Amicus Curiae Brief — Diamond v. Charles

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AUG 29 1985

Nos. 84-495 and 84-1379

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

RICHARD THORNBURGH, ef al..

‘ Appellants

AMERICAN COLLEGE OF OBSTETRICIANS AND

GYNECOLOGISTS, et al.

EUGENE F. DIAMOND, et al..

A ppe llants

ALLAN G. CHARLES, ef a/

On Appeal from the United States Courts of Appeals

for the Third and Seventh Circuits

BRIEF AMICI CURIAE ON BEHALF OF THE

NATIONAL ORGANIZATION FOR WOMEN;

HUMAN RIGHTS FOR WOMEN, INC.;

EQUAL RIGHTS ADVOCATES;

THE LEAGUE OF WOMEN VOTERS

FOR THE UNITEDSTATES:

NORTHWEST WOMEN’S LAW CENTER;

NATIONAL WOMEN’S LAW CENTER;

NOW LEGAL DEFENSE AND EDUCATION FUND;

AND WOMEN’S LEGAL DEFENSE FUND

DIANE E.. THOMPSON

Counsel

NATIONAL ORGANIZATION

FOR WOMEN, INC.

1401 New York Avenue, N.W

Washington, D.C. 20005

(202) 347-2279

Attorney for Amici Curiae

WILSON

- EPES PRINTING Co IN« 789-0096 - WASHINGTON. D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI

INTRODUCTORY STATEMENT AND SUMMARY

ARGUMENT

A WOMAN’S FUNDAMENTAL RIGHT TO

DECIDE WHETHER OR NOT TO TERMI-

NATE HER PREGNANCY—A RIGHT ES-

SENTIAL TO HER ABILITY TO CONTROL

HER OWN LIFE—MUST BE PROTECTED

FROM IMPERMISSIBLE GOVERNMENTAL

INTERFERENCE

A. The Supreme Court’s Decision in Roe v.

Wade Correctly Followed Well-Established

Precedent And Should Be Affirmed

. The Right To Choose Abortion Is, In Es-

sence, The Right To Control One’s Life,

Without Which Most Other Rights Become

Meaningless

THE CHALLENGED PROVISIONS IMPER-

MISSIBLY BURDEN-—AND IN SOME IN-

STANCES MAY EFFECTIVELY PREVENT

—THE EXERCISE OF THE FUNDAMEN-

TAL RIGHT OF A WOMAN TO DECIDE

WHETHER OR NOT TO TERMINATE HER

PREGNANCY

A. Pennsylvania’s Restriction On Abortion

Methods Absent “Significantly Greater” Risk

To The Mother Is Void For Vagueness

. Section 6(4) Of The Illinois Law, Which Re-

stricts Abortions Prior To Viability, Is Un-

constitutionally Overbroad And Is Void For

Vagueness

TABLE OF CONTENTS—Continued

1. Section 6(4) Is Unconstitutionally Over-

broad Because It Seeks To Regulate

Abortions Based On The State’s Interest

In “Potential Life” Prior to Viability

29 Section 6(4) Is Void For Vagueness

Sections 2(10) and 11(d) Of The Illinois

Law Impermissibly Infringe Upon A

Woman’s Right To Privacy In Decisions Re-

garding Birth Control And Are Void For

Vagueness

1. The State May Not Regulate Abortion

Based On The State’s Theory Of Life

2. The “Abortifacient’”’ Provision Is Void

For Vagueness

CONCLUSION

APPENDIX

Page

iil

TABLE OF AUTHORITIES

Cases: Page

Abele v. Markle, 351 F. Supp. 224 (D.Conn. 1972).. 8

Akron v. Akron Center for Reproductive Health,

Inc., 462 U.S. 416 (1983) ..........20...20000222222. passim

Beal v. Doe, 482 U.S. 438 (1977) _.......00000.. Se 15

Boyd v. U.S., 116 U.S. 616 (1886) ............................ 6

Charles v. Carey, 627 F.2d 772 (7th Cir. 1980) 27

Colautti v. Franklin, 439 U.S. 379 (1979) 21, 22, 24, 25

Doe v. Bolton, 410 U.S. 179 (1973) _............. _...11, 12, 19

Eisenstadt v. Baird, 405 U.S. 438 (1972) -.............6, 7, 8, 9

Griswold v. Connecticut, 381 U.S. 479 (1965) _.....6, 7, 8, 9

Harris v. McRae, 448 U.S. 297 (1980) 0. 19

Leigh v. Olson, 497 F. Supp. 1340 (D.N.D.(1980).. 19

Loving v. Virginia, 388 U.S. 1 (1967) .... ices 6

Maher v. Roe, 432 U.S. 464 (1977) 5, 11, 15, 19, 20

Mapp v. Ohio, 367 U.S. 648 (1961) 0... 6

Meyer v. Nebraska, 262 U.S. 390 (1923) . 6,8

Margaret S. v. Edwards, 488 F. Supp. 181 (E.D.La

1980) Dee od — =o ee 19

Muller v. Oregon, 208 U.S. 412 (1908) 14

Pierce v. Society of Sisters, 268 U.S. 510 (1925) 6,8

Planned Parenthood of Central Missouri v. Dan-

forth, 428 U.S. 52 (1976) ee A een

Poe v. Gerstein, 517 F.2d 787 (5th Cir. 1975),

aff'd mem. sub nom. Gerstein v. Coe, 428 U.S

901 (1976) an , a Pae : 19

Roe v. Wade, 410 U.S. 113 (197 3) % passim

Stanley v. Georgia, 394 U.S. 557 (1969) _....000... 6

United States v. Harris, 347 U.S. 612 (1954) _..... 25

Whalen v. Roe, 429 U.S. 589 (1977) Ce 20

Women’s Health Services v. Maher, 482 F. Supp.

725 (D.Conn.), vacated, 636 F.2d 23 (2d Cir.

1980) _......... 5 oe ee 10 Ke OI 16

Women’s Medical Center of Prov ince, Ime. v. Can-

non, 463 F. Supp. 531 (D.R.1. 1978) _..0000000...... 19

YWCA v. Kugler, 342 F. Supp. 1048 (D.N J.

a neh i ea ah a ae 15

TABLE OF AUTHORITIES—Continued

Constitution and statutes: Page

U.S. Const. :

ASIN aT aa AES MEM SLT APMED 6

ee) ae es 6

a 6, 7, 9, 10

18 Pa. Cons. Stat. Ann. §§ 3201-3220 (Purdon

1983) :

ERE eee cavden a Rave ANA A oA Sons ee 22

S $210(b) ................ TSE Se ORS NEST PRIS os 3, 4, 21

Illinois Rev. Stat. Ch. 38:

| 81-22(6) (1983) (Section 2(6)) 0... L.. 29

* 81-22(10) (1983) (Section 2(10) ) _......25, 26, 28, 29

| 81-26(1) (1983) (Section 6(1) ) -.....0-00.. 22, 24

" 81-26(4) (1983) (Section 6(4)) 00.0000. 4, 22, 23,

24, 25

| 81-31(d) (1983) (Section 11(d)) —........ 4, 25, 26, 27

Miscellaneous:

Alan Guttmacher Institute, Abortion In _ the

United States: Two Centuries of Experience, 2

Issues in Brief, No. 4 (1982) —.........00002002 ee. 15

B. Babcock, A. Freedman, E.H. Norton and S.

Ross, Sex Discrimination and the Law, Causes

and Remedies (1975) .......... aiciaiaieiadamanaimaunniaies 14

Bates and Zadowzki, Criminal Abortion (1964).... 15

W. Cates, Legal Abortion: The Public Health Rec-

ord, 215 Science 1586 (March 26, 1982) __......... 14

Center for Disease Control, 33 Morbidity & Mortal-

ity Weekly Report, No. 26 at 373 (July 6, 1984).. 4

Decker and Hall, Treatment of Abortion Infected

With Clostridium Welchii, 95 Am. J. Obst. &

en 15

N. Erickson, Women and the Supreme Court:

Anatomy Is Destiny, 41 Brooklyn L. Rev. 209

IIIT scaseasieaeccesaninisieteaddaabadbadictiataeedphdiamesbibmataeanicie ciahloatiaiath 13

TABLE OF AUTHORITIES—Continued

Heymann and Barzelay, The Forest for the Trees:

Roe v. Wade and Its Critics, 53 B.U.L. Rev. 765

I Ss 2 atm iandediiiabninnes

C. Jones, Abortion and the Consideration of Funda-

mental, Irreconciliable Interests, 33 Syracuse L.

Rev. 565 (1982) saciaahiielaadeniaasiebdaaeanmneihds

L. Kanowitz, Sex Roles in Law and Society

Revolution (1969) se peahah insta thahes latent taeda

Le Bolt, Grimes and Cates, Mortality From Abor-

tion and Childbirth, 248 J. AMA 188 (1982)

Luker, Abortion & the Politics of Motherhood

(1984) leeks .

