# Amicus Curiae Brief — Diamond v. Charles

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0196%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 54

## Text

Supreme Court, U.S.
" FILED
JOSEPH F. SPANIOL, JR.
CLERK
IN THI —_

Supreme Court of the United States

OCTOBER "ERM, 1985

> —_ —

RICHARD THORNBURGH, et al..
Appellants,

—VS.—

AMERICAN COLLEGE OF OBSTETRICIANS
AND GYNECOLOGISTS, et al..

Appellees.
—— _
EUGENE F. DIAMOND, et al.,
Appellants,
—_VS.—
ALLAN G. CHARLES, et al.,
Appellees.

ON APPEAL FROM THE UNITED STATES COURTS
OF APPEALS FOR THE THIRD AND SEVENTH CIRCUITS

BRIEv FOR THE UNITARIAN UNIVERSALIST
ASSOCIATION, AND TWENTY-TWO OTHER
RELIGIOUS GRGANIZATIONS, AS AMICI CURIAE,
IN SUPPORT OF APPELLEES

MADELINE KOCHEN
New York Civil
Liberties Union
132 West 43rd Street
New York, New York 10036
(212) 832-0557

Attorney for Amici Curiae

" BEST AVAILABLE COPY

TABLE OF CONTENTS

Page
a A (Lt 111
De Methane neeeeesseeesoeoccesesece l
De PD. acseeeeeeceoeceocecedsc 5
SUMMARY OF ARGUMENT..... eeeeeeeoeeeeoees 6
ARGUMENT
I. ADHERENCE TO ROE V. WADE IS
NECESSARY TO PRESERVE FIRST
AMENDMENT PRINCIPLES OF
FREEDOM OF CONSCIENCE AND
i i e . eeeeee es 10
A. The Framework Established In
Roe v. Wade Enforces The First
Amendment Prohibition of State
Sponsorship Of Belief In
Derogation Of Individual
Freedom Of Conscience.....ccceees 15

B. Roe v. Wade Advances The
Policies Of Voluntarism
And State Neutrality In
Matters Of Religion
Embedded In The Religious
Liberty GuaranteeS.....eeeeeees 225

II.

1. The Challenged Statutes
Demonstrate That Roe v.
Wade is Necessary to
Avoid Infringement of the
Individual Right to Make
and Effectuate a Conscien-
tious Decision on Abortion
Protected by the Religious
Liberty Clauses.....++++++-26

2. The Challenged Statutes
Demonstrate that Roe v.
Wade is Necessary to
Enforce the Obligation of
State Neutrality Commanded
by the Religion Clauses....38

THIS COURT IS DUTY-BOUND TO GIVE
STRICT SCRUTINY TO STATUTES THAT
IMPINGE THE EXERCISE OF

FUNDAMENTAL RIGHTS....eccccceceeee +48

CONMCLUSIOWc cccccccccccecceceseseseseseseee

APPENDIX

A:

Statement of Religious Coalition
for Abortion RightS.......eeeeeeeeAnl

Statement of Americans for
Religious Liberty. .cccccccccccceesA=3

Statements of Certain National
Religious Organizations......+..--A-4

"A Call To Concern".cccccccccccessA39

elie

TABLE OF AUTHORITIES

CASES Page(s)

Akron v. Akron Center for
Reproductive Rights,
EEE 8 5, 10, 20

American College of Obstetricians
and Gynecologists v. Thornburgh,

737 F.2d 283 (3rd Cir. 1984)....... 13

Ballard v. United States,

ee UD tcc ccccsccceece 44

Braunfield v. Brown, 366 U.S. 599

Pee wee oie « oeeeoeeeeeeee eee eeeeee 40

Brown v. Board of Education,

CPU. oc cccccecces 50, 51

Committee for Public Education v.

weremames Shs OU.8. 756 (1973). .ccccce 39

Elrod v. Burns,

Ce ED CRUG cc cccccccccecece 21

Engel v. Vitale, 370 U.S. 421

DCCC EEEME Eee cece ceccccccceces 50, 52

Everson v. Board of Education,

ME Bg ccceccccceceoe 39, 45
46, 56

Federal Communications Commission
v. Pacifica, 438 U.S. 726 (1978)...23

Fowler v. Rhode Island,
rr nc ccccctcs 43

Gillette v. United States,

401 U.S. 437 (197lL) ccccccccccecces
Grand Rapids School District v.
Ball, U.S- ’ 87 Le. Ed. 2d
2G? CLFES cvccecccccsecscsvcecces

Griswold v. Connecticut,

381 U.S. 479 (1965)... ccccccccces

Jacobson v. Massachusetts,

197 U.S. 11 (1905) .cccccccccccces

Kovacs v. Cooper,

336 U.S. 7F7 (ADED) ccccccccceseces

Lemon v. Kurtzman,

403 U.S. 602 (19O71lL)cccccccccceces

Levitt v. Committee for Public

Education, 413 U.S. 472 (1973)...

Maher v. Roe,

432 U.S. 464 (1977)... ccccccecces

Marbury v. Madison,

5 u.S. (1 Cranch) 137 (1803).....

McDaniel v. Paty,

435 U.S. GIB (1978) .cccccsccccees

Murdock v. Pennsylvania,

319 U.S. 105 (1943)... ccccccccees

Niemotko v. Maryland,

340 U.S. 268 (1951) cccacccsccces

Olmstead v. United States,
eee “et Bel: | ee 53

People ex rel. McCollum v. Board
of Education, 333 U.S. 203 (1948)..45

Planned Parenthood v. Danforth,

Ga Wena Be Chere 266666 4's 664 beens 20

Prince v. Massachusetts,

Baa Was Bae Ce 6646464466 e46eu 8S 44

Roe v. Wade,

Gane Dens Bae Chererses 6s 06606 0bee 468 passim

School District of Abington v.

Schempp, 374 U.S. 203 (1963)........ 52

Sherbert v. Verner,

co Pe OS ) ee 31,
40,

Stanley v. Georgia,
39S Do.B. SET CASS) cccccccvceeesees 22

Swann v. Charlotte Mecklenberg
Board of Education,

mee Semen & Gheretanouesbeteeeebendcs 51
Thomas v. Review Board,

Gre Deals FOP Chee bean 66s 6666864408 28,
Thornton v. Caldor, Inc., 0.8.

SG be BG. 26 SE? (E9SSd ccccecceeces 30,

Torcaso v. Watkins,
i a er Oo ee eee 22>

United States v. Seeger,
JOO U.8. 163 (APSE) cccccevsccscsese

Wallace v. Jaffree,

0.8. , 86 L. Ed. 2d 29 (1985).passim

Walz v. Tax Commission of the
City of New York,

Bre Balun Gee Chl) 6 é6e 665560684 60668 40
Welsh v. United States,

De Selo «Be tare sée bee eesewsewr 28
West Virginia State Board of

Education v. Barnette,

319 U.S. 624 (1943) eee eee ee eee soeenee
Wisconsin v. Yoder,

Gne Bue Bee Cawralecceceeeceeeeeese 27

Wooley v. Maynard,

SIG GU.8. 70D (IVT) cccccccevsccesce

STATUTORY AND CONSTITUTIONAL PROVISIONS

H.J. Res. 30, 823, 856, 858

92d Cong. 2d Sess. (1957)......

Buds Bie EGR CAGre ties ws 666008 6es

H.J. Res. 1035, 92d Cong. 2d

RR ge ) ere

H.R. 1228, 85th Cong., lst Sess.

H.R. 13915, 13916, 92nd Cong.,

\ & St) o> ) eee

Le OE TERE ID

Page(s)

S.J. Res. 165, 92d Cong.,
Se BGG. 2G aloes eee ee beéeeeseeee

United States Constitution,
First Amendment.....eeeeeeeeee+-epassim

OTHER AUTHORITIES

Eisenberg, “Congressional Authority
to Restrict Lower Federal Court
Jurisdiction, 83 Yale Law
ees Gee Cannel séedbbeceecees Oe

Feldman, Marital Relations, Birth
Control and Jewish Law (1974)...... 36

The Human Life Bill: Hearings

on S. 158 Before the Subcommittee

on Separation of Powers of the

Senate Committee on the Judiciary,
97th Cong., ist Sess. (1981).......24

The Human Life Bill--Appendix:
Hearings on S. 158 Before the
Subcommittee on Separation of Powers
of the Senate Committee on the
Judiciary, 9/th Cong., lst

BOGGe TEMPE pe cecccecceseecécceseos+cd@

The Human Life Bill--S. 158: Report,
together with Additional and
Minority Views to the Committee on
the Judiciary made by its
Subcommittee on Separation of
Powers, 9/7th Cong., lst Session

terre ec eceecccccccece 25

-viii-

INTEREST OF AMICI

This brief amici curiae is filed in

support of appellees in both cases before the
Court, by the following religious organi-
zations: THE AMERICAN ETHICAL UNION; AMERi-
CANS FOR RELIGIOUS LIBERTY; AMERICAN HUMAN-
IST ASSOCIATION: BOARD FOR HOMELAND MINIS-
TRIES, UNITED CHURCH OF CHRIST; B'NAI BRITH
WOMEN: CATHOLIC WOMEN FOR REPRODUCTIVE
RIGHTS; CATHOLICS FOR A FREE CHOICE; COOR-
DINATING CENTER FOR WOMEN, UNITED CHURCH OF
CHRIST; EPISCOPAL WOMEN'S CAUCUS; NATIONAL
BOARD, YOUNG WOMEN'S CHRISTIAN ASSOCIATION OF
THE U.S.A.3 NATIONAL COALITION OF AMERI-

CAN NUNS; NATIONAL COUNCIL OF JEWISH WOMEN;
NATIONAL FEDERATION OF TEMPLE SISTERHOODS;
NATIONAL SERVICE CONFERENCE, AMERICAN ETHICAL
UNION; OFFICE FOR CHURCH IN SOCIETY, UNITED
CHURCH OF CHRIST; PIONEER WOMEN/NA'AMAT;
PRESBYTERIAN CHURCH (U.S.A.); UNION OF
AMERICAN HEBREW CONGREGATIONS; UNITARIAN

ote

UNIVERSALIST ASSOCIATION; UNITARIAN
UNIVERSALIST WOMEN'S FEDERATION; UNITED
CHURCH OF CHRIST; UNITED SYNAGOGUE OF
AMERICA; WOMEN'S LEAGUE FOR CONSERVATIVE
JUDAISM.

