Amicus Curiae Brief — Diamond v. Charles

*

Nos. 84-495 and 84-1379

ee

IN THE

Supreuve Court of the United Phates

Lf |

OCTOBER TERM, 1985

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COPY

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ait 29 1985

RICHARD THORNBURGH, et al.,

Appellants

V.

BEST AVAILABLE

a

AMERICAN COLLEGE OF OBSTETRICIANS

AND GYNECOLOGISTS, et al.,

Appellees

EUGENE F. DIAMOND, et al.,

. Appellants

ALLAN G. CHARLES, et al.,

Appellees

On Appeal from the United States Courts of Appeals

for the Third and Seventh Circuits

BRIEF FOR THE

NATIONAL ABORTION RIGHTS ACTION LEAGUE;

AMERICAN ASSOCIATION OF UNIVERSITY WOMEN;

AMERICANS FOR DEMOCRATIC ACTION;

COALITION OF LABOR UNION WOMEN;

COMMITTEE TO DEFEND REPRODUCTIVE RIGHTS;

DISABILITY RIGHTS EDUCATION AND DEFENSE

FUND; NATIONAL BLACK WOMEN’S HEALTH

PROJECT; NATIONAL CAMPAIGN TO RESTORE

ABORTION FUNDING; NATIONAL FEDERATION OF

BUSINESS AND PROFESSIONAL WOMEN’S CLUBS,

INC. OF THE UNITED STATES OF AMERICA;

NATIONAL WOMEN’S CONFERENCE COMMITTEE;

NATIONAL WOMEN’S HEALTH NETWORK;

NATIONAL WOMEN’S POLITICAL CAUCUS;

U.S. STUDENT ASSOCIATION; VOTERS FOR CHOICE;

WOMEN’S EQUITY ACTION LEAGUE; WOMEN USA;

AND YOUNG WOMEN’S CHRISTIAN ASSOCIATION

OF THE UNITED STATES OF AMERICA NATIONAL

BOARD AS AMICI CURIAE IN

SUPPORT OF APPELLEES

{ Attorneys Listed on Inside Cover |

WILSON - EPES PRINTING Co.. Inc. - 789-0096 - WASHINGTON, D.C. 20001

@ GS «0

LYNN M. PALTROW

LYNN I. MILLER

(Counsel of Record)

NATIONAL ABORTION RIGHTS

ACTION LEAGUE

1424 K Street, N.W

Washington, D.C. 20005

(202) 347-7774

Attorneys for Amici ("uride

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI

SUMMARY OF ARGUMENT

ARGUMENT:

I. Roe v. Wade Has Dramatically

Lives and Health of American Women a!

Court Should Reaffirm It

To “Return the Law to the Condition” Before

Roe Would Deny Women Their Fundamenta

Constitutional Rights

CONCLUSION

il

TABLE OF AUTHORITIES

Cases: Page

Carey v. Pop dation Services International, 431

U.S. 678 (1977) 19

City of Akron v. Akron Center for Re producti ve

Health, 462 U.S. 416 (1985) _ 6,18

Cohen v. California, 403 U.S. 15 (1971) ine 18

Craig v. Boren, 429 U.S. 190 (1976) ; 18

Doe v. Bolton, 410 U.S. 179 (1973) dint 6

Eisenstadt v. Baird, 405 U.S. 438 (1972) 19, 20

Fe minist Women's Health ("¢ nter . Women Er-

ploited By Abortion, No. 83-2-04152- (Wash.

Super. Ct., Snohomish Cty. 1984) 7

Griswold v. Connecticut, 381 U.S. 479 (1965) 19

Kolendar v. Lawson, 461 U.S. 352 (1983) 18

Meyer v. Nebraska, 262 U.S. 390 a 3) 18, passim

Mississippi University for Women v. Hogan, 458

U.S. 718 (1982) l

Moore v. East Cleveland, 431 U.S. 494 (1977) 18, 25

Northern Virginia Wome n’s Medical Center v.

Balch, 617 F.2d 1045 (4th Cir. 1980) 7

Parkmed Co. v. Pro-Life Counseling, Inc., 88 A.D.

9d 534, 450 N.Y.S. 2d 23 (1982) 7

Pierce v. Society of Sisters, 268 U.S. 519 (1925) 18

Prince v. Massachusetts, 321 U.S. 158 (1944) 25

Roe v. Wade, 410 U.S. 113 Ager 5, passim

Singleton v. Wulff, 428 U.S. 106 (1976) 6

Smith v. Texas, 233 U.S. ro (1914) ... 22

Stanley v. Georgia, 394 U.S. 557 (1969) 18

Union Pacific Railway Co. v. Botsford, 141 U.S

250 (1891) Nee are teen ne eee 28

Wisconsin v. Yoder, 406 U.S. 205 (1972) .. ~ 25

Yick Wo v. Hopkins, 118 U.S. 356 (1886) 18

Legislative Materials:

Hearings Before the Subcomm. on Public Assist-

ance and Unemployment Compensation of the

House Comm. on Ways and Means, 98th Cong.,

ist Sess. (May 7, 1985) (Statement of Monica

Woodruff) Senet ners 24

131 Cong. Rec. H3586- 3602, E22 ; 372 (daily ed.

May 22, 1985) .......--------.--s-secseeeseeeeseeeeess suaiaaaias 5

iii

TABLE OF AUTHORITIES—Cont inued

Page

131 Cong. Rec. H3588 (daily ed. May 22, 1985) 7

131 Cong. Rec. S6892-93, 2411-12 (daily ed.

May 23, 1985) ..........-----------:------eeereseeeees ee 5

Books:

W. Hern, Abortion Practice (1984) .-.... 8 12,14, 19

D. McLane, Introduction to Spina Bifida (1984) 26

H. Ory, J. Forrest and R. Lineoln, Making Choices:

Evaluating the Health Risks and Benefits of

Birth Control Methods (1983) . a 20

R. Petchesky, Abortion and Woman's Choice

(1984) 14, 19, 20

M. Potts, P. Dievory & J. Peel, Abortion (1977) 8,16

Articles and Other Authorities:

The Alan Guttmacher Institute, Responses to Con-

cerns Raised About Abortion, 3 Issues in Brief

1 (1983) 5) Le i easninennnsineaeennneniaanes 20, 21

The Alan ( Guttmacher Institute. ‘Chee sing A Birth

Control Method That’s Right For . _—_— 19

The Alan Guttmacher Institute, The Hatch Amend

ment: Abusing the Process, Invading Privacy,

2 Issues in Brief 1 (1982). POR OT nee 16

Cates, Legal Abortion: The Public He alth Record,

215 Science 1586 (1982) Sa a aes _.. 10,14

David. The Romanian Abortion Experience: New

Data, Intercom 7 (Sept. 1980) -.....-... 16

Detroit Free Press, July 7, 1985 (Sunday ‘Maga-

RD 6 onnnecccnsccscccnrcnccsesesenesesos iT ee EAE Sli 5

Donovan, Judging Teenagers: How Minors Fare

When They Seek Court- Authorized Abortions,

15 Family Planning Perspectives 259 (1983) .. 14

Ely, The Wages of Crying Wolf: A Comment on

Roe v. Wade, 82 Yale L.J. 920 (1973) ...........-.-----. 17

Henshaw, Forrest and Blaine, Abortion Services in

the United States 1981 and 1982, 16 Family

Planning Perspectives 119 (1984) ................----- 14

Henshaw & Wallisch, The Medicaid Cutoff and

Abortion Services For The Poor, 16 Family

Planning Perspectives 170 (1984) ...... colummaebeaniios 14

iv

TABLE OF AUTHORITIES—Continued

Huber, Restricting or Prohibiting Abortion by

Constitutional Amendment: Some Health Im-

plications, 27 Journai of Reproductive Medicine

729 (1982) ........ A al rcaeicinibe

Jones, et al., Teenage Pregnancy im Developed

Countries: Determinants and Policy Implica-

tions, 17 Family Planning Perspectives 53

(1985) etna '

Monitoring to Prevent Abortion in Romania, Pop-

ulation Today 8 (June 1984) ..............----------------+

National Abortion Federation, Summary of Clinic

Violence as Reported to N.A.F. (August 14,

ee - . . ssaismnsineninnansneenninianemniiaaaten

Pilpel, The Fe tus as s Person: Possible Legal Conse-

quences of the Hogan-Helms Amendment, 6

Family Planning Perspectives 6 ER ;

Regan, Rewriting Roe v. Wade, 77 Mich. L. Rev.