Mortiz and Thompson, Septic Abortion, 95 Am. J.

Obst. & Gynec. 46 (1966) ....................222.0...-...-.-

National Center for Health Statistics, 33 Advance

Report of Final Natality Statistics, No. 6 Sup-

plement at 13, Table 2 (September 28, 1984)

Note, Constitutional Law—Regulations of Condi-

tions of Employment of Women: A Critique of

Muller v. Oregon 13 B.U.L. Rev. 276 (1933)

Presidential Task Force of the Citizens’ Advisory

Council on the Status of Women, Task Force

Report on Family Law and Policy 31 (1968)

Reid, Assessment and Management of the Seri-

ously Ill Patient Following Abortion, 199 J.

AMA 805 (1967)

Rommer, Sterility: Its Cause and Its Treatments

59 (1952)

Shenoi, Smits and Davidson, Massive Removal of

Small Bowel During Criminal Abortion, 2 Brit.

Med. J. 929 (1966) =

Studdiford and Douglas, Placental Bacteremia: A

Significant Finding in Septic Abortion Accom-

panied by Vascular Collapse, 71 Am. J. Obst. &

Gynec. 842 (1956)

Page

TABLE OF AUTHORITIES—Continued

Page

Tribe, The Supreme Court, 1973 Term—Forward:

Toward A Model of Roles in the Due Process of

Life and Law, 87 Harv. L. Rev. 1 (1973) .........9, 13, 28

Trussell, Menken, Lindheim and Vaughan, The Jm-

pact of Restricting Medicaid Financing For

Abortion, 12 Family Planning Perspectives, No.

Be TE GE BD cricecccncnccissoccinccvcrencemcsensnamvosnsecenes 16

P. MacDonald 16th ed. 1980) . aie 26, 28, 29

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-495

RICHARD THORNBURGH, et al.,

- Appellants

AMERICAN COLLEGE OF OBSTETRICIANS AND

GYNECOLOGISTS, et al.

No. 84-1379

EUGENE F. DIAMOND., et al.,

v. Appellants

ALLAN G. CHARLES, et al.

On Appeal from the United States Courts of Appeals

for the Third and Seventh Circuits

BRIEF AMICI CURIAE ON BEHALF OF THE

NATIONAL ORGANIZATION FOR WOMEN;

HUMAN RIGHTS FOR WOMEN, INC.;

EQUAL RIGHTS ADVOCATES;

THE LEAGUE OF WOMEN VOTERS

FOR THE UNITED STATES;

NORTHWEST WOMEN’S LAW CENTER;

NATIONAL WOMEN’S LAW CENTER;

NOW LEGAL DEFENSE AND EDUCATION FUND;

AND WOMEN’S LEGAL DEFENSE FUND

INTEREST OF AMICI

This brief amici: curiae is being submitted on behalf of

the National Organization for Women (NOW), Human

Rights for Women, Inc., Equal Rights Advocates, The

League of Women Voters for the United States, North-

west Women’s Law Center, National Women’s Law Cen-

ter, NOW Legal Defense and Education Fund, and Wom-

en’s Legal Defense Fund.' Amici are women’s rights and

civil rights organizations? whose constituencies and in-

terests are seriously affected by the decisions in these

eases. At issue is whether a woman’s fundamental right

to privacy in deciding whether or not to terminate a preg-

nancy will continue to be protected against undue state

interference. Amici file this brief because of the ex-

traordinary importance of this right to women, girls and

their families.

INTRODUCTORY STATEMENT AND SUMMARY

As recently as 1983, in a series of cases involving state

statutes and local ordinances restricting access to abor-

tions, this Court reaffirmed that the fundamental con-

stitutional right of privacy encompasses, and _ protects

against undue governmental] interference, a woman’s right

to make the highly personal choice whether or not to

terminate her pregnancy. Akron v. Akron Center for Re-

productive Health, Inc., 462 U.S. 416, 420 (1983). The

instant cases again present for this Court’s review state

legislation that attempts to restrict the exercise by women

of this constitutionally protected right.

In Thornburgh v. American College of Obstetricians

and Gynecologists, No. 84-495, this Court is being asked

to review the constitutionality of various sections of the

Pennsylvania Abortion Control Act, 19 Pa. Cons. Stat.

Ann. $$ 3201-3220 (Purdon 1983) (“Pennsylvania Act’’),’

1 Counsel for all parties have consented to the filing of this brief.

Their letters of consent have been filed with the Clerk.

2 Statements describing each organization appear in the Appendix

to this brief.

* The Pennsylvania Abortion Control Act, at issue in Thornburgh,

No. 84-495, was signed into law on June 11, 1982, prior to this

Court’s ruling in Akron. See Jurisdictional Statement at &a-1l4a,

Thornburgh, No. 84-495.

which require, inter alia, that the method used in perform-

ing abortions involving a viable fetus, absent “significantly

greater” risk to the mother, be that most likely to result

in live birth Section 3210(b)).* The Third Circuit held

these provisions unconstitutional. Jurisdictional State-

ment at 43a-50a, 68a-7la, Thornburgh, No. 84-495 |here-

inafter cited as Thornburgh, J.S.|.

The Illinois Abortion Law of 1975, as amended (the

“Tllinois law’), at issue in Diamond v. Charles, No. 84-

1379, makes it a felony for a physician performing an

abortion involving a fetus that the physician knows has

“a possibility . . . of sustained survival” to fail to exer-

cise a certain standard of care toward the fetus and re-

quires that doctors who prescribe certain types of birth

control substances or devices inform their patients that

they are being given “abortifacients.” ° The Seventh Cir-

cuit held both of these provisions unconstitutional. Juris-

dictional Statement, Appendix at 32-43, Diamond, No.

84-1379 [hereinafter cited as Diamond, J.S. App.}.

* Also presented for review are requirements that: two physi-

cians be present at all abortions performed after viability;

certain specified information be provided to all abortion patients;

physicians and abortion providers submit reports on all abortions

and facilities; minors seeking abortions obtain the consent of at

least one parent or guardian; and, certain printed material dis-

cussing available social services and scientific information about

the fetus be made available by the state. All of these provisions

were struck down by the Third Circuit. Although Amici believe

that all of these provisions are invalid and urge affirmance of the

Third Circuit’s decision, they will not address them further herein.

The Third Circuit also struck down the section of the statute

requiring more expensive insurance premiums for health and dis-

ability policies that include abortion coverage. Appellants did not

appeal this ruling.

° The statute also makes it a felony for a physician who per-

forms an abortion involving a fetus “known to be viable” to fail

to use the specified standard of care toward the fetus. The Seventh

Circuit found this provision to be unconstitutionally vague. Amici

urge affirmance of that finding, but will not address this provision

further.

The right to privacy in the decision whether to termi-

nate a pregnancy—the most profound and difficult of

procreative and personal decisions—was first recognized

in Roe v. Wade, 410 U.S. 113 (1973), and strongly re-

affirmed two years ago in Akron. None of the parties to

these appeals have taken issue with this Court’s holdings

in Roe and Akron. An amicus brief filed by the Acting

Solicitor General, however, urges this Court to reconsider

and reverse Roe v. Wade. Amici submit that this attack

is constitutionally flawed and blatantly hostile to the

health and lives of girls® and women. The first section of

this brief examines the arguments made by the Solicitor

General urging reversal of Roe v. Wade and sets forth

why those arguments are insupportable. Roe v. Wade

must again be affirmed unequivocably. é

In the second part of the brief, Amici consider the

three statutory provisions identified above: the method

of abortion (Section 3210(b)) provision of the Pennsyl-

vania Act; anc the standard of care toward a potentially

viable fetus (Section 6(4)) and “abortifacient” (Section

ll(d)) provisions of the Illinois law. As was recog-

nized by the respective Courts of Appeals in their rulings

on cases, these three provisions impermissibly re-

S fundamental right of a woman to choose to

have an abortion. Amici will argue below that these rul-

ings should be upheld. These three provisions, as meas-

* Throughout this brief, any reference to women is intended to

include girls as well, because the right to choose to have an abortion

is of fundamental significance to any female of childbearing age

See Plann: d Pare nt/ OOF of M Ssouri Dantfor f} ' 12 ) = 52

1976). In 1981, 28° of all abortions—approximately 264,210

were performed on girls 19 years old or younger. Center for Dis

ease ( ontrol. 33 Morbid fu & Vort Iy% / Wee bel a Ry port Ni ¢,

p. 573 (July 6, 1984 In addition, in 1982, girls between the ages

of 15 and 19 had 513,758 live births. National Center for Healt}

Statictics, 33 Advance Report of Final Natality Statistics. N 6.