The organizations joining this brief are
or include representatives of Protestant,
Catholic, Jewish and other faiths, reflecting
a broad spectrum of religious believers in
this country. These organizations are
committed to principles of religious liberty;
they also reflect a broad spectrum of beliefs
about the morality of abortion. | Among the

amici are denominations which adhere to

l. The positions of the Religious Coalition
for Abortion Rights, of Americans for
Religious Liberty, and of 36 national
religious organizations which favor the right
to choose abortion among which are the amici
curiae, are contained in the Appendices A, B

‘aa

and C respectively at A-l, A-3, and A-4.

afie

religious principles that permit, counsel,
and even mandate abortion under certain
circumstances. Others strongly discourage it
under many circumstances. But ail believe
that the abortion decision is a deeply
religious and personal one of ultimate
dimension which must be relegated to the
conscience of the individual woman free of
governmental interference or coercion. They
believe further that the effort to restrict
abortion is generally rooted in an opposing
theological position concerning the creation
of human life and the beginning of human
personhood; and that, in the face of
religiously-based moral differences,
government ina free society is without power
to take sides.

It is the position of amici that the
freedom of belief guaranteed by the First
Amendment and principles of religious liberty

require invalidation of this legislation

-_

which has no purpose and effect other than to

encroach upon and ultimately deny the right
that is the cornerstone of our
Constitution--the right of conscience.

With the consent of the parties
indicated in letters being lodged with the

Clerk, amici respectfully submit this brief

to advance their position to this Court.

QUESTIONS PRESENTED

l. Whether First Amendment principles
of freedom of conscience and religious

liberty require adherence to Roe v. Wade and

the invalidation of abortion restrictions

designed to sponsor and impose a particular

belief regarding the morality of abortion.
2. Whether the standard of strict

scrutiny applied in Roe v. Wade and Akron v.

Akron Center for Reproductive Health must be

applied here to fulfill this Court's duty
under Article III and the Bill of Rights to

guard fundamental rights against legislative

infringement.

SUMMARY OF ARGUMENT

Since Roe v. Wade, the nature and scope

of individual constitutional rights at stake
in the abortion context have never been
questioned more explicitly or pointedly than
in these cases.

The United States Department of Justice
has submitted an amicus brief in which it

urges the Court to repudiate the Roe v. Wade

decision. The Solicitor General asserts that
the Court should retract its acknowledgement,

in Roe v. Wade, of the constitutional status

of individual freedoms implicated in the
abortion decision, or at least dilute its
standard of review and defer to the
legislature with respect to a fundamental
right in controversy. This contention
advocates a shocking and dangerous departure
from the principle which is the cornerstone
of our constitutional scheme, that it is the

"province and duty of the judicial department

=~

to say what the law is," Marbury v. Madison,

5 U.S. (1 Cranch), 137, 176 (1803), and to
protect the rights of the individual against
majoritarian disapproval and excess.

In defense of the challenged statutes,
the Solicitor General contests the
constitutional command at the heart of Roe v.

Wade--that civil government must remain

ideologically neutral with respect to the
inseparable questions of the "morality" of
abortion and "when life begins." The
Solicitor General's argument highlights,: just
as the particular statutes before the Court
illustrate, the impermissibility of abortion
restrictions under the First Amendment. It
also underscores that the decision in Roe v.

Wade, which denied to civil authority the

power to adopt a "theory of life," was
compelled not only by the Fourteenth but also
by the First Amendment.

The First Amendment's shelter for the

ate

realm of intellect and spirit denies to the

state the power to require individuals to
espouse or to listen to beliefs they do not
hold. The First Amendment likewise protects
against being induced or forced to act
according to morally offensive beliefs. By
requiring espousal of, and seeking to induce
conformity to, the belief that human life
begins at conception, the statutes violate
the First Amendment.

Moreover, because the controversy over
abortion involves competing moral viewpoints
rooted, for the most part, in theological
differences, statutes, such as those at issue
here, which fall outside the ambit of
neutral, judgment-free abortion regulations

delineated in Roe v. Wade, violate the First

Amendment guarantee of religious liberty.
These statutes interfere ideologically

and practically with a woman's right to

freely exercise her religion and conscience

afjea

in making the abortion decision, while

placing no similar obstacles in the path of
the woman whose faith compels childbirth.
Views regarding the "morality" of abortion
and the correlative question of whether human
life begins at conception stem from
deeply-held conscientious principles which
intrinsically are, or represent the
functional equivalent of, theological
beliefs. State-sponsorship of any one
viewpoint departs from the rigorous
governmental neutrality required where
competing religious and conscientious claims

are at stake.

ARGUMENT

I. ADHERENCE TO ROE V. WADE IS
NECESSARY TO PRESERVE FIRST
AMENDMENT PRINCIPLES OF
FREEDOM OF CONSCIENCE AND
RELIGIOUS LIBERTY.

At the heart of the statutes at issue
are several provisions which evidence an
underlying purpose to advance the theory that
actual life begins at conception, or at some
point prior to birth. These provisions under-
score the unconstitutionaiity of the
remaining sections invalidated by the courts
below, which advance this theory by imper-
missibly placing a higher value on the fetus
than on the needs of the pregnant woman.

They also bring into sharp focus the First
Amendment underpinnings of this Court's
refusal to allow civil government to adopt "a
theory of life" to override a woman's right

to abortion. Akron v. Akron Center for Repro-

ductive Rights, 462 U.S. 416, 444 (1983);

Roe v. Wade, 410 U.S. 113, 162 (1973).

ou

The premises and purposes of the 1982
Pennsylvania Abortion Control Act (18 Pa.
Cons. Stat. Ann. §§$3201-3220) (Purdon 1983)
are set forth in unequivocal terms at the
outset. It is based on a legislative intent

to “to protect the life and health of the

child subject to abortion," and the
conclusion that because "the Commonwealth
places a supreme value upon protecting human
life," it is necessary to impose upon
physicians "precise standards of care where

their actions do or may result in the death

of an unborn child" (emphases added). §3202.

The Pennsylvania Act requires the doctor
to tell a woman seeking abortion "that there
may be detrimental physical and psychological
effects [of abortion] which are not
accurately foreseeable," §$3205(a)(1)(iii) and
the gestational age of the “unborn child" at
the time the abortion is to be performed.
§3205(a)(1)(iv). The doctor is required to

alte

advise her of the possible availability of
medical assistance benefits for "prenatal
care, childbirth and neonatal care,"
§3205(a)(2)(i), and "[t]he fact that the
father is liable to assist in the support of
her child, even in instances where the father
has offered to pay for the abortion."
§3205(a)(2)(ii). The doctor must also refer
the woman to certain materials published by
the state which contain, among other things,
information regarding agencies and services
available to assist her with pregnancy,
childbirth and adoption, a statement that
"(t]he Commonwealth of Pennsylvania strongly
urges you to contact [these agencies] before
making a final decision about abortion," and
information regarding “the probable
anatomical and physiological characteristics
of the unborn child at two-week gestational
increments from fertilization to full-term,
including any relevant information on the

sit.

possibility of the unborn child's survival."

§3205(a)(2) (iii), $3208.

Finally, the Pennsylvania Act requires
the doctor, in performing post-viability
abortions, to utilize the method of abortion
most likely to result ina live birth unless
the procedure would create a "significantly
greater medical risk" to the woman. §$3210(b).
As the Third Circuit found, this section
requires "the woman to bear an increased
medical risk in order to save her viable
fetus...," and requires the doctor "to make a
‘trade-off' between the woman's health and

fetal survival." American College of

Obstetricians and Gynecologists v.

Thornburgh, 737 F.2d 283, 300 (3rd Cir.

1984). At the same time, the statute
eliminates certain mental health concerns
from the consideration of whether a woman's
health is jeopardized by choosing a method of

ot Bu

a

abortion designed to save the fetus.-

The Illinois Abortion Law similarly
contains provisions which reflect the state's
purpose of advancing the theory that life
begins at conception. For example, section
ll(d) requires doctors under all
circumstances to intorm women of the fact
that a prescribed drug, such as a form of
birth control, acts as an “abortifacient,"
which is defined in section 2(10) as any
substance or device known to cause "fetal
death." Ill. Rev. Stat. Ch. 38, 9981-22(10),
81-31(d)(1983). In carrying out the state's
theory of the primacy of prenatal life over
women's well-being, another provision
requires doctors to observe the same standard
of care in aborting a “possibly viable" fetus

as would be required when attempting to bring

2. Section 3210(b) provides, in part, that
"(tjJhe potential psychological or emotional
impact on the mothe® pf the unborn child's
survival shall not be deemed a medical risk
to the mother."

atte

a truly viable fetus to live births §6(4).
Ill. Rev. Stat. Ch. 38, 981-26(4) (1983).
The portions of the Pennsylvania and
Illinois statutes which propagandize the
belief in the primacy of the fetus and the
immorality of abortion, and which require
individuals to express, listen to and act in
accordance with that view, illuminate the
meaning and wisdom of the decision in Roe v.
Wade, 410 U.S. 113 (1973).
A. The Framework Established in
Roe v. Wade Enforces The
First Amendment Prohibition of
State Sponsorship of Belief in

Derogation of Individual
Freedom of Conscience.

In Roe v. Wade, this Court emphas:zed

the theological and metaphysical nature of
the underlying question of when life begins:

We need not resolve the difficult
question of when 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.

