Amicus Curiae Brief — Hodgson v. Minnesota

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Nos. 88-1125 and 88-1309 WORRPH F.SPANIOL, ap

CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1989

JANE Hopcson, et al.,

Petitioners and Cross-Resondents,

STATE OF MINNESOTA, et al.,

Respondents and Cross-Petitioners.

On Writ of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

BRIEF AMICI CURIAE OF FOCUS ON THE FAMILY

AND FAMILY RESEARCH COUNCIL, RACHEL ELY,

MYOSHI CALLAHAN, TERESA WIBBLESMAN

FANGMAN, HOLLY TRIMBLE, LINDA ROSELLI,

ANN MARIE LOZINSKI, ROBERT C. WIBBLESMAN,

AND AMERICAN VICTIMS OF ABORTION, IN

SUPPORT OF RESPONDENTS AND CROSS-

PETITIONERS

H. RoBeERT SHOWERS

(Counsel of Record)

RICHARD M. CAMPANELLI

GAMMON & GRANGE

1925 K Street, N.W.

Suite 300

Washington, D.C. 20006

(202) 862-2000

Attorneys for Amici Curiae

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 (301) 864-6662

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TABLE OF CONTENTS

Page

Or I 6 665% kK bd Ke doe ii

SOOUMIGT OF THE BAGS ..o oc cccccccvesccccscceeseas i

SUMMARY OF ARGUMENT. .. 2... cccccccccccccccccees 2

ROD 6.6 bcc bdeteietecsdcksiteies eae 4

I. PARENTAL CONSULTATION PROTECTS VULNERA-

BLE ADOLESCENTS AND FAMILIES From HARM,

IN FURTHERANCE OF LEGITIMATE STATE INTER- F

RUE cccccconsvaundesesicsenete es

A. Parental Consultation Promotes Maternal

Health In The by ery Adolescent By Reduc-

r: The Physical And Psychological Risks Of

GEE ncddsduccsucdseanneeseecuiasucde

1. Physical Risks From Abortion ........

2. Mortality Risks From Abortion .......

3. Emotional And Psychological Harms

PO ED wncencachusniecdsencea

B. Parental Consultation Substantially Benefits

The Minor’s Decision Making Process .......

C. Parental Consultation Helps Protect Vulnera-

ble, Immature Minors From Exploitation ...

D. Parental Consultation Promotes Legitimate

Parental Authority And Family Unity ......

DE in vb ane ésctansesencnas

2. Family Involvement ..................

Il. State NOTIFICATION AND CONSENT LAWS ARE

RATIONALLY RELATED TO LEGITIMATE STATE

INTERESTS AND DO NOT “UNDULY BURDEN” A

MiINor’s RIGHT TO HAVE AN ABORTION ........

III. FeperRAL Courts Must Give GREAT JUDICIAL

DEFERENCE TO STATE ABORTION LEGISLATION,

PARTICULARLY IN MATTERS INVOLVING PARENT-

SN oe Ss eeu gos eae

RRS MEE LEER OR EE Ee Sey cope Sa

AppENbDIx A—Description of Amici..................

APPENDIX B—The Confused State of Parental Con-

SR, oo wc cdsuawuddisanerseencieeiee

‘i

TABLE OF AUTHORITIES

yr Health v. Slaby, 854 F.2d

Akron Center for Reproductive Health v.

852 (6th Cir. 1988), appeal filed sub. nom. Ohio v.

Akron Center for uctive Health, prob. juris.

noted, No. 3406, (U.S. July 3rd 1989) (Akron II). 1, 4

Bellotti v. Baird, 428 U.S. 132 (1976) (Bellotti 1)... ... 20,30

Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II)... passim

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

Te ee SEED E EE See ceooeeeoccces 26

City of Akron v. Akron Center for Reproductive Health,

416 U.S. 462 (1983) (Akron I)... 2.6.6.2. ee ees passim

Ginsberg v. New York, 390 U.S. 629 (1968)....... 22, 23, 29

Harris v. McRae, 448 U.S. 297 (1980) .......-. 6-660 26

H. L. v. Matheson, 450 U.S. 398 (1981). ........... passim

Hodgson v. Minnesota, 853 F.2d 1452 (8th Cir. 1988) (Nos.

86-5423 and 86-5434) (en banc) cert. nted, No.

88-1125 (U.S. July 3, 1989) (Cross-Petition No.

DU cu eeuseseee 6esedccocovceccecscccccese 1, 12, 13

Maher v. Roe, 482 U.S. 474 (1977)... 02... ee eee ene 26, 29

Moore v. City of East Cleveland, 431 U.S. 494 (1974)... 29

Oregon v. Michell, 400 U.S. 112 (1970) ...........005. 29

Parham v. J. R., 442 U.S. 584 (1979)... 2. eee eee 29

Prince v. Massachusetts, 321 U.S. 158 (1944)..... 22, 23, 29

Pierce v. Society of Sisters, 268 U.S. 510 (1925). . Pe hees 22, 29

Planned Parenthood of Kansas City v. Ashcroft, 462 U.S.

ei cseseususdabosedcuccrcceses 30

Planned Parenthood of Central Missouri v. Danforth,

Se Es PME cco ccccccecscscccccesesees passim

Poekler v. Doe, 432 U.S. 519 (1977) ... 2... eee eee 26

Roe v. Wade, 410 U.S. 113 (1973).......... 4, 10, 26, 27, 28

Thornburgh v. American College of Obstetricians and

Gunssolagiate, 476 U.S. 747 (1986)... 26, 27, 28, 29, 30

Webster v. R uctive Health Services, 57 U.S.L.W.

5023 (U.S. June 27, 1989)... 6 ccc cccwnes 26, 27, 28, 29

Williamson v. Lee Optical Co., 348 U.S. 483 (1955) .... 26

Wisconsin v. Yoder, 406 U.S. 205 (1972). ......... 22, 23, 29

Zbaraz v. Hartigan, 763 F.2d 1532 (7th Cir. 1985) aff'd

mem. 108-S. Ct. 479 (1987)... wc cee cee cccesess

Table of Authorities Continued

Page

OTHER AUTHORITIES:

Center for Disease Control, U.S. Department of Health &

Human Services, Abortion Surveillance (1985) . 5

Letter from Sue Liljenberg to Senator Gordon Humprey

eee eee bse ceecdeuasaodanmaadia

Books AND SCIENTIFIC MATERIALS:

Adler & Doleini, Adolescent Abortion: Psychological

Issues In Abortion For Adolescents in ADOLES-

CENT ABORTION: PSYCHOLOGICAL AND

LEGAL ISSUES 84 (G. Melton Ed. 1986)....... 10, 21

Babikian & Goldman, A Stud iy Sanepe Pregnancy, 128

I I 10

Barglow, Bornstein, at Wight an and Visodsky, Some

7 waeeeres & Dur-

co scence, ST AMERICA JOURNAL

0 ORTH OPSYCHIATRY 266 (1967)............ 15

Benson & Stack, Help or Hindrance: Parental Impact on

nt Te * Resolution Decisions, 31 FAM-

ILY RELATIONS 271 (1982) ................... 18

Blum, Impact of Parental Notificat fication Law, 77 AM. J.

PUBLIC HEALTH 619 (1987) .................. 18

Brittain, Adolescent Choices and Parent-Peer Cross Pres-

sures, 28 AM. SOC. REV. 385 (1963)............. 21

J. Burtchaell, RACHEL WEEPING AND OTHER

ESSAYS ON ABORTION (1982). .............. 13, 19

Butler & Fujita, Abortion + gy and Counseling: A

Brief Guide for Physicians, 50 POST GRAD. MED.

—_RERETR SI SRE 12

Cates, Adolescent Abortion in the United States, 1 J.

ADOLESCENT HEALTH CARE 18 (1980) ...... ll

Cates, Schultz and Grimes, Risk Associated With Teenage

Abortion, 309 NEW ENGLAND JOURNAL OF

i “as EERE 6

Clary, Minor Women Obtaining Abortion: The Study

rental N lon in Metropolitan Areas, 72

J. PUB. H. ET nececanesneneseceaesusecas 16

Cobliner, Pregnancy and Single Adolescent Giris: The

Role of Cognitive oodles 3 JOURNAL OF

YOUTH AND ADOLESCENTS 17 (1974)........ 14

Table of Authorities Continued

C. Cowell, Problems of Adolescent Abortion, Ortho Panel

14, Toronto General Hospital (1975) ....... es ae

Cohen, Laurie, Roth and Susan, Coping With Abortion, _

¥ 10 JOURNAL OF HUMAN ESS 140 ry 13

id, Rausmussen and Holst, Post Partum a t

abortion Paychotie Reactions, 13 FAMILY PLAN-

NING PERSPECTIVES 88 (1981) ........... es 12

Doctor's Abortion Business is Lucrative, The San Diego

Union, Oct. 12, 1988, at 3A col. 5................ 18

Eisen, Zeliman, Liebonitz, ny — oy ew a ape

iminating Pregnancy Resolution Decisions o

emapvted Adsleaeente, 108 GEN. PSYCH. MON.

GE 6b cnccbenencccenccccasecncvesnesssnns

Pn ceaccaucendéucctuessseeseseseesacesss

F , Abortion: Subjective Attitudes and Feelings,

tO FAMILY PLANNING PERSPECTIVES 150

SE caivicnacacnsancccununucsesencassudsacaces

DN adudussabenseadseavenousceaunedasennavess

nberg, Burden and Benefits: The Impact of Earl

vw hiidleering on the Family, 1980 J. SOCIAL

ET 1. conecueneasetneneune tt

J.G r, MEDICAL CARE FOR THE ADOLES-

CE oo cc cdanncekenckadusvosn’

Hanson, Abortion in Teenagers, 21 CLIN. OBST. AND

GYN. “tg se aay ae

inkin ine and Smith, rai mer-

— = Who Obtain Abortions, 17 FAMILY

PLANNING PERSPECTIVES 90 (1985). ..... 4, 5,

Horowitz, Adolescent Mourning Reactions to Infant and

Fetal Loss, 59 SOCIAL CASE 551 (1978).... 11, 12,

E. Hurlock, ADOLESCENT DEVELOPMENT (4th Fd.

SPU cecweuscncccsasveccsoseecocseccccccces 17, :

I. Josselyn, ADOLESCENCE (1971).................

rman, Bracken, Jeckel and Bracken, The Delivery

ss Abortion Danisian A Adolescents in PREG-

NANCY AND ADOLESCENCE 219 (1982).... 14, :

Mirachek, Counseling Adolescents With Problem Preg-

aie 42 AMERICAN PSYCHOLOGISTS 84°

GE 26.64 cca bee he ob aw des cob bbcceteses ha

Table of Authorities Continued

R. — IN THE INTERESTS OF CHILDREN

SUBSE ESENEH SEH SEES URSEOEEANe SeEsééEcesee 18

Olsen & Weed, Effects of Family Planning Programs For

Lp pe Adolescent Birth ond ney, 20

F Y PLANNING PERSPECTIVES 153 (1986) 19

Perez-Reyes & Falk, Follow Up After Therapeutic Abor-

tion in Early Adulessbase. 28 ARCH. GEN.

. § =a PirseaE EES 11, 12

Ramsey, 5 er of a Child in Protection Proceed-

ings: Determination of Decision Making Capac-

ity, 17 FAMILY LAW QUARTERLY 315 (1983)... 16

D. Reardon, ABORTED WOMEN—SILENT NO

_ is RRR ERENT ra 8, 9, 10

Russell, Sexual Activity and Its C es in the

Teenager, 3 CLINICS IN OB. AND GYN. 683(1974) 7

Russo, Adolescent Abortion: The Seg Con-

tent in ADOLESCENT ABORTIONS: PSYCHO-

ee ISSUES 40 (G. Melton Ed.

SSSOSSCOSOSESECESCE ESE COO CO OSC OOOO EEOCCeCeS 0

A. ea EVERY WOMAN HAS THE RIGHT

TO KNOW THE DANGER OF LEGAL ABOR-

I en iia eis nn cheese )

Steinhuff, Women Who Obtain Repeat Abortions: A

Study Based On Record Lineage, 11 FAMILY

P NING PERSPECTIVES 30 (1979) ........ 12

Teitze, Repeat Abortions, Why More?, 10 FAMILY

P ING PERSPECTIVES 205 (1978) ....... 12

Tishler, Adolescent Suicide Attempts Following Elective

Abortion: A Special Case of Anniversary Reaction,

68 PEDIATRICS 670 (1981) .................... 12

Torres, Forrest and Eisman, Telling Parents: Clinic Pol-

icies and Adolescent’s Use amily Planning and

Abortion Services, 12 FAMILY PLANNING PER-

SPECTIVES 284 (1980)................... 12, 17, 21

Wadhera, Abortions A Teens 1974 through

1978, CAN. MED. ASS. J. 1386 (1980)........ 7

Wallerstein, Kurtz and Bar-Din, Psychological S lae

of ent Abortion in Young, U aniedied

omen, 27 ARCH. GEN. PSYCH. (1972) 10, 11, 15

Table of Authorities Continued Page

Weed, Curbing Births Not Pregnancies, The Wall St. J., .

Oct. 14, 1986, at 36, col. 4...... 6.666 e eee eee ees l

_ Effects of Family-Planning Programs on

a ty = -Replication And Extension

Rates, 20 FAMILY PLANNING PERSPECTIVES

TERED, cc vcccccccccspecssccccecoesoseseoees

J. Wilke, ABORTION QUESTIONS AND ANSWERS _ .

| Oe ....) oo i,

_ J. Wilke & B. Wilke, HANDBOOK ON ABORTION (3rd -

> ee tee

, Decision Making in Adolescent Pregnancy

“_ ALUES AND PUBLIC POLICY 119(G. Regier ”

i Seperrrrrrr irr tr 5, 14,

hington . The Benefits of Legislation Requiring Par-

ae I pero, to Adolescent Abortion in

Wynn & Wynn, Some Consequences Induced Abortion

AND FAMILY NEWSLETTER 8 (1973).....--.- 8

Zekman & Warrick, The Abortion Profiteers, Chicago Sun

Times, Nov. 12, 1978 at 1, col. L......-------++es 8,9

INTEREST OF AMICI CURIAE*

Amici Focus on the Family and the Family Research

Council, representing the concerns of more than 1.7 million

American families, have broad experience and interest con-

cerning the impact of abortion on minors and on the family.

