Plan-

ning Perspectives 260, 265 (1984).

* See, e.g., Kajanoja, Induction of Abortion By Prostaglandins in

the Second Trimester of Pregnancy, -113 Acta Obstet.Gynecol.

(footnote continued on next page)

ae ls pi 7

Section 6(4) is intended only to restrict such hostile activ-

ity toward the fetus. In no circumstances is § 6(4) an obstacle

to the decision of whether or not to terminate the pregnancy.

The woman remains free to consult with her physician and

decide to terminate her pregnancy for whatever reason she

and her physician decide upon. She also remains free to

effectuate the decision by legally terminating her pregnancy.

Section 6(4) only restricts the manner in which the termina-

tion of pregnancy—emptying of the womb—can take place

Since it requires that the physician exercise his medical

judgment with the same degree of professional skill, care and

diligence to preserve the life or health of the fetus where this

can be done without increasing ary risk to the woman.

Despite these facts, the court of appeals held that § 6(4)

imposes a burden upon a woman seeking an abortion because

there is a “possibility that the woman will be unable to

exercise her privacy right because her doctor refuses to

perform an abortion at the risk of inducing criminal sanc-

tion.” <I.S. at App. 34. This analysis avoids the question that

is crucial to a sound constitutional analysis of § 6(4). That

question is whether the woman has a constitutional right to

terminate her pregnancy in a manner that ensures fetal

death when other methods that will not increase risk to her

and will offer a greater chance of fetal survival are available.

If she does not have such a right, then she has no constitu-

tionally protected right to obtain an abortion by a method

that will ensure fetal death. Her inability to obtain such an

abortion could not be said to violate any constitutional right.

To hold otherwise would be contrary to common sense and

the holdings of this Court. For example, under the court of

appeals’ analysis, it would be impermissible for a State to

require that all abortions be performed by a physician since

the refusal of doctors, in certain areas of the country, to

(footnote continued from preceding page)

Scandinavica Supp. 145, 148 (1983) (simultaneous injection of

PGF2 alpha and urea causes more frequent side effects than

when PGF2 alpha is given alone).

perform any abortions would limit the woman’s access to

abortion and would place an unconstitutional burden on the

woman’s right to terminate her pregnancy.

Such analysis was explicitly rejected by the Court in

Connecticut v. Menillo, 423 U.S. 9, 10 (1975). In Menillo, the

Court first determined that a woman does not have a consti-

tutional right to obtain an abortion in an unsafe manner.

Since she has no constitutional right to obtain an abortion by

a nonphysician, the Court held that a state statute requiring

that all abortions be performed by physicians did not violate

the woman’s right to terminate her pregnancy. /d.

The abortional! right, as recognized by this Court, is a right

to decide whether or not to terminate pregnancy (to expel the

fetus from the womb) and to safely effectuate the decision.

Roe, 410 U.S. at 153, Menillo, 423 U.S. at 10 (1975).

The right does not include a right to actively seek to kill

the fetus when there is a poss it the fetus is capable

of sustained survival outsid . No court has ever

held that the right secured » expansive. In fact,

such a notion has been specifica jected. In Wynn v. Scott,

the court noted:

If there are instances where a physician has a

choice of procedures, both of equal risk to the woman,

the physician must choose the procedure which is least

likely to kill the fetus. This choice would not interfere

with the woman’s right to terminate her pregnancy. /t

never could be argued that she has a constitutionally protected

right to kill the fetus. She does not.

Wynn v. Scott, 449 F.Supp. at 1321 (emphasis added). Since a

woman does not have a constitutional right to terminate a

pregnancy in a menner that will ensure fetal death, a state

statute requiring that the method of abortion used be one

that is safer for an unborn child, does not violate the

woman’s right to terminate her pregnancy.