410 U.S. at 159. The absolute refusal to
allow the state to “adopt a theory of life”
to override a woman's right to abortion, or
to regard its interest in potential life as
overriding its interest in the well-being of
pregnant women, was an affirmation of the
individual's freedom to believe and to follow
one's beliefs as well as of the absence of

power in the state to sponsor a contrary

nf
‘

civil or religious faith.

The Court in Roe v. Wade outlined the

full extent to which legitimate state

concerns justify government regulation of

a
rT
@
oF

abortion. That decision correctly isol

cr
f

he cniy neutral, judgment-free bases of
regulation. It recognized that, under our
secular system of government, the state's

obligation to respect and preserve the life
f f

ind health of women will, under all

circumstances, outweigh any interest the
state has in the potentiality of life
presented by the fetus. The Court precluded
the state from altering this

constitutionally-based hierarchy of

ct

governmental priorities. Converseiy, i
required civil government to follow a
hands-off approach with respect to the
value-laden issues of the morality of
abortion and the question of "when life
begins," and relegated such issues to the
conscience of the individual.

The question of whether abortion is

riaqht o

~
mY

wrong for a particular woman under

Marticular circumstances is a matter which

the value to be ascribed to prenatal life and
the circumstances under which abortion is
right or wrong does not in any way suggest
that the individual's conscientious decision
deserves a lesser degree of constitutional
protection. To the contrary, the controversy
confirms the value and propriety of affording
that very form of protection. As the Court

recognized in West Virginia State Board of

Education v. Barnette:

Struggles to coerce uniformity of
sentiment in support of some end
thought essential to their time
have been waged by many good as well
as evil men...Those who begin the
coercive elimination of dissent
soon find themselves
exterminating dissenters.
Compulsory unification of the
opinion achieves only the
unanimity of the graveyard.

[F]reedom to differ is not

limited to things that do not

matter much. That would be a mere
shadow of freedom. The test of

its substance is the right to differ
as to things that touch the heart

of the existing order. If there

oiBe

is any fixed star in our
constitutional constellation,
it is that no official, high or
petty, can prescribe what shall
be orthodox in politics,
nationalism, religion, or other
matters of opinion, or force
citizens to confess by word or
act their faith therein.

319 U.S. 624, 641-42 (1943), quoted in

Wallace v. Jaffree, __ U«S. , 86 L.Ed. 2d

29, 41 n.39 (1985).

As the statutes before the Court in
these cases demonstrate, the effort to
control abortion is part of a new "struggle
to coerce uniformity" and dictate the bounds
of permissible thought, belief, expression
and action. Both the Pennsylvania and
[Illinois statutes contain provisions
purporting to insure "informed consent," yet
which require the doctor to give, and the
woman to hear, particular information which
Supports, in blatant and subtle ways, the
underlying legislative contention that
abortion is immoral.

ai@Ge

While a doctor cannot complain of being
required to give the objective information
necessary to ensure informed consent, Akron

vy. Akron Center for Reproductive Health, 462

U.S. at 442-444, Planned Parenthood v.

Danforth, 428 U.S. 52, 68 (1976), this

ordinance converts the legitimate process of
informed consent into both a
"straight-jacket"~ and a propaganda tool for
the position that abortion is immoral. As
such, it violates not only the right to
decide free of state interference, but also
the First Amendment right not to be coerced
to speak or listen.

It is axiomatic that the state cannot,
consistent with the First Amendment, use its
citizens to ypagandize certain beliefs. As
the Court recently noted, “the right to speak

and the right to refrain from speaking are

Be Planned Parenthood v. Danforth, 428 U.S.
at 68n. 8.

220

complementary components of a broader concept

of freedom of mind....” Wallace v. Jaffree,

86 L.Ed. 2d at 40. Similarly, in Wooley v.

Maynard, the Court held that freedom of

thought protects the right of individuals not
to bear an ideological message which they
find “morally objectionable." 430 U.S. 705,

715 (1977). See also, Elrod v. Burns, 42/7

U.S. 347 (1976) (Public employment cannot
generally be conditioned on affiliation with
a particular political party). This form of
governmental compulsion "transcends
constitutional limitations on [government's]
power and invades the sphere of intellect and
spirit which it is the purpose of the First
Amendment to our Constitution to reserve from

all official control." West Virginia State

Board of Education v. Barnette, 319 U.S. at

642.
Moreover, certain sections require the

doctor to communicate or refer the patient to

information he or she does not believe to be

truthful, let alone objective in nature.
While there is no case on point in the annals
of ‘this Court, the freedom of thought and
expression shielded by the First Amendment
must surely extend protection against
state-enforced compulsion to lie or mislead.

See Torasco v. Watkins, 367 U.S. 488, 494

(1961) (First Amendment prohibits limiting

public office to those who have or profess

belief in certain religious concepts).

The First Amendment rights of pregnant
women are also violated by this mandated
consent process. Just as the First Amendment
guarantees a right to listen and receive

information, see e.g., Stanley v. Georgia,

394 U.S. 557, 564 (1964) (right to read
obscenity in one's house); it also guarantees
its counterpart--the right not to be forced

to listen. Cf. Wallace v. Jaffree, 86 L.Ed.

2d at 40 (First Amendment protects certain

=

conduct and guarantees the corollary rights
to refrain from those activities as part of a
"broader concept of individual freedom of

mind"); Griswold v. Connecticut, 381 U.S.

479, 482-84 (1965) \(penumbras of First
Amendment include many rights not
specifically articulated).

The Constitution has been held to
intervene to protect against forced listening
where the invasion of privacy .d the
captivity of the audience is fa less severe
than it is under statutes regulating the

doctor-patient relationship. See e.g.

Federal Communications Commission v.

Pacifica, 438 U.S. 726 (1978) (regulation of

"offensive" material on radic)’; Kovacs v.

Cooper, 336 U.S. 77 (1949) (0 .nance
regulating sound trucks). Making the doctor
a mouthpiece of the state, the sanctity of a
woman's decision-making process is invaded.
Unlike the radio listener who can decide not

at%e

to listen to a particular channel, the

pregnant woman cannot refuse the information
or affect the doctor's obligation to give it
to her unless she sacrifices her right to
abortion.

There is little more offensive to the
notion of a free people than compulsion to
speak or to hear morally objectionable and
one-sided messages, or efforts by the state
to enforce uniformity of belief. Despite the
efforts of those opposed to abortion to
create the appearance of a resolution of the
deep underlying conflict over the value to be
ascribed to prenatal life, it is clear that

the conflict rages unabated.” It remains an

4. See, The Human Life Bill: Hearings on S.
158 Before the Subcommittee on Separation of
Powers of the Senate Committee on the
Judiciary, 97th Cong., lst Sess. (1981), The
Human Life Bill-Appendix: Hearings on S. 158
Before the Subcommittee on Separation of
Powers of the Senate Committee on the
Judiciary, 97th Cong., lst Sess., and

(fn. cont. on next page).

othe

irresoluble conflict between different

soaceptions of the meaning and sanctity of
life, rooted in differing religious, moral,
ethical teachings. The principle enunciated

by this Court in Roe v. Wade--that the state

may adopt no "theory of life" either to
coerce or induce conformity--is the only one
consistent with the First Amendment and the
preservation of the pluralistic society which
it envisioned.
B. Roe v. Wade Advances the Policies
of Voluntarism and State Neutrality
in Matters of Religion Embedded

in the Religious Liberty
Guarantees.

The statutes at issue here reflect the
type of double-barrelled violation of the

First Amendment which Roe v. Wade is designed

effectively to avoid. Not only do they

(fn. cont. from preceding page)

The Human Life Bill-S. 158: Report, together
with Additional and Minority Views to the
Committee on the Judiciary made by its
Subcommittee on Separation of Powers, 97th
Cong., lst Sess.

2G

invade the realm of individual conscience by
professing a "theory of life" intended to
induce women to forgo abortion, they also
advance a "theory of life" which is
inconsistent with religious and conscientious
decisions themselves protected by the
religious liberty clauses. By tacitly
encouraging adherence to a particular belief,
the statutes offend both the principle of
voluntarism and the mandate of governmental
neutrality embodied in the Free Exercise and
Establishment Clauses.
l. The Challenged Statutes

Demonstrate that Roe v. Wade

is Necessary to Avoid

Infringement of the

Individual Right to Make and

Effectuate a Conscientious

Decision on Abortion

Protected by the Religious
Liberty Clauses.

Abortion ranks as a paramount concern in
all major religious traditions. For those of
the anti-abortion faiths, actual human life

begins at or near conception and abortion is

=2G«

a grave sin; which destroys God's creation
_and is analagous to murder. Conversely, in
the pro-choice faiths, the preservation of
the health and well-being of existing life,
and consideration of the responsibilities of
parenthood outweigh the interest in potential
life and rank among the highest obligations
of human beings towards one another and
toward God.

The Free Exercise Clause protects the

right to believe or disbelieve. Torasco v.

Watkins, 367 U.S. 488 (1961). It protects

the right to practice one's beliefs, and to

act in accordance with them. McDaniel v.

Paty, 435 U.S. 618 (1978). It encompasses
decisions about daily life which are "rooted
in religious belief" rather than personal

preference. Wisconsin v. Yoder, 406 U.S.