Five of the amici are women who have suffered severe harm

because, as minors, they were allowed—indeed, encouraged—

to undergo abortions without the benefit of parental guidance.

Rachel Ely is now permanently wheelchair-bound; Myoshi

Callahan has endured severe physical problems, including a

hysterectomy; Teresa Wibblesman Fangman, Holly Trimble,

and Linda Roselli each suffered severe emotional anguish and

psychological turmoil. These women offer their experiences to

the Court to illustrate the very real, practical effect of severing

the normal parent-child relationship in the abortion context.

One of the amici, Ann Marie Lozinski, is the parent of a

young woman who suffered the ultimate harm: Debra Lozinski

died after two-and-a-half months in a coma, as a direct result of

an in-clinic abortion performed without adequate care, and

without notice to her parents. Four years later, Debra’s mother

is still suffering from severe depression.

Amicus Robert C. Wibblesman, Teresa Fangman’s father,

offers a parent’s perspective, unique because he has also had

the opportunity to help another daughter, faced with an

unplanned pregnancy, avoid the pain that Teresa suffered

alone.

Many of the individual amici are associated with amicus

American Victims of Aiertion, which is a national organiza-

tion of persons whose lives have been adversely affected by

abortion.

All of the amict hawe particular knowledge and experience

concerning the impaet om minors of abortion without parental

consultation, witich will be helpful to the Court.

“A full description of the Amici appears in Appendix A. This brief is

submitted with the writtenwonsent of both parties, filed with the Clerk of this

Court. Amici are concerned with parental notification and consent issues

raised in Ohio v. Akron Center for Reproductive Health, No. 88-805, and

Hodgson v. Minnesota, Nos. 88-1309 and 88-1125, and thus are filing this

bref n both cases.

SUMMARY OF THE ARGUMENT

Courts and state legislatures remain uncertain about

whether parental consultation laws are constitutional, and if

so, within what specific legal parameters. Presently, sixteen

parental consultation laws have been enjoined. Only five such

statutes have been found constitutional. A clear enunciation

that reasonable parental notification and consent laws do not

unconstitutionally limit the right to an abortion is needed to

permit states to protect minors and their families. Because

state legislatures are best suited to provide these protections,

the Court should limit its review to whether a statute or

regulation is supported by a rational relationship to legitimate

state interests. ,

Many legitimate, if not compelling, state interests are

involved in parental consultation laws, particularly when a

pregnant teenager is making the difficult and traumatic abor-

tion decision. The courts recognize at least three state interests

for parental consultation laws: (1) the peculiar vulnerability of

children: (2) minor’s inability to make critical decisions in an

informed, mature manner; and (3) the importance of the par-

ental role in child rearing. In light of the growing body of

scientific evidence about the adverse physical and psychologi-

cal effects of abortion, parents and the state have an additional

and heightened interest in ensuring that the pregnant adoles-

cent is protected from rash, ill-informed or pressured decisions

on this traumatic question.

The initial state and parental interest in adolescent preg-

nancy and abortion is to reduce or eliminate medical and psy-

chological problems of the pregnant minor. Negative medical

consequences from abortion include hemorrhage, perforated

uterus, subsequent fetal malformation, cervical trauma, ecto-

pie pregnancies, infection, menstrual disturbances, infertility,

Pelvic Inflammation Disease (PID), miscarriage and high-risk

prematurity in subsequent pregnancies. Since adolescents ~

generally have immature cervixes, researchers have concluded

that adverse physical health effects are more common and

severe in teenage abortions. Young women who have abortions

have also been found to be more predisposed to adverse out-

comes in future, planned pregnancies than their sexually

mature adult counterparts.

Compared to adults, adolescents appear to also have more

negative emotional and psychological responses following abor-

tion. The immediage negative psychological responses include

severe guilt, anxiety, depression and psychosis. The long-term

adverse psychological effects, which include denial, depres-

sion, isolation, alienation, suicide attempts and a family of

psychiatric symptoms called Post Abortion Stress (PAS),

appear to be more problematic and more devastating for the

adolescent aborter.

Parental consultation also enhances a legitimate state inter-

est to help adolescents make better, well-informed decisions

about their pregnancy. Parents who have knowledge of a pend-

ing abortion can help their daughter assess the medical and

psychological risks involved. After consultation, if she still de-

cides to abort, they can relate important medical and psycho-

logical information to the abortionist. If adverse complications re-

sult, the parents will be aware of the cause and can give important

medical information to the subsequent treating physician.

Family involvement in the abortion decision promotes impor-

tant state interests of family unity and parental control in > al

ways: (1) it permits the parents to deal with issues underlying

adolescent pregnancy; (2) it helps avoid the compounding prob-

lems of alienation, isolation and depression, which secret abor-

tions frequently entail; and (3) it provides emotional and

psychological support for whatever decision the minors make.

Parental consultation laws clearly have a ration -

tionship to these legitimate state Ciete In odieien ox

sultation laws with a waiting period and a judicial bypass

provision cannot be said to unduly burden the minor's abortion

right because parents do not have arbitrary, absolute veto

power over her decision. After sixteen years, the Court should

return to the constitutional principles historically employed in

reviewing state health and safety laws, adopt the rational basis

standard of review in the parental consultation requirements

and jettison the conflicting, intricate set of abortion-related

rules that are unrelated to Constitutional doctrine.

the evidence is ineffective for the unborn,

then the Roe v. Wade precedent can grow to

a “liberty” to kill virtually anyone. If

the Supreme Court decreed it “liberty” to

kill Jews, this same evidence would prove

it "murder," and not "liberty." Judges may

have more sympathy for other victims, but

changing the names of the victims will not

change the legal result.

Roe v. Wade murders reason itself. In

his novel, "1984," Orwell described how a

tyranny defrauded its subjects into

obedience with the "doublethink" slogan

"FREEDOM IS SLAVERY." Although this science

fiction appears improbable, the U.S.

Supreme Court has defrauded the United

refer to them; and its legislative history

does not appear to expressly refer to them.

The principle that all people are

"created" equal, with an "unalienable"

right to "life," having been sneered out of

court in Boe v. Wade, now provides no

assurance for anyone.

As with the unborn, the murder laws

don't expressly refer to the insane, or

invalids, or Jews; the intention of the

legislators is found in the common law.

If the evidence cannot protect the

unborn, the lives of many are imperiled.

States into obedience with the ultimate

falsehood: "MASS MURDER IS LIBERTY."

Abraham uinoadn ridiculed Dred Scott

by reducing it to its plainest terms:

[We hold these truth to be self-

evident, that] all men are created

equal - except Negroes.

That if any one man, choose to enslave

another, no third man shall be allowed

to object.

The Fourteenth Amendment intended to

prevent this forever. Yet Roe v. Wade,

reduced to its plainest terms, asserts:

We hold these truths to be self-

evident, that all men are created

equal - except those created to be

murdered.

That if any one man, choose to murder

another, no third man shall be allowed

to object.

By changing the names of the victims,

the Supreme Court has duplicated the decree

of "the supreme judge" of Nazi Germany who

asserted the killing of Jews to be legal.?’

17. United States v. Altstoetter, 3 Trials

of War Criminals Before the Nuernberg

Military Tribunals 1011-1014 (1951). The

Nazi judges claimed that they could not be

held accountable for complicity in

extermination and murder, since they had

acted "within the authority” of the

"decrees" of "the supreme judge." Id. at

The key doctrines of the Nazi judiciary

have been adopted by the courts of the

United States: a "supreme judge" which

decrees mass murder to be legal; and lower

judges who rule they must blindly obey. 2°

The Court did exactly what the guarantee

of life to "any person" was intended to

prevent, and decreed murder to be legal, by

giving "murder" the new name "liberty." But

Chief Justice Marshall condemned such sham:

"Is the proposition to be maintained that

the Constitution meant to prohibit names

and not things? That a very important

act, big with great and ruinous mischief

which is expressly forbidden by words

most appropriate for its description; may

be performed by the substitution of a

name? That the Constitution, in one of

its most important provisions, may be

evaded by giving a new name to an old

983-85. Their "supreme judge" had decreed

killings to be legal which had been defined

by statute to be criminal. But the tribunal

held, "The dagger of the assassin was

concealed beneath the robe of the jurist."

18. Exnest v. U.S, Attorney etc,, cert.

denied 475 U.S. 1084 (1986). The U.S.

District Judge ruled that Boe v. Wade was

"the worst decision by the Supreme Court in

the history of the Court." But he stated

that even if the Supreme Court decreed it

liberty to kill Jews, he must obey and

permit the killings to continue.

thing? We cannot think so." Craig v.

Missouri, 3 Pet. at 433 (1830).

Thus the United States is ruled by the

decree "MASS MURDER IS LIBERTY.” But murder

is still murder, no matter what new name

the Court gives it. This is the most

catastrophic crime in history. This

precedent of judicial alchemy to convert

murder into "liberty" can be evoked at whim

to kill anyone; it cancels the

"unalienable" guarantee of life and makes

everybody a mere hostage of this Court; it

is a virtual murder gun held to everyone's

head - all life now depends merely on

judicial whim; it defies the consent of the

governed; it smashes the hopes of the whole

human race for government by truth and

laws, and reduces government to the mere

matter of which murderer can grab power and

be obeyed. Again people must struggle to

ensure that the nation dedicated to the

proposition that "all men are created

equal" shall not “perish from this earth."

ROE v. WADE CRIMINALLY DEFIED THE

UNALIENABLE GUARANTEE OF LIFE TO "ANY

PERSON" BECAUSE THIS COURT FABRICATED

EVIDENCE TO FALSELY IMPLY THAT THE WORDS

"ANY PERSON" DO NOT INCLUDE THE UNBORN.

The 19th century abortion statutes

supplanted the medieval view that unborn

life began at "quickening"?

and expanded

protection of law to all stages of unborn

life; they prove the guarantee of life to

"any person” includes the unborn, that no

distinction can be made among the stages of

unborn life.

When the Fourteenth Amendment was

adopted in 1868, over three-fourths of the

ratifying states had already made abortion

at any stage of gestation a crime.” Within

a few years, these statutes were universal.

l. “Life is the immediate gift of God, a

right inherent by nature in every

individual: and it begins in contemplation

of law as soon as the infant is able to

stir in the mother's womb." 1 Bl. Com. 126.

2. The statutes are set out in Quay,

Justifiable Abortion, Medical and Legal

Foundations, 49 Geo. L. J. 447-520 (1961).

And in those few States still

following the common law, judicial revision

makes it impossible for this Court to

assert with any assurance that it was any

different than the prevailing statutes:

By the ancient common law ... as the

life of an infant was not supposed to

begin until it stirred in the mother's

womb, it was not regarded as a

criminal offense to commit an abortion

in the early stages of pregnancy. A

considerable change in the law has

taken place in many jurisdictions by

the silent and steady progress of

judicial opinion; and it has been

frequently held by Courts of high

character that abortion is a crime at

common law without regard to the stage

of gestation.

3. Lamb v. State, 67 Md. 524 (1887). Some

state supreme courts rejected medieval

medical views and ruled that the common law

made abortion at any stage of gestation a

crime. Mills v. Comm., 13 Pa. 631 (1850);

State v. Slagle, 83 N.C. 544 (1880); State

v. Beed, 45 Ark. 333 (1885).

Wharton, a standard 19th century text,

stated that under common law “the

protection of the law was cast round an

unborn child from its first stage of

ascertainable existence, no matter whether

‘guickening' had taken place or not.” F.

Wharton and M. Stille, Treatise on Medical

Jurisprudence 927-28 (2d ed. 1860).

And those state supreme courts which

ruled that abortion prior to quickening was

not a common law crime were immediately

The theory of a "liberty" to kill the

unborn faced a fatal contradiction. How

could the Court dare to Dred Scott-like

imply an exception to the guarantee of life

to "any person" in order to declare

killings to be "liberty" which the people

had defined to be criminal? This absurd

contradiction wrecks Boe v Wade.

To resolve this fatal contradiction

the Court fabricated the hypothesis that

the 19th century criminal abortion statutes

were not intended to protect unborn life,

but were only intended to protect the

mother. This falsely implied that the

people never intended the lives of the

unborn to be protected by law. This false

hypothesis was fabricated as follows.

overruled by their legislatures which made

abortion at any stage of pregnancy a crime.

Comm. v. Parker, 50 Mass. 263 (1845), was

immediately overruled by Mass. Acts &

Resolves ch. 27 (1845). State v. Cooper, 22

N.J.L. 52 (1849), was immediately overruled

by N.J. Laws at 266 (1849). Abgsahams v.

Foshee, 3 Iowa 274 (1856) was overruled by

the next legislature, Iowa Rev. Laws; tit.

XXIII, ch. 165. art. 2, sec. 4221 (1860).

The Court first asserted as fact:

"When most criminal abortion laws were

first enacted, the procedure was a

hazardous one for the woman." Roe v.

Wade, 410 U.S. at 148.

The only authority cited was a 20th century

medical history book. But this book only

described the hazards of major surgery in

general prior to Lister's discovery of

antiseptics; the abortion operation was not

mentioned anywhere in the entire book.

The 19th century obstetric authorities

throughout the Western world prove that

abortions by physicians were "perfectly

safe" to the woman.” They prove the Court's

assertion of fact to be false.

4. Haagensen and Lloyd, A Hundred rears of

Medicine 19 (1943), cited in Roe v. Wade,

Supra, at 148 n.43.