Supplement, p. 13, Table 2 (September 28, 1984

ured according to strict judicial scrutiny,’ are uncon-

stitutional.®

ARGUMENT

I. A WOMAN’S FUNDAMENTAL RIGHT TO DECIDE

WHETHER OR NOT TO TERMINATE HER PREG-

NANCY—A RIGHT ESSENTIAL TO HER ABILITY

TO CONTROL HER OWN LIFE—MUST BE PRO-

TECTED FROM IMPERMISSIBLE GOVERNMEN-

TAL INTERFERENCE.

A. The Supreme Court’s Decision In Roe v. Wade Cor-

rectly Followed Well-Established Precedent And

Should Be Affirmed.

Based on a long and compelling line of constitutional

authority through which the Court endeavored to give

meaning and substance to the concept of personal liberty

guaranteed by the Constitution, this Court concluded in

1973 that the right to privacy is “broad enough to encom-

pass a woman’s decision whether or not to terminate her

pregnancy.” Roe v. Wade, 410 U.S. at 152-56. Although

the Court rejected arguments that the woman’s right to

choose an abortion is absolute, it deemed the right funda-

mental. /d. at 155.

Roe v. Wade follows this Court’s prior rulings about

the right to privacy. The right to privacy in family,

marital and reproductive decisions has been, for many

‘The strict scrutiny standard is called into play if two conditions

exist. First, the obstacle to the exercise of the fundamental right

must have been created by the government. Maher v. Roe. 432

U.S. 464 (1977). Second, the restriction must impinge upon the

exercise of the fundainental right. Danforth. 428 U.S. 52 (1976

oince both condith ns are present, the obstacles created by the

Pennsylvania and Illinois statutes can stand only if justified by a

compelling state interest narrowly drawn. Roe v. Wade. 410 US.

113 (1973

“In both of these cases appellants raise jurisdictional issues.

cluding whether or not the respective Courts of Appeals exceeded

their proper scope of review These issues, aithough important,

are outside the specific interests of Amici and are not addressed

herein.

decades, consistently protected by the Supreme Court.

Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. So-

ciety of Sisters, 268 U.S. 510 (1925); Griswold v. Con-

necticut, 381 U.S. 479 (1965); Loving v. Virginia, 388 U.S.

1 (1967); Stanley v. Georgia, 394 U.S. 557 (1969); Eisen-

stadt v. Baird, 405 U.S. 488 (1972). The first of these

privacy cases, Meyer, held that the 14th Amendment

to the U.S. Constitution protects a zone of family and

marital rights that are recognized as “essential to the

orderly pursuit of happiness.” The Court stated that

[wlhile this Court has not attempted to define with

exactness the liberty thus guaranteed,... | without

doubt, it denotes not merely freedom from bodily re-

straint, but also the right of the individual . . . to

marry, establish a home and bring up children, to

worship God according to the dictates of his own

conscience ....

Id. at 399. Thus, fifty years before Roe v. Wade, this

Court recognized that the Constitution protected the

marital and family privacy of individuals from govern-

mental intrusion.

The area of marital privacy was also protected by the

Court in Griswold. In that case, the state of Connecticut

made the use of contraceptives a criminal offense. The

Court found that the statute was an unconstitutional in-

vasion of privacy. Justice Douglas’ majority opinion jus-

tified the constitutional right of privacy as a logicai and

“necessary corollary of the specific guarantees of the Bill

of Rights. “[S]pecific guarantees in the Bill of Rights

have penumbras, formed by emanations from those guar-

antees that help give them life and substance. (Citation

omitted.) Various guarantees created zones of privacy.”

381 U.S. at 484. The prohibition against contraception

affected “a relationship lying within the zone of privacy

created by several fundamental constitutional guarantees.”

Id. at 485. Citing Boyd v. U.S., 116 U.S. 616, 630 (1886)

and Mapp v. Ohio, 367 U.S. 643, 656 (1961), this Court

found that the Fourth and Fifth Amendments “create a

zone of privacy,” a right to be left alone by government

in marital and family relationships. /d. at 484-5. Finally,

in concluding his opinion, Justice Douglas described the

marital right of privacy as one that predates the consti-

tutional framework itself:

We deal with a right of privacy older than the

Bill of Rights-——older than our political parties, oider

than our school systems. Marriage is a coming to-

gether for better or for worse, hopefully enduring,

and intimate to the degree of being sacred. It is an

association that promotes a way of life, not causes;

a harmony in living, not political faiths; a bilateral

loyalty, not commercial or social projects. Yet it is

an association for as noble a purpose as any involved

in our prior decisions.

Id. at 486.

In Hisenstadt v. Baird, this Court clarified the holding

in Griswold by concluding that the right to privacy in

making reproductive choices applied to single persons as

well as to married couples. The Court held that dissimilar

treatment of married and unmarried persons in limiting

access to contraceptives violated the equal protection

clause of the 14th Amendment. The Court concluded that

there was no rational explanation for the different treat-

ment of married and unmarried persons. The Court stated

that, whereas in Griswold the issue was marital privacy,

such privacy rights belong not to the couple as an en-

tity, but to each member of the couple:

It is true that in Griswold the right of privacy in

question inhered in the marital relationship. Yet the

marital couple is not an independent entity with a

mind and heart of its own, but an association of two

individuals each with a separate intellectual and emo-

tional makeup. /f the right of privacy means any-

thing, it ia the right of the individual. married or

single, to be free from unwarranted qove rnmental in-

trusion into matters so fundamentally affecting a

pe rson as the decision whe ther to hear or be get a

child.

Kisenstadt, 405 U.S. at 453 (emphasis added). Thus, the

Court established that the fundamental right to make

choices regarding one’s reproductive life free of unwar-

ranted governmental intrusion belonged to each individual.

The government claims that this Court’s subsequent

holding in Roe v. Wade, that the right to privacy encom-

passes a woman’s right to decide whether to have an

abortion, was a radical departure from historical constitu-

tional precedent. This claim is patently false. While Roe

v. Wade dealt with medical procedures that were unavail-

abe throughout much of the nation’s history, and while

the decision was this Court’s first pronouncement on abor-

tion, the decision nonetheless followed an established con-

stitutional framework.’ In asking for reversal of Roe v.

Wade, while not questioning the right of privacy as a

fundamental constitutional right, the government asks this

Court for an illogical, nonsensical constitutional holding.

As Justice Stewart noted in his concurring opinion in Roe,

Certainly the interests of a woman in giving of her

physical and emotional self during pregnancy and the

interest that will be affected throughout her life by

the birth and raising of a child are of a far greater

degree of significance and personal intimacy than

the right to send a child to private school protected

in Pierce v. Society of Sisters, 268 U.S. 510 (1925).

or the right to teach a foreign language protected in

Meyer v. Nebraska, 262 U.S. 390 (1923).

Id. at 170 (quoting Abele v. Markle, 351 F. Supp. 224,

227 (D.Conn. 1972)). The government’s argument, if

successful, would lead to the absurd conclusion that

whether or not a child is ‘eunght German or French is a

more intimate and priv: matter than whether or not

one has a child at all.

The government’s attack on Roe, for the most part,

ignores the analytic framework of the privacy doctrine

set out in Griswold, Eisenstadt and Roe. It does not con-

sider what the right of privacy means or how it has de-

veloped through this Court’s pronouncements over the past

sixty-odd years. Thus, the government urges this Court

* See Heymann and Barzelay, The Forest and the Trees: Roe v.

Wade and Its Critics, 53 B.U.L. Rev. 765 (1973).

to abolish the privacy doctrine as it applies to abortions,

but does not seek reversal of Griswold or Eisenstadt. Its

brief in no way explains how the right to privacy can

protect birth control usage and yet not apply to the right

of women to determine whether or not they will carry a

pregnancy to term. The Solicitor General claims, in a

footnote, that the holding in Griswold was based on a con-

cern that enforcing the statute would have required “gov-

ernmental prying into the privacy of the home.” Brief for

the United States as Amicus Curiae at 28 n.6, Thornburgh

and Diamond [hereinafter cited as S.G. Brief]. Outlaw-

ing abortion, the government claims, can be done without

such “repulsive searches.” Jd. This statement betrays

total contempt for the women who must make decisions

about abortion. It totally disregards the gross invasion

of privacy and repulsive seizure of the person implicated

by governmental restrictions on abortion."

The Solicitor General argues that the answer to whether

Roe was correctly decided is to be found in the history of

the due process clause of the 14th Amendment and the

intentions of its framers. He relies on the premise that

since the states were free to regulate, and prohibit, abor-

tion in the 1860’s, so should they be free to do so today.

That premise totally disregards the differences between

the legal and social status of women today, as compared

to what it was in the middle of the Nineteenth Century."

! The administration’s interpretation of Griswold is highly in-

accurate. Griswold protects intangible rights: the right of privacy,

the right of marital intimacy. Griswold is by no means limited bv

this Court to protecting real estate from search. See Tribe. The

Supreme Court, 1973 Term—Forward: Toward A Model of Roles

in the Due Process of Life and Law, 87 Harv. L. Rev. 1. 17 & n.83

'! In the 1860’s, women had few, if any, legal rights. See generally.