Se a aa

Moreover, sound constitutional adjudication requires close

attention to what consequences flow from “state action” and

what consequences flow from unrelated private decisions and

conduct. Maher v. Roe, 432 U.S. 464, 474 (1977). The former

may be conceived as “burdens” on the right to abort, while

the latter lack constitutional significance. Harris v. McRae,

148 U.S. 297, 315 (1980). Particularly close attention to this

distinction is warranted in the present context-since appel-

lees claim that the private refusal of doctors to provide

abortions when a statute such as §6(4) is in place imposes an

unconstitutional burden on a women’s right to terminate her

pregnancy by limiting her access to abortions.

The requirements of §6(4) neither coerce nor significantly

encourage any physician to refuse to perform abortions by

the method most likely to result in fetal survival. Thus, the

private decisions of some physicians to refuse to perform all

abortions when there is a reasonable possibility of fetal

survival, simply because they are unable to perform them by

a method that would ensure fetal death, cannot be attributed

to the State.

For the foregoing reasons, § 6(4) does not burden a

woman's right to obtain a safe, legal abortion. Thus, the

court of appeals erred in holding that § 6(4) does create such

a burden.

B. The State Interest in Protecting Fetal Life Is Compel-

ling, or at Least Very Substantial, Whenever There Is a

Possibility of Sustained Survival of the Fetus Outside of

the Womb

1. The State’s Interest in the Fetus Is Coinelling

When the Fetus Is Potentially Able to Survive

Outside the Womb

This Court has consistently held that the State has a

compelling interest in protecting the lives of unborn children

who are capable of sustained survival outside of the womb.

In Roe, the Court held that the State’s interest in the fetus

becomes compelling when the fetus is “potentially able to

live outside the mother’s womb, albeit with artificial aid.”

410 U.S. at 160. See also Planned Parenthood v. Danforth, 428

U.S. 52, 63 (1976). That holding was reaffirmed in Colautt v.

Franklin, 439 U.S. 379, 393 n.11 (1979).*

Section 6(4) does not prohibit abortions. It merely protects

fetuses who have the potential to live outside the womb from

gratuitous hostile activity during the course of an abortion

that is unrelated to the process of “emptying the womb.”

Illinois has legitimately chosen to enforce this provisica at

the earliest point in pregnancy at which this Court has

recognized a compelling state interest in fetal life. The Roe

definition of viability clearly encompasses situations where

the physician knows, based on the facts of the case before

him, that there is a possibility of sustained survival.”

Since § 6(4) applies only when there is a possibility that

the fetus can survive, under Roe it operates at a time when

the State’s interest is compelling.

In Colautti, this Court eschewed the contention that the

earlier definitions of viability set forth in Roe and Danforth had

been rejected:

Tlhere is no merit in the dissenting opinion’s suggestion | |

that the Court has “tacitly disownjed}” the definition of

viability as set forth in Roe and Planned Parenthood. On the

contrary, as noted above [] we reaffirm what was said in

those decisions about this critical concept.

439 U.S. at 393 n.11 (emphasis in original).

7“Potential” is defined as “existing in possibility” in Web-

ster’s New Collegiate Dictionary 660 (1956), and as “possible” in

The American Heritage Dictionary of the English Language 1025

(1975). Thus in common usage, “potentially able to live” as

used in Roe means the same thing as “possibly able to live.

”

2. Even if the State Interest in Protecting Fetal Life When

There Is a Possibility of Sustained Survival of the Fetus

Is Not Deemed Compelling, It Is Nevertheless Very Sub-

stantial and, Therefore, Sufficient to Uphold a Regula-

tion, Such as § 6(4), That Imposes No Burden Upon a

Woman’s Right to an Abortion.

The court of appeals held that § 6(4) regulates “the abor-

tion of a fetus which is potentially viable,” J.S. at App.

32-33, and thus, regulates “the performance of abortions at a

Stage prior to viability.” Jd. at 33. Holding that the interest

in protecting fetal life becomes compelling only at viability,

and that the State’s interest was not compelling here, the

court struck § 6(4). The implication of the court’s holding is

that the State’s interest in the fetus is non-existent prior to

“viability” and suddenly becomes compelling at that point.