5. 2 T. Denman, M.D., An Introduction to

the Practice of Midwifery 96 (1802). He was

a standard English authority. They based

their judgments on their own experience in

performing abortions, and from hundreds of

cases reported from around the world. In

addition to perforation, other procedures

were also safe. A French physician wrote

"experience has proved that the dangers of

the operation are reduced to a small

The Supreme Court never revealed the

"hazardous" abortion "procedure" to which

it was referring. Actually, the 19th

century physicians generally used the

ancient method, which one physician traced

back 2000 years,’ and which they described

as “perfectly safe" to woman.

The Court did not examine even one

19th century obstetric textbook; and they

prove its assertion, “the procedure was a

hazardous one for the woman," to be false.

Since abortion was not dangerous to

the life of the mother, the only motivating

matter." A.L.M. Velpeau, M.D., A Complete

Treatise on Midwifery 530 (4th Am. ed.

1852). The preeminent American physician

wrote "to the mother there is very little

danger." H.L. Hodge, M.D., The Principles

and Practice of Obstetrics 293 (1864).

6. Dr. Denman, a standard authority in

England, wrote in 1802: "the membranes of

the ovum are punctured," which permitted

"the discharge of the waters," which

induced the "action of the uterus," which

resulted in the expulsion of the fetus from

the womb, which was "perfectly safe” to the

woman. 2 Denman, supra, at 96-99.

7. F. Ramsbotham, M.D., The Principles and

Practice of Obstetric Medicine 724 (4th ed.

1856).

purpose the abortion statutes could have

had was to protect the lives of the unborn

from destruction by abortions, even safe

abortions by physicians. Had it been the

purpose of the legislators to only protect

the mother, they would have simply required

abortions, which were known all over the

western world to be safe to the mother, to

be performed only by physicians.

The Court next asserted: "Abortion

8 This is asserted as

mortality was high.”

fact. The Court cited no authority to

Support it. The 19th century obstetric

authorities prove this assertion to be

false; their medical texts show that the

abortion operation was "perfectly safe."

The purpose of the Court's false

assertion of fact is to go beyond the mere

theory that abortion was hazardous to the

mother, and infer that the carnage was so

8. Boe v. Wade, 410 U.S. at 149

great as to call for legislation to protect

women from the medical profession.

Cc.

Upon these two false assertions of

fact, the Court next falsely inferred:

"({A] State's real concern in enacting

a criminal abortion law was to protect

the pregnant woman, that is, to restrain

her from submitting to a procedure that

placed her life in serious jeopardy."

Boe v. Wade, 410 U.S. at 149.

This is a false inference, drawn from two

false assertions of fact. Moreover, the

19th century treatises on criminal law

expressly stated that these abortion

statutes were intended to supplant the

ancient common law and protect the lives of

the unborn during all stages of gestation:

"The notion that a man is not

accountable for destroying the child

before it quickens, arose from the

hypothesis that quickening was the

commencement of vitality with it, before

which it could not be considered as _

existing. This "absurd distinction" ...

is now exploded in medicine.... The

foetus is certainly ... as much a living

being immediately after conception, as

at any other time before delivery.

"There is as much vitality ... on one

side of quickening as on the other, and

»+. the infant is as much entitled to

protection ... a week before it quickens

as a week afterwards.... Acting under

these views, the legislatures ... passed

acts making ante-quickening-foeticide

individually penal.” 1 F. Wharton, A

Treatise on the Criminal Law of the

United States 656-57 (5th ed. 1861).

There is no 19th century authority to

the contrary. If the purpose of these laws

had been to protect the mother, and not the

child, these texts would certainly have

noted such an important thing.

And State supreme courts ruled that

these statutes protected the unborn:

"(T)he statute ... essentially changed

the common law. There is a removal of

the unsubstantial distinction, that it

is no offense to procure an abortion,

before the mother becomes sensible of

the motion of the child, notwith-

standing it is then capable of

inheriting an estate.... It is now

equally criminal to produce abortion

before and after quickening."

Smitb v. State, 33 Me 48 (1851).

Since abortions by physicians were

known all over the western world to be safe

to the mother, the motivating purpose of

these abortion laws could only have been to

protect the lives of unborn children from

destruction from abortions. That

legislatures prohibited safe abortions by

physicians, despite the great danger to the

mother from abortions by criminals, shows

their great respect for unborn life.

The Court next made its irrelevant

study of the single word "person," and held

it "does not include the unborn":

"(O)ur observation ... that throughout

the major portion of the 19th century

prevailing legal abortion practices

were far freer than they are today,

persuades us that the word ‘'person,'

as used in the Fourteenth Amendment,

does not include the unborn." Roe v.

Wade, 410 U.S. at 158.

The Court could not find even one 19th

century authority to support this result;

the whole weight rests on the Court's

"major portion - far freer" assertion,

which is false. The reverse is closer to

9. "In thirty-four cases of criminal

abortion ... twenty-two were followed...by

death, and only twelve were not. In fifteen

cases necessarily induced by physicians,

not one was fatal." H.R. Storer, M.D., On

Criminal Abortion in America 43 (1860)

10. The ancient common law only prevailed

in the early 19th century. By mid-century,

a majority of the States which ratified the

Amendment had already enacted statutes

the truth. The evidence indicates that

legal abortion was far freer in 1973, than

when the Amendment was adopted. !?

The Court's "major portion = far

freer" doctrine, were it even true, is

absurdly irrelevant and ominously skirts

which punished abortion throughout

gestation. (Supra n.2) By 1868, over three-

fourths had enacted such statutes; and

shortly they were universal. In those few

states with no statute, this Court cannot

claim with assurance that the common law

was any different. (Supra n.3) Thus the

"prevailing law" for the last half of the

19th century; it was about the same as

existed in most states in 1973; and "legal"

abortion was not "far freer” then.

ll. The statutes listed in Boe v. Wade,

410 U.S. at 140 n37, show that by 1973 four

states permitted abortion on demand, while

fourteen permitted abortions for other

reasons not allowed in 1868. The statutes

prevailing in 1868 only permitted abortions

to save the life of the mother or child.

Thus legal abortion was far freer in 1973

than in 1868, although in most states it

was still about the same as it was in 1868.

12. The same thing could be said about

"legal slavery," which really was "far

freer" for the "major portion” of the 19th

century than it is today. Would this prove

a right to own a slave today? If the Court

could ignore the events of 1860 to 1866 -

it could plausibly reaffirm its Dred Scott

rule that there was a right to own a slave.

the central issue of the law existing in

1868, and the reason for the vast change.

The Court's assertion that "legal

abortion" was then "far freer" refers to

the ancient common law that abortion prior

to "quickening" was not a crime, on the

theory that life began at “quickening.” A

physician, who helped draft Virginia's 1848

abortion statute, explained its purpose was

to supplant this "exploded error":

"(T)hat the embryo is endowed with an

inherent vitality from the first moment

of conception, and is therefore as much

entitled to the protection of the law

before the period of ‘quickening' as

after it, every well-informed physician

must yield a ready assent. The old

doctrine, once held by medical men ...

that the foetus first becomes animated,

or endowed with distinct vitality, at

the moment when the sensation of

quickening is experienced by the mother,

has been long since banished from the

domain of science ... and now only finds

a retreat in the dark and ancient

caverns of the common law.

"(T)he civil rights of the unborn child

are perfect from the very commencement

of its being.” L.S. Joynes, M.D.,

"Foetus in Utero," Virginia Medical

Journal 179-180, 187 (1856).

The 19th century medical and legal

authorities, with none to the contrary,

condemned this ancient theory of life:

"(I)t is the duty of every accoucheur

earnestly to protest against the ancient

theological and legal opinion that,

prior to the fourth month, the embryo

had no proper existence.... (T)he merest

tyro in physiological investigations

must be-convinced of the falsity of all

such opinions." H.L. Hodge, M.D., The

Principles and Practice of Obstetrics

78 (1864).

Yet the Court exactly adopted, as

constitutional law, a view of unborn life

which the 1860 president of the AMA called

barbarous physiology" and which courts

ruled "never ought to have been the law

anywhere, "2° and which 19th century

legislatures condemned as criminal. The AMA

president said in urging States to protect

all stages of unborn life:

"This relic of a barbarous physiology

needs to be exploded, and the truth

should be generally promulgated, that,

from the moment of conception, a new

being is engendered.” 13 Transaction of

the American Medical Association 56-57

(1860).

Mills v. Commonwealth, supra, 632.

The abortion statutes were urged by

America's most eminent medical professors

and physicians, and they were intended to

protect all stages of unborn life:

From the moment of fecundation, the

new being becomes independent ... its

individuality is complete.... (T)here

is a progressive ... advancing from

one degree of perfection to another.

Every protection, therefore, which is

extended by human legislation to the

young infant ... should be equally

effectual in securing the life of the

embryo from,the earliest period of its

existence.

The abortion statutes show the universal

guarantee of life to "any person” was not

based on "a barbarous physiology"; the

Amendment recognizes that there is no time

during unborn life that a rational line can

be drawn to permit the killings.

But the Court accepted the medieval

view, that life began at “quickening”

14. H.L. Hodge, M.D., The Principles and

Practice of Obstetrics 78 (1864). Hodge's

"name had become a household word

throughout the land" and his book "valued

among the very first works on obstetrics

ever issued from the American or foreign

press." R. Penrose, M.D., Discourse on Life

of H.L. Hodge 20-21 (1872)

(about 4 months), and arbitrarily enlarged

it to “viability” (about 7 months), making

a “liberty” to kill which even its only

authority, the ancient common law,

condemned as criminal. Thus the basis of

the Court's decree that "the word

‘person’... does not include the unborn."

Thus 20th century constitutional law was

founded on medieval medical theory which

was rejected as false in the 19th century,

and remains false today.

In short, the Court manufactured a

constitutional right to kill, out of "an

exploded error” that an ante-quick child

was not alive, which the "merest tyro" knew

to be false, and was universally condemned

as "a barbarous physiology" found only in

"dark and ancient «averns," which 19th cen-

tury judges ruled "never ought to have been

the law anywhere," and which legislatures

condemned as criminal everywhere, in order

to Dred Scott-like blast an exception to

the guarantee of life to "any person,” so

tens of millions of victims could be killed

with impunity from criminal statutes. This

is not law; it is murder under ruse of law.

The Court's arbitrary shopping among

medieval notions, rejected by the framers

as “barbarous,” to define the unalienable

guarantee of life to "any person,” is a

another murder gun precedent pointed at the

head of all Americans; it makes everyone a

hostage of this Court; judges can

arbitrarily pull its trigger to destroy

anyone.

The Court now has bloody precedent for

doing the most forbidden act; it directly

defied the unalienable guarantee of life to

"any person," the two most important words

ever written into law, and condemned to

death millions of victims whom the U.S.

Constitution endeavors to preserve. It can

now happen to anyone; the Court has

cancelled the "unalienable" guarantee of

life to "ALL," and sealed it in blood.

In construing its equivalent word

"everybody," the Supreme Court of West

Germany ruled it did include the unborn:

"No distinction can be made among the

several stages of developing life

before birth, or between prenatal and

postnatal life." [Supra page 3 n.3]

The history of the criminal abortion

statutes proves the framers made this same

conclusion when they universally guaranteed

life to "any person” without any

exceptions: there is no time during unborn

life that the law can withdraw its

protection and permit the killings; rather

it is the duty of the law to protect the

weak...

Without need of assistance from Chief

Justice John Marshall's burdens of proof,

as described in the next section, history

permits only one rational conclusion: the

universal and "unalienable" guarantee of

life to "any person” includes the unborn

during all stages of unborn existence.

THIS COURT CRIMINALLY DEFIED THE

UNALIENABLE GUARANTEE OF LIFE TO "ANY

PERSON” WHEN IT DEFIED THE RULINGS OF JOHN

MARSHALL AND USED A "GUILTY UNTIL PROVEN

INNOCENT” BURDEN OF PROOF TO INFER THAT THE

WORDS "ANY PERSON” DO NOT INCLUDE THE

UNBORN,

The Court used the correct burden when

it previously construed “any person."+ Yet

when it came to the unborn, it used a

"guilty until proven innocent" burden.

THE BURDENS, DESCRIBED BY CHIEF JUSTICE

MARSHALL, PROVE THE GUARANTEE OF LIFE TO

"ANY PERSON" DOES INCLUDE THE UNBORN,

Chief Justice John Marshall described

the conditions the Court must satisfy to

lawfully imply an exception to universal

terms in the U.S. Constitution.

Before the Court can exclude the

unborn from the guarantee of life to "any

l. The Court properly ruled that the words

"any person” included Chinese aliens,

saying the words are "universal in their

application, to all persons ... without

regard to any differences.” Yick Wo v.

Hopkins, 118 U.S. 356, 369 (1886). And this

Court was so sure that the words "any

person" included "corporations," it refused

to even allow counsel to argue against it.

v. SO. Pac, RB, 118 U.S. 394,

396 (1886).

person,” so they can be killed with

impunity from criminal laws, the Court must

prove that including the unborn within the

terms "any person" would be "so monstrous,

that all mankind would, without hesitation,

unite in rejecting the application."

The Court must prove that if the right

to life of the unborn had "been suggested

[to the framers] the language would have

been so varied, as to exclude it,"~ and the

2. Sturges v. Crowninshield, 4 Wheat. 122,

202-203 (1819). When the Constitution uses

universal words, and a case is "within the

very words of the Constitution," it would

be "dangerous in the extreme" to infer the

case "is not within its spirit" because "we

believe the framers of that instrument

could not intend what they say” unless the

"absurdity and injustice of applying the

provision to the case, would be so

monstrous, that all mankind would, without

hesitation, unite in rejecting the

application."

3. Dartmouth College v. Woodward, 4 Wheat.

518, 644-45 (1819). "It is not enough to

say that this particular case was not in

the mind of the Convention, when the

article was framed, nor of the American

people, when it was adopted. It is

necessary to go farther, and to say that,

had this particular case been suggested,

the language would have been so varied, as

to exclude it, or it would have been made a

special exception. The case being within

framers would have changed the guarantee to

read: "Nor shall any state deprive any

person, except unborn persons, of life ...

without due process of law."