205, 215-16 (1972).
The religious liberty guarantee also

shields the exercise of conscience:

eftea

decisions that reflect "religious choice"
even though not compelled by religious dogma,

Thomas v. Review Bd., 450 U.S. 707, 715-716

(1981), and decisions which are based on a
"belief that occupies in the life of its
possessor a place parallel to that filled by

the orthodox belief in God." United States

v. Seeger, 380 U.S. 163, 176 (1965).” The

5. Though Seeger involved statutory
interpretation of the conscientious objector
exemption rather than a constitutional
holding, the expansive interpretation was
influenced by the concern for avoiding
preferential treatment of the traditional
believer as compared to the non-traditional
one. United States v. Seeger, 380 U.S. at
176; Welsh v. United States, 398 U.S. 333
(1970) (Harlan, J., concurring). In Gillette
v. United States, 401 U.S. 437 (1971), the
selective objector claim, found to be outside
the statutory exemption, nonetheless
triggered scrutiny under both the Free
Exercise and Establishment Clauses.

aS@e

— Court recently restated this longstanding

principle in Wallace v. Jaffree:

the individual's freedom to choose his
[her] own creed is the counterpart of
his [her] right to refrain from
accepting the creed established by the
majority. At one time it was thought
that this right merely proscribed the
preference of one Christian sect over
another, but would not require equal
respect for the conscience of the
infidel, the atheist, or the adherent
of a non-Christian faith such as
Mohammedism or Judaism. But when the
underlying principle has been examined
in the crucible of litigation, the
Court has unambiguously concluded that
the individual freedom of conscience
protected by the First Amendment
embraces the right to select any
religious faith or none at all. This
conclusion derives support not only
from the interest in respecting the
individual's freedom of conscience,

but also from the conviction that
religious beliefs worthy of respect
are the product of free and voluntary
choice by the faithful (footnotes
omitted).

86 L.Ed. <d at 40-41. See also Thornton v.

Caldor, U.S. _, 86 L. Ed. 2d 557, 564

(1985) (O'Connor, Marshall, J.J., concurring)
(invalidating a statute protecting Sabbath
observers “without according similar
accommodation to ethical and religious
beliefs and practices of other private
employees.")

Rooted in a policy of voluntarism in
matters of religion and conscience, the Free
Exercise Clause protects against direct and
indirect schemes to discourage religious
exercise. A state invades the realm of

freedom of religion if it purposefully, or

=%6=

even inadvertently, conditions benefits or
exacts a toll that puts “substantial pressure
on an adherent to modify his [her] behavior

and to violate his [her] belief." Thomas v.

Review Board, 450 U.S. at 718; Sherbert v.

Verner, 374 U.S. 398, 404-07 (1963).
Therefore, content-based, judgmental
legislative intervention impinging on the
religious and conscientious abort.on
Gecision-making process violates the policy
of voluntariness underlying the religious
liberty guarantees, as well as the right to
privacy.

By reqwiring doctors to give out, and
women to hear, information reflecting a
theory of life that renders abortion immoral
clearly invades the shield afforded by the
Free Exercise Clause to the integrity of

differing religious and conscientious

afia

rial itil liah tallest

beliefs. The information required to be
provided under the challenged statutes is
designed to advance the view that the fetus

is a person from the moment of conception and

cause the woman to question her own beliefs
and reconsider her decision to have an
abortion or to utilize a particular form of
birth control. ° Other constraints on the
informed consent process, such as the giving
of false, misleading, erroneous and distorted
information as to risks and benefits, or the

availability of adoption or other

6. The fact that the materials prepared by
the State of Pennsylvania might be
supplemented or contested in the hands of a
particular doctor does not eliminate their
coercive element; nor does it obviate the
"substantial risk" that the materials will be
used as a tool of "state-sponsored
indoctrination" in the hands of another
doctor. Grand Rapids School District v.
Ball, U.S. , 87 L.Ed. 2d 267, 279 (1985).
"Such indoctrination, if permitted to occur,
would have devastating effects on the right
of each individual to determine what to
believe (and what not to believe) free of any
coercive pressures from the State." Id. at
278. Cf. Levitt v. Committee for Public

(fn. cont. on next page)

afta

services--are designed to induce a woman to
renounce abortion or, at the least, to impugn
her decision-making process.

The informational requirement regarding
"abortifacients" contained in the Illinois
statute constitutes a particularly offensive
type of moralistic preaching in violation of
the constitutional guarantee of religious
liberty. In the absence of secular, much
less compelling, justification, it intrudes
on the decision-making process, and burdens
access to the means to effectuate a
procreational decision regarding birth

control and abortion, in a way which goes

(fn. cont. from preceding page)

Education, 413 U.S. 472, 480 (1973)("([TJhe
State 1s constitutionally compelled to assure
that the state-sponsored activity is not
being used for religious indoctriniation") ;
Lemon v. Kurtzman, 403 U.S. 602, 619

(1971) ("The State must be certain, given the
Religion Clauses, that subsidized teachers do
not inculcate religion").

o33<

beyond infringing the Free Exercise right to
put one's religious and conscientious choices
into practice. For example, its impact upon
a woman whose religious teachings oppose ,
abortion but who, after considerabie
soul-searching, has arrived at an individual,
conscientious decision to choose an early
abortion, or to use a curative drug or a
particular form of birth control, poses a
unique offense to the Free Exercise Clause.
The freedom to follow the dictates of one's
conscience in deciding not to follow the
dogmatic teachings of one's faith, and to do
so without feelings of shame or guilt
inflicted by the state, is the complementary

component of the constitutional guarantee of

free exercise. See Thomas v. Review Board,

450 U.S. at 715-716 ("the guarantee of free
exercise is not limited to beliefs which are
shared by all of the members of a religious

sect."): Wallace v. Jaffree, 86 L. Ed. 2d at

— =

40.

The Illinois requirement regarding
"“abortifacients" also demonstrates the way in
which women are invidiously affected by
restrictions aimed at promoting a particular
"theory of life" which restrict the doctor's
freedom of conscience regarding matters of
ethics and medicine. A woman is entitled to
rely on the doctor to provide her with
information she requests, and to decide, on
the basis of his or her best medical judgment
and in light of his or her intimate knowledge
of the physical and emotional needs and
beliefs of the patient, what other
information can or should be disclosed.

The “method of choice" provision of the
Pennsylvania statute presents an even greater
affront to the constitutionally-mandated
respect for the freedom of conscience of both
the doctor and the patient. The woman's

conscientious decision to have an abortion

=33-

(i

is, for all practical purposes, overriden.
Not only is she forced to bear a “medical
risk" to preserve the fetus, but extreme

mental anguish she may suffer over the

prospect of a “live birth"--which may itself
have served as the basis for her religious
and medical decision to abort--is not
considered. ’ Moreover, requiring a doctor to
knowingly inflict upon his or her patient an
increased health risk to preserve the fetus
will undoubtedly trample the religious and
conscientious, as well as the medical,
convictions of countless doctors.

This lack of respect for the

conscientious beliefs of doctors concerned

7. This provision thus comes into direct
conflict with what is often a medically and
religiously mandated decision. For example,
Jewish law is interpreted by many to include
the pregnant woman's extreme mental anguish
(regardless of its specific source) carrying
with it suicidal tendencies within the
category of life-threatening situations in
which abortion is required. Peldman,
Marital Relations, Birth Control and Jewish
Law 284-286 (1974).

o36<

with the well-being of their female patients
is in sharp contrast with the Pennsylvania
statute's treatment of doctors whose personal
beliefs coincide with those of the state.
Indeed, the discrimination accomplished by
the statute is not at all inadvertent; it is
explicit in the statutory scheme. Doctors
who are opposed to abortion are protected
against being required to participate in
abortion under the statute itself.° By
contrast to this respect for conscientious
convictions of those opposed to abortion, the

statutes require pro-choice doctors to

participate in informed consent processes and

8. Section 3202(d) of the Pennsylvania
statute provides:

Right of conscience--It is the further
public policy of the Commonwealth of
Pennsylvania to respect and protect the right
of conscience of all persons who refuse to
obtain, receive, subsidize, accept or provide
abortions including those persons who are
engaged in the delivery of medical services
and medical care whether acting individually,
corporately or in association with other
(fn. cont. on next page)

aS?-

medical practices which violate their
conscientious beliefs as well as their
ethical and professional commitments.

2. The Challenged Statutes Demonstrate
That Roe v. Wade is Necessary to
Enforce the Obligation of State
Neutrality Commanded by the
Religious Clauses.

As Roe v. Wade recognized, statutes

which burden women and their doctors in
rendering and effectuating the abortion
decision as a matter of conscience, violate
the obligation of state neutrality on matters
of conscience and religion. These cases once
again invoke the "constitutionally imposed
‘governmental obligation of neutrality'

Originating in the establishment and free

(fn. cont. from preceding page)

persons; and to prohibit all forms of
discrimination, disqualification, coercion,
disability or imposition of liability or
financial burden upon such persons or
entities by reason of their refusing to act
contrary to their conscience or conscientious
convictions in refusing to obtain, receive,
subsidize, accept or provide abortions.

-~38-

exercise clauses of the First Amendment."

Maher v. Roe, 432 U.S. 464, 474, n. 8 (1977),

quoting Sherbert v. Verner, 374 U.S. at 409.

Neutrality as between differing
religious and non-religious views and
practices is a core principle of the First
Amendment. It has long been settled that "a
state can[not], consistent with the First
Amendment, pass laws which...prefer one

religion over another," Everson v. Board of

Education, 330 U.S. 1, 15 (1947), and that a

proper respect for both the Free Exercise and
the Establishment Clauses compels the State
to pursue a course of ‘'neutrality' toward

religion." Committee for Public Education v.

Nyquist, 413 U.S. 756, 792-793 (1973), quoted

in Wallace v. Jaffree, 86 L. Ed. 2d at 46

n.50.
The requirement of neutrality is strict

where the free exercise of religion is at

=3@

issue. See Walz v. Tax Commission, 397 U.S.

664 (1970). The Free Exercise Clause
“prohibits misuse of secular governmental
programs ‘to impede the observance of one or
more religions or to discriminate invidiously
between religions...even though the burden
may be characterized as being only indirect.'