L. Kanowitz, Women and the Law The Unfinished Revolution

1969) ; L. Kanowitz, Sex Roles in Law and Society (1973). Given

this historical fact, it is difficult to see how the intentions or con-

templations of the men who enacted the 14th Amendment could in

any way be relevant to its application to the legal rights of women

today

Moreover, with respect to the personhood of a fertilized ovum,

history consistently demonstrates that no such personhood ever

The attack against Roe challenges the wisdom and ap-

propriateness of the Court’s conclusion that a woman’s

right to determine whether or not to terminate a preg-

nancy is fundamental and encompassed within the right

to privacy.” The Solicitor General refers to an “insta-

bility in the law” * he says was caused by Roe, but ignores

existed or was intended. In spite of broad prohibitions against

abortion, exceptions always existed under most state laws on the

grounds of the pregnant woman’s health, fetal abnormality, rape

or incest, etc See Luker, Abortion & the Politics of Motherhood

32-33, 80-81, n.18 (1984). If the fertilized ovum is held to be a

person by this Court, any such exceptions for therapeutic abor-

tions would violate the 14th Amendment. Roe, 410 U.S. at 157,

n.54. The embryo would then have a right to life superseding

the life of the pregnant woman. Indeed, abortion would not

be permitted to save-the life of the pregnant woman. Thus, this

Court wisely rejected the theory of embryonic personhood because

it was entirely inconsistent with virtually all American abortion

legislation at the time the 14th Amendment was adopted, as well as

during prior decades and thereafter. See Luker, supra, at 11-39.

12 It is important to note that this Court held in Roe that the

woman's right to privacy in considering abortion is not absolute

Id. at 154. It must be balanced against important competing state

regulatory interests. See also, Justice Burger's concurring opinion:

“Plainly, the court today rejects any claim that the Constitution

requires abortion on demand.” /d. at 208. Sen. Humphrey’s alarm-

ist conclusion that Roe results in “abortion-on-demand” and pre-

vents state prohibition of abortion “at any time during pregnancy,”

thereby permitting abortion “right up to birth” (Brief Amicus

Curiae of U.S. Sen. Gordon J. Humphrey, et al. at 5-7, Thornburgh

and Diamond), is therefore entirely false. This Court carefully

considered the important fundamental right to privacy in making

reproductive choices, but it also weighed the competing interests

served by state regulation of abortion

'SS.G. Brief at 2 and 24. The Solicitor General also complains

that courts have had difficulty in applying Roe v. Wade. Id. at 20.

The basis for this assertion, however, is left unstated. Amici

suggest that the statement merely reflects the administration’s

disagreement with the particular application made in Roe of the

familiar constitutional doctrine underlying the right to privacy.

Thus, it counters what is called the “extreme and unseemly hostil-

ity” of the courts below toward abortion regulation (S.G. Brief at

16) with arguments that ignore the fact that those courts, and this

the tyranny that existed before Roe when women could be,

and were, denied the most basic measure of personal,

bodily integrity and self-determination. Summary reversal

of Roe would lead to extreme uncertainty on the part of

medical professionals as to the legality of many standard

medical procedures. It would result in a legal and health

care crisis of nationwide proportions and in the injury or

death of thousands of women and teenage girls.

The government argues, in effect, that the right of the

state recognized in the funding cases to make policy judg-

ments favoring childbirth over abortion gives the state

the right to intrude between a woman and her physician

in determinations regarding appropriate medical treat-

ment. Reference to the funding cases =lone, however, ig-

nores the important distinction, em sized by the Court

in both the decisions referenced by government, be-

tween direct state interference with a rotectd activity—

the right to decide whether to terminate a pregnancy—and

state encouragement of an alternative activity. Maher v.

Roe, 432 U.S. 464, 473-75 (1977). The cases at bar in-

volve direct governmental interference with the constitu-

tionally protected right to decide whether to terminate a

pregnancy. Thus, were the government’s position accepted,

the right of the state to favor childbirth would become

the bludgeon with which a woman’s right to personal

liberty is destroyed. As Justice Douglas noted in his con-

curring opinion in Doe v. Bolton:

Where fundamental personal rig its and liberties are

involved the corrective legislation must be “narrowly

drawn to prevent the supposed evil” (citations omit-

ted) and not be dealt with in an “unlimited and in-

discriminate” manner. (Citations omitted.) Unless

regulatory measures are so confined and are addressed

to the specific areas of compelling legislative concern,

the police power would become the great leveler of

constitutional rights and liberties.

410 U.S. 179, 216 (1973).

one, are dealing with legislation that is designed to di prive women

of the fundamental constitutional right to privacy.

14 See, eg., Maher v. Roe, 432 U.S. 464 (1977).

To abandon, as the government urges, the course taken

in Roe v. Wade would render for women the constitu-

tional guarantee of personal liberty an empty promise

incapable of attainment. Speaking for the rights of

women, those individuals who uniquely understand all of

the interests at stake in the decision whether or not to

terminate a pregnancy, Amici urge this Court to hold

steadfast in its defense of the fundamental right recog-

nized in Roe and affirmed in Akron.

B. The Right To Choose Abortion ts, In Essence, The

Right To Control One’s Life, Without Which Most

Other Rights Become Meaningiess.

If there is to be any re-examination of Roe, Amici urge

that it be one which again acknowledges and affirms that

the right of each individual woman to control her repro-

ductive functions is nothing less than the right to control

her own life. Indeed, “the right of a woman to determine

her own reproductive life is a basic human right” ” and

it must be accorded constitutional protection commensurate

therewith. If women do not have the right to terminate

unwanted pregnancies, their rights to life, liberty, and

the pursuit of happiness are virtually meaningless. They

cannot participate as full and active members of society.

In Roe, Justice Blackmun touched upon the importance

to women of the right to decide whether to terminate a

pregnancy by referencing how pregnancy and maternity

can affect a woman: higher mortality rates, physical and

psychological harm, abandonment of educational plans,

and loss of income and career opportunities." Roe, 410

U.S. at 153. These factors, though they establish a com-

pelling predicate for the right identified therein, present

but a mere shadow of the fundamental personal and

social interests at stake in the determination of who

should have the right to control a woman’s decisions re-

'* Presidential Task Force of the Citizens’ Advisory Council on

the Status of Women, Task Force Report on Family Law and Policy

31 (1968).

16 See also, Doe v. Bolton, 410 U.S. 179, 214-15 (19738) ( Douglas,

J., concurring).

garding her reproductive functions. Stated most con-

cisely, denied the right to choose whether and when to

bear children women will forever be denied full member-

ship and participation in our society."

To begin to appreciate the extent to which women’s role

in society has been narrowly limited by their reproduc-

tive functions one need look no further than the numer-

ous and oft-cited pronouncements of this Court regarding

the role of women in society, among the most notorious

of which is as follows:

That woman’s physical structure and the perform-

ance of maternal functions place her at a disadvan-

tage in the struggle for subsistence is obvious. This

is especially true when the burdens of motherhood are

upon her. And as healthy mothers are essential to

vigorous offspring, the physical well-being of woman

becomes an object of public interest and care in order

to preserve the strength and vigor of the race.

Though limitations upon personal and con-

tractual rights may be removed by legislation, there

is that in her disposition and habits of life which will

operate against a full assertion of those rights.

Differentiated by these matters from the other sex,

she is properly placed in a class by herself, and legis-

lation designed for her protection may be sustained,

lt See N. Erickson, Women and the Supreme Court: Anatomy is

Destiny, 41 Brooklyn L. Rev. 209, 214 (1974) (“[s]tereotyped

sex-role assumptions are based ultimately on the core concept that

woman's role is narrowly limited by her reproductive function.” )

and C. Jones, Abortion and the Consideration of Fundamental, Ir-

reconcilable Interests, 33 Syracuse L. Rev. 565, 570-71 (1982).

See also, Tribe, supra note 10, at 40. where in discussing whether a

woman's husband should have the right to decide whether she may

have an abortion, Prof. Tribe notes:

To give men the unreviewable power to sentence women to

childbearing and childraising against their will is to delegate

a sweeping and unaccountable authority over the lives of

others. Any such allocation of roles would operate to the seri-

ous detriment of women as a class, given the multitude of ways

in which unwanted pregnancy and unwanted children burden

the participation of women as equals in society. Even a woman

who is not pregnant would inevitably be affected by her knowl-

edge of the power relations thereby created.

even when like legislation is not necessary for men,

and could not be sustained.

Muller v. Oregon, 208 U.S. 412, 421-23 (1908).’* The

resultant protections not only limited the hours women

could work, but also the types of jobs they could obtain,

the professions they could pursue and all nature of legal

rights otherwise afforded men.’’ In this context, one can

more clearly appreciate that the ability of women to con-

trol their own reproductive processes is of tremendous

importance to the role women will play in society.