1569 (1979) ET ee eT

Reproductive Freedom Project of the ACLUF

Legal Docket (L. Soto ed. 1984) ............-------------.

Southern Feminist Press, July-August 1985, 8........

Tietze. New Estimates of Mortality Associated

With Fertility Control, 9 Family Planning Per-

spectives 74 (1977) ........-...--.---::sseec-eeeseeeeeeeeeteeeeees

Tietze, The Public Health Effects of Legal Abor-

tion in the United States, 16 Family Planning

Perspectives 26 (1984)

Tyrer, Abortion in the U.S.: Past, Present and

Future?, PPFA Medical Digest: Issues in Re-

productive Health 3 (Spring 1982) ................... 10,

Westoff, et al., Abortion Preventable by Contracep-

tive Practice, 13 Family Planning Perspectives

218 (1981)

Page

16, 17

11,15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

Nos. 84-495 and 84-1379

RICHARD THORNBURGH, ef al.,

. Appellants

AMERICAN COLLEGE OF OBSTETRICIANS

AND GYNECOLOGISTS, et al.,

Appellees

EUGENE F. DIAMOND, et al.,

s Appellants

ALLAN G. CHARLES, et al.,

Appellees

On Appeal from the United States Courts of Appeals

for the Third and Seventh Circuits

BRIEF AMICI CURIAE ON BEHALF OF THE NATIONAL

ABORTION RIGHTS ACTION LEAGUE, ET AL.

INTEREST OF AMICI

The NATIONAL ABORTION RIGHTS A’ TION

LEAGUE (NARAL) is a national organization dedi-

cated to keeping abortion legal, safe and accessible. It

has more than 150,000 national members plus 33 affil-

iates with their own membership. NARAL spearheaded

the May 1985 “Abortion Rights: Silent No More”’ action

which gave voice to the millions of American women who

have chosen to have abortions.

The AMERICAN ASSOCIATION OF UNIVERSITY

WOMEN (AAUW), a national organization of over

2

193,000 college educated women, is strongly committed to

achieving legal, social, educational, and economic equity

for women. AAUW has a longstanding commitment to

ensuring a woman’s right to choose to have an abortion

as an essential element of her reproductive freedom.

AMERICANS FOR DEMOCRATIC ACTION (ADA)

is an independent liberal organization, founded in 1947,

which has members in every state. ADA policy, which is

set by its members is that abortion is a personal and

medical decision which should not be restricted by gov-

ernment action.

The COALITION OF LABOR UNION WOMEN is a

membership organization which represents the interests

of the 7 million union women in the United States. The

right of a woman to control her own destiny, both eco-

nomie and social, is seriously impaired if the state in-

tervenes in this most personal of choices.

The COMMITTEE TO DEFEND REPRODUCTIVE

RIGHTS (CDRR), an issue committee of the Coalition

for the Medical Rights of Women, is a grassroots organ-

ization based in San Francisco with 1000 members

throughout California and several other states. CDRR

believes that everyone has the right to make responsible,

uncoerced decisions about parenting and sexuality, and

this necessarily includes the right to choose abortion.

The DISABILITY RIGHTS EDUCATION AND DE-

FENSE FUND is a national disability civil rights or-

ganization dedicated to securing equal citizenship for

disabled Americans. The right of disabled people to lead

independent lives includes the right of disabled women to

choose to have an abortion or to have children and to be

free from involuntary sterilization.

The NATIONAL BLACK WOMEN’S HEALTH

PROJECT is a health, education and advocacy organiza-

tion which works to improve the quality of life for black

women. Its work is based on the belief that black women,

3

including poor black women, should have access to

health services which reduce infant mortality and pro-

duce healthy babies as well as access to abortion services

so that black women have a full range of reproductive

choices.

The NATIONAL CAMPAIGN TO RESTORE ABOR-

TION FUNDING (NCRAF) is a newly developed na-

tional network reflecting the perspective of minority

and working-class women. NCRAF seeks to guarantee

abortion rights for all women through the restoration

of Medicaid funding for abortion which was cut by the

Hyde Amendment in 1976.

The NATIONAL FEDERATION OF BUSINESS

AND PROFESSIONAL WOMEN’S CLUB'S INC. OF

THE UNITED STATES OF AMERICA (BPW/USA),

‘ounded in 1919, has a membership of 150,000 individ-

s and 3500 local organizations, and represents the in-

ests of working women. BPW/USA opposes any hu-

‘fe amendments, attempts to define when life be-

gins and attempts to overturn Roe v. Wade.

The NATIONAL WOMEN’S CONFERENCE COM-

MITTEE ‘NWCC):, 470 members appointed under Pub-

ic Law 94-167 to implement the 1977 National Plan of

Action, represents 90 national organizations and delega-

tions from every state and territory. NWCC supports

the implementation of the National Plan of Action plank

on reproductive freedom.

The NATIONAL WOMEN’S HEALTH NETWORK

(NWHN) is a public interest organization whose mem-

bership, comprised of 10,000 individuals and 400 organ-

izations representing 500,000 women, seeks to give

women a voice in the health care system in the United

States. NWHN supports women’s rights to have com-

plete control over their bodies, which must include the

right to make decisions to use contraception, to bear chil-

dren or to end a pregnancy.

4

The NATIONAL WOMEN’S POLITICAL CAUCUS

(NWPC), a bipartisan organization, with 77,000 mem-

bers nationwide, seeks to increase the influence and num-

ber of women in the public policy process at every level.

The NWPC fully supports reproductive freedom and in

particular a woman’s right to choose to have a safe and

legal abortion.

The U.S. STUDENT ASSOCIATION (USSA) is a

student advocacy service, representing over 3 million

students and over 400 universities and colleges around

the United States. USSA is in favor of a woman’s right

to choose and of reproductive freedom because an un-

wanted pregnancy can restrict a woman’s access to higher

education.

VOTERS FOR CHOICE (VFC) is a national inde-

pendent pro-choice political action committee solely dedi-

cated to keeping abortion safe, legal and accessible for

all women. VFC’s goal is to ensure the election of pro-

gressive, pro-choice candidates to Congress through pro-

visions of financial and technical assistance.

The WOMEN’S EQUITY ACTION LEAGUE

(WEAL) is a national membership organization com-

mitted to the economic development and advancement of

all women. WEAL supports reproductive freedom as a

right for all women, and recognizes that right as inti-

mately tied to the capacity of women to gain economic

security.

WOMEN USA is a communications network and or-

ganization serving women throughout the United States,

and working to expand the participation of women in

citizenship decision mak‘ng. Women USA supports re-

productive freedom as a fundemental human right as

basic as freedom of speech and the press, and as impor-

tant as the principal of separation of church and state.