Braunfeld v. Brown, 366 U.S. 599 (1961) at

607." Gillette v. United States, 401 U.S. at

462. Thus Sherbert not only held that the

absolute Saturday work requirement for
unemployment compensation eligibility was an
impermissible burden on free exercise of a
sabbatarian; it also held that the
"unconstitutionality of the disqualification
cf the Sabbatarian...[is] compounded
by...religious discrimination" in that, by
contrast to the treatment of the sabbatarian,
the emergency labor laws exempted those who
were "conscientiously opposed to Sunday
work." 374 U.S. at 406.

abiiin

When recently confronted with the

question at issue in Sherbert from the

opposite constitutional perspective, the
Court reiterated the importance of state
neutrality in light of the guarantee of

religious liberty. In Thornton v. Caldor,

Inc., the Court invalidated a statute which
granted Sabbath observers an absolute right
to a day off in part because it gave no
rights or consideration to "[o]ther employees
who have strong and legitimate, but

nonreligious reasons for wanting a weekend

day off." Thornton v. Caldor, Inc.,

__U.S. __, 86 L. Ed. 2d 557, 563 n. 9
(1985). As the concurring Justices noted,
the statute improperly granted special
protection for Sabbath observers, “without
according similar accommodation to ethical
and religious beliefs and practices of other

private employees," thereby conveying a

message "of the endorsement of a particular

efia

belief, to the detriment of those who do not
share it." Id. at 564 (O'Connor, and Marshall
J. J., concurring).

The overall discriminatory character of
the statutes at issue is clear. Women who,
out of religious or conscientious conviction,
determine that abortion or a particular drug
or form of birth control, is proper, are
subjected to a program of discouragement and
deterrence, while women who for similar
reasons are compelled to or opt to bear a
child suffer no such hindrance in the
effectuation of their religious choice.

Those who choose abortion are being burdened,
not to advance their health or some
independent, secular, and neutral purpose,
but for the purpose of inducing them to
consider and obey the belief that life begins
at conception and abortion is immoral.

Equal treatment of both the woman whose

conscience dictates abortion rather than

o42~

childbirth and the doctor who assists her
requires that these one-sided statutes be

invalidated. See also United States v.

Seeger, 380 U.S. 163 (1965); Welsh v. United

States, 398 U.S. 333 (1970). The lack of
compelling let alone colorable interest for
these statutes is thus highlighted by the
religious discrimination it effects.

Far from advancing maternal health or an
objectively informed decision, the goal of
the statutes is to convert, or at least
shame, women whose conscience dictates
abortion, or the use of an "abortifacient,"
contary to'the states' moral and religious
positions that abortion is the taking of
human life.

This Court has repeatedly held in First
Amendment cases that mere disagreement with
the content of belief or protected action

does not suffice to justify infringement.

See e.g., Fowler v. Rhode Island, 345 U.S.

~43-

67, 69-70 (1953); Niemotko v. Maryland, 340

U.S. 268, 272-73 (1951): Ballard v. United

States, 322 U.S. 78 (1944); Murdock v.

Pennsylvania, 319 U.S. 105, 116 (1943); Only

where the free exercise of religion would
pose a “substantial threa* to public safety,

peace and order," Sherbert v. Verner, 374

U.S. at 403, can the state counterpose its

moral view against that of the believer. See

e.g., Prince v. Massachusetts, 321 U.S. 158

(1944); Jacobson v. Massachusetts, 197 U.S.

11 (1905).

If this were not so, then the protection
afforded by the religious liberty guarantee
of the Constitution would be swallowed up by
the moral disapproval that particular beliefs
and practices often inspire. Since the women
burdened by these statutes seek to obtain a
perfectly legal service, the moral position
adopted by the states cannot itself satisfy

the compelling interest test, let alone

~44-

qualify as legitimate in this context.
Moreover, the fact that the state
legislatures have taken a position that depre-
cates a moral decision sacred to dissenting
faiths threatens the dangers of intolerance,
oppression and sectarian strife that the
Religion Clauses were designed to avert.

Wallace v. Jaffree, 0.8. , 86 L. Ed. 2d

29 (1985); Everson v. Board of Education,

330 U.S. 1, 15-16, 53-55 (Rutledge, J.
dissenting). Where as here, an issue is
perceived as religious by many, and parti-
cularly by dissenting faiths, state sponsor-
ship sacrifices the neutrality necessary to
the preservation of religious harmony and the

public peace. People ex rel. McCollum, 333

U.S. 203, 228 n. 19 (1948); cf. Grand Rapids

School District v. Ball, 87 L. Ed. 2d at 276,

281. James Madison remonstrated that against
any state support for religious belief, even

purportediy even-handed support:

-~45-

eT eee Te ee ee ae

Because, it will destroy that
moderation and harmony which the
forebearance of our laws to inter-
meddle with Religion, has produced among
its several sects. Torrents of blood
have been spilt in the old world, by
vain attempt of the secular arm to
extinguish Religious discord, by
proscribing all difference in
Religious opinions...If...we begin
to contract the bonds of Religious
freedom, we know no name that will
too severely reproach our folly. At
least let warning be taken of the
first fruit of the threatened
innovation.

"Memorial and Remonstrance," reprinted in

Everson v. Board of Education, 330 U.S. at 69

(Appendix to Rutledge, J. dissenting).
Madison's warning sounds far too
contemporary. The effort reflected in the
Statutes before this Court to advance the
belief that life begins at conception, to
stop, disparage and discourage abortion and
to elevate concern for prenatal life over
concern for the rights and needs of pregnant
women is part of a program pressed by a new

and dangerous religious movement to undo the

-46-

separation of church and state guaranteed by
the First Amendment. The decision in Roe v.
Wade exemplifies the fact that this Court is
the ultimate refuge for the freedom of
conscience that the principles of religious

liberty preserve.

afta

—_—_—

II. THIS COURT IS DUTY-BOUND TO
GIVE STRICT SCRUTINY TO
STATUTES THAT IMPINGE THE
EXERCISE OF FUNDAMENTAL
RIGHTS.

The Solicitor General of the United

States has filed a brief in these cases which
suggests a radical and dangerous departure
from our constitutional scheme. The
Solicitor's argument that the Court should
altogether reverse the constitutional holding

of Roe v. Wade or, at a minimum, dilute the

constitutional standard for reviewing
restrictions on abortion, are both based on
his contention that legislatures on every
level, and not the Court, should determine
what rights are fundamental and the extent to
which they will be protected. Essentially,
the Solicitor is calling for this Court to
abdicate its constitutional function as
guardian of individual and civil rights.

Similar arguments have been heard in
this Nation during periods when

-~48-

constitutional rights were under attack. One
of the most eloquent responses to the
argument for legislative deference was made
by Justice Jackson, in a case which is, at
its heart, very similar to this one:

The very purpose of a Bill of

Rights was to withdraw certain
subjects from the vicissitudes

of political controversy, to

place them beyond the reach of
majorities and officials and to
establish them as legal principles
to be applied by the courts. One's
right to life, liberty and property,
to free speech, a free press,
freedom of worship and assembly,

and other fundamental rights may

not be submitted to vote; they depend
on the outcome of no election.

West Virginia State Board of Education v.

Barnette, 319 U.S. at 638.

To the argument that the Court lacked
competence to protect fundamental rights in
the face of competing policy considerations,
he replied:

»---LWjle act in these matters not

by authority of our competence but

by force of our commissions. We
cannot because of our modest

-49-

estimates of our competence in

such specialties as public
| education, withhold the judgment
that history authenticates as

the function of this Court when

liberty is infringed.
Id. at 639-40.

The contention that the Court should
defer to the legislatures on a matter of
fundamental rights threatens every guarantee
of the Bill of Rights. All constitutional
rights, whether explicit or implicit, are
necessarily defined and shaped by this
Court's interpretation of constitutional
principle. This includes rights so

fundamental as the right to be free of racial

segregation, Brown v. Board of Education, 34/7

U.S. 483 (1954), or of state sponsorship of

religious exercises in the schools, Wallace

v. Jaffree, 86 L. Ed. 2d 29 (1985); Enge. “".

Vitale, 370 U.S. 421 (1962). With each one
of these decisions and with countless others

the Court has faced and survived powerful

-50-

pressures from political movements opposed to
the Constitution's guarantee of these
fundamental rights.”

The right to privacy which embraces the
right to abortion is not, as the Solicitor
suggests less deserving of this Court's
rigorous protection because it is implicit in
the Bill of Rights. It is, in fact, the
foundation of human capacity to exercise all
the rights guaranteed in a democracy. As
Justice Brandeis wrote:

The makers of our constitution

undertook to secure conditions

favorable to the pursuit of

happiness. They recognized the

Significance of man's spiritual

nature, of his feelings and his
intellect. They knew that only a

9. For example, in response to Brown v.
Board of Education, its opponents sought to
withdraw Supreme Court and lower federal
court jurisdiction from school desegregation
cases. See, e.g. H.R. 1228, 85th Cong., lst
Sess. (1957), and S. 3467, 85th Cong., 2d
Sess. (1958). Likewise, after the decision
in Swann v. Charlotte Mecklenberg Board of
Education, 402 U.S. 1 (1971), opposition was
marshalled in the form of both constitutional
(fn. cont. on next page)

-5l-

part of the pain, pleasure and
satisfactions of life are to be
found in material things. They
sought to protect Americans in

their beliefs, their thoughts,

their emotions and their sensations.
They conferred, as against the govern-
ment, the right to be let alone--
the most comprehensive of rights
and the right most valued by
civilized man.

(fn. cont. from preceding page)

amendments, see, e.g. H.J. Res. 1035, 92d
Cong., 2d Sess. (1972), S.J. Res. 165, 92d
Cong., lst Sess. (1971), H.J. Res. 30, 823,
856, 858, 92d Cong., lst Sess. (1971); and
bills, which received the backing of the
Nixon Administration, see H.R. 13915, 13916
92d Cong., 2d Sess. (1972). In the area of
school prayer, efforts to circumvent the
impact of this Court's decisions in Engel v.
Vitale, 370 U.S. 421 (1961) and School
District of Abington v. Schemp, 374 U.S. 203
(1963) have included numerous constitutional
amendments. See, e.g. the Becker Amendment
(1964), the Dirksen amendments (1966, 1967),
and the Wylie amendment (H.J. Res. 191,
1971).

Similarly, this Court's decisions in the
areas of reapportionment and citizen
protection from legislative investigation,
have been opposed by legislative attempts to
limit the Court's jurisdiction. See
Eisenberg, "Congressional Authority to
Restrict Lower Federal Court Jurisdiction,"
83 Yale Law Journal 498 (1974).