These are the burdens which protect

the lives of all Americans from government

sanctioned extermination, as happened in

Nazi Germany; they carry the life of each

American in their hands. The Court bears

the heaviest burden of proof to imply an

exception to the guarantee of life to "any

person" so millions of victims can be

killed with impunity from criminal laws.

the words of the rule, must be within its

operation likewise, unless there be

something in the literal construction so

obviously absurd ... as to justify those

who expound the constitution in making it

an exception."

The Court used these burdens when it

ruled it could not read its jurisdiction,

which includes "all cases" arising under

the Constitution, as if it merely said

"some cases." Cohens v. Virginia, 6 Wheat

264 (1821); Martin v. Hunter's Lessee, 1

Wheat. at 339 (1816).

4. The truth of this extraordinary burden

can be demonstrated by applying it to

various cases. Before the Court could imply

an exception to the universal terms "any

person," so that Jews could be deliberately

Chief Justice Marshall's rules prove

the guarantee of life to "any person" does

include the unborn because "all mankind"

would not unite "without hesitation" to

exclude them. And the framers would not

have changed the guarantee to read "any

person - except the unborn," so it would be

liberty to kill them, because the people

had already enacted criminal statutes to

protect the lives of the unborn by law.

Thus the guarantee of life to "any person”

does include the unborn.

killed with impunity from criminal laws,

the Court would have to prove that "the

absurdity and injustice” of including Jews

within the universal terms "any person"

would be "so monstrous, that all mankind

would, without hesitation, unite in

rejecting the application." And the Court

must prove that if the case of the Jews

had been suggested to the framers, they

would have changed the Amendment to read:

"No state shall deprive any person, except

Jews, of life without due process of law."

This same burden protects us all.

THIS COURT EXACTLY peytse THE BURDEN

DESCRIBED BY CHIEF JUSTICE JOHN MARSHALL.

Instead of placing the burden on the

advocates of the killings to prove that

including the unborn within the guarantee

of life to "any person" would "be so

monstrous, that all mankind would, without

hesitation, unite in rejecting the appli-

cation,” the Court reversed the burden:

First, the Court declared a "liberty"

to kill the unborn with impunity from

Criminal laws, before it even looked to see

if the guarantee of life to "any person”

included the unborn. >

Second, subsequently, the Court looked

to see if the guarantee of life to "any

person” included the unborn. ©

5. Roe v. Wade, 410 U.S. at 153: "(T)he

Fourteenth Amendment's concept of personal

liberty ... is broad enough to encompass a

woman's decision ... to terminate her

pregnancy.”

6. Bee Vv. Wade, 410 U.S. at 156-157. "The

appellee ... argue that the fetus is a

‘person’ within the language and meaning of

the Fourteenth Amendment.”

Third, the Court admitted that if the

words "any person” included the unborn, its

predetermined assertion of a “liberty” to

kill the unborn "of course, collapses."’

But the Court decreed a “liberty” to kill

the unborn before it looked to see if the

unborn had a “guaranteed” right to live.

Thus the Court had passed its sentence

of death, before it even looked to see if

the Constitution guaranteed a right to

live. It is analogous to a court sentencing

an accused to be hung before it even heard

the evidence. As Alice's Queen demanded:

"Sentence first; verdict afterwards."®

7. Boe v. Wade, 410 U.S. at 156-157: "If

this suggestion of personhood is

established, the appellant's case, of

course, collapses, for the fetus’ right to

life would then be guaranteed specifically

by the Amendment.”

8. The vengeful Queen in "Alice in

Wonderland” shouted "Off with her head" and

when admonished that the jury must first

consider its verdict, she said: "No! No!

Sentence first- verdict afterwards.”

So it was in Boe v. Wade - first the

sentence of death; then the verdict whether

the law allowed the victim to live.

Fourtb, the Court's purpose for first

predetermining a "liberty" to kill the

unborn, was not only to shift the burden of

proof from the advocates of the killings

onto the unborn, but also to impose its

heaviest "compelling" burden on the unborn,

a burden of proof so devastating that state

statutes seldom, if ever, survive it.?

Eiftb, the Court stated that the

evidence did not prove "with any assurance"

that the guarantee of life to "any person"

included the unborn. This confirms that

the Court placed the burden on the unborn

to prove with "assurance" that the words

"any person" included the unborn. This is

the heaviest burden which can be imagined.

9. Boe v. Wade, 410 U.S. at 155: "Where

certain ‘fundamental rights' are involved,

the Court has held that regulation limiting

these rights may be justified only by a

‘compelling state interest.'" As its

compelling state interest, Texas claimed

that the lives of the unborn were protected

by the Fourteenth Amendment. Id., at 156.

10. Boe v. Wade, 410 U.S. at 157.

"Assurance" means: "To make certain and put

beyond doubt." Black's Law Dictionary (4th

ed. 1968).

Finally, by cailing upon its false

evidence to raise trifling doubts, the

Court said that the unborn had not met

their burden of proof and ruled "the word

‘person’ ... does not include the unborn."

If the Court used such burdens to

decree a "liberty" to kill Jews, surely

none would deny it would be murder. Judges

may have more sympathy for other victims,

but changing the name of the victims will.

not change the legal result. eae

When courts use such burdens to

condemn victims to death, it can no longer

be pretended it is still the government of

the United States - any government of laws.

This is still another "murder gun"

precedent pointed at the head of every

American; judges can arbitrarily use it to

destroy anyone. The true burden proves

beyond dispute that the guarantee of life

to "any person" does include the unborn.

ROE v. WADE CRIMINALLY DEFIED THE UNALIEN-

ABLE GUARANTEE OF LIFE TO “ANY PERSON"

BECAUSE THIS COURT USED "IRON CURTAIN"

PROCEDURES TO IMPLY THAT THE WORDS "ANY

PERSON" DO NOT INCLUDE THE UNBORN; IT USED

THESE PROCEDURES TO MAINTAIN ITS KILLINGS.

The Court effected Roe v. Wade by

using unconstitutional “iron curtain”

procedures in a mock trial without truth.)

Counsel did not especially represent the

unborn in the U.S. District Court in Roe v.

Wade. And the U.S. Supreme Court denied a

request by an original party to allow

counsel to especially represent the unborn

and defend their right to life. Thus,

counsel did not represent the unborn at any

stage of the original proceedings.

B. Denial of Prior Notice

The District Court did not even look to see

if the lives of the unborn were protected

by the U.S. Constitution; this question was

argued for the first time after Boe v. Wade

reached the Supreme Court. And the Supreme

Court gave the parties no prior notice of

the constitutional standards, or the

burdens of proof, or the evidence, which

the Court used to infer that the lives of

the unborn were not protected by the U.S.

Constitution. The first time the parties

had notice was when Boe v. Wade was

published, and the victims were already

condemned to death. An- original party

objected that it lacked the prior notice

needed to defend the unborn.

C. Secret Evidentiary Proceedings

The Court used some secret evidentiary

process, not open to the parties, to find

And the Court maintains its killings

by using "iron curtain" procedures in mock

trials without truth, despite continual

objection that the Court was using criminal

procedures to maintain its killings:

1. The Supreme Court willfully refuses

to allow retained (no cos. to taxpayers)

counsel to represent the victims being

evidence to infer that the lives of the

unborn were not protected by the U.S.

Constitution. An original party objected

that the Court's facts were "unknown to the

parties" and it never had opportunity to

cross-examine the Court's evidence.

D. “

An original party asked permission to

cross-examine the evidence which the Court

used to infer that the lives of the unborn

were not protected by the Constitution.

Since the Court found its evidence in

secret proceedings, the parties had not

previously seen the evidence. But the

Supreme Court would not allow its evidence

to be cross-examined.

An original party asked permission to

present evidence under the new

constitutional standards, which it had not

seen before, to show that the lives of the

unborn are protected by the Constitution.

But the Court refused to aliow it. And thus

the killings commenced.

killed and defend their right to life.

2. The Supreme Court willfully refuses to

allow its evidence in Boe v. Wade, which it

used to infer that "the word ‘person’...

2. Some of the cases are: Colautti v.

Eranklin, 439 U.S. 379, motion to allow

counsel for the unborn denied 437 U.S. 902;

Anders v. Floyd, 440 U.S. 445, motion to

allow counsel for the unborn denied 439

U.S. 890; Bellotti v. Baird, 443 U.S. 622,

motion to allow counsel for the unborn

denied 439 U.S. 1065; Ashcroft v. Freimap,

affirmed 440 U.S. 941, motion to allow

counsel for the unborn denied, 440 U.S.

941; United States v. Zbaraz, 448 U.S.

358, motion to allow counsel for the unborn

denied 444 U.S. 1030; Harris v. McRae, 448

U.S. 297, motion to allow counsel for the

unborn denied 445 U.S. 94l; Habs v.

Matbesop, 450 U.S. 398, motion to allow

counsel for the unborn denied 445 U.S. 959;

j v. Virginia, 462 U.S. 506,

motion to allow counsel for the unborn

denied 458 U.S. 1104; Planned Parenthood

of Kansas City v. Ashcroft, 462 U.S. 476,

motion to allow counsel to for the unborn

denied 458 U.S. 1104; Akron Center for

v. Akron, 462 U.S. 416,

motion to allow counsel to for the unborn

denied 458 U.S. 1104; Diamond v. Charles,

476 U.S. 54, motion to allow counsel for

the unborn denied 473 U.S. 932; Thornburgb

v. American College of Obstetricians and

, 476 U.S. 747, motion to

allow counsel for the unborn denied 473

U.S. 931; Hartigan v. Zbaraz, 98 L Ed 2d

478 (1988), motion to allow counsel for the

unborn denied 479 U.S. 1003.

does not include the unborn," to be

confronted and cross-examined. >

3. The Supreme Court willfully refuses to

allow evidence to be presented to show that

the Constitution's unalienable guarantee of

life to "any person" includes the unborn. *

These are basically the procedures

cited by the Nuremberg Court as part of the

evidence to convict the Nazi judges of

complicity in extermination and murder.

The Supreme Court's own rulings on due

process of law show these procedures to be

4. See cases, supra note 2.

5. "The trials ... did not approach even a

semblance of ... justice. The accused ...

were denied the right to introduce

evidence, to be confronted by witnesses

against them.... They were ... denied the

right of counsel of their own choice....

(P)roceedings ... were secret.” United

Vv. Altstoetter, Supra, at 1046-47

(1951). "Such a mock trial is not a :

judicial proceeding but a murder." Id., at

1164. "The prostitution of a judicial

system for the accomplishment of criminal

ends involves an element of evil to the

State which is not found in frank

atrocities which do not sully judicial

robes." Id., at 1086.

unconstitutional, and the willful use of

these procedures to be criminal.’

If the Court had used these procedures

to decree it "liberty" to kill Jews, it

6. Even in civil proceedings (such as

where loss of welfare is threatened) due

process guarantees (1) prior notice of the

factual and legal bases; (2) the right to

assistance of counsel; (3) the right to

cross-examine adverse evidence; and (4) the

right to present evidence. Goldberg v.

Kelly, 397 U.S. 254, 268-271 (1970). See

also, In Re Gault, 387 U.S. 1 (1967).

Could it be possible that procedures,

which could not be used to deprive a mother

of welfare, could be used to exclude her

from the protection of the U.S.Constitution

so that she could be killed with impunity

from criminal laws? This is preposterous.

The Constitution would not permit any

court to condemn even one single Jew to

death in a criminal case, but deny any of

these procedural rights. Then neither can

it permit any court to condemn all Jews in

the United States to death, but deny any of

these procedural rights, by calling it a

civil proceeding, and decreeing the lives

of all Jews are not protected by the U.S.

Constitution, and it is "liberty" to kill

all Jews with impunity from criminal laws.

Any victim is entitled to all the

procedural protections before any court can

decree that the victim's life is not

protected by the Constitution, and the

victim can be killed with impunity from

criminal statutes.

7. “Even judges ... could be punished

criminally for willful deprivations of

constitutional rights." Imbler v. Pachtman,

424 U.S. 409 (1976).

would be condemned as murder. Judges may

have more sympathy for other victims, but

changing the names of the victims will not

change the legal result.

The Court maintains its decree "MASS

MURDER IS LIBERTY" by refusing to allow

truth to work in its Court. No truth

seeking process was left unbloodied. It is

notorious that truth is not permitted to

work in this Court, and that the Court

falsifies history to achieve its ends. °

The record proves the Court used "iron

curtain" procedures, a mock trial without

8. "The Court ... has flouted the will of

the framers and substituted an interpreta-

tion in flat contradiction of the original

design.... Such conduct impels one to

conclude that the Justices are become a law

unto themselves.... It perilously resembles

--. Hitlerism." R. Berger, Government by

Judiciary: The Transformation of the

Fourteenth Amendment 408-12 (1977).

"Court had adjourned in the real world

and reconvened in Cloud Cuckooland. [The

Justices] began to invent a country suited

to their purposes.... They have falsified

the American past ... and no one in charge

seems prepared to do anything about it.” T.

Landers, To A Traditionalist, Mr. Ron

Sounds So Good, Wall St. J., edit. page,

Dec. 27, 1984.

truth, to do the most forbidder thing, to

defy the guarantee of life to "any person”

so millions of victims could be killed with

impunity from criminal statutes; and the

Court maintained its k-llings for fifteen

years by using "iron curtain" procedures in

mock trials without truth. In the words of

the Nuremberg court, "Such a mock trial is

not a judicial proceeding but a murder."

These procedures are still another

"murder gun" precedent which this Court

holds to the head of every American;

everyone is now a hostage of this Court;

judges can use this "iron curtain” process

to destroy anyone. The process makes Roe

v. Wade void.”

9. A more detailed description of the

procedures is made in the MOTION TO ALLOW

COUNSEL REPRESENT CHILDREN UNBORN AND BORN

ALIVE, filed in this case, and incorporated

by reference.

TTY

DUE PROCESS OF LAW HAS COMPELLED THE U.S.