The immediate personal consequences of a return to the

time when government was free to interfere with, and

preclude, a woman’s decision to terminate her pregnancy

must also weigh heavily in the Court’s consideration of

this issue. Prior to Roe when abortion was illegal in most

states unless necessary to save the life of the mother, it is

estimated that between 200,000 and 1,200,000 illegal abor-

tions were performed annually.*° As one District Court

18 The statute before the Court in Muller limited the number of

hours women could be employed for pay outside the home. Of

course,

[njo law has ever attempted to prevent any woman, whether

actuaily pregnant or ome of the unmarried and sixty-year-old

potential mothers of the race, from performing any amount

of heavy work without pay. She may scrub floors ... go into

the field and replace a horse or hired man... with a full job

of housework care for several young children all their waking

hours...

Note, Constitutional Law—Regulation of Conditions of Employment

of Women: A Critique of Miller v. Oregon, 13 B.U.L. Rev. 276,

289 (1933).

18 See generally, B. Babcock, A. Freedman, E.H. Norton and

5. Ross, Sex Discrimination and the Law, Causes and Remedies

(1975), pp. 4-53, 51-66; L. Kanowitz, supra note 11, at 31-38.

“0 W. Cates, Legal Abortion: The Public Health Record, 215 Sci-

ence 1586 (March 26, 1982). By comparison, in 1969, there were

only approximately 22,000 reported legal abortions in the United

States. By 1972, the number of legal abortions had increased to

almost 600,000, and yet “the Center for Disease Control estimates

that 130,000 women were unable to obtain legal abortions and

resorted to illegal or self-induced procedures during that year.”

observed in 1972, it was “common knowledge that if women

cannot obtain (lawful) abortions ... many (will) subject

themselves to the notorious ‘back-street abortion’

fraught with the myriad possibilities of mutilization, in-

fections, sterility and death.” YWCA v. Kugler, 342 F.

Supp. 1048, 1074 (D.N.J. 1972). Estimates of annual

deaths cause by illegal abortions were difficult to obtain

due to the clandestine nature of such abortions. However,

such estimates were as high as 5,000 to 10,000 deaths per

year.*’ Other adverse health consequences, such as seve.

infection,** permanent sterility,** or other serious complica-

tions were, of course, even more frequent than death.

The tragic consequences certain to follow from denial

to women of the right to legal, safe abortions have most

recently been illustrated by events following this Court’s

decisions denying poor women the right to Medicaid fund-

ing for abortions.** Studies document the intense deter-

mination women have exhibited to control their own re-

productive destinies, and the hardship, distress and human

Alan Guttmacher Institute, Abortion in the U.S.: Two Centuries of

Experience, 2 Issues in Brief, No. 4 at 3 (1982). Since 89% of

the lega! abortions performed in 1972 were performed in 17 states

that had repealed or reformed thcir anti-abortion statutes, it is

estimated that at le: a third of the women who obtained legal

abortions that year were required to travel outside their home

state to do so, incurring significantly increased health risks and

expense. /d. at 3-4.

“1 Bates and Zawadzki, Criminal Abortion (1964), p. 3-4.

“* See, e.g., Decker and Hall, Treatment of Abortion Infected with

Clostridium Welchii, 95 Am. J. Obst. & Gynec. 394 (1966); Mortiz

and Thompson, Septic Abortion, 95 Am. J. Obst. & Gynec. 46 (1966) ;

Reid, Assessment and Management of the Seriously Ill Patient Fol-

lowing Abortion, 199 J. AMA 805 (1967); Shenoi, Smits and

Davidson, Massive Removal of Small Bowel During Criminal Abor-

tion, 2 Brit. Med. J. 929 (1966); Studdiford and Douglas, Placental

Bacteremia: A Significant Finding in Septic Abortion Accompanied

by Va rt e, 71 Am. J. Obst. & Gynec. 842 (1956)

“3 Rommer. ‘Ste? Cy Its Cause and Its Treatments 59 (1952)

“4 See Bea Dose i382 U.S. 438 1977) and Maher v. Roe, 482

suffering endured by those for whom this right was sub-

stantially diminished by the funding decisions.** For the

37-year-old AFDC recipient who had 12 previous preg-

nancies and died of complications after attemping to abort

herself with a glass thermometer and the pregnant teen-

age mother who shot herself in the stomach because she

did not have the $600 necessary to pay for an abortion,”

the absence of safe, legal, available abortion was a matter

of iife and death.

For all women, irrespective of financial or personal cir-

cumstances, the choice between abortion and childbirth

may literally be a life or death decision. Between i972

and 1978, a woman was approximately seven times more

likely to die from childbirth than from legal] abortion.*'

For abortions up to the 15th week of pregnancy, child-

birth is 10 times more likely to result in death than is

abortion.™*

In no other situation has it ever been suggested that the

government has the right and authority to demand, or any

interest so compelling as to justify forcing, one person to

risk their life for another, let alone for the mere poten-

tiality that another person might one day come into ex-

istence. The government’s position gives precedence to

zygotes and embryos over living human beings. It values

the existing lives of women less than the potential life

within an embryo. It would subordinate the lives of

women today and in the future to a single biological func-

tion, very much as they were subordinated 100 years ago.

This Court recognized as much two years ago in Akron.

See Trussel, Menken, Lindheim and Vaughan, The Iinpact of

Restricting Medicaid Financing for Abortion, 12 Family Planning

Perspectives, No. 3 at 120 (May June 1980). See also, Women’s

Health Services, inc. v. Maher, 482 F. Supp. 725, 731 & n.9 (D.

Conn.), vacated, 636 F.2d 23 (2d Cir. 1980) where the court cited

evidence that indigent women could raise the money necessary for

abortion only by denying themselves and their families the basic

necessities of life.

“6 Trussel, supra note 25, at 129.

27 Le Bolt, Grimes and Cates, Mortality From Abortion and Child-

birth, 248 J. AMA 188 and 192 (1982).

78 Jd. at 196.

At that time, the Court specifically rejected the invitation

to give preeminance to the state’s interest in preserving

potential human life or to measure abortion regulations

under a rational basis test because to do either would be

“whoily incompatible with existence of the fundamental

right recognized in Roe v. Wade.” Akron, 472 U.S. at

$20 n.1.

The reality confronting the Court today is the same

reality with which it dealt twelve years ago in deciding

Roe v. Wade. The reality is whether a woman, about

whose life and existence there can be no speculation. is

entitled to protection from undue governmental interfer-

ence in the most personal decision affecting her life and

well being. As has been demonstrated since Roe was de-

cided, it is possible to accommodate the state’s interests

in maternal health and potential life within an analytical

framework that recognizes, affirms and protects the very

real and personal right to privacy and liberty that is a

cornerstone of our constitutional system. That right

must, if it is to mean anything at all, encompass a wom-

an’s right to decide whether or not to carry a pregnancy

to term. Amici urge the Court again to recognize and

acknowledge, with at least the same concern afforded the

state’s interests, the fundamental interest of the woman

involved in the abortion decision in exercising effective

control over her reproductive functions and, in so many

ways, over her very life itself. We urge affirmance of

Roe v. Wade.

Il. THE CHALLENGED PROVISIONS IMPERMISSI-

BLY BURDEN—AND IN SOME INSTANCES MAY

EFFECTIVELY PREVENT—THE EXERCISE OF

THE FUNDAMENTAL RIGHT OF A WOMAN TO

DECIDE WHETHER OR NOT TO TERMINATE

HER PREGNANCY.

This Court repeatedly has held that a statutory scheme

which infringes upon a woman’s fundamental right to de-

cide to terminate her pregnancy by abortion can survive

constitutiona! scrutiny only if justified by a compelling

State interest that is narrowly drawn to express the legiti-

mate state interests at stake.** Roe v. Wade, 410 U.S. at

155. The Court in Roe accepted the assertion by the State

of Texas that there are legitimate state interests during

the pregnancy in the health of the woman and in protec-

tion of potential fetal life.”’ Finding these interests to be

separate and distinct, and conflicting with the woman’s

right to decide to terminate a pregancy, the Court divided

pregancy into trimesters, defining the legitimate state

interest, and, therefore, the parameters of state inter-

ference, at each juncture.

During the first trimester of pregnancy, neither the

state’s interest in the woman’s health nor in potential

fetal life can justify any state interference with the

woman’s right to decide. In the second trimester, state

intrusion is permissible only if it promotes the state's

legitimate interest in ensuring the woman’s health. In

the third trimester, the state’s interest in the potential

life of the fetus is sufficient to justify significant intru-

sion, even a total proscription of abortion, unless an abor-

tion is necessary to preserve the life or health of the

woman. Roe, 410 U.S. at 163-64. Thus, proiecting the

woman’s health is the paramount state interest in the

second and third trimesters of pregnancy. When meas-

ured against this interest, the challenged restrictions must

fail, for they are nothing more than a thinly veiled at-

tempt to limit the availability of abortions, in essence to

accomplish through the back door what the Court forbade

in Roe.