That analysis, however, is seriously flawed. The state inter-

est in protecting fetal life grows in substantiality during the

course of pregnancy and becomes compelling at the point of

viability. Roe, 410 U.S. at 164-165. Assuming, arguendo, that

the state interest concerning § 6(4) is not compelling, it is

certainly very substantial whenever there is a possibility of

sustained survival for the fetus outside of the womb. /d.

Section 6(4) does not burden the woman’s decision to abort.

It merely requires that the physician give attention to the

life and health of any fetus which he thinks has a possibility

of surviving. The State does not question the physician’s

good faith judgment, but it does require that, in light of this

judgment, the physician account for the possibility of sus-

tained fetal survival.

This exercise of the State’s important interest in protecting

fetal life is particularly appropriate because of the advances

in neonatal medicine that have brought the point at which a

fetus is potentially able to survive outside the womb within

the second trimester of pregnancy. See Charts of premature

infant survivability, App. at 8a-9a. An examination of these

charts shows the actual complexity of the medical judgment

of viability. In the more recent studies 50% of the fetuses of

gestational age of 24 weeks survived. By 26 weeks survival

increased to 67% and by 30 weeks to 95%. The possibility of

sustained survival is directly related to advancing gesta-

tional age and to birthweight. The more advanced gesta-

tional age, the greater the probability of survival.

Under this Court’s decisions the State has a compelling

interest in protecting any individual fetus for whom the

physician has made the determination that sustained

survival is possible. It is presumed that the physician’s

medical judgment is not made in a vacuum but will be based

on medical studies which show some possibility of survival

in the class in which a particular fetus falls. The fact that

some members of that class will not survive does not mean

that, by providing protection for an individual fetus, one has

sought to assert a compelling interest prior to viability.

Those fetuses who survive and who fall in the earliest

gestational stages for which modern medical technology can

bring about sustained survival, must have been viable. Con-

sequently, § 6(4) applies only to viable fetuses.

Given the substantiality of the state interest in protecting

fetal life when there is a possibility of sustained survival

and the lack of burden imposed upon the woman, § 6(4) is

constitutional. The court of appeals erred in striking it and

that holding should be reversed.

V. THE AMENDED VERSION OF SECTION 6(1) IS

CONSTITUTIONAL

The amended version of § 6(1) requires that a physician

use the method of abortion which is most likely to preserve

the life and health of the fetus when he has determined that

there is a reasonable likelihood of sustained survival of the

fetus outside the womb.”

The full text of Section 6(1) as amended reads as follows:

(a) Any physician who intentionally performs an abortion

when, in his medical judgment based on the particular

facts of the case before him, there is a reasonable likelihood

of sustained survival of the fetus outside the womb with or

without artificial support, shall utilize that method of

abortion which, of those he knows to be available, is in his

: (footnote continued on next page)

Thus, it applies only after fetal viability, and the determina-

tion of viability is left exclusively to the attending physician

as required by this Court’s precedents. See Colautti v.

Franklin, 439 U.S. 379, 387 (1979). Amended §6(1) also speci-

fies the required conduct—use of a method of abortion—that

must be met. Furthermore, § 6(1) requires no “trade-off” in

maternal life and health in favor of the state interest in fetal

life.” Section 6(5) of the Illinois law as amended by H.B.

1399 limits the application of § 6(1) as follows:

Nothing in Section 6 requires a physician to employ a

method of abortion which, in the medical judgment of

the physician performing the abortion based on the

particular facts of the case before him, would increase

medical risk to the mother.

Ill.Rev.Stat. ch. 38, 11 81-26(5) (1984 Supp.).

Accordingly, § 6(1) as amended fulfills all criteria of con-

Stitutionality for regulation of abortion after viability. The

court of appeals refused to hold that a State may never

regulate the method of abortion after viability. J.S. at App.

28. Its holding was based on vagueness. In fact, the court of

appeals stated affirmatively that the State “may regulate

(footnote continued from preceding page)

medical judgment most likely to preserve the life and

health of the fetus.