The YOUNG WOMEN’S CHRISTIAN ASSOCIATION

OF THE UNITED STATES OF AMERICA (YWCA)

National Board has supported, since 1967, the right of

5

women to choose abortion. The YWCA has one million

members nationwide and 700 local branches.

SUMMARY OF ARGUMENT

Amici submit this brief to place the realities of abor-

tion in women’s lives before this Court and to urge this

Court to reaffirm Roe v. Wade, 410 U.S. 113 (1973).

Despite the narrow questions raised by the two cases

before this Court, Thornburgh v. American College of

Obstetricians and Gynecologists, 53 U.S.L.W. 3739 (U.S.

Apr. 15, 1985) (No. 84-495) and Diamond v. Charles,

53 U.S.L.W. 3824 (U.S. May 20, 1985) (No. 84-1379),

the Acting U.S. Solicitor General has filed an amicus

brief asking this Court to overrule Roe v. Wade. The

circumstances of women’s lives and women’s compelling

reasons for choosing to have abortions elucidate the

strong Constitutional foundations for this Court’s deci-

sion in Roe v. Wade.

In addition to presenting social science and medical

data, Amici present excerpts from some of the thousands

of letters received in response to the national campaign

“Abortion Rights: Silent No More.”' As part of this

action, people wrote letters describing why they or peo-

ple they knew chose to have abortions. The letters came

from people from all walks of life. Many writers de-

scribed themselves in their letters:

I am a Christian. I have a college degree and am a

registered nurse. (L-40)

1 Some of the letters have been published. See 131 Cong. Rec.

H3586-3602, E2367. 2372 (daily ed. May 22, 1985); 131 Cong.

Rec. S6892-93, E2411-12 (daily ed. May 23, 1985) ; Detroit Free

Press, July 7, 1985 (Sunday Magazine), at 6-11; Southern Feminist

Press, July-August 1985, at 8-9; and others will be published in a

book currently being negotiated by the National Abortion Rights

Action League. For the Court’s convenience the letters from which

excerpts have been taken are reproduced in a volume lodged with

this brief. Letters or documents which appear in this volume are

designated as “L’’. The letters and excerpts have been quoted and

reproduced as sent, without corrections in punctuation, grammar

or spelling.

6

I am a 82 year old Black female. I am a Baptist by

faith... . (L-41)

I was 30 years old, childless and facing a divorce.

( L-42)

I was a nice Irish Catholic girl dating a nice Irish

boy from Queens. (L-43)

I was born in Puerto Rico, and I grew up and went

to school there... (L-26)

My name is Frank Mendiola, I am not an expert on

abortion. ... (L-4)

I have been married 38 years; I am the mother of 5

wanted and thoroughly loved children; grandmother

of 3... (L-2)

Then, I was a young lieutenant in the regular army.

(L-20)?

2 Many who wrote wanted to share their personal experience but

felt that they could do so only if they were able to preserve their

privacy. Thus many of the authors signed only with a first name, a

zip code or the pseudonym “Jane Roe” in honor of the plaintiff

in Roe v. Wade. This Court has recognized that women may be

deterred from asserting their rights if they are forced to make

their abortion decisions public. This Court has found standing

for plaintiffs who appeared pseudonymously, see, e.g., Roe v. Wade,

410 U.S. at 124; and Doe v. Bolton, 410 US. 179, 187 (1973), and

has held that physicians have standing te assert the interests of

their patients, in part because a woman may be deterred from assert-

ing her own rights “by a desire to protect the very privacy of her

decision from the publicity of a court suit.” Sing'eton v. Wulff,

428 U.S. 106, 117 (1976) (opinion of Blackmun, J.). See also, City

of Akron v. Akron Center for Reproductive Health, 462 U.S. 416,

440 n. 30 (1983).

The rise in clinic violence and harassment of women seeking

abortions makes the need for privacy even greater. One ietter

writer explained: “I apologize for not signing my name but I’m

not ready to be harrassed by the anti-choice people.” (L-48)

Another described the harassment she experienced: “One of the

most difficult times that I had was when I arrived at the Clinic—

only to be greeted by boisterous, uncaring and insensitive pro-life

activists. These people taunted and harassed each individual who

7

While these letters do not constitute sworn testimony or

record evidence, they do provide an invaluable source of

information about the lives of women who choose to have

an abortion. When abortion is examined in the context of

women’s lives, the constitutional foundations for a wom-

an’s right to decide “whether or not to terminate her

pregnancy” become obvious. Roe v. Wade, 410 U.S. at

153. What also becomes clear is that this Court’s decision

in Roe v. Wade is firmly rooted in our nation’s most

fundamental traditions of personal integrity and human

dignity.

APR.GUMENT

I. Roe v. Wade Has Dramatically Improved The Lives

And Health Of American Women And This Court

Should Reaffirm It.

Approximately 1.5 million American women choose to

have abortions each year. These women make this choice

because they take their responsibilities to existing family

members seriously; because they believe that they can

escape from poverty; because they believe that an educa-

went in.” 131 Cong. Rec. H3588 (daily ed. May 22, 1985) (letter

of Jane Doe). As of August 14, 1985, 145 incidents of clinic vio-

lence had been reported in 1985 alone. National Abortion Federa-

tion, Summary of Clinic Violence As Reported to N.A.F. (1985).

The violence and harassment have been so severe that courts have

issued injunctions and restraining orders against individuals en-

gaging in activities that interfere with access to and the use of

private property for the provision of abortion services. See, ¢.9.,

Northern Virginia Women’s Medical Center v. Balch, 617 F.2d

1045 (4th Cir. 1980) (trespass upon clinic facility and immediately

surrounding property) ; Feminist Women's Health Center v. Women

Exploited by Abortion, No. 82-2-04152-8 (Wash. Super. Ct., Sno-

homish Cty. 1984) (formation of a “gauntlet” which patients

must cross, recording patients’ license plates, video-taping and

photographing patients) ; and Parkmed Co. v. Pro-Life Counseling,

Inc., 88 A.D. 2d 534, 450 N.Y.S. 2d 23 (1982) (physical and verbal

abuse, harassment, intimidation and assault of clinic patients and

employees and property damage). For additional cases, see Re-

productive Freedom Project of the ACLUF, Legal Docket (L. Soto

ed. 1984).

8

tion is important; because they believe that they have

talents and skills to offer the world; because they believe

that someday they will find the right man to marry and

raise a family with; and because they have hopes and

dreams of better lives for themselves and those they love.

The reasons why women choose abortion are numerous,

personal and profound. This Court’s decision in Roe v.

Wade has preserved to women the right to make these

critical and highly personal decisions.

In his brief, the Solicitor General asks this Court to

overrule Roe v. Wade and “return the law to the condi-

tion in which it was before that case was decided.” Brief

for the United States as Amicus Curiae in Support of

Appellants, at 24 (“S.G. Br.”). The condition of the law

determines the condition of women’s lives. The condition

to which the Solicitor General would return us is one in

which hundreds of women will die each year from illegal

abortions and thousands will have to risk their lives or be

forced to endure unwanted pregnancies.