Consistent with the principles set forth in Rove, this

Court and many others below have invalidated government

imposed restrictions that ran afoul of the familiar and

229 See supra, note 7.

*° This Court declined to define the point at which life begins.

“When those trained in the respective disciplines of medicine,

philosophy, and theology are unable to arrive at any consensus, the

judiciary, at this point in the development of man’s knowledge, is

not in a position to speculate as to the answer.” Roe v. Wade, 410

U.S. at 159. The Court rejected the attempt of Texas to define

“life” as beginning at conception and thus to justify state inter-

ference throughout the pregnancy.

oft-applied strict scrutiny constitutional standard.*’ Most

recently, the Court in Akron reviewed restrictive abortion

regulations that imposed requirements ranging from hos-

pitalization for post-first trimester abortions to disposal of

tne remains of an abortion in a “humane and sanitary

manner.” In its review of these enactments, the Court

addressed itself to the validity of the basic Roe holding,

and found compelling reasons to reaffirm that decision.

Akron, 426 U.S. at 420 n.1.

The Court again accepted and applied the basic prin-

ciple that a woman has a fundamental right to make the

highly personal choice whether or not to terminate her

pregnancy.” Accordingly, the Court in Akron concluded

that the government’s interest in protecting maternal

health did not justify a hospitalization requirement for

all second trimester abortions, where that requirement

“imposed a heavy, and unnecessary, burden on women’s

access to a relatively inexpensive, otherwise accessible, and

safe abortion procedure.” 462 U.S. at 438. The Court

also found that the City’s regulations governing “informed

consent,” which required doctors to provide each patient

31 See, e.g., Doe v. Bolton, 410 U.S. 179 (1973) (requirement that

all abortions be »prroved in advance by a hospital abortion com-

mittee) ; Denfert, 428 U.S. 52 (spousal and parental consent re-

quirements) ; Poe Gerstein, 517 F.2d 787 (5th Cir. 1975), aff'd

mem. suv. nom. Gerstein v. Coe, 428 U.S. 901 (1976) (spousal and

parental consent requirements); Leigh v. Olson, 497 F. Supp. 1340

(D.N.D. 1980) (informed consent, 48-hour waiting period and

parental notification requirements); Women's Medical Center of

Providence, Inc. v. Cannon, 463 F. Supp. 531 (D.R.I. 1978) (re-

quirement that physician’s have certain hospital privileges) ;

Margaret S. v. Edwards, 488 F. Supp. 181 (E.D.La 1980) (post-

first trimester hospitalization, presumptive viability, parental con-

sent, informed consent and 24-hour waiting period requirements).

*2 The Solicitor General argues that Akron signaled a departure

from the principles which guided the Court's previous abortion

regulation decisions. He relies for this proposition, however, on

statements from Maher and Harris v. McRae, 488 U.S. 497 (1980).

Both of these cases involved government restrictions on medicaid

funding for abortions, not direct state interference with the right

to choose abortion. See discussion at pp. 10-11, supra.

information “designed not to inform the woman’s consent

but rather to persuade her to withhold it altogether,” were

an unconstitutional attempt “to extend the state’s interest

in ensuring ‘informed consent’ beyond permissible limits.”

Id. at 444.

The limitations on abortions imposed by the challenged

restrictions in the two cases now before the Court attempt

to circumscribe a woman’s behavior and significantly im-

pair the exercise of her fundamental right to decide

whether to bear a child. These restrictions cannot be dis-

missed as “not burdensome or chilling.” Planned Parent-

hood of Central Missouri v. Danforth, 428 U.S. 52, 66

(1976), citing 392 F. Supp. at 1374. Nor can they be

characterized as merely “state encouragement of

childbirth.” Maher v. Roe, 432 U.S. at 475, or described

as placing “no obstacles in the pregnant woman’s path to

an abortion.” 432 U.S. at 474. The statutory schemes

enacted by Pennsylvania and Illinois forcefully interject

government into a constitutionally protected decision-

making process, riding roughshod over individuals’ most

private decisions. They are aimed at coercing a woman

not to terminate her pregnancy by placing obstacles di-

rectly in her path.

By intruding directly into the decision-making process

at critical points, the method of abortion requirements of

the two statutes and the “abortifacient” provision of the

ulinois law are intended to coerce and influence a woman

to continue her pregnancy. The government seeks to do

this irrespective of the reasons for the woman’s own

choices, and, most indefensibly, without regard to the

fact that the pregnancy may be life endangering or

health-threatening. These provisions all but preclude the

physician’s exercise of medical judgment and thus en-

cumber the exercise of the woman’s constitutionally pro-

tected right “by placing obstacles in the path of the doc-

tor upon whom she was entitled to rely for advice. .. .”

Whalen v. Roe, 429 U.S. 589, 604 n.33 (1977) (quoted

in Akron, 462 U.S. at 445).

A. Pennsylvania’s Restriction On Abortion Methods

Absent “Significantly Greater” Risk To The Mother

Is Void For Vagueness.

Under Section 3210(b) of the Pennsylvania Act, supra,

it is a felony for a physician performing an abortion on a

fetus she has determined to be viable to fail to use the

abortion technique “which would provide the best oppor-

tunity for the unborn child to be aborted alive unless, that

method or technique would present a significantly greater

medical risk to the life or health of the pregnant woman

than would another available method or technique. . . .”

The Third Circuit, relying on this Court’s ruling in

Colautti v. Franklin, 439 U.S. 379 (1979), held the sec-

tion unconstitutional because it fails to require that ma-

ternal health be the physician’s paramount consideration

in the determination of which abortion procedure to em-

ploy. Tioernburgh, J.S. 68a-71a.

In Colautti, the Court had before it certain portions of

an earlier version of the Pennsylvania Act before the

Court in Thornburgh. Section 5a of the predecessor stat-

ute required “the physician to employ the abortion tech-

nique offering the greatest possibility of fe:al survival,

provided some other technique would not be necessary in

order to preserve the life or health of the mother.” 7d.

at 397. This section was found void for vagueness be-

cause it was “uncertain whether the statute permits the

physician to consider his duty to the patient to be para-

mount to his duty to the fetus, or whether it requires the

physician to make a ‘trade-off’ between the woman’s health

and additional percentage points of fetal survival.”

Colautti, 439 U.S. at 400.

Both the Third Circuit and the district court recognized

that the state could not constitutionally require the mother

to be at any increased risk in order to save a fetus.

Thornburgh, J.S. at 69a. They differed, however, in their

respective interpretations of the term “significantly

greater.” The very fact of this difference supports the

conclusion that the statute fails to give persons of ordi-

nary intelligence notice of what conduct is forbidden by

the statute and is, therefore, void for vagueness. See

Colautti, 439 U.S. at 390.

The constitutional standard in this situation, that the

mother cannot be required to bear any increased risk for

the sake of the fetus, is clear. The state easily could have

adopted that standard, but chose instead to obfuscate.

Use of the phrase “significantly greater,” in light of the

legislature’s stated intent to mandate equality of rights

between the mother and the fetus,** could only have been

meant to require just exactly the trade-off prohibited in

Colautti. The State’s assertion that the provision comes

into play “only if there is no meaningful difference in the

risks” ignores the plain language of the statute and, in

particular, the modification of “greater” by “signifi-

cantly.” This difference is illustrated by considering

whether a reference to “any greater risk” means the same

thing as a reference to “significantly greater risk.”

Clearly it does not. The decision of the Third Circuit

striking this provision should be affirmed.

B. Section 6(4) Of The Illinois Law, Which Restricts

Abortions Prior To Viability, Is Unconstitutionally

Overbroad And Is Void For Vagueness.

Section 6(4) prescribes a standard of care for physi-

cians performing abortions in cases where “there exists

. a possibility . . . of more than momentary survival of

the fetus... .”™ Illinois law, supra, Section 6(4). This

is identical to the standard of care required under Section

6(1) for fetuses known to be viable.” The statute im-

33 Section 3202(a) and (c) of Pennsylvania Act, supra. Brief

for Appellants at la-5a, Thornburgh.

34 In pertinent part, Section 6(4) requires the physician to “ex-

ercise that degree of professional skill, care and diligence to pre-

serve the life or 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... when there... exists ... a possi-

bility known to [the physician] of sustained survival[.]” Ill. Rev.

Stat. Ch. 38 { 81-26(4).

35 The Court of Appeals held Section 6(1) was unconstitutionally

vague because it failed to specify that the attending physician’s

determination of fetal viability was controlling, and failed to give

poses criminal sanction on the physician or assistant who

intentionally breaches this standard of care. The Court

of Appeals declared this statute unconstitutional because

it seeks to regulate abortions on behalf of the fetus prior

to viability and infringes on a woman’s right to privacy.