SUPREME COURT TO CONFESS IN COURT THAT IT

IS GUILTY OF MASS MURDER, AND TO ADMIT THAT

THE UNALIENABLE GUARANTEE OF LIFE TO "ANY

PERSON" DOES INCLUDE THE UNBORN.

For the ]0lst_ time, the U.S. Supreme

Court is accused of criminally defying the

guarantee of life to "any person” and

exterminating millions of victims whom the

U.S. Constitution endeavors to preserve.

For the 77tb time, the U.S. Supreme

Court is accused of mass murder in

violation of state and federal statutes.

For the 8lst_ time, this Court is

accused of using criminal procedures to

effect and maintain Boe v. Wade killings.

John Marshall would have called Roe v.

Wade "treason to the Constitution."

1. Chief Justice Marshall wrote that this

Court could not extend the Constitution "to

objects not...contemplated by its framers."

Qgden v- Saunders, 12 Wheat. at 332. If the

Court usurped such power, it would be

"treason to the Constitution." Cobens v.

Virginia, 6 Wheat. at 404. By decreeing

"liberty" to be the very thing which the

framers had condemned to be “murder,” the

Court has indisputably extended the

Constitution to objects not contemplated by

its framers. For 15 years, "treason to the

But, for fifteen years, the U.S.

Supreme Court has never denied the charges,

much less attempted to prove the charges to

be false. These facts are unparalleled in

the legal history of the world.

Under this Court's own rulings, its

silence year after year, while the victims

Constitution" has masqueraded as "the

supreme law of the land."

The Court supplanted the Constitution

as the supreme law. Chief Justice Marshall

wrote-that "the Constitution derives its

whole authority” from the consent of the

governed. McCulloch v. Maryland, 4 Wheat.

at 403. Yet, the Court now defies this

consent; it simply invents a dream world

and imposes it on the people by decree. A

divided Congress is unable to control this

Court, which results in rule by minority.

Thomas Jefferson warned that this

Court was "the most dangerous” branch

because judges were "installed for life,

responsible to no authority (for impeach-

ment is not even a scarecrow)"; and judges

twist words to make “anything mean

everything or nothing, at pleasure" with

judges finally becoming "despots." Thus Boe

v. Wade fully explained.

People have lost faith in the simple

power of facts to prove: falsehood is

called truth; murder is called liberty;

treason is called law. This defeat of the

consent of the governed as the basis of law

is the most momentous revolution in human

history. The way out was shown by Abraham

Lincoln, who would "call things by their

right names, no matter who was offended.”

are being killed, is an admission that the

charges are true. In the Court's words:

"Pailure to contest an assertion,

however, is considered evidence of

acquiescence only if it would have been

natural under the circumstances to

object to the assertion in question."

j v. Hale, 422 U.S. 171,

176 (1975).

The circumstances leave no doubt that

due process has compelled the U.S. Supreme

Court to confess that the charges are true.

2. Under the tacit confession rule, failure

to deny a charge is admissible as a confes-

sion that the charge is true. 4 Wigmore,

Evidence, § 1071-1072 (Chadborn rev. 1972).

"Underlying the rule is the assumption that

human nature prompts an innocent man to

deny false accusations and consequently a

failure to deny a particular accusation

tends to prove belief in the truth of the

accusation." McCormick on Evidence, § 161

(1972). The Court has often affirmed this

rule. "(T)he Court has consistently

recognized that ... silence in the face of

accusation is a relevant fact.... Silence

is often evidence of the most persuasive

character." Baxter v. Palmigiano, 425 U.S.

308, 319 (1976). And the rule is ancient.

As Socrates cross-examined at his trial

2400 years ago: "(Y)ou are silent, and have

nothing to say. But is not this rather

disgraceful, and a very considerable proof

of what I was saying?" "I may assume that

your silence gives consent." Plato 41, 45

(Jowett tr. 1942).

First, the evidence makes it as clear

as daylight why the Court is silent in the

face of the charges: the charges are proved

to be true.” Truth cannot be proved false.

Second, the charges were made in cases

filed pursuant to the Constitution and laws

of the United States. Chief Justice John

Marshall ruled that judges who "close their

eyes on the Constitution” and “condemn to

death those victims whom the Constitution

endeavors to preserve” commit "crime."4

3. The Court decreed killings to be

"liberty" which States had defined to be

"murder." This is mere historical fact; no

denial is possible. As John Marshall said,

"a fact which has existed cannot be made

never to have existed." Marbury v. Madison,

1 Cranch at 167 (1803).

4. Marbury v. Madison, 1 Cranch 137, 179-

180 (1803). This correctly states the

criminal law. Where there is an affirmative

duty to act, the deliberate omission to do

that duty, which results in death to

others, can be prosecuted as homicide.

Perkins, Criminal Law 604 (2nd ed. 1969).

The only Nazi to plea guilty at

Nuremberg cited this law. When warned of

Auschwitz, Speer wrote: "I did not

investigate - for I did not want to know

what was happening there.... From fear of

discovering something which might have made

me turn from my course, I closed my eyes.”

A. Speer, Inside the Third Reich 375-76

The Court had a legal duty to fully hear

allegations that Roe v. Wade was wrongly

decided. The Court affirmed its duty:

"(I)ts opinion upon the construction

of thé Constitution is always open to

discussion when it is supposed to have

been founded in error, and that its

judicial authority should hereafter

depend altogether on the force of the

reasoning by which it is supported.”

, 7 How. 282, 470

(1849).

Third, the Court's steadfast silence

for fifteen years in the face of the scores

of accusations is unparalleled in the legal

history of the world; the Court cited this

very circumstance as making confession by

silence more trustworthy.

"Silence gains more probative weight

where it persists in the face of

accusation, since it is assumed in

such circumstances that the accused

would be more likely than not to

dispute an untrue accusation.”

United States v. Hale, 422 U.S. 171,

176 (1975).

Fourth, not only has the Court's

silence persisted in the face of repeated

accusations, but it has persisted even in

(1970). This "deliberate blindness" is

complicity in criminal extermination.

the teeth of warnings that its silence was

being taken as an admission that the

charges are true.

Fifth, the charges described judicial

crimes not surpassed in all history, that

(1) judges had done the most forbidden

thing, and defied the unalienable guarantee

of life to "any person,” the two most

important words ever written into law, and

criminally exterminated millions of

children; (2) the United States was being

ruled by the most corrupt decree which the

human mind could even imagine: "MASS MURDER

IS LIBERTY"; (3) due process of law had

compelled the judges to confess to guilt of

mass murder; and (4) the judges schemed to

reaffirm the legitimacy of their murders in

mock trials sesiqnes to keep truth from

working in all state and federal courts.”

5. In Akron v. Akron Center for Reproduc-

tive Healtb, 462 U.S. 416 (1983), the Court

reaffirmed Boe v. Wade by stare decisis in

a mock trial without truth.

The parties did not ask the Court to

overrule Boe v. Wade. This was done by the

amicus curiae brief by the Legal Defense

The United States being ruled by the

decree "MASS MURDER IS LIBERTY" is the most

catastrophic crime in the history of civil-

ization; it smashes the hopes of the whole

human race for a government of laws, and

Fund for Unborn Children, as follows: "For

the 52nd time, the U.S. Supreme Court is

accused in its own court with mass murder."

The amicus brief laid out the evidence, and

concluded: "THE U.S. SUPREME COURT HAS

CONFESSED IN COURT TO GUILT OF CRIMINAL

EXTERMINATION, INCLUDING MASS MURDER, AND

THIS IS THE LEGAL EQUIVALENT OF THE EXPRESS

OVERRULING OF ROE v. WADE.” But this Court

responded to these arguments by saying:

And arguments continue to be made, in

these cases as well, that we erred in

interpreting the Constitution.

Nonetheless, the doctrine of stare

decisis, while perhaps never entirely

persuasive on a constitutional

question, is a doctrine that demands

respect in a society governed by the

rule of law. We respect it today, and

reaffirm Roe v. Wade.

Thus, the Court's response to "arguments"

that it was guilty of mass murder. When a

court rules that its decree "MASS MURDER IS

LIBERTY" must be obeyed without a hearing

or even a question, then history could not

reveal a more murderous mockery of "the

rule of law." The Court hid behind stare

decisis in a mock trial and used this ruse

of law to defraud all lower courts into

obeying Ree v. Wade without question.

reduces government to the matter of which

murderer can grab power and be obeyed.

Never in the legal history of the world

was it more imperative to deny charges if

they were untrue. Judges, under solemn

legal duty to uphold the law, are accused

of mass murder. The evidence is laid out in

court. The judges have done the most

forbidden thing, and defied the guarantee

of life. Little children are being killed.

The killings violate criminal statutes.

Pictures of the dead are shown to the

judges. But for 15 years the judges do not

meet the evidence; do not prove it false.

A government of laws can permit only one

conclusion to be drawn from these facts:

The U.S. Supreme Court was met in court

with the truth; truth worked in the only

manner in which it was permitted to work;

and due process of law compelled this Court

to admit, in the most emphatic manner which

the mind can imagine, that the words "any

person" do include the unborn.

Any judge who cleses his eyes on these

facts, and chooses to take part in a

national scheme to kill little children, in

defiance of the guarantee of life to "any

person,” and criminal statutes, to maintain

the decree "MASS MURDER IS LIBERTY," knows

he is guilty of complicity in mass murder

and criminal defiance of the Constitution. ©

6. Roe v. Wade asserted to legalize

killings which statutes had made criminal.

Since Boe v. Wade is a mistake of law, all

the killings since 1973 can be prosecuted.

The ex post facto provisions of the

U.S. Constitution do not apply to judicial

decisions which are a mistake of law. Ross

v. Qregon, 227 U.S. 150, 161 (1912).

The general rule is that mistake of

law is no excuse for breaking the law. R.

Perkins, Criminal Law 920 (2d ed. 1969).

The limited affirmative defense of

reasonable reliance on an official judicial

opinion, thereafter determined to be a

mistake of law, does not apply to homicide

cases. Model Penal Code, Tentative Draft

No. 4, Comments Sec. 2.04, page 138; R.

Perkins, Criminal Law 928 (2d ed. 1969).

Thus, the law applied at Nuremberg

applies to this case. Obedience to the

orders of judicial superiors is no excuse

for complicity in murder. United States v.

Altstoetter, supra, at 983-985.

Perhaps.judges responsible for the Roe

v. Wade murders did not believe they were

breaking the law. But as Oliver Wendell

Holmes wrote: "Ignorance of the law is no

excuse for breaking it.... It is no doubt

true that there are many cases in which the

In explaining how the Nazi regime got

away with its monstrous crimes, Winston

Churchill quoted Machiavelli: "Men avenge

slight injuries, but not grave ones.” The

Court knows that truth well; the legal

foundation of the United States now rests

on the assumption that the gravest crime in

histecy cannot be avenged.

The photo on the last page shows a

second stage abortion under Roe v. Wade. If

the child were born alive, this Court would

be guilty of murder. If the child were born

criminal could not have known that he was

breaking the law, but ... the lawmaker has

determined to make men know and obey.”

O.W. Holmes, The Common Law 41 (1963).

Even if the Supreme Court held a gun

to the head of a lower judge, and threat-

ened death unless he obeyed Boe v. Wade, it

would not be a defense to murder, for "he

ought rather to die himself than escape by

the murder of an innocent." 4 Bl. Com. 30.

The law makes a mortal distinction

between killing and not killing: (1) any

judge who stopped the Boe v. Wade killings,

and made a mistake of law, could only be

overruled on appeal; (2) but any judge who

allows the killings to continue and makes a

mistake of law, can be convicted of murder,

and be sentenced to death. The law of

capital murder is a hard school, where

lessons are taught only one time, and

mistakes of law are not forgiven.

dead, this Court would be guilty of

extermination under 18 U.S.C. § 242.

Truth has worked in this Court; judges

cannot stop it. Due process has compelled

this Court to admit that the unalienable

guarantee of life to "any person” does

include the unborn.

CONCLUSION

Merely overruling Roe v. Wade will

simply continue its crimes, perhaps on a

less extensive scale. The Court misguided

this nation and the entire world.

Now the Court must promulgate the

truth, that the universal and unalienable

guarantee of life to "any person," made in

the Fifth and Fourteenth Amendments of the

U.S. Constitution, do include the unborn,

and States have a duty to protect unborn

life.

Alan Ernest

Counsel

ARGUMENT

I. PARENTAL CONSULTATION PROTECTS VULNERABLE

ADOLESCENTS AND FAMILIES FROM HARM, IN FUR-

THERANCE OF LEGITIMATE STATE INTERESTS.

The Court has a prime opportunity to clear up the muddied

waters surrounding parental notification and consent which

has plagued state legislatures, courts, parents, doctors and

pregnant minors for the sixteen years since abortion was legal-

ized in Roe v. Wade, 410 U.S. 113 (1973). Thirty three states

have enacted statutes requiring some form of parental con-

sultation where a minor is considering an abortion. Twenty one

states require parental consent and twelve states require par-

ental notification before a minor can obtain an induced abor-

tion. See Appendix B, The Confused State of Parental

Consultation Laws. Sixteen parental consultation laws have

been enjoined by court action. /d. Only thirteen presently in

effect have not been challenged in federal court, and only five

state statutes have been found to be constitutional. /d. Eight

Supreme Court decisions have been rendered on this issue with

conflicting results. Jd. The last parental notification case to

reach this Court ended in a four to four split; and the per

curiam decision without opinion offered little guidance to state

legislatures. See Hartigan v. Zbaraz, 763 F.2d 1532 (7th Cir.

1985) affd mem. 108 S. Ct. 479 (1987). The Sixth Circuit in

Akron Center for Reproductive Health v. Ohio, 854 F.2d 852

(6th Cir, 1988) (“Akron II”) declared that [Hartigan] leaves the

principle of law presented by the recent case. . . unsettled.”

Akron I], 854 F.2d at 861.