(b) The physician shall certify in writing, on a form

prescribed by the Department under Section 10 of this Act,

the available methods considered and the reasons for choos-

ing the method employed.

(ce) Any physician who intentionally, knowingly, or

recklessly violates the provisions of Section 6(1)(a) commits

a Class 3 felony.

Ill.Rev.Stat. ch. 38, 1 81-26(1) (1984 Supp.).

**The question of whether the State may legitimately require

some degree of trade-off of maternal health in the interest of

protecting fetal life or health is an open question, and not one

presented in this case. Cf. Planned Parenthood v. Ashcroft, 655

F.2d 848, 863 n.24.

abortions at or after the stage of viability even if the State’s

regulations interfere with a woman’s fundamental right to

choose abortion.” J.S. at App. 27 (footnote omitted).

The governing legal principles for amended § 6(1) are set

forth in part III A of this brief. Thus, for the reasons set

forth there, amended § 6(1) is constitutional.

VI. THE AMENDED VERSION OF SECTION 6(4) IS

CONSTITUTIONAL

As set forth in Part II of this brief, a live case or con-

troversy remains with respect to § 6(4) as amended. The

court of appeals should have reviewed § 6(4) as it stood

amended, but did not. The court’s holding, however, is

clearly controlling over both the amended and ‘unamended

versions of § 6(4). Since the court ruled upon unamended

§ 6(4), major treatment of the legal issues raised concerning

§ 6(4) has been set forth in Part IV of this brief dealing with

the unamended provision. Because the issues remain the

same regardless of which version is reviewed, those argu-

ments apply with equal force to amended § 6(4). Thus, for

the reasons set forth in Part IV, amended § 6(4) is also

constitutional.

*The amended version of § 6(4) reads as follows:

(a) Any physician who intentionally performs an abortion

when, in his medical judgment based on the particular

facts of the case before him, there is a reasonable pos-

sibility of sustained survival of the fetus outside the womb,

with or without artificial support, shall utilize that method

of abortion which, of those he knows to be available, is in

his medical judgment most likely to preserve the life and

health of the fetus.

(b) The physician shall certify in writing, on a form

prescribed by the Department under Section 10 of this Act,

the available methods considered and the reasons for choos-

ing the method employed.

(ec) Any physician who intentionally, knowingly, or

recklessly violates the provisions of Gestion 6(4)(a) commits

a Class 3 felony.

Ill.Rev.Stat. ch. 38, 181-26(4) (1984 Supp.).

CONCLUSION

The judgment and order of the court of appeals, insofar as

they entered a permanent injunction against Sections 2(10)

and 11(d), must be reversed. The judgment and order of the

court of appeals insofar as they entered a permanent injune-

tion against the unamended versions of Sections 6(1) and 6(4)

must be reversed and remanded with directions to vacate the

judgment and dismiss the cause as moot. If this Court

Should reach the merits of unamended Sections 6(1) and 6(4),

the judgment of the court of appeals entering a permanent

injunction against these sections must be reversed. If having

reversed the judgment of the court of appeals on mootness,

this Court should reach the merits of the amended versions

of Sections 6(1) and 6(4), these provisions are constitutional

and must be upheld.

Respectfully submitted,

DENNIS J. HORAN

Victor G. ROSENBLUM

EDWARD R. GRANT

*MAURA K. QUINLAN

CLARKE D. FORSYTHE

Americans United for Life

Legal Defense Fund

343 S. Dearborn St. No. 1804

Chicago, Ill. 60604

312/786-9494

Counsel for Appellants

Eugene F. Diamond, M.D., and

Jasper F. Williams, M.D.

*Counsel of Record

July 15, 1985

APPENDIX

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

THE CONSTITUTION

U.S. Const. amend. XIV, § 1 (in pertinent part):

“{Njor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction .the equal

protection of the laws.”

U.S. Const. amend. X:

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved

to the States respectively, or to the people.