Diamond, J.S. App. 32-36. This decision should be af-

firmed. |

A viable fetus is one which is |capable] of meaningful

life outside the mother’s womb.” Roe, 410 U.S. at 163.

In Roe, this Court recognized a compelling state interest

in potential life at viability which permits the state to

proscribe abortions altogether except when necessary to

protect the life and health of the mother. 410 U.S. at 163,

164. Prior to viability, however, the state may only regu-

late the abortion procedure to the extent that such regula-

tions are “reasonably related to maternal health.” 410

U.S. at 164.

1. Section 6(4) Is Unconstitutionaliy Overbroad

Because It Seeks To Regulate Abortions Based

On The State’s Interest In “Potential Life” Prior

To Viability.

In Danforth, this Court struck down a statute which

imposed on the physician a standard of fetal care ap-

plicable to all abortions on the ground that it was uncon-

stitutionally overbroad. In pertinent part, the statute re-

quired the physician to use the same “degree of profes-

sional 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.” 428 U.S. at

82. This Court held that such a provision “impermissibly

requires the physician to preserve the life and health of

the fetus, whatever the stage of pregnancy.” 428 U.S. at

83. The State does not have a compelling interest in the

fetus prior to viability and, therefore, may not regulate

the abortion procedure on behalf of the fetus before via-

physicians and their assistants explicit notice as to what the statute

prohibited. Amici urge affirmance of this holding.

bility is reached. Roe, 410 U.S. at 164; Danforth, 428

U.S. at 82-83.

Similar restrictions were at issue in Colautti. There,

the statute imposed a standard of care toward the fetus

whenever the physician determined that the fetus was

“viable” or “may be viable.” 439 U.S. at 391. The Court

held that the statute was ambiguous and therefore void

for vagueness, because it concluded that “viable” and

“may be viable” referred “to distinct conditions, and that

one of these conditions differs in some indeterminate way

from the definition of viability as set forth in Roe and

Planned Parenthood.” Id. at 393 ‘footnote omitted). It

did not decide, therefore, whether the provision also was

overbroad. The District Court in Colautti, however, did

consider the overbreadth issue. It held that the “may be

viable” provision was a clear attempt by the state to

regulate abortions during the second trimester, “when it

may lawfully do so only in the interest of maternal

health.” 401 F. Supp. 554, 572 (1975).

The Seventh Circuit, rather than finding both Section

6(1) (governing a viable fetus) and 6(4) void for vague-

ness, upheld Section 6(1) and found Section 6/4) uncon-

stitutionally overbroad. Assuming that the Seventh Cir-

cuit was correct in finding that the viability aspect of

Section 6(1) is constitutional, the conclusion that Section

6(4) is unconstitutional necessarily follows. Section 6/4)

can only be interpreted as intended to “carve out a new

time period during pregnancy when there is a remote

possibility of fetal survival outside the womb, but the

fetus has not yet attained the reasonable likelihood of sur-

vival that physicians associate with viability.” Colautti,

439 U.S. at 393. Clearly, Section 6(4) is an attempt to

whittle away the rights of the woman recognized in Roe

and affirmed in Akron. It is, as appellants concede, an

attempt to extend regulations to protect potential life ear-

lier into pregnancy than can be justified based on any

compelling interest.** As such, Section 6(4) is a blatant

%® Appellants argue that even if the State’s interest in the fetus

is not compelling until viability, it is still substantial prior to via-

and impermissible attempt to circumvent the prior rulings

of this Court. It cannot withstand the strict judicial scru-

tiny mandated by Roe. The decision of the Seventh Cir-

cuit must be affirmed.

2. Section 6(4) Is Void For Vagueness.

The ambiguity surrounding the “possibly viable” stand-

ard in the case at bar is identical to that “undefined

penumbral” or “gray area’’ surrounding Colautti’s “may

be viable” standard. Colautti, 4839 U.S. at 391. This

vagueness has a “chilling effect’? on the willingness of

physicians to perform second trimester abortions and risk

criminal liability.** If upheld, it would eviscerate a wom-

an’s ability to exercise her fundamental right to decide

to choose abortion.

A statute is void for vagueness if it fails to inform per-

sons of ordinary intelligence what conduct it forbids.

United States v. Harris, 347 U.S. 612 (1954). Particu-

larly with respect to criminal statutes that abut funda-

mental constitutional rights and which, if unclear or im-

precise, will inhibit the exercise of those rights, the State

must proceed with clarity and precision. See Colautti,

439 U.S. at 390-92. Where it fails to do so, as in the case

at bar, the statute is void for vagueness.

C. Sections 2(10) And 11(d) Of The Illinois Law Im-

permissibly Infringe Upon A Woman’s Right To

Privacy In Decisions Regarding Birth Control And

Are Void For Vagueness.

Under the guise of protecting women from their physi-

cian’s prescription of birth control substances or devices

that they may not want to use, the State of Illinois made

it a crime for a physician who prescribes or administers

an “abortifacient” to fail to advise the patient that he

bility. Amici submits that even if such an interest does exist,

which we believe it does not, that interest is not sufficient to over-

come the woman’s fundamental right to determine whether or not

to carry a pregnancy to term.

37 See Affidavits of Allan G. Charles, M.D. and Martin Motew,

M.D., Diamond, Joint Appendix at 3 and 54.

has done so. The statute defines “abortifacient” as “any

instrument . . . known to cause fetal death . . . whether

or not the fetus is known to exist when such substance or

device is employed.” Illinois law, supra, Sections 2(10)

and 11(d).

With this regulation, Illinois adds a new dimension to

the struggle to preclude women from exercising control

over their own reproductive functions, and hence, their

lives. Although the tactic they use may be new to this

particular struggle, it is one with which women have

much experience. It is one that suggests that women, for

any number of reasons, need special protection to save

them from disadvantage in their dealings with the world.

Hence, we are told that women must be protected from

doctors who would prescribe drugs or devices for them

without first explaining to them the effect such instru-

ments will have.

Not surprisingly, however the need for such protec-

tion arises only with regard to drugs or devices that op-

erate to cause a fertilized ovum to be expelled from the

woman’s body; and only as to the effect such drugs or

devices will have on the fertilized ovum—not the effect

they may have on the woman. Thus, the physician who

prescribes for a woman an intra-uterine device is com-

pelled by special “protective” legislation to inform the

woman that the device is an abortifacient that will cause

expulsion of a fertilized ovum should one develop, but

incurs no criminal liability for the failure to inform the

patient that the device could render her, the patient,

sterile and cause her, the patient, death.”

Thus, the Illinois abortifacient provision either is the

type of protective legislation which for years protected

only women’s second class citizenship, and not womer, or

it is legislation designed to protect the fertilized ovum

from inadvertent destruction. Given the legislature’s

38 See J. Williams, Williams Obstetrics 1024 (J. Pritchard and

P. MacDonald 16th ed. 1980). Death from sepsis is noted as one

of the complications that has been observed in connection with

IUD use.

stated concern for “the unborn child . . . from the time

of conception” and the compelling interest it claims in

that “unborn child,” it is clear that the focus of the

state’s concern in enacting these provisions was, in fact,

the fertilized ovum and not the woman. From Roe, it is

clear that the state has no compelling interest in such

an organism. Amici submit, moreover, that the state has

no legitimate interest at all in such an organism. Neither

its concern for the fertilized ovum, nor any actual con-

cern for the health of the woman, justifies the statute’s

invasion of the fundamental privacy rights that protect

personal, procreative decisions from excessive govern-

mental interference.

1. The State May Not Regulate Abortion Based On

The State’s Theory Of Life.

Section 11(d) requires physicians to advise their pa-

tients when, as defined in the law, they are prescribing

an abortifacient for their patient. For all practical pur-

poses, the only way a physician can be certain that she or

he is complying with this statute is to explain to the pa-

tient, in the terms of statute, what it is they are prescrib-

ing. The fact that the statute does not specify in so many

words the precise language to be used by the physician

is, therefore, of little significance given the overall statu-

tory framework. Problems will arise for the physician

when she or he is asked to explain, as will surely happen,

what it means to be told that an “abortifacient” is being

prescribed. What it means, according to the statute, is

that the drug or device will kill the patient’s fetus, which

the State believes is an unborn child. Thus, there is no

escaping the conclusion that the statute does require the

physician “to become the mouthpiece for the State’s theory

of life.” Charles v. Carey, 627 F.2d 772, 789 (7th Cir.

1980). As such, it falls squarely within the bounds of

this Court’s rulings in Roe and Akron prohibiting such

state interference with the woman’s decision whether

to terminate a pregnancy.

3° See Brief of Appellants at la-2a, Diamond.

In addition, these provisions, like those defining “in-

formed consent” in terms of specific information that

must be provided by the physician to the patient, places

the physician in the “undesired and uncomfortable strait-

jacket” about which this Court warned in Danforth, 428

U.S. at 67 n.8. The abortifacient provisions are simply

another obstacle that the state wants to place in the physi-

cian’s path in order to limit her or his discretion in

advising a woman about her reproductive health needs.