@§2e

Olmstead v. United States, 277 U.S. 438, 487

(1928) (Brandeis, J., dissenting).

Periodically, this nation and our
Constitution are threatened by religious and
ideological forces which seek safety in
conformity and efficacy through coercion. In
such times as these, when legislatures are
under extreme pressure to undo the Bill of
Rights, the Court, as the ultimate guardian
of the liberties fundamental to a democracy,
is inevitably under attack as well. But the
integrity of the Court, the survival of our
constitutional system, and the guarantee of
individual liberty are preserved, not by
acquiescence to these pressures, but by
solemn and unswerving fulfillment of the duty
conferred upon this Court by the written
Constitution.

In sum, the Solicitor challenges the
most fundamental principle of the

constitutional scheme of checks and

w3e

a

balances--that it is “the province and duty
of the judicial department to say what the
law is," to declare that "an act of the
legislature, repugnant to the constitution is

void," and to guarantee that when rights are

violated, the “individual has a right to
resort to the laws of his country for a

remedy." Marbury v. Madison, 5 U.S. (1

Cranch) 137, 176, 166 (1803). This Court has
no higher office under the Constitution than
to protect individual rights under challenge.
Under any standard of review under the
Fourteenth Amendment, tne statutes before the
Court in these cases must be invalidated.
But the protection of the right to abortion,
like that of all fundamental constitutional

rights, properly calls for undiluted

application of strict judicial scrutiny.

CONCLUSION

The liberty of conscience, guaranteed by
the First Amendment's prohibition on state
sponsorship or imposition of any belief, let
alone religious belief--these are
cornerstones of our pluralistic democratic
society. The battle raging over abortion is
not a battle between good and evil, as some
may see it, but is rather a battle between
differing conceptions of the good. Each
conception is grounded in profound religious,
moral and ethical principles, and each is
equally incomprehensible and offensive to
those who believe otherwise.

This Court's decision in Roe v. Wade

charts the only course acceptable under our
Constitution--refusing to government the
power to adopt a "theory of life," and
guaranteeing to women a sphere of untrammeled
privacy for the exercise and effectuation of

their own, differing conscientious

-~55-

convictions. Any departure from the

principles of Roe v. Wade threatens not only

the right to abortion, but the foundation of

individual freedom under the Constitution.
As James Madison said: "“[I]t is proper to
take alarm at the first experiment on our
liberties..." "Memorial and Remonstrance”" in

Everson v. Board of Education, 330 U.S. at

65-66 (Appendix to Opinion of Rutledge, J.,
dissenting).
WHEREFORE, the challenged statutes

should be invalidated.

Respectfully submitted,

MADELINE KOCHEN

New York Civil Liberties
Union

132 West 43rd Street

New York, N.Y. 10036
(212) 382-0557

Attorney for Amici Curiae

APPENDIX

APPENDIX

medi l p
deny thes Lg! through constitutional
amendment federal and state legislation.

Rationale: Many religious organizations

representing diverse denominations have

adopted the position that decisions

concerning abortion would be made according

A-1

to individual conscience, consistent with
responsible medical practice, free from the
threat of criminal penalty...

However, a vocal minority would deny the

option of legal abortion to all. Their
personal belief that human life exists from
the moment of conception has prompted their
efforts to nullify the Supreme Court decision
through a Constitutional amendment which
would restrict access to abortion. One
theological view would thus become law,
binding on Americans of all faiths.

It is vital to increase public awareness
of this danger. Enactment of such
legislation would violate the religious
freedom of every citizen by circumventing the

First Amendment guarantee of church-state

separation.

APPENDIX B

AMERICANS FOR RELIGIOUS LIBERTY
(1982)

Statement of Principles: We believe in

the American tradition of religious and
intellectual freedom within a secular
democratic state. We believe in the
philosophy of Thomas Jefferson and James
Madison which gave birth to this tradition.

~

We believe in the American Constitution and
the Bill of Rights which make it the law of
the land.

A free and secular democratic state
guarantees religious liberty. It guarantees
equal freedom to the religious and the
non-religions. It makes religious faith a
private matter and gives no special
privileges to any religion or idea or
practice.

A free and secular democratic state

secures personal freedom and privacy. It

defends the individual against the tyranny of

A-3

transient majorities or determined
minorities. It allows all people to follow
their own consciences and restrains them only
when they harm the public welfare. It makes
abortion and sexual behavior between
consenting adults issues of personal

choice...

APPENDIX C

The following are excerpts from
statements about abortion by national

religious organizations:

AMERICAN BAPTIST CHURCHES, U.S.A.
(General Board, 1981)

Public law, enacted by human reason and
enforced by state power, can never fully
express the moral sensitivity of Christian
love. We are therefore grateful foe the
Constitutional protection of religious
freedom which guarantees our right to make

personal moral decisions based on religious

A-4

principles.

We recognize that Christian persons of
sensitive and informed conscience find
themselves on differing sides of the abortion
issue. In our Baptist tradition the
integrity of each person's conscience must be
respected; therefore, we believe that
abortion must be a matter of responsible,
personal decision.

AMERICAN ETHICAL UNION
(1965, reaffirmed 1979)

Abridgement of individual civil and
human liberties as guaranteed by the United
States Constitution is a danger to all.

Among those liberties that must continue free
of threat is the right of every woman to

self-determination insofar as continued

pregnancy is concerned.

_

AMERICAN FRIENDS SERVICE COMMITTEE
(1970)

On religious, moral, and humanitarian
grounds, therefore, we arrived at the view
that it is far better to end an unwanted
pregnancy than to encourage the evils
resulting from forced pregnancy and
childbirth. At the center of our position is
a profound respect and reverence for human
life, not only that of the potential human
being who should never have been conceived,
but that of the parent, the other children
and the community of man.

Believing that abortion should be
subject to the same regulations and
safeguards as those governing other medical
and surgical procedures, we urge the repeal
of all laws limiting either the circumstances
under which a woman may have an abortion or
the physician's freedom to use his best

professional judgment in performing it.

A-6

AMERICAN HUMANIST ASSOCIATION
(Annual Conference, 1977)

We affirm the moral right of women to
become pregnant by choice and to become
mothers by choice. We affirm the moral right
of women to freely choose a termination of
unwanted pregnancies. We oppose actions by
individuals, organizations and governmental
bodies that attempt to restrict and limit the
women's moral right and obligation of
responsible parenthood.

AMERICAN JEWISH CONGRESS
(Biennial Convention, 1982)

The American Jewish Congress has long
recognized that reproductive freedom is a
fundamental right, grounded in the most basic
notions of personal privacy, individual
integrity and religious liberty. Jewish
religious traditions hold that a woman must
be left to her own conscience and God to
decide for herself what is morally correct.

The fundamental right to privacy applies to

A-7

in

contraception to avoid unintended pregnancy
as well as to freedom of choice on abortion
to prevent an unwanted birth.

The American Jewish Congress, therefore,

--Reaffirms its unwavering support for
the Supreme Court decisions, including Roe v.

Wade and Doe v. Bolton, which recognize that

the Constitution guarantees women freedom of
choice with respect to abortion.

--Reaffirms its opposition to all
efforts--whether through Constitutional
amendment, simple legislative fiat, or
attacks on the jurisdiction of the
courts--that would restrict or burden a
woman's right to choose to terminate a
pregnancy.

--Rejects any efforts that would deny
individual religious liberty to either clergy
or lay people who, by virtue of their
Sincerely-held religious beliefs, may differ

in interpreting when to attribute

A-8

"personhood" to prenatal life.

BAPTIST JOINT COMMITTEE ON PUBLIC AFFAIRS
(1973)

It was voted that the Baptist Joint
Committee on Public Affairs go on record as
opposed to the Buckley-Hatfield amendment and
any like or similar constitutional
amendments, and that the staff be authorized
to take all available action to oppose them.

B'NAI B'RITH WOMEN
(Biennial Convention, 1976,
reaffirmed, 1978)

We wholeheartedly support the concepts
of individual freedom of conscience and
choice in the matter of abortion. Any
constitutional amendment prohibiting abortion
would deny to the population at large their
basic rights to follow their c« 'n teachings
and attitudes on this subject which would
threaten First Amendment rights.

CATHOLIC WOMEN FOR REPRODUCTIVE RIGHTS
(1985)

CWFRR joins people of other religious

A-9

traditions in respecting the pluralism of
religious, moral and ethical views. Thus we
Support the Supreme Court decisions which
promote First Amendment freedoms by leaving
each woman free to follow her own moral and
religious convictions about abortion.

CWFRR, with faithful Catholic
theologians, married couples, sisters and
many other individuals and groups, dissents
from the position taken by the hierarchy of
the Cathoiic Church that every aborticn is
morally wrong. CWFRR affirms that there are
circumstances in which a woman's choice t»9%
have an abortion may be morally justifiable.

CWFRR thus opposes all legislation which
would in any way restrict a woman's right to
control her reproduction.

CATHOLICS FOR A FREE CHOICE
(1975)

We affirm the religious liberty of
Catholic women and men and those of other

religions to make decisions regarding their

A-10

own fertility free from church or
governmental intervention in accordance with
their own individual conscience.

CENTRAL CONFERENCE OF AMERICAN RABBIS
(Annual Convention, 1975)

We believe that in any decision whether
or not to terminate a pregnancy, the
individual family or woman must weigh the
tradition as they struggle to formulate their
own religious and moral criteria to reach
their own personal decision. We believe that
the proper focus for formulating these
relgious and moral criteria and for making
this decision must be the individual family
Or woman and not the state or other external
agency.

As we would net impose the historic
position of Jewish teaching upon individuals
nor legislate as normative for society at
large, so we would not wish the position of
any other group imposed on the Jewish

community or the general population.

A-1]

We affirm the legal right of a family or

a woman to determine on the basis of their or
her own religious and moral values whether or
not to terminate a particular pregnancy. We
reject all constitutional amendments which
would ebridse or circumscribe this right.