ADDITIONAL STATUTORY PROVISIONS PRIOR TO

AMENDMENT BY H.B. 1399 ON JUNE 30, 1984

§1. It is the intention of the General Assembly of the

State of Illinois to reasonably regulate abortion in con-

formance with the decisions of the United States Supreme

Court of January 22, 1973. Without in any way restricting

the right of privacy of a woman or the right of a woman to

an abortion under those decisions, the General Assembly of

the State of Illinois do solemnly declare and find in reaf-

firmation of the longstanding policy of this State, that the

unborn child is a human being from the time of conception

and is, therefore, a legal person for purposes of the unborn

child’s right to life and is entitled to the right to life from

conception under the laws and Constitution of this State.

Further, the General Assembly finds and declares that long-

standing policy of this State to protect the right to life of the

unborn child from conception by prohibiting abortion unless

necessary to preserve the life of the mother is impermissible

only because of the decisions of the United States Supreme

Court and that, therefore, if those decisions of the United

States Supreme Court are ever reversed or modified or the

United States Constitution is amended to allow protection of

the unborn then the former policy of this State to prohibit

abortions unless necessary for the preservation of the

mother’s life shall be reinstated.

It is the further intention of the General Assembly to

assure and protect the woman’s health and the integrity of

the woman’s decision whether or not to continue to bear a

child, to protect the valid and compelling state interest in the

infant and unborn child, to assure the integrity of marital

and familial relations and the rights and interests of persons

who participate in such relations, and to gather data for

establishing criteria for medical decisions. The General

Assembly finds as fact, upon hearings and public disclosures,

that these rights and interests are not secure in the economic

and social context in which abortion is presently performed.

[ll.Rev.Stat. ch. 38, 1 81-21 (1983).

“Viability” means that stage of fetal development w hen,

in the medical judgment of the attending physician based on

the particular facts of the case before him, there is a reason-

able likelihood of sustained survival of the fetus outside the

won or without artificial support.

R t. ch. 38. 7 81-22(2) (1983

“Abortion” means the use of any instrument, medicine,

lrug or any other substance or device to terminate the

pregnancy of a woman known to be pregnant with intent t

Cause fetal leath.

lll. Rev.Stat. ch. 38, 7 81-22(6) (1983

“Fertilization” and “conception” each mean the fertiliza

watl

tion of a human ovum by a human sperm, which shall be

leemed to have eurred at the time when it 1s known a

zoon has penetrated the vitelline membrane of th

SVel Ihi« t

Vurm

Ill. Rev.Stat. ch. 38, 9 81-22(7) (1983

Aas

ima se deel OR

;

“Fetus” and “unborn child” each mean a human being

from fertilization until birth.

Ill.Rev.Stat. ch. 38, 1 81-22(9) (1983).

“Abortifacient” means any instrument, medicine, drug, or

any other substance or device which is known to cause fetal

death when employed in the usual and customary use for

which it is manufactured, whether or not the fetus is known

to exist when such substance or device is employed.

[ll.Rev.Stat. ch. 38, 7 81-22(10) (1983).

No abortion not necessary to preserve the life or health of

the mother shall be performed unless the attending

physician first certifies with reasonable medical certainty

that the fetus is not viable on a form prescribed by the

Department under Section 10 of this Law.

[ll.Rev.Stat. ch. 38, 9 81-25(1) (1983).

No person who intentionally terminates a pregnancy after

the fetus is known to be viable shall intentionally fail to

exercise that degree of professional skill, care and diligence

to preserve the life and health of the fetus which such person

would be required to exercise in order to preserve the life and

health of any fetus intended to be born and not aborted. Any

physician or person assisting in such a pregnancy termina-

tion who shall intentionally fail to take such measures to

encourage or to sustain the life of a fetus known to be viable,

before or after birth, commits a Class 2 felony if the death of

a viable fetus or infant results from such failure.