The effect of unsettled parental consultation law is exacer-

bated by the unprecedented rise in teenage pregnancies and

abortion. Teenage pregnancies, which are most often

unwanted, together with teenage abortion, are a national trag-

edy. In 1981, approximatly 1.3 million teenage pregnancies

occurred—a pregnancy rate of 134 per 1000. Henshaw, Binkin,

Blaine and Smith, A Portrait of American Women Who Obtain

Abortions, 17 FAMILY PLANNING PERSPECTIVES 90-96

(1985) (hereinafter “Portrait”). Approximately 28% of the 1.6

million abortions each year are performed on teenagers. Cen-

ters for Disease Control, U.S. Department of Health and

Human Services, Abortion Surveillance (1985). Fifteen thou-

sand pregnancies occurred in girls under age fourteen. Portrait

at 92. The abortion rate among teenagers has risen sharply

with a 60% increase being recorded for all teenagers between

1972 and 1976, and a 120% rise for adolescents under age

fifteen. Worthington, Decision Making in Adolescent Preg-

nancy in VALUES AND PUBLIC POLICY 119, 124 (G.

Regier Ed., 1988) (hereinafter “Worthington”). Forty five per-

cent (45%) of teenage pregnancies end in abortion. In most

cases parents are not even told by their teenagers or notified by

doctors. Portrait at 93; see also Russo, Adolescent Abortion:

The Epidemiological Content in ADOLESCENT ABOR-

TION: PSYCHOLOGICAL-LEGAL ISSUES 40, 49 (G.

Melton Ed., 1986).

Although the legal standards surrounding parental con-

Sultation regulations are unsettled, this Court has recognized

the important state interests that such laws pre‘tect:

We have recognized three reasons justifying the con-

clusion that the constitutional rights of children cannot be

equated with those of adults: the peculiar vulnerability of

children; their inability to make critical decisions in an

informed, mature manner; and the importance of the par-

ental role in child rearing.

Bellotti v. Baird, 443 U.S. 622, 634 (1979) (“Bellotti II”). These

interests are expanded when viewed against the backdrop of

potential harms to teenagers from abortion.

A. Parental Consultation Promotes Maternal Health In The

Pregnant Adolescent By Reducing The Physical And

Psychological Risks Of Abortion.

The decision to terminate pregnancy involves one of the most

complex and difficult decisions of a woman's life. Planned Par-

enthood of Central Missouri v. Danforth, 428 U.S. 52, 67

(1976) (“Danforth”). Medical and psychological risk factors are

often overlooked or unknown, and her decision involves other

multiple social, economic and moral factors which are further

confused by the physiological and psychological changes pro-

duced by pregnancy. Minor women, in particular, are often ill-

informed about abortion and its serious ramifications and

unable to make mature, rational decisions in their own best

interest.

This Court in H. L. v. Matheson, 450 U.S. 398 (1981) stated:

The medical, emotional and pape consequences of

an abortion are serious and can be long lasting; this is

particularly so when the patient is immature. An adequate

medical and psychological case history is important to the

physician. Parents can provide medical and psychological

data, refer the physician to other sources 0 medical his-

tory, such as family physicians, and authorize family phy-

sicians to give relevant data.

Id. at 411.

Numerous scientific studies by independent medical sources

confirm the Court’s point of view, concluding that induced

abortion frequently results in significant, negative and often

permanent physical, psychological and social effects on the

pregnant woman and her family.

1. Physical Risks From Abortiow.

The serious physical complications which have been associ-

ated with abortion specifically include: hemorrhaging, cervical

trauma, infection, Pelvic Inflammatory Disease (PID), ectopic

pregnancy, infertility and subsequent fetal malformations,

miscarriages and high risk premature birth in later planned

pregnancies and death. See Amicus Brief of Focus on the

Family in Turnock v. Ragsdale, No. 88-790, Appendix, Table 1.

Researchers who analyze data coliected under the auspices of

the Centers for Disease Control on Teen Abortion Morbidity

and Mortality concluded that women under age eighteen who

obtain abortions were more susceptible to physical injury than

were older women: “(TJhese findings cause concern because

cervical injury in initial, unplanned pregnancies may pre-

dispose young women to adverse outcomes in future planned

pregnancy . . . [Slome of the most catastrophic complications

occur in teenagers.” Cates, Schultz and Grimes, Risk Associ-

ated With Teenage Abortion, 309 NEW ENGLAND JOUR-

NAL OF MEDICINE 621, 624 (1983). Hence, one abortion

decision can impact the entire child bearing potential of a

teenage patient.

One abortionist reported on his post-abortion follow up,

ranging from two to twelve years, of fifty teenage mothers

whose pregnancies he had aborted: “The cervix of the young

teenager pregnant for the first time is invariably small and

tightly closed and especially liable to damage on dilation.”

Russel, Sexuai Activity and Its Consequences in the Teenager,

3 CLINICS IN OB AND GYN 683-698 (1974); see also J.

Wilke, ABORTION QUESTIONS AND ANSWERS 108-109

(rev. 1988) (hereinafter “ABORTION QUESTIONS”). In fifty-

three subsequent pregnancies, he found that six had another

induced abortion, nineteen had spontaneous miscarriages, one

delivered a stillborn baby at six months, and six babies died

between bixth and two years. Only twenty one babies survived.

Two-thirds of the teenagers subsequently experienced miscar-

riage or high-risk premature birth of their second wanted

pregnancies. /d.

From 1974 to 1978, a study was conducted on approximate!

84,000 teen abortions performed in Canada which iron:

30.9% of all legal abortions. The complications listed from that

study were as follows: retained products of the conception

( 69%); laceration of the cervix (12%); hemorrhage (8%); infec-

tion (7%); perforation of the uterus and other complications

(4%). The director of the Therapeutic Abortion Unit and the

Health Division of Statistics, Canada, acknowledged that there

is a high rate of complications (4.1 per 100) in adolescent

abortions. Wadhera, Legal Abortions Among Teens 1974

through 1978, 122 CAN. MED. ASS. J. 1386-1389 (1980). One

Canadian researcher noted:

Physical and emotional damage from abortion is i

ater

a young girl. Adolescent abortion candidates are different

from their sexually mature counterparts, and these dif-

remap meg to high yy They have imma-

es and run the risk of diffi

traumatic dilatation. . . = ne ee

ABORTION QUESTIONS at 111-12 (1979) (quoting C. Cow-

ell, Problems of Adolescent Abortion, Ortho Panel 14, Toronto

General Hospital) (1975).

In 1977, over 100,000 abortion complications were reported

in the United States, which is nearly 2 10% morbidity rate for

immediate and short term complications. D. Reardon,

ABORTED WOMEN—SILENT NO MORE 93 (1987) (here-

inafter “Reardon”). However, some medical experts believe

that these reported morbidity rates from abortion are the “tip

of the iceberg,” given likely widespread, massive under report-

ing. Id. at 92, 106-109.!

2. Mortality Risks From Abortion.

A truly irreversible complication of teenage abortion is death

of the mother. Unfortunately, tragic accounts of teenagers

dying after an abortion, like the daughter of amicus Ann Marie

Lozenski, are all too common. See Reardon at 109-113, and

Appendix A. While statistics are difficult to obtain, it has been

reported that in the United States alone, from 1972 to 1981,

there were 175 maternal deaths caused by legal abortions, a

figure which does not include ectopic pregnancy deaths. Like

other post-abortive complications, however, deaths are also

grossly underreported. According to one estimate, less than

10% of deaths from legal abortion are reported as such.

HANDBOOK ON ABORTION at 80, 98-99.

'The only information available on morbidity comes from voluntary

reporting. Since abortion providers want to hide their failures and conceal

the fact that legal abortion is not safe, underreporting of abortion complica-

tions is the rule rather than the exception. J. Wilke & B. Wilke, HAN DBOOK

ON ABORTION 78-80, 89 (3rd ed. 1979); see also Zekman & Warrick, The

Abortion Profiteers, Chicago Sun Times, November 12, 1978 at 1, Col. 1. In

Britain where reporting is much better than the United States, medical

experts believe that less than 10% of abortion complications are actually

reported to government health agencies. Wynn & Wynn, Some Con-

sequences of Induced Abortion to Children Born Subsequently, 4 Marriage

and Family Newsletter, 8-9 (1973). “Two meticulous studies in England reveal

35.7% and 36% respectively of aborted women suffer from abortion related

physical complications. /d. at 17.

2 Underreporting of abortion deaths and physical complications occur for

primarily three reasons: (1) abortionists are seeking to protect their personal

A 1974 random survey of 486 obstetricians (6% of the total

21,700 in the U.S. in 1979) about their experience with com-

plications resulting from legal abortion revealed that: 91%

treated patients for complications; 87% had to hospitalize one

or more patients; and 6% reported one or more patients having

died from a legal abortion. A. Saltzenberger, EVERY

WOMAN HAS THE RIGHT TO KNOW THE DANGER OF

LEGAL ABORTION 51 (1982) (hereinafter “EVERY

WOMAN”). The Center for Disease Control admits that the

reported rate of deaths due to legal abortion may be deliber-

ately kept low through selective under reporting. /d.

Dr. Lester Hibbard, Chairman of Los Angeles County Medi-

cal Society, which is charged with keeping track of maternal

deaths, reported that while only four abortion related deaths

were officially reported in one year, he personally knew of at

least four other unreported abortion-related deaths. HAND-

BOOK ON ABORTION at 80. Furthermore, he said that he

was certain that the under-reported abortion deaths were only

the “tip of the iceberg.” Jd. The Chicago Sun Times uncovered

twelve unreported abortion deaths in only four abortion clinics.

Zekman and Warrick, The Abortion Profiteers, Chicago Sun

Times, Nov. 12, 1978, at 1, Col. 1.

and professional reputations; (2) the existence of unfavorable records must be

minimized so that abortionists can minimize the availability of damaging

evidence in the event of malpractice suits; and (3) abortionists want to

maintain the generally accepted myth that abortion is safe. D. Reardon.

ABORTED WOMEN SILENT NO MORE 90 (1987).

However, even if abortionists were willing to report and the government

required accurate statistics, under reporting would still occur for the follow-

ing five reasons: (1) most out-patient clinics do not provide follow up examina-

tions and thus, without a direct complaint, assume that there are no

complications; (2) even if a post abortion examination is insisted upon, condi-

tions which may develop into long range complications such as sterility or an

incompetent uterus are not easily detectable without prolonged surveillance:

(3) many women hide their identities when seeking abortion and may fail to

return for a post abortion examination even when one is available: (4) over

60% of the women who need emergency treatment following an outpatient

abortion go to a nearby hospital instead of going back to the abortionist: and

(5) when women are treated for long term complications such as infertility,

they may hide their past abortion experience or simply not realize that it is

relevant. /d. at 91.

Other countries’ mortality rates from abortion strongly sug-

gests that the United States seriously under reports abortion-

related deaths. For example, Sweden's death rate for legal

abortions is 39 per 100,000, Denmark's reported deaths are 30

per 100,000, Canada lists 36 per 100,000, and in one study in

Britain, a fatality rate of 75 per 100,000 was found. By sus-

picious contrast, the United States reports less than 2 deaths

per 100,000 legal abortions. Reardon at 112.

3. Emotional And Psychological Harms From Abortion.

In addition to the mortality and physical risks of abortion,

the risks to the emotional and psychological well being of

adolescent mothers are profound. See Focus on the Family

Amicus Brief in Turnock v. Ragsdale, (No. 88-790), Appendix,

Table 2. “Compared with adults, adolescents appear to have

somewhat more negative responses on the average following

abortion.” Adler & Doleini, Adolescent Abortion: Psychologi-

cal Issues In Abortion For Adolescents, in ADOLESCENT

ABORTION: PSYCHOLOGICAL AND LEGAL ISSUES 8&4

(G. Melton Ed., 1986) (hereinafter “Adler & Dolcini”); Free-

man, Abortion: Subjective Attitudes and Feelings, 10 FAM-

ILY PLANNING PERSPECTIVES 150 (1978).

Relying on medical and psychological studies, the Court in

Matheson observed that:

The emotional and psychological effects of the pregnancy

and abortion experience are markedly more severe in de

under eighteen than in adults. Wallerstein, Kurtz and Bar-

din, Psychological Sequelae of Therapeutic Abortion in

Young, Unmarried Women, 27 ARCH. GEN. PSYCH.

228 (1972) (hereinafter “Wallerstein”); see also Babikian

3 The present claims for low abortion mortality rates in the United States

should also be compared to experience prior to Roe v. Wade when states with

permissive abortion laws were allowed to require reporting of legal abortion

related deaths. Oregon reported 13.9 abortion deaths per 100,000 legal

abortions compared to only 8.4 maternal deaths per 100,000 live births, while

Maryland reported 40.5 deaths per 100,000 legal abortions compared to 23. |

maternal deaths per 100,000 live births. According to these pre-Roe statis-

ties, the mortality rate for legal abortion was nearly twice as high as the

overall maternal mortality rate, a statistic which has been confirmed in many

foreign countries. Reardon at 111-112.

and Goldman, A Study of Teenage Pregnancy, 128 AM

rerce. 755 (1971) (hereinafter “Study of Teenage Tap

Matheson, 450 U.S. 411 n.20.

One study found that relatively more minors than older

women suffered severe anxiety, acute depression, and long-

term guilt following abortion. Cates, Adolescent Abortion in

the United States, 1 J. ADOLESCENT HEALTH CARE 18

(1980), whle another study reported that nearly one third of the

young women who had abortions showed moderate to severe

decline in psycho-social functioning five to seven months after

the abortion. Wallerstein at 830.4 The research in that study

concluded:

[Ijn the fourteen to seventeen year age span con

. . t

symptom manifestations, even when cals renclent,

tended to be more dramatic and more severe in this youn-

ger group. . . [o]verall it is clear that the pregnancy and

Tniea totais in — ged and less mature, is at

i ned risk, a point of potenti

maturational skewing. “a a

Wallerstein, at 832; see also Perez-Reyes & Falk, Follow UP

After Therapeutic Abortion in Early Adolescence, 28 ARCH.