Before this Court’s decision in Roe v. Wade, state gov-

ernments were free to substitute their political judgments

for the personal, moral judgments of women and the medi-

cal judgments of doctors. Despite the laws that prohibited

or restricted abortion, women made decisions about their

reproductive lives, and obtained the abortions they needed

and wanted. See W. Hern, Abortion Practice 17-20

(1984). See also M. Potts, P. Diggory, & J. Peel, Abor-

tion 87-89 (1977). Women obtained illegal abortions de-

spite the illegality and grave risks involved, as these ex-

cerpts from the letters reveal:

I remember Tijuana. I remember bugs crawling

on walls as I waited for the “second part” of my

abortion to take place. The first part was done in

comparatively clean surroundings—‘“a clinic’”—but

I was too far along for the abortion to be done in

one procedure, so I was sent to a “hotel” to wait three

hours—a stinking cesspool of urine, sweat, filthy

sheets and bugs—unidentifiable crawling creatures

9

all over the walls, floors and crevices. . . . Where

else could I have gone in 1963? A name from a

hairdresser passed through the underground grape-

vine by other desperate women seeking a life of

dignity and choice. (L-1)

I think the thing I will always remember most

vividly was walking up three flights of darkened

stairs and down that pitchy corridor and knocking

at the door at the end of it, not knowing what lie

behind it, not knowing whether I would ever walk

back down those stairs again. More than the in-

credible filth of the place, and my fear on seeing it

that I would surely become infected; more than the

fact that the man was an alcoholic, that he was drink-

ing throughout the procedure, a whiskey glass in one

hand, a sharp instrument in the other; more than

the indescribable pain, the most intense pain I have

ever been subject to; more than the humiliation of

being told, “You can take your pants down now,

but you shoulda’—ha!ha!.—kept ‘em on before ;”

more than the degradation of being asked to perform

a deviate sex act after he had aborted me (he of-

fered me 20 of my 1000 bucks back for a “quick

blow job”); more than the hemorhaging and the

peritonitus and the hospitalization that followed;

more even than the gut-twisting fear of being “found

out” and locked away for perhaps 20 years; more

than all of these things, those pitchy stairs and that

dank, dark hallway and the door at the end of it

stay with me and chills my blood still.

Because I saw in that darkness the clear and dis-

tinct possibility that at the age of 23 I might very

well be taking the last walk of my life; that I might

never again see my two children, or my husband, or

anything else of this world. (L-2)

Or, women found ways to obtain a legal abortion de-

spite the restrictions, the delay and the subterfuge in-

volved :

10

Having an abortion in Illinois in 1957 was a de-

meaning experience. I had to lie, two doctors who

did not know me had to lie, and my own doctor had

to lie. Such were the laws in that time and at that

place. No matter that I had had a miscarriage one

month previously, and my uterus looked like chopped

liver, and I was in a great deal of pain; we still had

to go through this hypocritical process to enable me

to have my own doctor, at the hospital of my choice.

(L-3)

Estimates of illegally induced abortions in the United

States in the 1960’s ranged between 200,000 and 1,206,000

a year. Cates, Legal Abortion: The Public Health Ree-

ord, 215 Science 1586 (1982). Illegal abortions caused

large numbers of deaths. In 1965, for example, 235 or

20 percent of all deaths related to pregnancy and child-

birth were attributed to abortion. Jd. Thus, many women

who obtained illegal abortions did not survive:

On November 18, 1971, my twin sister Rose Eliza-

beth. died from an illegal abortion. This was after

a very brutal rape... The traumas of being raped

and pregnant, knowing she would die if she didn’t

have an abortion, the embarrassment, the pain, the

guilt. She called a close friend who knew of a per-

son who would do the abortion. She decided to wait

until we all had left for church, then called her

friend to pick her up, (I can still remember opening

the door of that old half abandoned building, and

seeing her laid out on the table bleeding to death. }

She never made it out alive... For this reason I

speak out today, for I believe if there had been a

place where women, especially young women, could

have gone for an abortion, where the environment

was safe and clean, Rose Elizabeth, would still be

with us today. (L-4)

Those women who did survive their abortion were likely

to suffer complications: *

2“T}legal abortions performed by unskilled practitioners in un-

safe settings had complicatien rates much higher than legal abortion

11

Becoming pregnant just two months after the

birth of her first child, [my mother] was not well

recovered from this experience. Her doctor was con-

cerned for her health, but in 1946 there were no

options. She and my father chose to abort this child,

fearful her health was too fragile to manage an-

other pregnancy so soon. Done by a_ backstreet

butcher, the abortion put my mother’s life in jeopardy

and led to complications which nearly killed her dur-

ing her pregnancy with me a few months later. She

and I were in the hospital for 21 days following my

birth and her health was permanently ruined. She

underwent a hysterectomy by the age of 30 and has

had two spinal fusions to attempt to repair the dam-

age done to her body because of her pregnancies.

(L-5)

Some women who did not or could not obtain abortions

resorted to suicide:

This is not a letter about an abortion. I wish it

were. Instead, it is about an incident which took

place over forty years ago in a small mid-western

town on the bank of the original “Old Mill Stream”.

One night a young girl jumped off the railroad bridge

to be drowned in that river. I will always remember

the town coming alive with gossip over the fact that

she was pregnant and unmarried. . . I could imagine

the young girl’s despair as she made her decision to

end her life rather than face the stigma of giving

illegitimate birth. . . I still grieve for the girl. (L-6)

Laws prohibiting abortion forced women to undertake

the significantly greater risks of pregnancy and child-

today. Because the number of illegal abortions performed in a

given locale was unknown, case-series reports of complications do

not allow calculation of complication rates. Sepsis ... was a major

problem that has virtually disappeared today. Complications were

related to ineffective or unsafe methods, ranging from oral inges-

tion of turpentine, bleach or quinine to insertion of foreign bodies

into the uterus.” Tyrer, Abortion in the U.S.: Past, Present, and

Future?, PPFA Medical Digest: Issues in Reproductive Health

3 (Spring 1982) (footnotes omitted).

12

birth. See Roe, 410 U.S. at 149, 163." Some women died

as a result of pregnancy or childbirth and others came

close to death because of restrictive abortion laws:

Early in her pregnancy, she began experiencing

some bleeding and was treated by her doctor and

sent home. Patricia seemed to be pregnant; she was

also tired and not feeling well. Then, about two

months later, she began bleeding again and was care-

fully attended by her doctor. Within five days she

was in excruciating pain which her doctor diagnosed

as peritonitis. Although her doctor said he had never

been able to detect any fetal development, Patricia

had to wait for further tests to be completed to show

that there was no viable fetus. Then, her doctor

could legally perform a D & C and remove the re-

mains of a fetus that had been dead several months.

The anti-abortion laws of the time nearly cost Pa-

tricia her life and did cause her months of pain and

inconvenience for her young family. (L-7)

Without access to legal abortions, women were forced

to undergo not only the physical burdens and risks, but

also the pain and indignity of unwanted pregnancies: °

I am a fifty-three-year-old librarian—middle class,

Unitarian—and to all who know me, the mother of

two. In fact, I am a mother of three, having had a

child out of wedlock which, until recently, I have

4 Legal abortion is safer than pregnancy through at least the first

16 weeks of pregnancy. And for pregnant teenagers “abortion is at

least five times safer with respect to survival than term pregnancy.”

Hern, supra, at 26. “In 1978, the overall death-to-case rate for

legally induced abortions fell to 0.5 per 100,000 abortions, whereas

the death-to-case rate for term delivery resulting in live birth,

excluding abortion and not including deaths due to ectopic preg-

nancy, molar pregnancy, and fetal deaths, was 8 per 100,000 live

births, making the risk of death due to pregnancy 16 times greater

than the risk of death due to abortion.” Jd. at 24.

5 See Regan, Rewriting Roe v. Wade, T7 Mich. L. Rev. 1569, 1579-

80 (1979) for an excellent summary of the physical burdens of

pregnancy.