These provisions force the physician to accept definitions

of medical and physiological terms on which, at the very

least, there is no concensus.*® What appellants describe as

attempts to blur the distinctions between abortifacients

and contraceptives *' are in fact commentaries which re-

flect that all physicians do not agree that conception and

pregnancy occur at the instant a sperm penetrates an

ovum.*” The physician who believes that conception oc-

curs over time and that a woman is not pregnant until

the fertilized ovum implants in the uterus must, neverthe-

less, advise the patient based on the state’s theory of con-

ception as occurring at a single point in time. This is

exactly what the Court prohibited in Danforth and Akron.

Thus, the “abortifacient” regulation must fall.

2. The “Abortifacient” Provision Is Void For

Vagueness.

As set forth above, criminal statutes which threaten to

inhibit the exercise of constitutionally protected rights

40 The evidence before the trial court included several physician’s

affidavits which stated, inter alia, that the definition of abortifacient

in Section 2(10) is “medically unjustified,” and “scientifically

questionable.” Affidavits of Drs. Charles, Zbaraz and Motew, Joint

Appendix at 4, 22 and 50, Diamond.

41 Brief of Appellants at 13 and n.6, Diamond.

42 It has been noted that it is difficult to determine the incidence

of spontaneous abortion since there is no agreement on when a

pregnancy actually begins. It could be at almost any point between

penetration of the ovum by a sperm to implantation of the blastocyst

in the endometrium. See Williams, supra note 38, at 588. See also,

Roe, 410 U.S. at 130-34 and n.22 and 159-62; and, Tribe, supra, note

10, at 18-21 and nn.86-94.

must be carefully and precisely drawn. Given the uncer-

tainties that exist regarding “fertilization” and “concep-

tion” and how various methods of birth control actually

work," the subject provisions fall far short of minimum

due process requirements.

At best, the statute is internally inconsistent. Abortion

is defined as the intentional termination of a known preg-

nancy. Illinois law, supra, Section 2(6). Thus, if there

is no known pregnancy, there can be no abortion. The

statute, however, defines abortifacient as any instrument

that would destroy the fertilized ovum, regardless of

whether it was known to exist. 7d., Section 2(10). As-

suming, as Appellants claim, however, that an abortifacient

is something that causes an abortion * the statute’s defini-

tion ef abortifacient is completely at odds with the stat-

ute’s definition of abortion.” One cannot cause an abor-

tion unless there is a known pregnancy, and there is no

known pregnancy at least until the process of conception

pellants and the Solicitor General ‘7 understand and ex-

plain these provisions, when taken together they do not

make sense and cannot be justified on the ground of pro-

tecting women from abortions. So inconsistent a hodge-

podge of medically insupportable and contradictory defini-

tions upon which vague obligations are premised cannot

possibly meet even minimal due process requirements, let

*3 Williams, supra note 38, at 1012, indicates that most birth con-

trol pills act in multiple ways to prevent contraception, including

preventing ovulation and/or implantation. Similarly, the contracep-

tive actions of intra-uterine devices “have not been precisely de-

fined.” Id. at 1021.

* Brief of Appellants at 11 and n.3, Diamond.

*° See also physician’s affidavits, supra note 40.

** Most pregnancy tests in clinical use are usually positive by the

3rd week after ovulation. Implantation of the blastocyst generally

begins at the end of the first week after ovulation. Williams, supra

note 38, at 170.

47 See S.G. Brief at 14-15.

alone those imposed upon criminal statutes which infringe

fundamental rights. Thus, the decision of the Seventh

Circuit must be affirmed.

CONCLUSION

Amici urge this Court to affirm that the fundamental

constitutional right of privacy protects the right of women

to make reproductive choices without oppressive and bur-

densome state interference. Without this fundamental

right women are denied the ability to control their own

lives. We submit that the government’s position not only

is indefensible, but if accepted would have disastrous

results for the lives and well-being of all American women.

Thus, we urge the Court, once again, to affirm unequiv-

ocably its holding in Roe v. Wade. Furthermore, for the

reasons set forth above, we urge the Court to affirm the

decisions of the Third and Seventh Circuits regarding

the method of abortion and abortifacient provisions of

the respective state statutes.

Respectfully submitted,

DIANE E. THOMPSON

Counsel

NATIONAL ORGANIZATION

FOR WOMEN, INC.

1401 New York Avenue, N.W.

Washington, D.C. 20005

(202) 347-2279

Attorney for Amici Curiae *

Dated: August 29, 1985

48 Counsel wishes to acknowledge the assistance of Loren Chumley,

a student at American University School of Law, in the preparation

of this brief.

APPENDIX

DESCRIPTIONS OF AMICI CURIAE

The NATIONAL ORGANIZATION FOR WOMEN

(NOW) is a national membership organization of approx-

imately 250,000 women and men in about 750 chapters

throughout the country. NOW has as one of its prior-

ities the preservation of the right to reproductive freedom,

including abortion. NOW believes that every woman has

a fundamental cor.stitutional right to decide whether to

terminate her pregnancy by abortion. NOW submits that

this fundamental right must be affirmed and tht the

restrictions challenged herein impermissibly impinge upon

this constitutionally protected right.

HUMAN RIGHTS FOR WOMEN, INC. (HRW) is a

non-profit organization dedicated to attaining equal rights

for women in every aspect of life. The organization pro-

vides volunteer legal assistance in litigation involving

rights of women; researches issues relevant to discrimina-

tion against women; and provides for educational projects

on conditions of concern to women. HRW believes that

laws which deny or severely limit the availability of abor-

tion, such as those before the Court in these cases, deny

women their right to self-determination as human beings.

EQUAL RIGHTS ADVOCATES, INC. (ERA) is a

San Francisco-based public interest legal and educational

corporation dedicated to working through the legal system

to end discrimination against women. It has a long his-

tory of interest, activism and advocacy in all areas of the

law which affect equality between the sexes. ERA be-

lieves that the right to control one’s reproductive life is

fundamental to women’s ability to gain equality in other

aspects of society. This concern has been expressed

through our particiaption as counsel and as amicus in

numerous cases involving women’s reproductive rights.

THE LEAGUE OF WOMEN VOTERS FOR THE

UNITED STATES (LWVUS) is a national, nonpartisan,

| |

non-profit membership organization, incorporated under

the laws of the District of Columbia, with a current mem-

bership of 110,000 in 1,250 state and local Leagues in all

states, the District of Columbia, Puerto Rico and the Vir-

gin Islands. Since being founded in 1920, the LWVUS’s

purpose has been to promote political responsibility

through informed and active participation of citizens in

government. The LWVUS strongly believes that public

policy in a pluralistic society must affirm the constitution!

right of privacy of the individual to make reproductive

choices. The LWVUS further believes that the Roe v.

Wade decision is an important protection of this constitu-

ticnal right.

THE NORTHWEST WOMEN’S LAW CENTER is a

non-profit Washington State organization dedicated to se-

curing equal rights for women through the law. The

Northwest Women’s Law Center provides the only sus-

tained effort in the Pacific Northwest serving the legal

needs of women from all socio-economic backgrounds. The

Law Center has participated in significant cases before

state and federal courts involving issues which have a

major impact on women, and specifically has participated

as amicus curiae in several cases which focused on the

constitutionality of legislation hindering the exercise of a

woman’s right to decide whether to terminate a pregnancy.

THE NATIONAL WOMEN’S LAW CENTER is a

Washington, D.C.-based legal organization which has been

working since 1972 to advance and protect women’s legal

rights. The Center’s primary goal is to ensure that public

and private sector practices and policies better reflect the

needs and rights of women. The fundamental right to

abortion recognized in Roe v. Wade is of profound im-

portance to the lives, liberty, health and safety of women

throughout the country. Because of the tremendous sig-

nificance to women of the freedom to choose whether to

bear children, the National Women’s Law Center seeks to

preserve women’s right to abortion.

THE NOW LEGAL DEFENSE AND EDUCATION

FUND (NOW LDEF) was founded in 1970 by leaders

of the National Organization for Women as a non-profit

civil rights organization to perform a broad range of legal

and educational services nationally in support of women’s

efforts to eliminate sex-based discrimination and secure

equal rights. NOW LDEF has participated as amicus be-

fore this and other courts in several cases involving

women’s reproductive rights.

THE WOMEN’S LEGAL DEFENSE FUND (WLDF)

is a non-profit, tax-exempt membership organization

founded in 1971 to provide pro bono legal assistance to

women who have been discriminated against on the basis

of sex. The right of women to decide for themselves

whether or when to bear children is essential to women’s

achievement of full equality in our society. WLDF is

committed to helping women achieve that equality and has

participated as amicus before this Court and others in

cases where the right to choose abortion has _ been

challenged.

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.