GEN. PSYCH. 120, 124 (1973) (hereinafter “Perez-Reyes”).

One of the particular difficulties for adolescents is the prob-

lem of dealing with the very real sense of loss after an abortion

is performed. Horowitz, Adolescent Mourning Reactions to

Infant and Fetal Loss, 59 SOCIAL CASE 551 (1978) (here-

inafter “Horowitz”). In an extensive community based study in

Denmark of 17,378 women carrying to term and 27,234 women

aborting, the psychiatric hospitalization rate for teenage abor-

* These young women, at initial follow up, were suffering with a vanety of

specific symptoms of maladaptive behavior, including mild to pone oe

depressive episodes, a variety of new physical complaints for which medical

attention had not been sought . . . difficulty in concentrating in school,

withdrawal from previous social contacts, lowered self-esteem explicitly

related to the pregnancy and abortion experience, a newly begun promis-

cuous pattern in relationships with men, and regression to more infantile

modes of relationships with parents. These difficulties did not pre-date the

pregnancy. Wallenstein, at 830, cited in Matheson, 450 U.S. at 412 n.20.

ters was 11.4 per 10,000 while only 6.2 per 10,000 for teenagers

who carried the baby to term. David, Rausmussen and Holst,

Postpartum and Post Abortion Psychotic Reations, 13 FAM-

ILY PLANNING PERSPECTIVES 88-92 ( 1981). Heightened

risk of teen suicide following abortion and severe cases of

anniversary reaction have also been observed. Tishler, Adoles-

cent Suicide Attempts Following Elective Abortion: A Special

_Case of Anniversary Reaction, 68 PEDIATRICS 670 (1981).

Teenage abortion may also involve a severe double loss for

the adolescent, who may compensate for her first abortion by

becoming pregnant, and then may decide to have another

abortion. Portrait at 92; see also Teitze, Repeat Abortions,

Why More?, 10 FAMILY PLANNING PERSPECTIVES 205,

286 (1978).° Many researchers and clinicians strongly believe

that parental participation will solve this cycle of problems. See

Torres. Forrest and Eisman, Telling Parents: Clinic Policies

and Adolescents Use of Family Planning and Abortion Ser-

vice, 12 FAMILY PLANNING PERSPECTIVE, 284-289

(1980) (hereinafter “Telling Parents”); Butler & Fujita, Abor-

tion Screening and Counseling: A Brief Guide for Physicians,

50 POST GRAD MED 208, 212 (1971); Horowitz at 551.

A pregnant teenager is frequently overwhelmed by her feel-

ings surrounding the problem pregnancy and subsequent abor-

tion. Appellate Record at 868, Hodgson v. Minnesota, 850 F.2d

1452 (8th Cir. 1988) (Nos. 86-5423 and 86-5434) (testimony of

Dr. Vincent Rue). To the extent she does not share these

feelings with her parents, she becomes more isolated and alien-

ated which in turn triggers a host of other psychological

sequelae like guilt, depression and anxiety, which increase the

risk of replacement pregnancies and multiple abortions. /d. at

268-869. However, when the “secret” pregnancy and con-

(1979). Another study showed that 41% of adolescents who had therapeutic

abortions had resumed sexual intercourse six months later, more than two

thirds of whom were then doing so without contraceptives. Perez-Reyes at

123.

templated abortion become known to her nts, her m

stable and respected support, the peach sve ete Arora

reduces the psychological risks associated with keeping the

secret and gains emotional strength and positive ideas from

the family unit. Parental consultation can thus serve as an

important catalyst to work thro SI

oo ugh her psychological crisis.

Adolescent aborters who avoid facing the difficulties of the

abortion decision experience more psychological problems

than the non-avoiders. Cohen, Laurie, Roth and Susan, Coping

With Abortion, 10 JOURNAL OF HUMAN STRESS 140, 142

(1984). Besides the natural sounding board and emotional sup-

port which the family provides in times of crisis, parental

consultation can provide significant help to promote maternal

health of the pregnant teenager. J. Burtchael, RACHEL

WEEPING AND OTHER ESSAYS ON ABORTION 42

(1982) (hereinafter “RACHEL WEEPING”). For example,

parents can provide the abortion providers or subsequent phy-

pon treating the complications from abortion with medical

= 5 er wera foe re a critical to reducing or

altoge phys chological ri -

age abortions. Matheson, 450 US. at “iL eins

B. Parental Consultation Substantial! i

+. he wend ' ially Benefits The

There is substantial evidence that adolescents chan

ge mark-

edly as they progress through adolescence, and differ signifi-

cantly from adults, in at least five ways, in how they make

decisions on whether to abort or carry the baby to full term:

(1) Adolescents consider fewer and different factors i

. . . . . in

pregnancy decisions and in potential childrearing

(2 i

) a consider future solutions and goals less

(3) Adolescents delay their decision more than adults;

(4) Adolescents differ from adults in considerati

future consequences in hypothetical ae a

(5) Adolescents have been found to differ from adults in

their ability to understand aspects of moral decisions

from the viewpoint of others.

Worthington at 134-135 (citations omitted).

The foregoing differences in decision making between ado-

lescents and adults suggest that parenta involvement helps

adolescents, especially younger ones, make better decisions

about how to react to her pregnancy in at least five ways.

First, parental notification requires the adolescent, through

the waiting period provision of parental notification laws, to

take 24 to 48 hours to consider the decision to abort, rather

than respond immediately to the often demand-laden situation

of finding that she is pregnant while at a clinic that does

abortions. One study suggests that pregnant adolescents are

particularly vulnerable to immediate situational cues in mak-

ing pregnancy resolution decisions. Cobliner, Pregnancy and

Single Adolescent Girls: The Role of Cognitive Functions, 3

JOURNAL OF YOUTH AND ADOLESCENTS 17-29 (1974).

Second, notifying parents allows them to give her balance

and support in the decision making. While the initial response

to learning about the pregnancy may be stressful for the par-

ents, and they may consider their own wishes and fears in

addition to their daughter's, parents will generally have more

experience in making decisions under emotional strain and will

be more likely to carefully consider a variety of options than

will the adolescents. Worthington, The Benefits of Legislation

Requiring Parental Involvement Prior to Adolescent Abortion

in VALUES AND PUBLIC POLICY 221, 226-227 (G. Regier

Ed. 1988) (hereinafter Parental Involvement).

While the decision to abort is difficult, even for an adult

woman, teenage girls are particularly subject to ambivalence

and confusion regarding the abortion decision. Horowitz at

557. One study found that almost one third of young women

(31.8%) changed their minds once or twice about continuing

the pregnancy or having the abortion, and 18% changed their

minds even more frequently. Klerman, Bracken, Jeckel and

Bracken, The Delivery-Abortion Decision Among Adolescents

in PREGNANCY AND ADOLESCENCE 219, 227 (1982)

(hereinafter “The Delivery-Abortion Decision”); see also Wal-

lerstein at 829 (reported that nearly 60% of young women

studied reported conflict regarding the abortion decision).

Nearly 20% stated that a central emotional issue revolved

primarily around their deception of their families and the bur-

den of secrecy. /d.

Parents will supply other points of view and provide other

alternatives, such as adoption, marriage to the putative father.

and raising the child at home. Their impact can help broaden

her understanding of the ramifications of her decision. Par-

ental Involvement at 227. As this Court has recognized:

Abortion may not be the best choice for the minor .. .

Alternatives to abortion, such as marriage to the father of

the child, arranging for its adoption, or assuming the

responsibility of motherhood with the assured support of

— “y — feasible and relevant to the minor's best

sts.

Bellotti IT, 443 U.S. at 642-43.

Third, parents are also able to correct any misapprehensions

that their daughter might have and to challenge her erroneous

beliefs. Mirachek, Counseling Adolescents with Problem Preg-

nancies, 42 AMERICAN PSYCHOLOGISTS 84-88 (1987).

One frequent erroneous belief that would be corrected is that

parents will reject the adolescent because of her pregnancy. In

fact, parents usually react less negatively than adolescents

anticipate. There is substantial evidence that most parents will

support their daughters during an adolescent pregnancy. Bar-

glow, Bornstein, Etsome, Wright and Visodsky, Some Psychi-

atric Aspects of Illegitimate Pregnancy During Early

Adolescence, 37 AMERICAN JOURNAL OF ORTHO-

PSYCHIATRY 266, 267 (1967).

After a preliminary period of disequilibrium (anger, disap-

pointment, disgust), there appears to be a more stable problem

solving and acceptance process when both the mother and

daughter take steps toward resolving these problems in the

pregnancy. Parental Involvement at 230. In numerous studies,

over two-thirds of the families reported that members strongly

support each other, participate with the pregnant adolescent,

and demonstrate attachment to the new child prior to birth. /d.

In one study, young women felt that 67% of their mothers and

74% of their fathers would have negative reactions toward

abortion. Among those minor women who did finally inform

their parents of their decision to have an abortion, reported

reaction to the news expressed by both parents were over-

whelmingly positive. Few negative responses were reported.

Clary, Minor Women Obtaining Abortion: The Study of Par-

ental Notification in Metropolitan Areas, 72 AM. J. PUB. H.

283-284 (1982) (hereinafter “Clary”).

Fourth, parents supply the real life experience in autonomy

and problem solving which adolescents often lack—young

women rely on less analytic approaches to the problem such as

following the normative behavior of their peers in basing their

decisions on romantic, unrealistic scripts. Ramsey, Represen-

tation of a Child in Protection Proceedings: The Determina-

tion of Decision Making Capacity, 17 FAMILY LAW

QUARTERLY 315, 344-345 (1983) (hereinafter “Ramsey”):

The ability to reason abstractly and foresee consequences

which is so important making a good decision of such

magnitude, [i.e., pregnancy resolution] is lacking in most

teenagers.

Eisen, Zellman, Liebonitz, Chow and Evans, Factors Discrim-

inating Pregnancy Resolution Decisions of Unmarried Ado-

lescents, 108 GEN. PSYCH. MON. 69, 94 (1933). “Minors

often lack the experienced perspective and judgment to avoid

choices that could be detrimental to them.” Clary at 284.

Fifth, parental involvement tends to moderate the emotional

upheavals of adolescents which often impact heavily upon their

ability to make sound judgments. “Teenagers may tend to be

egocentric and to make irrational and emotional decisions

about themselves and others. A particular fourteen year old

may have been more capable of making a certain decision when

she was younger, before the emotional upheavals of adoles-

cence interfered with her judgments.” Ramsey at 315.

This Court has recognized the significance of parents in the

minor's decision making process:

There can be little doubt that the state furthers

situtionally permissible end by encouraging an Anca

ried, pregnant minor to seek the help and advice of her

parents in making the very important decsion whether or

not bear a child. That is a grave decision and a girl of tender

years under emotional stress may be ill equipped to make

it without advice and emotional support. It seems unlikely

that she will obtain adequate counsel and support from the

attending physician at the abortion clinic.

Danforth, 428 U.S. at 91 (Stewart, J., concurring). See Bellotti

Il, 443 US. at 637. A consistent thread in these cases and

others is a recognition of the profound significance to the

minor's well being of parental participation in the abortion

decision.

C. Parental Consultation Helps Protect Vulnerable, Imma-

ture Minors From Exploitation.

. Pregnant teenage girls are “particularly vulnerable” to abor-

tion clinics er offer immediate answers to an unwanted

pregnancy, and to the influence of their peers and bovfri ,

See Bellotti 11, 443 U.S. at 634. “There isaaiented nine

between the capacity to become pregnant and the capacity for

mature judgment concerning the wisdom of an abortion.”

Matheson, 450 U.S. at 407. In a 1980 survey of abortion clinics

it was found that less than half require parental notice even for

teenagers fifteen years of age or younger; and even fewer

require parental notification before performing abortions on

minors aged sixteen and above. Telling Parents at 285 (Table 1).

Almost half (45%) of the 1170 teenage abortion patients inter-

viewed admitted that their parents had no knowledge of their

intended abortion. /d. at 289 (Table 5). Over 90% of these

teenagers were living with their parents, with only 4% living

with relatives or friends. /d. at 287.

N umerous studies reveal, however, that adolescents have a

particular need for adult guidance in areas like abortion in

which they have no childhood experience to guide them, E.

Hurlock, ADOLESCENT DEVELOPMENT 250 (4th ed.

1973), and which create severe emotional stress and psycholog-

ical pressure “to avoid or escape the problem.” Bellotti [/.

443 U.S. at 635. Benson & Stack, Help or Hindrance: Parental

Impact on Pregnant Teenagers’ Resolution Decisions, 31

FAMILY RELATIONS 271, 279 (1982); R. Mnookin, IN THE

INTEREST OF CHILDREN 158, 237-239 (1985).

The majority of abortions now are performed by strangers in

unfamiliar surroundings, where minors are alone, furtive and

frightened visitors subjected to assembly line abortion tech-

niques to give them their “quick fix.” See Danforth, 428 U.S. at

91, 92 n.2 (Stevens, J., concurring); Blum, /mpact of Parental

Notification Law, 77 AM. J. PUBLIC HEALTH 619 (1987). Dr.

Edward Allred, whose chain of abortion clinics performs

60,000 abortions per year, grossing twelve million dollars

annually, has stated:

Very commonly we hear patients say they feel like they’re

pany A neni line. We tell them they’re right. It is an

assembly line . , . We're trying to be as cost effective as

possible and speed is important . . . [W]e try to use the

physician for his technical skill and reduce the one-on-one

relationships with the patient. We usually see the patient

for the first time on the operating table and then not again

“Doctors Abortion Business is Lucrative,” The San Diego

Union, Oct. 12, 1988, at 3A, Col. 5.

The abortionist has a direct conflict of interest—profit—when

counseling a vulnerable, frightened, pregnant teenager

whether to have an abortion.

The typical abortion “counselor” also has such a personal,

‘psycho-social stake in abortion that she often cannot give

meaningful, objective counsel, even if she was instructed to.