13

never felt able to mention to anyone for over thirty

years. The fear, pain and powerlessness of an un-

sanctioned pregnancy, and the immeasurable anguish

to living the remainder of one’s life knowing some-

where there is a child irrevocably lost to you, is an

experience no woman should have to undergo. When

I remember—and believe me, this is something one

never forgets—my devastated father weeping over

the news, the subterfuge and strategy involved in

spiriting me out of sight, the lonely wait in a strange

city, and the birth alone amongst strangers, com-

pletely devoid of the joy which should rightly accom-

pany this event, the pressure to relinquish my daugh-

ter for adoption, then the time of agonizing read-

justment, which phased into acceptance but left a

never-totally assuaged sense of loss. ... As a nine-

ten-year-old college freshman in 1951, I would have

given anything imaginable to have had access to legal

abortion—to have spared my parent (and I was

fortunate in having a loving, supportive one) the

hurt this event caused him, and to have spared my-

self the incalculable emotional pain and the subtle

ways in which my life was altered forever. (L-8)

When I was only 16 years old, in 1968, I found

myself faced with an unplanned and an untimely

pregnancy. Abortions were illegal at that time and

I did not have the money or resources to know how

to go about getting one way or any other way. When

I finally got up the nerve to tell my parents I was

almost 4 months into the pregnancy. It was at this

time that I felt the impending doom of my situation.

I was forced to carry the pregnancy to term. Dur-

ing my pregnancy I was treated like a baby machine

—an incubator without feelings—who was to pro-

duce this child for adoption for another couple who

could not have children, for whatever reasons. (L-9)

14

Today, because of this Court’s decision in Roe v. Wade,

most women have access to safe ana legal abortions.”

Once legalized, abortion became one of the safest surgi-

eal procedures performed, as well as one of the most

studied and best understood. See Cates, 215 Science, at

1586; Hern, supra, at 23-34." In the ten years following

Roe, the replacement of unintended births and _ illegal

abortions by legal abortions has averted perhaps 1,500

pregnancy-related deaths and several tens of thousands

of life threatening complications. Tietze, The Public

Health Effects of Legal Abortion in the United States,

16 Family Planning Perspectives 26 (1984). The differ-

ences between seeking an illegal abortion before Hoe

and a legal one after Roe are dramatic:

I am 38 years old and have had 2 abortions—1

legal, 1 illegal. My first was when I was 19 years

6 However, many instances exist where women, either poor,

young, or from rural areas, do not have access to safe and legal

abortion services. These women face conditions not unlike those

prior to Roe v. Wade. Due to the public funding cutoffs from the

Federal government and 35 states, poor women face a delay of

two to three weeks, the time needed to acquire adequate funds, in

obtaining an abortion. This delay causes some poor women to face

riskier second, instead of first trimester abortions. Poor women

may also sacrifice current living expenses for abortion services.

Henshaw & Wallisch, The Medicaid Cutoff and Abortion S« rvices

for the Poor, 16 Family Planning Perspectives 170 ( 1984). See also

R. Petchesky, Abortion and Woman's Choice, 155-61 (1984). Teen-

agers face “a serious, and in some cases insurmountable barrier”

to abortions in states with parental consent or notification laws,

especially teens in rural areas. Donovan, Judging Teenagers: How

Minors Fare When They Seek Court-Authorized Abortions, 15

Family Planning Perspectives 259 (1983). Seventy-four percent

of all non-metropolitan women live in counties that have no abortion

facilities. Henshaw, Forest and Blaine, Abortion Services in the

United States 1981 and 1982, 16 Family Planning Perspectives 119,

122-23 (1984).

7 Abortion procedures have “half the risk of death associated

with tonsillectomy and one one-hundredth the risk of death asso-

ciated with appendectomy.” Hern, supra, at 23-24.

15

old. It was illegal. I had to drive from north Jersey

to Philadelphia for what I understand now was an

ineffective treatment by a doctor who sexually abused

me while supposedly giving me injections to induce

a miscarriage. After a week of treatments (64 in-

jections a day) he used a scalpel to rupture the

opening of my uterus. I miscarried later that day.

I was too frightened to go to the doctor and devel-

oped peritonitus. I almost died.

My second abortion was legal. When I discovered I

was pregnant, I went to my doctor, who, with much

concern and sympathy, told me of all alternatives,

including adoption. We both decided abortion would

be best. The procedure was done in a hospital—it

took three hours and I was back to work the next

week. There was no trauma, other than the difficulty

of making a decision that is always hard to make.

(L-10)*

Overturning Roe v. Wade would cause grave damage

to women’s health and lives. If Roe were overturned and

abortion prohibited or restricted, it is estimated that ap-

proximately 200 women would die each year from com-

plications from abortions. Tyrer, supra, at 4. Experi-

ence in countries whose governments repealed liberal

’ There are many reasons why a woman would have more than

one abortion. For example, the author of the letter quoted above

explains:

By the way—I am allergic to rubber and the contraceptive

creams and jellies. I cannot take birth control pills and re-

jected an IUD. I am as careful as I can be but the only alterna-

tive my husband and I now see is sterilization. (L-10)

Another author writes:

I have had two abortions and in each case I felt the decision

was the most loving one I could make for myself, the unborn

child, our family and the larger community. The first decision

was made because I had contracted measles shortly after con-

ception. My husband and I already had four children . . . The

second abortion decision was made because of failed contra-

ception. (L-11)

16

abortion laws indicates that women continue to obtain

abortions and that there is an increase in the number

of deaths due to the dangers of illegal abortions.” If a

woman’s right to choose to have an abortion is not con-

stitutionally protected, states might pass laws that are

even more stringent than those that existed before this

Court’s decision in Roe v. Wade.” For example, states

which once allowed abortions for pregnancies that threat-

ened the life or health of the mother might not include

these exceptions and women and doctors might be prose-

cuted for violating laws prohibiting or restricting abor-

* The experience in Romania should be instructive for the United

States. From 1957 until 1966 Romania had a liberal abortion ‘aw;

subsequently access to abortion services and contraceptives was

restricted. Initially the birth rate nearly doubled and the abortion

ratio (to 1000 live births) fell over 90%. David, The Romanian

Abortion Experience: New Data, Intercom 7 (Sept. 1980). How-

ever, the abortion rate since 1966 increased steadily, representing

spontaneous and induced abortions under all circumstances. Con-

currently, deaths to women from abortion rose dramatically, imply-

ing a steady increase in non-medically-induced abortions. Huber,

Restricting or Prohibiting Abortion by Constitutional Amendment:

Some Health Implications, 27 Journal of Reproductive Medicine

729, 733 (1982). The abortion ratio continues to steadily rise from

890 (1967) to 1300 (1983). Monitoring to Prevent Abortion im

Romania, Population Today 8 (June 1984). See also, Potts,

Diggory, and Peel, supra, at 143-46.

10 The Helms-Hogan constitutional amendment to overturn Rose

». Wade would have prohibited abortions, even those w hich save

the life of the woman. Pilpel, The Fetus as Person: Possible Legal

Consequences of the Hogan-Helms Amendment, 6 Family Planning

Perspectives 6 (1974). Over 45 bills proposing constitutional

amendments to prohibit abortion have been introduced in Congress

since 1973. Seventeen were introduced in the first three months

of 1981 alone. Huber, supra, at 730» One sponsor, “Sen. Hatch has

stated publicly on numerous occasions that if his amendment is

adopted he would be ‘among those seeking the most restrictive

state and federal laws with respect to abortion’.”. The Alan

Guttmacher Institute, The Hatch A mendment: Abusing the Process,

Invading Privacy, 2 Issues in Brief 1, 2 (1982).

17

tion more vigorously than before this Court’s decision in

Roe v. Wade. Huber, supra, at 732-33."

No sound reasons exist for this Court to overturn Roe

v. Wade and put in jeopardy the lives and health of

American women. By allowing women to make critical

personal decisions regarding pregnancy and childbirth

and by allowing healih care providers to deliver the best

possible abortion services, this Court struck the appro-

priate balance between state and individual interests.