Ill. Rev.Stat. ch. 38, 1 81-26(1) (1983)

No person who intentionally terminates a pregnancy shall

intentionally fail to exercise that degree of professional skill,

care and diligence to preserve the life and health of the fetus

which such person would be required to exercise in order to

preserve the life and health of any fetus intended to be born

and not aborted when there exists, in the medical judgment

of the physician performing the pregnancy termination

based on the particular facts of the case before him, a pos-

sibility known to him of sustained survival of the fetus apart

from the body of the mother, with or without artificial

support. Any physician or person assisting in such a

pregnancy termination who shall intentionally fail to take

such measures to encourage or sustain the life of such a

fetus, before or after birth, is guilty of a Class 3 felony if the

death of a viable fetus or an infant results from such failure.

[ll.Rev.Stat. ch. 38, 1 81-26(4) (1983).

Nothing in Section 6 requires a physician or any other

person to employ any measures to encourage or sustain the

life of the fetus during the course of a pregnancy termina-

tion which, in the medical judgment of the physician per-

forming the pregnancy termination based on the particular

facts of the case before him, would increase medica! risk to

the mother.

Ill.Rev.Stat. ch. 38, 9 81-26(5) (1983).

Any person who sells any drug, medicine, inswwument or

other substance which he knows to be an abortifacient and

which is in fact an abortifacient, unless upon prescription of

a physician, is guilty of a Class B misdemeanor. Any person

who prescribes or administers any instrument, medicine,

drug or other substance or device, which he knows to be an

abortifacient. and which is in fact an abortifacient, and

intentionally, knowingly or recklessly fails to inform the

person for whom it is prescribed or upon whom it is adminis-

misdemeanor.

[1l.Rev.Stat. ch. 38, 1 81-31(d) (1983).

ADDITIONAL STATUTORY PROVISIONS SUBSE-

QUENT TO AMENDMENT BY H.B. 1399 ON JUNE 30.

1984

“Abortion” means the use of any instrument, medicine.

drug or any other substance or device to terminate the

| pregnancy of a woman known to be pregnant with an inten-

tion other than to increase the probability of a live birth, to

preserve the life or health of the child after live hirth, or to

remove a dead fetus.

‘

, [l].Rev.Stat. ch. 38, 1 81-22(4) (1984 Supp.).

: “Fertilization” and “conception” each mean the fertiliza-

tion of a human ovum by a human sperm, which shall be

deemed to have occurred at the time when it is known a

spermatozoon has penetrated the cell membrane of the ovum.

: [ll.Rev.Stat. ch. 38, 1 81-22(5) (1984 Supp.).

“Fetus” and “unborn child” each mean an individual

; organism of the species homo sapiens from fertilization until

live birth.

[l!.Rev.Stat. ch. 38, 1 81-22(6) (1984 Supp.

When the fetus is viable no abortion shall be performed

unless in the medical judgment of the attending or referring

physician, based on the particular facts of the case before

him, it is necessary to preserve the life or health of the

mother. Intentional, knowing, or reckless failure to conform

to the requirements of subsection (1) of Section 5 is a Class 2

felony.

[l].Rev.Stat. ch. 38, 7 81-25(1) (1984 Supp

4 .

a) Any physician who intentionally performs an abortion

when, in his medical judgment based on the particular facts

2 '

: of the case before him, there is a reasonable likelihood of

sustained survival of the fetus outside the womb, with or

without artificial support, shall utilize that method of abor-

tion which, of those he knows to be available, is in his

medical judgment most likely to preserve the life and health

of the fetus.

(b) The physician shall certify in writing, on a form

prescribed by the Department under Section 10 of this Act,’

the available methods considered and the reasons for choos-

ing the method employed.

(ec) Any physician who intentionally, knowingly, or

recklessly violates the provisions of Section (61a) commits

a Class 3 felony.

[1l.Rev.Stat. ch. 38, 9 81-26(1) (1984 Supp.).