CHRISTIAN CHURCH (DISCIPLES OF CHRIST)
(General Assembly, 1975)

WHEREAS, the Christian Church (Discpiles
of Christ) has proclaimed that in Christ, God
affirms freedom and responsibility for
individuals, and

WHEREAS, legislation is being introduced
into the U.S. Congress which would embody in
law one particular opinion concerning the
morality of abortion...

THEREFORE BE IT RESOLVED, that the
General Assembly of the Christian Church
(Disciples of Christ)

--Affirm the principle of individual
liberty, freedom of individual conscience,

and sacredness of life for all persons.

A-12

--Respect differences in religious
beliefs concerning abortion and oppose, in
accord with the principle of religious
liberty, any attempt to legislate a specific
religious opinion or belief concerning
abortion upon all Americans.

EPISCOPAL CHURCH
(General Convention, 1982)

RESOLVED: That the Episcopal Church
express its unequivocal opposition to any
legislation on the part of the national or
state governments which would abridge or deny
the right of individuals to reach informed
decisions in this matter and to act upon
them.

EPISCOPAL WOMEN'S CAUCUS
(Annual Meeting, 1978)

We are deeply disturbed over the
increasingly bitter and divisive battle being
waged in legislative bodies to force
continuance of unwanted pregnancies and to

limit an American woman's right to abortion.

A-13

We believe that all should be free to
exercise their own consciences on this matter
and that where widely differing views are
held by substantial sections of the American
religious community, the particular belief of
One religious body should not be forced on
those who believe otherwise.

FEDERATION OF RECONSTRUCTIONIST
CONGREGATIONS AND HAVUROT
(1981)

Although the Jewish tradition regards
children as a blessing, a gift of life
itself, the tradition permits the abortion of
an unborn child in order to safeguard the
life and the physical and mental health of
the mother. The rabbis did not take a
consistent stand on the question of whether a
fetus resembles "a person." They did not
think it possible to arrive at a final
theoretical answer to the question of
abortion, for that would mean nothing less

than to be able to define convincingly what

A-14

it means to be human.

We recognize that abortion is a tragic
choice. Any prospective parent must make an
agonizing decision between competing
claims--the fetus, health, the need to
support oneself and one's family, the need
for time for a marriage to stabilize,
responsibility for other children and the
like. Some of us consider abortion to be
immoral except under the most extraordinary
circumstances. Yet we all empathize with the
anguish of those who must make the decision
to abort or not to abort.

LUTHERAN CHURCH IN AMERICA
(Biennial Convention, 1970,
reaffirmed 1978)

Since the fetus is the organic beginning
of human life, the termination of its
development is always a serious matter.
Nevertheless, a qualitative distinction must
be made between its claims and the rights of

a responsible person made in God's image who

A-15

is in living relationships with God and other

human beings. This understanding of
responsible personhood is congruent with the
historical Lutheran teaching and practice
whereby only living persons are baptized.

On the basis of the evangelical ethic, a
woman or couple may decide responsibly to
seek an abortion. Earnest consideration
should be given to the life and total health
of the mother, her responsibilities to others
in her family, the stage of development of
the fetus, the economic and psychological
stability of the home, the laws of the land,
and the consequences for society as a whole.

MORAVIAN CHURCH IW AMERICA,
NORTHERN PROVINCE
(1974)

Whereas the Moravian Church believes in
the sacredness of life and in the quality of
life, and whereas we believe that abortion
should not be used as a method of birth

control nor a means of controlling

A-16

population, and whereas Christian faith calls
us to affirm the freedom of persons as well
as the sanctity of life, be it resolved that
abortion should be a matter of responsible
personal decision, with continuing counseling
provided if desired.

NATIONAL COALITION OF AMERICAN NUNS
(1982)

For thirteen years, the National
Coalition of American Nuns has debated the
abortion issue.

While we continue to oppose abortion, in
principle and in practice, we are likewise
convinced that the responsibility for
decisions in this regard resides primarily
with those who are directly and personally
involved.

NATIONAL COUNCIL OF JEWISH WOMEN
(National Convention, 1969,
reaffirmed, 1979, 1982)

The members of NCJW reaffirm the strong

commitment "to work to protect every woman's

individual right to choose abortion and to

A-17

eliminate any obstacles that would limit her
reproductive freedom."

NATIONAL FEDERATION OF TEMPLE SISTERHOODS
(Biennial Assembly, 1975)

NFTS affirms our strong support for the
right of a woman to obtain a legal abortion,
under conditions now outlined in the 1973
decision of the United States Supreme Court.
The Court's position established that during
the first two trimesters, the private and
personal decision of whether or not to
continue to terminate an unwanted pregnancy
should remain a matter of choice for the
woman; she alone can exercise her ethical and
religious judgment in this decision.

Only by vigorously supporting this
individual right to choose can we also ensure
that every woman may act according to the
religious and ethical tenets to which she

adheres.

A-18

NATIONAL SERVICE CONFERENCE,
AMERICAN ETHICAL UNION
(1976, reaffirmed 1979)

We believe in the right of each
individual to exercise his or her conscience;
every woman has a civil and human right to
determine whether or not to continue her
pregnancy. We support the decision of the
United States Supreme Court of January 22,
1973 regarding abortion.

We believe that no religious belief
should be legislated into the legal structure
of our country; the state must be neutral in

all matters celated to religious concepts.

NORTH AMERICAN FEDERATION OF TEMPLE YOUTH
(1981)

BE IT RESOLVED: that NFTY continues to
strongly support the right of a woman to
choose to obtain a safe, legal abortion, and
that NFTY opposes any constitutional
amendment that could lead to the restriction

of that right.

19

A-

PIONEER WOMEN/NA'AMAT
(Biennial Convention, 1983)

Reproductive choice must be recognized
as a matter of individual conscience outside
the realm of government intrusion. We oppose
attempts--whether by Constitutional
amendment, legislation, judicial review or
government regulation--to restrict women's
access to safe and legal abortion, to bar
financial assistance to women seeking
abortion or to violate the confidentiality of
family planning services.

PRESBYTERIAN CHURCH, U.S.A.
(General Assembly, 1983)

The church's position on public policy
concerning abortion should reflect respect
for other religious traditions and advocacy
for full exercise of religious liberty. The
Presbyterian Church exists within a very
pluralistic environment. Tts own members
hold a variety of views. It is exactly this

pluralism of beliefs which lead us to the

A-20

conviction that the decision regarding
abortion must remain with the individual, to
be made on the basis of conscience and
personal religious principles, and free from
governmental interference.

Consequently, we have a responsibility
to work to maintain a public policy of
elective abortion, regulated by the health
code, not the criminal code. The legal right
to have an abortion is a necessary
prerequisite to the exercise of conscience in
abortion decisions. Legally speaking,
abortion should be a woman's right because,
theologically speaking, making a decision
about abortion is, above all, her
responsibility.

As Presbyterians and U.S. citizens we
have a responsibility to guarantee every
woman the freedom of reproductive choice. We
affirm the intent of existing law in the

United States regarding abortion: protecting

A-21

the pregnant woman.

REFORMED CHURCH IN AMERICA
(General Synod, 1975)

To use, or not to use, legal abortion
should be a carefully considered decision of
all the persons involved, made prayerfully in
the love of Jesus Christ.

Christians and the Christian community
should play a supportive role for persons
making a decision about or utilizing
abortion.

REORGANIZED CHURCH OF JESUS CHRIST

OF LATTER DAY SAINTS
(1974, reaffirmed 1980)

We affirm that parenthood is partnership
with God in the creative processes of the
universe.

We affirm the necessity for parents to
make responsible decisions regarding the
conception and nurture of their children.

We affirm a profound regard for the
personhood of the woman in her emotional,

mental and physical health; we also affirm a

A-22

profound regard and concern for the potential
of the unborn fetus.

We affirm the inadequacy of simplistic
answers that regard ail abortions as murder
or, on the other hand, regard abortion only
aS a medical procedure without moral
Significance.

We affirm the right of the woman to make
her own decision regarding the continuation
or termination of problem pregnancies.

UNION OF AMERICAN HEBREW CONGREGATIONS
(Biennial Convention, 1975,
reaffirmed, 1981)

The UAHC reaffirms its strong support
for the right of a woman to obtain a legal
abortion on the constitutional grounds
enunciated by the Supreme Court in its 1973
decision...This rule is a sound and
enlightened position on this sensitive and
difficult issue, and we express our
confidence in the ability of the woman to

exercise her ethical and religious judgment

A-23

in making her decision.

The Supreme Court held that the question
of when life begins is a matter of religious
belief and not medical or legal fact. While
recognizing the right of religious groups
whose beliefs differ from ours to follew the

dictates of their faith in this matter, we

vigorously oppose the attempts to legislate
the particular beliefs of those groups into
the law which governs us all. This is a
clear violation of the First Amendment.
Furthermore,it may undermine the development
of interfaith activities. Mutual respect and
tolerance must remain the foundation of
interreligious relations.

UNITARIAN UNIVERSALIST ASSOCIATION
(General Assembly, 1978)

WHEREAS, religious freedom under the
Bill of Rights is a cherished American right;
and

WHEREAS, right to choice on

contraception and abortion are important

A-24

aspects to the right of privacy, respect for
human life and freedom of conscience of women
and their families; and

WHEREAS, there is increasing religious
and political pressure in the United States
to deny the foregoing rights;

BE IT RESOLVED: That the 1978 General
Assembly of the Unitarian Universalist
Association once again affirms the 1973
decision of the Supreme Court of the United
States on abortion and the member societies
and individual members

BE IT FURTHER RESOLVED: That the 1978
General Assembly of the Unitarian
Universalist Association strongly opposes any
denial or restriction of federal funds, or
any Constitutional amendment, or the calling
of a national Constitutional Convention to
propose a Constitutional amendment, that
would prohibit or restrict access to legal

abortion.