Measured against the dramatic improvement that legal-

ized abortion has brought to American women, Koe v.

Wade is anything but “flawed.” S.G. Br. at 2, 24.

ll. To “Return The Law To The Condition” Before Roe

Would Deny Women Their Fundamental Constitutional

Rights.

The Constitutional basis for Roe v. Wade is found in

the personal liberty guranteed by the Fourteenth Amend-

11 Enforcement of laws prohibiting abortion, like laws prohibiting

the use of contraceptives, would be “virtually impossible without the

most outrageous sort of governmental prying into the privacy of

the home.” Ely, The Wages of Crying Wolf: A Comment on Roe

v. Wade, 82 Yale L.J. 920, 930 (1973) (emphasis omitted). In the

absence of legal abortions women will perform self-abortions in

their homes and in their bedrooms:

On Saturday night |my husband| went out to get some gas

for his old car. I decided to abort myself. i cleaned a 14-inch

knitting needle with alcohol, lay on my bed, prayed and slowly

inserted it into myself. I knew I could die if I pierced my

womb and bled and/or became infected. | felt I had to risk it.

As I drew out the needle there was a little blood on it and |

was very afraid. I will always remember that red fluid on the

end of that shiny blue needle . . .(L-47)

If Roe v. Wade was overturned even more outrageous intrusions

might be permitted. In Romania, for example, where liberal abor-

tion laws were repealed, the government announced a program

which includes mandatory medical screening of women in their

20’s for pregnancy and monitoring of pregnant women to ensure

the pregnancy continues. The government stated that miscar-

riages would be investigated, and any illegal abortions would result

in prison terms for both the woman and the physician. Monitoring

to Prevent Abortion In Romania, Population Today, at 8.

OOOO

18

ment, in the Bill of Rights and its penumbras, and is

manifest in the stories of American women trying to

lead meaningful, responsible, and caring lives. In Roe v.

Wade this Court held that the “right of privacy

founded in the Fourteenth Amendment’s concept of per-

sonal liberty and restrictions on state action .. . is broad

enough to encompass a woman’s decision whether or not

to terminate her pregnancy.” 410 U.S. at 153. This deci-

sion stands on the long-recognized and essential element

of persona) liberty—an “individual’s ‘freedom of personal

choice in matters of marriage and family life’.” City of

Akron v. Akron Center for Reproductive Health, 462

U.S. 416, 427 (1983). The right to choose to have an

abortion is so personal and so essential to women’s lives

and well-being that without this right women cannot

exercise other fundamental rights and liberties guaran-

teed by the Constitution.

12 The Solicitor General dismisses personal liberty as a constitu-

tional foundation for Roe v. Wade and argues that the right to

choose rests on nothing more than “conviction” that is “at best

intuition based in controversial mora! and social] theories of the

good life and of an individual’s situation in society .. .” S.G. Br. at

99. When taken out of context many constitutionally protected

activities seem to rest on little more than “theories of the good

life’: watching movies at home, Stanley v. Georgia, 594 U.S. 557

(1969); drinking 3.2 beer, Craig v. Boren, 429 U.S 190 (1976);

attending private school, Pierce v. Society o/ Sisters, 268 U.S. 510

(1925); living with grandchildren, Moore v. East Cleveland, 431

U.S. 494 (1977); wearing a particular jacket, Cohen v. California,

403 U.S. 15 (1971); attending a particular college, Mississippi

University for Women v. Hogan, 458 U.S. 718 (1982); working in

the laundry business, Yick Wo v. Hopkins, 118 U.S. 396 (1886) ;

studying a foreign language, Meyer v. Nebraska, 262 U.S. 390

(1923); strolling on a neighborhood street, Kolendar v. Lawson,

461 U.S. 352 (1983). When placed in context and given careful

consideration, these activities which***may seem at first blush ., .

inconsequential” turn out to raise significant constitutional qués-

tions. Cohen v. California, 403 U.S. at 15. This is so, of course,

because the Constitution protects more than life as mere physical

existence. The Constitution protects the liberty to live a meaningful

and fulfilling life.

19

The rights to privacy and personal liberty have been

explicitly recognized to include the right to use contra-

ceptives. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972);

Griswold v. Connecticut, 381 U.S. 479 (1965). See also

Carey v. Population Services International, 431 U.S. 678

(1977). Women are fertile from, approximately, the age

of 15 to 45. Hern, supra, at 2-3. Most women will spend

the majority of these 30 years trying not to get preg-

nant. The Alan Guttmacher Institute, Choosing A Birth

Control Method That’s Right For You, at 2. But no con-

traceptives are one hundred percent safe and effective

and they often fail despite conscientious use:

I was a married woman using the birth control

methods available at the time; a diaphragm and a

spermicide jelly. My first child was planned and I

was very happy. Slightly more than two years later

I had another planned child. Then I found myself

eregnant with a child that would be only 17 months

younger than the second child. I had used my birth

control methods assiduously but to no avail. I ac-

cepted the fact of thai child and loved it. Then I got

pregnant again. This one would be only 13 months

younger than the third child. I was faced with the

unpleasant fact that I could not stop the babies from

coming no matter what I did... (The abortion]

was a tremendous relief and I have never regretted

it. My husband then had a vasectomy and our sex

life was immensely improved. You cannot possibly

know what it is like to be the helpless pawn of na-

ture. I am a 71 year old widow. (L-12)

13 Petchesky, supra, at 182. Moreover, the development of a

completely safe and one hundred percent effective contraceptive is

practically impossible given the inherent danger of contraceptive

technologies to women’s bodies. /d. at 189-90. The lovee» possible

risk to women’s health is experienced by women using barrier

methods of contraception backed up by early abortion to terminate

pregnancies from method-failure. Tietze, New Estimates of Mor-

tality Associated with Fertility Control, 9 Family Planning Per-

spectives 74, 76 (1977).

20

My attitude about abortion changed dramatically

when, with my third child, then six, in school full

time, my business booming, and my own college ca-

reer proving exceedingly fulfilling, I suddenly began

experiencing signs of pregnancy. At this time my

husband znd I had a birth control agenda more com-

plex than a NASA countdown, so I was both puzzled

and anguished by the failure of the most effective

contraceptive technology ever devised. (L-13)

My husband and I take our responsibility to our

children and any potential children seriously. I take

no chance with my contraception except its own fail-

ure rate. And any of them can fail. I hunger for a

time when this will stop, when we can know and not

simply assume that our plans to prevent conception

will work. But until that time we must have the

right to choose, either to abort or to give birth.

Without that choice ~.¢ love in the shadow of fear.

(L-14)

Because contraceptives fail, and because they are not

always available or possible to use, abortion is necessary

if people are to be able to determine whether and when

to “bear or beget a child.” Fisenstadt, 405 U.S. at 453."

14 Sometimes contraceptive use before intercourse is impossible,

as in situations of rape and incest. Some women do not use con-

traceptives, in particular the pill and IUD, based on their knowl-

edge of the risks to life and health associated with usage.

Petchesky, supra, at 182-88. Other times ignorance and societal

pressures account for the failure to use contraception, especially

among teens. As one letter writer explained, “I got pregnant when

I was 14. I didn’t even know I had engaged in ‘the’ sexual act.”