(a) No abortion shall be performed or induced when the

fetus is viable unless there is in attendance a physician other

than the physician performing or inducing the abortion who

shall take control of and provide immediate medical care for

any child born alive as a result of the abortion. This require-

ment shall not apply when, in the medical judgment of the

physician performing or inducing the abortion based on the

particular facts of the case before him, there exists a medical

emergency; in such a case, the physician shall describe the

basis of this judgment on the form prescribed by Section 10

of this Act. Any physician who intentionally performs or

induces such an abortion ant intentionally, knowingly,

or recklessly fails to arrange for the attendance of such a

second physician in violation of Section 6(2a) commits a

Class 3 felony

(b) Subsequent to the abortion, if a child is born alive, the

physician required by Section 6(2)a) to be in attendance

shall exercise the same degree of professional skill, care and

diligence to preserve the life and health of the child as would

be required of a physician providing immediate medical care

to a child born alive in the course of a pregnancy termination

; . ; FOL pee at ee

I Se AMR a A eh gl OE i a SiS NNR A Esa: NA LG AOD MO! ie ean cac aeS

aed

which was not an abortion. Any such physician who inten-

tionally, knowingly, or recklessly violates Section 6(2)b)

commits a Class 3 felony.

Ill. Rev. Stat. ch. 38, 1 81-26(2) (1984 Supp.).

(a) Any physician who intentionally performs an abortion

when, in his medical judgment based on the particular facts

of the case before him, there is a reasonable possibility of

sustained survival of the fetus outside the womb, with or

without artificial support, shall utilize that method of abor-

tion which, of those he knows to be available, is in his

medical judgment most likely to preserve the life and health

of the fetus. F

(>) The physician shall certify in writing, on a form

prescribed by the Department under Section 10 of this Act.

the available methods considered and the reasons for choos-

ing the method employed.

recklessly violates the provisions of Section 6(4)(a) commits a

Class 3 felony.

[ll.Rev.Stat. ch. 38, 1 81-26(4) (1984 Supp.).

Nothing in Section 6 requires a physician to employ a

method of abortion which, in the medical judgment of the

physician performing the abortion based on the particular

facts of the case before him, would increase medical risk to

the mother.

[ll.Rev.Stat. ch. 38, 1 81-26(5) (1984 Supp.).

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References:

12.

13.

Bowes et al., Results of the Intensive Perinatal Management

of Very-Low-Birth-Weight Infants (501 to 1,500 Grams), 23

J.Reprod.Med. 245 (1979).

. Hack et al., The Low-Birth-Weight Infant: Evolution of a

Changing Outlook, 301 New Eng.J.Med. 1162 (1979).

. Philip et al., Neonatal Mortality Risk for the Eighties: The

Importance of Birth Weight/Gestational Age Groups, 68 Pedi-

atries 122 (1981).

. Koops et al., Neonatal Mortality Risk in Relation to Birth

Weight and Gestational Age: Update, 101 J.Pediatrics 969

(1982).

. Hirata et al., Survival and Outcome of Infants 501 to 750 gm:

A Six-Year Experience, 102 J.Pediatrics 741 (1983).

. Kraybill et al., Infants with Birth Weights Less Than 1,001 g:

Survival, Growth, and Development, Am.J. Diseases Chil-

dren 837 (1984).

. Goldenberg et al., Survival of Infants with Low Birth Weight

and Early ‘Gestational Age, 1979 to 1981, 149 Am.J.

Obstet.Gynecol. 508 (1984).

. Worthington et al., Factors Influencing Survival and

Morbidity with Very Low Birth Weight Delivery, 62

Obstet.Gynecol. 550 (1983).

.Goldenberg et al., Neonatal Mortality in Infants Born

Weighing 501 to 1,000 Grams, 151 Am.J.Obstet.Gynecol.

608 (1985).

. Herschel et al., Survival of Infants Born at 24 to 28 Weeks’

Gestation, 60 Obstet.Gynecol. 154 (1982).

. Dillon & Egan, Aggressive Obstetric Management in Late

Second-Trimester Deliveries, 58 Obstet.Gynecol. 685 (1981).

Milner & Beard, Limit of Fetal Viability, 1:8385 Lancet

1079 (1984).

Gilstrap et al., Survival and Short-Term Morbidity of the

Premature Neonate, 65 Obstet.Gynecol. 37 (1985).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.