25

A-

UNITARIAN UNIVERSALIST WOMEN'S FEDERATION
(Biennial Convention, 1975,
reaffirmed 1979, 1981)

The Unitarian Universalist Women's
Federation reaffirm[s] the right of any woman

of any age or marital or economic status to
have an abortion at her own request upon

consultation with her physician.

UNITED CHURCH OF CHRIST
(General Synod, 1981)

The question of when life [personhood]
begins is basic to the abortion debate. It
is primarily a theological question, on which
denominations or religious groups must be
permitted to establish and follow their own
teachings.

Every woman must have the freedom of
choice to follow her personal and religious

and moral convictions concerning the

completion or termination of her pregnancy.

UNITED METHODIST CHURCH
(General Conference, 1976, 1984)

When an unacceptable pregnancy occurs, a
family, and most of all the pregnant woman,
is confronted with the need to make a
difficult decision. We believe that
continuance of a pregnancy which endangers
the life or health of the mother, or poses
other serious problems concerning the life,
health, or mental capability of the child to
be, is not a moral necessity. In such a
case, we believe the path of mature Christian
judgment may indicate the advisability of
abortion. We support the legal right to
abortion as established by the 1973 Supreme
Court decisions. We encourage women in
counsel with husbands, doctors, and pastors
to make their own responsible decisions
concerning the personal or mora’ questions
Surrounding the issue of abortion.

(Resolution on Responsibile Parenthood,

1976).

Our belief in the sanctity of unborn
human life makes us reluctant to approve
abortion. But we are equally bound to
respect the sacredness of the life and
well-being of the mother, for whom
devastating damage may result from an
unacceptable pregnancy. In continuity with
past Christian teaching, we recognize tragic
conflicts of life with life that may justify
aborticn (Social Principles, 1984).

UNITED METHODIST CHURCH,
NATIONAL YOUTH MINISTRY ORGANIZATION
(Biennial Convocation, 1983)

Freedom of choice in problem pregnancies
must be based on the moral judgment of the
involved individuals.

Where there is no consistent medical,
ethical, or theological consensus, the U.S.
Constitution should not be used to force one
theological view on all citizens who may
believe otherwise.

The U.S. Supreme Court decision of Roe

A-28

v.- Wade in 1973 guarantees a woman the right

to make a personal decision regarding
termination of a pregnancy. Any amendment to
deconstitutionalize the issue of abortion and
invalidate the 1973 decision could set a
precedent for endangering all our civil
liberties.

UNITED METHODIST CHURCH, WOMEN'S CHURCH,
GENERAL BOARD OF GLOBAL MINISTRIES
(1975, reaffirmed 1979, 1980)

We believe deeply that all should be
free to express and practice their own moral
judgment on the matter of abortion. We also
believe that on this matter, where there is

no ethical or theological consensus, and
where widely differing views are held by
Substantial sections of the religious

community, the Constitution should not be

used to enforce one particular religious

belief on those who believe otherwise.

UNITED PRESBYTERIAN CHURCH IN THE U.S.A.
(General Assembly, 1972,
reaffirmed 1978)

Whereas, God has given persons the
responsibility of caring for creation as well
as the ability to share in it, and has shown
his concern for the quality and value of
human life; and

Whereas, sometimes when the natural
ability to create life and the moral and
spiritual ability to sustain it are not in
harmony, the decisions to be made must be
understood as moral and ethical ones and not
Simply legal;

Therefore, in support of the concern for
the value of human life and human
wholeness...the 184th General Assembly:

b. Declares that women should have full
freedom of personal choice concerning the
competion or termination of their pregnancies
bnd that artificial or induced termination of

pregnancy, therefore, should not be

A-30

restricted by law, except that it be
performed under the direction and control of
a properly licensed physician.

UNITED SYNAGOGUE OF AMERICA
(Biennial Convention, 1975)

"In all cases ‘the mother's life takes
precedence over that of the foetus' up to the
minute of its birth. This is to us an
unequivocal principle. A threat to her basic
health is moreover equated with a threat to
her life. To go a step further, a classical
responsum places danger to one's
psychological health, when well established,
on an equal footing with a threat to one's
physical health." (1967)

(A)bortions, "though serious even in the
early stages of conception, are not to be
equated with murder, hardly more than is the
decision not to become pregnant."

The United Synagogue affirms once again
its position that “abortions involve very

serious psychological, religious, and moral

A-31

problems, but the welfare of the mother must
always be our primary concern."

WOMEN OF THE EPISCOPAL CHURCH
(Triennial Meeting, 1973)

WHEREAS the Church stands for the
exercise of freedom of conscience by all and
is required to fight for the right of
everyone to exercise that conscience,
THEREFORE, BE IT RESOLVED that the decision
of the U.S. Supreme Court allowing women to
exercise their conscience in the matter of
abortion be endorsed by the Church.

WOMEN'S LEAGUE FOR CONSERVATIVE JUDAISM
(Biennial Convention, 1982)

Reverence for life is the cornerstone of
our Jewish heritage. Since abortion in
Jewish law is primarily for the mother's
physical or mental welfare we deplore the
burgeoning casual use of abortion. Abortion
should be “legally available, but ethically
restricted. Though the abortion of a fetus

is not equivalent to taking an actual life,

A-32

it does represent the destruction of

potential life and must not be undertaken

lightly...."

However, Women's League also believes
that the practice of the principle of the
separation of church and state guaranteed by
our Constitution has kept our nation strong
and preserved full freedom for the
individual. Women's League believes that
transmitting religious values is the
responsibility of the religious sector.

YOUNG WOMEN'S CHRISTIAN
ASSOCIATION OF THE U.S.A.
(1979)

As an organization rooted in the
Christian faith, the YWCA is deeply conscious
of the difficult personal and ethical choices
raised by the issue of abortion.

The position of the YWCA is not
"pro-abortion." It is a position supporting
a woman's right to make an individual

decision based upon her own religious and

A-33

ethical beliefs and her physician's guidance.
The answer to the question, "When does
personhood begin?" must remain in the ethical
and religious realm.

Since there is a wide variation of
opinion among religious groups and
individuals in our pluralistic society as to
when personhood begins and what an ethical
decision on abortion may be in different

circumstances, the YWCA holds that no one

religious belief should be mandated by law.
Our government is expressly comManded to make
no law establishing any one religion or

prohibiting free expression of religion.

APPENDIX D

A CALL TO CONCERN
(Signed by 220 American religious
ethicists in 1978)

The increasing urgency of the issue of
abortion rights requires us as teachers and
writers of religious ethics to speak out.

Abortion is a serious and sometimes
tragic procedure for dealing with fetal life.
It raises important ethical issues and cannot
be blandly legitimized by the mere whim of an
individual. Nevertheless, it belongs in that
large realm of often tragic sctions where
circumstances can render it a less
destructive procedure than the rigid
prolongation of pregnancy.

We support the Supreme Court decisions
of 1973 which had the effect of removing
abortion from the criminal law codes. The
Court did not appeal to religion or ethics in

arriving at its judgment, but we believe the

A-35

decision to have been in accord with sound
ethical judgment. Taking note of the fact
that theologians, as well as other experts,
disagree on the fundamental moral question of
when life begins, the Court decided that the
law ought not to compel the conscience of
those WHo believe abortion to be in harmony
with their morai convictions.

In the last four years, however, those
decisions have been subjected to a relentless
attack from those who take the absolutist
position that it is always wrong to terminate
a pregnancy at any time after the moment of
conception. Those who take this absolutist
position have not hesitated to equate
abortion at any stage of pregnancy with
murder or manslaughter. From such an extreme
viewpoint, all legal means are considered
justified if they limit abortion, no matter
what the human consequences for poor women

and others--as in the recent efforts to deny

A-36

Medicaid funds and to prohibit use of public
hospitals for abortion services.

We feel compelled to affirm an
alternative position as a matter of
conscience and professional responsibility.

1. The most compelling argument against

the inflexibility of the absolutist position

is its cost in human misery. The absolutist

position does not concern itself about the
quality of the entire life cycle, the health
and well-being of the mother and family, the
question of emotional and economic resources,
the cases of extreme deformity. Its total
preoccupation with the status of the unborn
renders it blind to the well-being and
freedom of choice of persons in community.

Be "Pro-life" must not be limited to

concern for the unborn; it must include a

concern for the quality of life as a whole.

The affirmation of life in Judeao-Christian

ethics requires a commitment to make life

A-37

healthy and whole from beginning to end.
Considering the best medical advice, the best
moral insight, and a concern for the total
quality of the whole life cycle for the born
and the unborn, we believe that abortion may
in some instances be the most loving act
possible.

3. We believe it is wrong to deny

Medicaid assistance to poor women seeking

abortions. This denial makes it difficult

for those who need it most to exercise a
legal right, and it implies public censure of
a form of medical service which in fact has
the moral support of major religious groups.

4. We are saddened by the heavy

institutional involvement of the bishops of

the Roman Catholic Church in a campaign to

enact religiously-based anti-abortion

commitments into law, and we view this as a

seirous threat to religious liberty and

freedom of conscience. We acknowledge the

A-38

legal right of all individuals and groups,
both religious and secular, to seek laws that
reflect their religious and ethical beliefs.
But the institutional mobilisation of Roman
Catholic dioceses, including massive
financial contributions by those dioceses to
the National Committee for a Human Life
Amendment, is inappropriate on this issue.

If successful, it would violate the deeply
held religious convictions of individual
members and official bodies of many other
religious groups about when human personhood
begins, the relative rights of a woman and a
fetus, and responsible family life. This is
particularly a problem when there is no clear
majority opinion on these fundamental issues
nor an adequate social base of consensus for
legitimate and enforceable legislation.

5. .We call upon the leaders of

religious groups supporting abortion rights

to speak out more clearly and publicly in

A-39

response to the dangerously increasing

influence of the absolutist position. There

may be some ecumenical risks in such candor,
but t have already been assumed by
ho have pressed the absolutist
ition on religious grounds. In the long
ecumenical authenticity
dialogue and
Lendship é f very sharp

1qGreem S O! rs of substance.

Y

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0196%3A15. Public record. Not legal advice.