(L-17) See also Jones, et al., Teenage Pregnancy in Developed

Countries: Determinants and Policy Implications, 17 Family Plan-

ning Perspectives 53 (1985). Access to contraceptives is restricted,

especially for teenage and poor women, because of the cost and

state regulation of advertising and access. H. Ory, J. Forrest, and

R. Lincoln, Making Choices: Evaluating the Health Risks and

Benefits of Birth Control Methods, 21, 25 (1983). Furthermore,

“Tallmost all women who were not using a method of contraception

21

Individuals and couples choose the alternative of abor-

tion so they can start or expand their families when they

feel most ready and able to care for them. The follow-

ing letters illustrate how important the right to choose

to have an abortion is to those who are or intend to be

parents:

_. . We write together because abortion affects the

lives of men and women . . . Our decision was not a

difficult one. It was not an agonizing one or a reso-

lution of ambivalence. In contrast our decision was

a clear one. We were not ready to have a child...

Six years later our daughter, now almost three, was

willfully conceived. It is difficult to adequately de-

scribe the difference between a wanted and an un-

wanted pregnancy. It is sometimes like the differ-

ence between darkness and despair, and light and

joy. We were ecstatic. The absolute joy we experi-

ence through our daughter comes in large part be-

cause we were ready to become parents. She has

certainly been worth waiting for. (L-15)

Now, I am proud to say, I am 6 months pregnant

and very excited. We are both looking forward to a

child, confident that ~e are up to meeting this chal-

lenge. Things are so different than 5 years ago—

now this child will be a wanted child and will come

into a loving family waiting for it with open arms.

Now we are both ready to give our lives to this new

being—before we would have felt robbed. {L-16)

I am and will forever be grateful that safe and

legal abortion was available for both my daughters.

Each had a time when she needed to have that choice

open to her.

before an abortion use one after an abortion.” The Alan Guttmacher

Institute, Responses to Concerns Raised About Abortion, 3 Issues in

Brief 1, 2 (1983). See also Westoff, et al., Abortions Preventable by

Contraceptive Practice, 13 Family Planning Perspectives 218, 221

Table 3 (1981) (96.8% of women having an abortion use some form

of contraceptive after the procedure).

22

Fach found herself pregnant at a time when it

seemed she may not have had the resources to raise

a child to a compassionate, responsible adulthood. . .

One daughter did much soul-searching and explora-

tion of options, possibilities and consequences in mak-

ing her decision. She decided not to have the child.

It was a good decision. Her health and the conditions

of her life have been such that it would have been

tragic for a child. She was at a point in her life

where she did not have the strength to give what a

baby and growing child needs; nor even to go through

a pregnancy.

My other daughter also considered very deeply

what having a child at that point in her life meant.

Having the choice of ending the unplanned preg-

nancy gave her and her husband the opportunity to

think through together what becoming parents needs

to mean. They made a conscious commitment to rais-

ing that child. Their decision has turned out to be

right for all concerned. June 5 will be that beauti-

ful child’s seventh birthday. (L-18)

The excerpts from the letters illustrate that the right to

choose to have an abortion is also an indispensable part

of other liberty interests recognized by this Court. This

Court has stated that the right to “/l|iberity means more

than freedom from servitude, and the constitutional guar-

antee is an assurance that citizens shall be protected in

the right to use [their] powers of mind and body in any

lawful calling.” Smith v. Tevas, 233 U.S. 630, 636

(1914).

One of this Court’s most eloquent explications of the

right to liberty is in Meyer v. Nebraska, 262 U.S. 390,

299 (1923). where this Court stated:

Without doubt [liberty] denotes not merely freedom

from bodily restraint but also the right of the indi-

vidual ... to engage in any of the common occupa-

tions of life, to acquire useful knowledge, to marry,

establish a home and bring up children, to worship

23

God according to the dictates of his own conscience,

and generally to enjoy those privileges long recog-

nized at common law as essential to the orderly pur-

suit of happiness by free men.

Without the right to choose abortion the Fourteenth

Amendment’s guarantee of liberty has little meaning for

women. With the right to choose abortion, women are

able to enjoy, like men, the right to fully use the powers

of their minds and bodies. This becomes clear when peo-

ple reveal why they choose to have an abortion. These

reasons correspond to the very same rights and freedoms

celebrated in Meyer.

“To engage in any of the common occupations of life’:

The following letters reveal that women choose to have

an abortion because pregnancy and childbirth can pre-

vent them from keeping their jobs, from feeding their

families and from serving others in ways they consider

necessary and appropriate.

My job on the assembly line at the plant was go-

ing well and I needed that job desperately to support

the kids. Also I had started night school to improve

my chances to get a better job. I just couldn’t have

another baby—5 kids were enough for me to support.

I felt badly for a day or two after the abortion.

I didn’t like the idea of having to go thru with it.

But it was the right thing for me to do. If I had had

the baby I would have had to quit my job and go on

welfare. Instead I was able to make ends meet and

get the kids thru school. (L-19)

Thirty years later I feel that I made the right

choice in having an illegal abortion. I was able to

pursue a useful and rewarding career in the service

of my country that would not have been possible, if I

had born a child. (L-20)

15 Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

24

To this day I am profoundly grateful for having

been able to have a safe abortion. To this day I am

not a mother, which has been my choice. I have been

safe and lucky in not becoming pregnant again.

I love people and work in a helping profession which

gives me much satisfaction. (L-21)

“To acquire useful knowledge”: ™

Pregnancy and childbirth may determine whether a

woman ever gets to start or complete her education,

which in turn will significantly influence her ability to

support herself and her family.

Being a mother is hard at any age but being a

teenager makes it harder . . . Things I may have

wanted to do before getting pregnant, like college

and a career are different now. Before I think about

my dreams, I have to think about taking care of a

baby .. . I could be making plans for my future, but

instead I’m making plans for my baby’s future.

(Hearings Before the Subcomm. on Public Assistance

and Unemployment Compensation of the House

Comm. on Ways and Means, 98th Cong., Ist Sess.

(May 7, 1985) (Statement of Monica Woodruff ) .

(L-45)

I am a junior in college and am putting myself

through because my father has been unemployed and

my mother barely makes enough to support the rest

of the family. I have promised to help put my

brother through when I graduate next year and its

his turn. I was using a diaphragm for birth control

but I got pregnant anyhow. There is no way I could

continue this pregnancy because of my responsibili-

ties to my family. I never wanted to be pregnant

and if abortion were not legal I would do one on

myself. (L-22)

I had completed one year of a two year X-ray

technician program when I discovered I was preg-

16 Jd.

25

nant. I was 20 years old, the year was 1971, and

abortion was illegal. I wanted to finish my training

and I knew that I did not want a child. (L-23)

“To Marry”: “

Women choose to have an abortion because they want

to wait until they can, marry for sound, loving reasons.

I had an abortion in 1949 because I could not go

through with a loveless marriage for the sake of a

child I did not want. . . . The benefits were incalcula-

ble. I was able to terminate the pregnancy, to com-

plete my education, start a professional career, and,

three years later marry a man I did love. We sub-

sequently had three beautiful children by choice, chil-

dren who were welcomed with joy, cherished always,

and raised with deep pleasure because we attained

economic security and the maturity necessary to pro-

vide properly for them. (L-29)

I am now 28, a registered Professional Engineer

in California, and still with the same man I was 6

years ago. In many ways, the abortion brought us

closer together; whereas an unwanted child would

have forced us together unwillingly or driven us

apart... . (L-31)

To “establish a home and bring up children”: *

The availability of abortion makes it possible for peo-

ple not only to choose the number of children they want,

but also to create the kind of family life they have en-

visioned for themselves, to meet their responsibilities

to already existing family members, and to raise their

children according to their values. Cf. Moore v. East

Cleveland, 431 U.S. 494 (1977); Wisconsin v. Yoder, 406

U.S. 205 (1972): and Prince v. Massachusetts, 321 U.S.

158 (1944).

17 Id.

18 Jd.

26

When I found out I was pregnant, quite a few

years ago, I had my two boys to care for, and Norma,

a baby girl. I already had all that I could handle,

because my third child, our daughter was a spina

bifida baby, and I had made a promise to myself,

when she was born with this condition, that I would

take care of her until the end. I knew that such a

baby will live two or three years at the most '’ and

I had a choice: I could place Norma in a hospital,

or I could take care of her at home. I felt I owed it

. to my special baby to see she had the care she

needed. .. . If I had not had that abortion, | would

have been pregnant at the time I buried Norma, and

I think I would have gone to pieces .. . I did not

believe that it was God’s intention that I should have

a fourth child, because I knew that it would break

me and my family too. (L-26)

As for adoption, I very much respect those women

having gone that route. It is truly a selfless act of

love. But for myself, I knew if I was to have a baby,

I would want to keep it. Envisioning what my life

would be, an unskilled, unwed mother, my child

would not have two parents but one working parent.

That’s not the life I wanted to give my child and

not what I wanted myself ... Now almost ten years

after, I am married and a full-time mother of two.

When we first heard my son’s fetal heartbeat I cried

tears of joy. Our children were wanted very much

and my fantasy is now my life. (L-27)

I am sole support of three children because my

husband left three years ago with another woman.

He does not pay child support and cannot be found

to force him. I have a very hard time trying to do

19 It should be noted that “most [spina bifida babies} now survive

and can anticipate meaningful lives.” D. McLane, Introduction to

Spina Bifida (1984).

27

it myself. I just got a new job that pays better, but

I still don’t have benefits yet. If I have another baby

I’ll have to go back on welfare and I hate to do that

hecause it does not set a good example for kids.

(L-28)

Ten years ago when abortions were illegal I was

in a situation that would seem unbelievable on a soap

opera. My husband was about to go to Vietnam as a

physician. I had three children under the age of five,

my mother was dying of a brain tumor diagnosed

the week that my husband got his orders, my father

had been earlier diagnosed as having leukemia, and

my younger sister was within a year of getting mar-

ried. I consider myself capable of handling most sit-

uations but on top of this I found myself pregnant.

My first obligation was to my husband and my chil-

dren but I felt a strong obligation to my parents as

well. I simply did not feel I could or should cope

with another baby. I was thirty years old. (L-25)

“To worship God according to the dictates of his own

conscience”: *°

The decision to have an abortion often reflects or is

motivated by religious or spiritual beliefs that place pri-

ority on service and conduct of life as values even higher

than procreation.

Having an abortion seemed to be the most thought-

ful and loving decision we could make, in fact, it

seemed to be the only decision we could make which

would still maintain our life goals and plans in help-

ing serve others as we had hoped. I was a Christian

then, as I am now, and constant prayer asking for

guidance through peace is how I was able to feel that

God guided me toward that decision, also. Since the

abortion in 1977, I have helped hundreds of emo-

tionally disturbed children, counseled twice as many

parents about the loving ways of parenting, become

——— mmm: am

20 Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

28

known as the expert in the field of counselling chil-

dren and families traumatized by sexual abuse, and

in 1979 I married a Pediatrician who has been a

wonderful husband and father to our four year old

boy and our seven month old boy in utero (due in

August.) God has given me many blessings and

much peace since 1977... . (L-82)

I could not see carrying a child to term at my age,

and then giving it up for adoption... Being Jew-

ish, our teaching is that the child becomes a full-

fledged person only when it takes the first breath.

Until then it does not have “human” standing. |

went with what I felt to be spiritually, morally, and

economically just. (L-33)

“And generally to enjoy those privileges long recog-

nized at common law as essential to the orderly pur-

suit of happiness by free men”: *"

This Court has stated that “{nJo right is held more

sacred, or is more carefully guarded, by the common law,

than the right of every individual to the possession and

control of his own person, free from all restraints or in-

terference of others.” Union Pacific Railway Co. v. Bots-

ford, 141 U.S. 250, 251 (1891). If a woman cannot

choose to terminate an unwanted pregnancy, she is de-

nied the right to the “possession and control” of her

own body.

Today I am a little more than two months preg-

nant. My husband and I are thrilled about it. Al-

most exactly a decade ago, however, I learned I was

pregnant, and my response was diametrically oppo-

site. I was sick in my heart and I thought I would

kill myself. It was as if I had been told my body had

been invaded with cancer. It seemed that very

wrong. (L-34)

21 Jd.

29

It was not easy for me to write this letter, even

though I am a Family Planning Professional and

with all my knowledge of family planning; I was

like any other woman who had an unintended preg-

nancy, I was terrified and felt as though my life

was out of my control. (L-35)

I was furiously angry, dismayed, dismal, by turns.

I could not justify an abortion on economic grounds,

on grounds of insufficient competence or on any other

of a multitude of what might be perceived as “legiti-

mate” reasons. But I kept being struck by the ulti-

mate unfairness of it all. I could not conceive of any

event which would so profoundly impact upon any

man. Surely my husband would experience some ad-

ditional financial burden, and additional “fatherly”

chores, but his whole future plan was not hostage to

this unchosen, undesired event. Basically his life

would remain the same progression of ordered events

as before. (L-13)

The letters make plain that what is at stake is nothing

less than a woman’s right to control her life and her

destiny:

On the ride home from the clinic, the relief was

enormous. I felt happy for the first time in weeks.

I had a future again. I had my body back. (L-36)

Personally legal abortion allowed me the choice as

a teenager living on a very poor Indian Reservation

to finish growing up and make something of my life.

(L-37)

I was not glad that I was faced with an unwanted,

unplanned pregnancy, however I am glad that I made

the decision to have an abortion. The experience was

a very positive one for me. It helped me learn that

I am a person and I can make independent decisions.

Had I not had the abortion I would have probably

ended up a single mother struggling for survival and

30

dealing with a child that I was not ready for. Or

trapped in a relationship with an abusive, uncaring

man. I would have felt inadequate as a mother and

a person. (L-38)

I cannot stress strongly enough how that one per-

sonal decision allowed me to control my life. (L-39)

As the excerpts from the letters make clear, the free-

dom to decide whether or not to terminate a pregnancy

is intimately connected to a woman’s ability to be a full

and equal participant in this society. Without the right

to choose to have an abortion, women are not free to

make and carry out fundamental, life-shaping decisions

about work, education, marriage, family, home, health,

and happiness. In short, without the right to choose to

have an abortion, women are denied their constitutional

rights of privacy and personal liberty.

Recognizing the profoundly personal nature of the

abortion decision, this Court restricted government in-

trusion into the intimate relations of husbands and

wives, into the family and into the hearts and minds of

American women struggling to lead lives of integrity

and dignity. Roe v. Wade, 410 U.S. 118 (1973). This

Court’s decision in Roe v. Wade has dramatically im-

proved the lives and health of American women and pro-

tected a right that is both fundamental and indispensable

to women’s ability to lead full and meaningful lives.

CONCLUSION

For the foregoing reasons, this Court should reaffirm

Roe v. Wade and affirm the orders of the U.S. Court of

Appeals for the Third Circuit jn Thornburgh v. Ameri-

can College of Obstetricians and Gynecologists and the

U.S. Court of Appeals for the Seventh Circuit in Dia-

mond v. Charles.

22 Attorneys for Amici gratefully acknowledge the assistance in

paration of this brief provided by the staff and volunteers

of the National Abortion Rights Action League and Sarah E. Burns,

Malmo and Clifford Zimmerman.

dl

Respectfully submitted,

LYNN M. PALTROW

LYNN I. MILLER

(Counsel of Recora)

NATIONAL ABORTION RIGHTS

ACTION LEACUE

1424 K Street, N.W.

Washington, D.C. 20005

(202) 347-7774

Attorneys for Amici Curiae **