Abortion counselors have promotional jobs in which they

exploit the natural, centrifugal pressures that make communi-

cation between adolescents and parents difficult, and are will-

ing to weaken whatever remains of the parent-child link of

honest interaction to promote abortion. RACHEL WEEP-

6 ing programs “are more efficient at convincing teens to avoid

uneetioaa acme Weed, Curbing Births Not Pregnancies, The

Wall St. J., Oct. 14, 1986, at 36, Col. 4 (hereinafter Weed). Despite a massive,

government-financed campaign that has increased the provision of family

planning services to teenagers by 600% in twelve years (in 1980, 30% of all

ING at 41-44. According to past counselors, “at the abortion

clinic you aren’t really expected to present alternatives to

abortion.” Jd. at 43. “Counselors are just to give the

appearance of help . . . They think of themselves as company

for the women . . . The counseling was more of an assurance

process.” Weed, Curbing Births Not Pregnancies, The Wall St.

J. Oct. 14, 1986, at 42, Col. 4. (citing L. Francke, THE

AMBIVALENCE OF ABORTION 25, 30 (1978).

Many similar stories are reflected by the following teenager

who obtained a “safe,” legal abortion with no immediate, phys-

ical complications:

‘When I was 17 I found peed in a crisis pregnancy . . .

When I went to the local ily ye clinic, I sought

guidance and wanted to know what I could do about my

situation. I wanted a helping hand. When I walked i:ito the

clinic, I trusted the nurses and doctors, and thought they

were concerned about my health enough to help me make a

decision, not make my decision for me.

Only one solution was strongly recommended that day.

When I questioned the development of my baby, I was told

it wasn’t a baby yet, and that it looked like a tadpole. Since

that day I have learned differently .. . J was told that

abortion was simple and safe and that I could go and live

the rest of my life and have children when I was in a

position to provide for them. I heard no scientific facts that

day, only biased opinions. I was not told what abortion

itself could do to me in the years to come, only that it was

teens were involved in family a planning program), and despite predictions by

family planners that the rate of pregnancy among teenagers would drop by

200—300 pregnancies for every 1000 teenagers involved in family-planning

programs, Olsen & Weed, Effects Of Family Planning Programs For Teen-

agers On Adolescent Birth and Pregnancy, 20 FAMILY PLANNING PER-

SPECTIVES 153, 157-61 (1986) [hereinafter Olsen & Weed], recent research

found “a net increase of about 100 pregnancies” for every 1000 teenagers

using family planning services. /d. at 160, 151; Weed & Olsen, Effects of

Family-Planing Programs on Teenage Pregnancy—Replication And E xten-

ston Rates, 20 FAMILY PLANNING PERSPECTIVES 173, 190 (1986)

(hereinafter Weed & Olsen]. Instead of reductions of more than 150 abortions

per 1000 teenagers using family planning services, predicted by family plan-

ners, Weed & Olsen found that the rate of abortion increased by more than

100 per 1000 teenage family planning clients. Weed at 36; Olsen & Weed.

supra a 161-645, 67; Weed & Olsen, at 190. “Family planning is associated

with higher, not lower, abortion rates.” /d.

“safe and simple.” I was not told that I would abuse myself

with alcohol, try to kill myself, develop an eating disorder,

and have terrible dreams. Worst of all, I was not told that I

might never have another child. It has been 14 years since

my “safe and simple” abortion and / will never be able to

have another child.

Letter from Sue Liljenberg to Sen. Gordon Humphrey J une 6,

198¢ (emphasis supplied). Amici Focus on the Family, Family

Research Council and American Victims of Abortion have

received or heard of thousands of similar or worse stories of

exploitation; and thus, Justice Stewart's conclusion in his con-

curring opinion in Danforth may be an understatement: “[I]t

seems unlikely that she will obtain adequate counsel and sup-

port from the attending physician at an abortion clinic, where

abortions for pregnant minors frequently take place.” Dan-

forth, 428 U.S. at 91.7

Without the required parental notification/consent laws,

pregnant adolescents who are ashamed, fearful and confused

will not generally consult their parents even in the best of

families as illustrated-bythe real life experiences of amici (see

Appendix A). In one recent study of pregnant teenagers con-

sidering abortion, 71% informed a best friend, while only 37%

informed mothers and 26% informed fathers. The Delivery-

Abortion Decision Among Adolescents, at 219; see also Telling

Parents at 289, Table 5. As Justice Stevens recognizes:

If there is no parental [notice] requirement many minors

will submit to the abortion procedure without even inform-

ing their parents. An assumption that the parental reac-

tion will be hostile, disparaging or violent no doubt

persuades many children to bypass parental counsel which

7 Justice Stewart in his concurring opinion in Danforth further described

the “counselling” exprience at abortion clinics as rosy bia, "

“The counselling . . . occurs entirely on the day | rtion is to

strat ee it last for two hours and takes place in groups that include

both minors and adults who are strangers to one another .. . The

physican takes no part in this counselling process. . . . Counselling is

typically limited [only] to a description of abortion procedures, possible

complications, and birth control techniques . . . -

Danforth, 428 U.S. at 91-92 n.2, quoting Brief for Appellants in Bellotti /,

0.T. 1975, No. 75-78, pp. 43-44.

would in fact be loving, supportive and indeed, for some,

indispensable. It is unrealistic, in my judgment to assume

that every parent child relationship is either (a) so perfect

that communication and accord will take place routinely;

or (b) so imperfect that the absence of communication

reflects the child’s correct prediction that the parent will

. . . [act] arbitraily to further a selfish interest rather than

the child’s interest.

Danforth, 428 U.S. at 103-104 (Stevens, J., concurring in part

and dissenting in part); see also Matheson, 450 U.S. at 419-20

(Powell, J., concurring) and Matheson, 450 U.S. at 424 (Ste-

vens, J., concurring).

Research strongly emphasizes that adolescents’ decisions

regarding abortion or childbirth are significantly affected by

counsel they receive from others—if not abortion clinic staff.

then teenage peers or boyfriend. See E. Hurlock, ADOLES-

CENT DEVELOPMENT 75-77 (4th Ed. 1973); J. Gallagher,

MEDICAL CARE FOR THE ADOLESCENT 243 (3rd Ed.

1976); I. Josselyn, ADOLESCENCE 42-43 (1971); Brittain,

Adolescent Choices and Parent-Peer Cross Pressures, 28 AM.

SOC. REV. 385 (1963). Peers are not only the most frequent

source of sex information to adolescents, but they frequently

are the source of misinformation about abortion. Hanson,

Abortion in Teenagers, 21 CLIN. OBST. AND GYN. 1175,

1180 (1978). The teenager vulnerability is underscored by the

studies which reveal that in over 78% of teenager abortion

cases, girls reported that they had been strongly influenced by

someone who encouraged abortion. Adler & Dolcini at 74.

The bottom line is that vulnerable adolescents are exploited

either consciously by abortion providers or unknowingly by the

teenage peers who are equally uninformed, misinformed or

emotionally and experientially unable to render rational,

objective advice on abortion or childbirth. Thus, parental con-

sultation provides the people who are most interested in the

ultimate well being of pregnant adolescents the opportunity to

protect them against false, misleading, prejudicial or harmful

advice from their abortion “counselor” and their equally unin-

formed peers.

D. Parental Consultation Promotes Legitimate Parental

Authority And Family Unity.

1. Parental Control.

The parent-child relationship is generally outside the reach

of government regulation. Accordingly, the state can only

interfere with parental control of their children in exceptional

cases where it is necessary to protect the health or safety of the

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

Wisconsin v. Yoder, 406 U.S. 205 (1972). The Court has long

recognized the importance of parental control, especially in the

teenage abortion context. For example, the plurality in Bellotti

II recognized:

[W]e cannot ignore that central to many of these theories,

and deeply rooted in our nation’s history and tradition, is

the belief that the parental role implies a substantial mea-

sure of authority over one’s children. Indeed, ‘constitu-

tional interpretation has consistently recognized that the

parents claim to authority in their own household to direct

the rearing of their children is basic in the structure of our

society. Ginsberg v. New York, 390 U.S. 629 (1968).

Bellotti I], 443 U.S. at 638-639. Prince v. Massachusetts also

recognizes the primacy of parental control over their children:

“It is cardinal with us that the custody, care and nurture of

the child resides first in the parents, whose primary func-

tion and freedom include preparation for obligations the

state can neither supply nor hinder. The legislature could

properly conclude that parents and others . . . who have

the primary responsibility for children’s well being are

entitled to the support of law designed to aid discharge of

that responsibility.”

Prince, 321 U.S. at 166.

An additional and more important justification for state defer-

ence to parental control over children is that:

(T]he child is not the mere creature of the state; those who

nurture him and direct his destiny have the right, coupled

with a high duty, to recognize and pre him for addi-

tional obligations. Pierce v. Society of Sisters, 268 U.S.

510, 535 (1925). ‘The duty . . . must be read to include the

inculeation of moral standards, religious beliefs and ele-

ments of good citizenship.’ Wisconsin v. Yod

205, 233 (1972). , nsin v. Yoder, 406 U.S.

Bellotti IT 443 U.S. at 637-638.

Some legal scholars and justices have suggested that there

may be a constitutional right to parental notification and

consent.® Whether or not there is such a constitutional right, a

state clearly has a legitimate, if not compelling, interest to

encourage and promote parental authority. Notification and

consent laws foster these parental rights while recognizing the

historical, legal limitations of its young citizens:

Because he may not foresee the consequence of his deci-

sions, a minor may not make an enforceable bargain. He

may not lawfully work or travel where he pleases or even

attend exhibitions of constitutionallay protected adult

motion pictures. Persons below a certain age may not

marry without parental consent and they may not

vote... . But even if it is the most important kind of

decision a young person may ever make, that assumption

merely enhances the quality of the State’s interest in max-

imizing the av that the decision be made correctly

and with full understanding of the consequences of either

alternative.

Danforth, 428 U.S. at 102-103.

Because “the most significant consequences of the abortion

decision are not medical in character,” Danforth, 428 U.S. at

103, the State unquestionably has an interest in ensuring that a

teenager receive the best advice and consultation which clearly

includes that from her parents. Bellotti I], 450 U.S. at 423.

2. Family Involvement.

Unless a family is involved, adolescent pregnancy can con-

tribute to family estrangement and increased parent-child

* The Court's opinions discussed in the text above—Pierce, Yoder, Prince

and Ginsberg—all have contributed to a line of decisions suggesting the

existence of a constitutional parental right against undue, adverse inter-

tee. a State. ene I] 443 U.S. at 639 n. 18. See also Amicus Brief of

once oman merica in Ohio v. Ak Center eproductiv

nan te Gee, ron Center For R. uctive

schism. Parental Involvement at 232. For example,

researchers generally list six reasons for family involvement

with adolescent pregnancies and the “abortion versus child-

birth” decision:

1. The family’s need to deal with its pervasive sense of

failure precipitated by the pregnancy...

Family members’ needs to clarify their different views

about the pregnancy and the unborn baby. . .

3. The need for the adolescent and her parents to resolve

any conflict existing prior to the pregnancy, especially

those resulting from the pregnancy situation. . .

4. The importance of maintaining and/or improving com-

munication in a crisis situation for the adolescent and

her family...

Parents’ need to maintain their relationship while they

parent their daughter through the crisis of pregnancy

6. Parents’ and adolescent's need to resolve develop-

mental independency-dependency issues.

Parental Involvement at 234 (citations omitted).

Failure to involve her family will exacerbate and hide the

root causes for the pregnancy, intensify family disunity and

increase the minors’ psycho-social problems of isolation, guilt,

fear and depression. /d. Without parental involvement legisla-

tion, those girls who opt for abortions out of a mistaken percep-

tion of their parents’ reactions deprive themselves of their

parents’ support during their crisis—the most powerful and

permanent social and family support they have—and will

either: (a) erect a wall of guilt and secrecy between themselves

and their parents; or (b) later reveal to their parents that they

not only got pregnant but did not trust or honor their parents

and made an unilateral abortion decision. Worthington at 231.

One scholar concluded that adolescent pregnancy can often

result in “building family morale, intensifying family

exchanges and [if childbirth is chosen] filling the empty nest.”

Furstenberg, Burdens and Benefits: The Impact of Early

Childbearing on the Family, 1980 J. SOCIAL ISSUES 36,

(1980). Even if parents and daughter do not end up with the

same views towards abortion versus childbirth after con-

sultation, most parents will provide emotional and psychologi-

cal support during and after their daughter's decision

— to the crisis pregnancy. Parental Involvement at

In an era when the family has been rendered increasingly

vulnerable to dissolution, we should not gratuitously add to the

stress by enshrining in law the starkly individualistic view that

a child in the making, which can be a future shared relationship

of the family, is wholly and completely a ‘private’ matter for the

teenage girl to determine. Etozioni, The Husband's Rights in

Abortion, 12 TRIAL 56, 58 (1976).

Family involvement in decisions about abortion or bearing a

child to term thus promotes increased family unity in at least

four ways. First, it will permit the family to deal with some of

the underlying issues to adolescent pregnancy, i.e., power

struggle, rebellion, substance abuse, depression, and imma-

turity. Second, in families where the girl might have opted for a

secret abortion, the compounding of problems (broken rela-

tionship with parents, lack of communication, distrust, aliena-

tion and isolation) can be avoided. Third, shared experiences

where a mutual, well thought out decision is made by both the

daughter and parents promote emotional and psychological

support for whatever decision is made, whether abortion,

adoption or childbirth. Finally, the parents’ knowledge of an

impending abortion allows the parents to communicate impor-

tant medical information about the adolescent to the abortion

doctor during the required waiting period, or in the case of

later complications from the abortion, to the subsequent treat-

ing physician.

Il. STATE NOTIFICATION AND CONSENT LAWS ARE

RATIONALLY RELATED TO LEGITIMATE INTERESTS

AND DO NOT “UNDLY BURDEN” A MINOR’S RIGHT TO

HAVE AN ABORTION.

The federal courts’ deference to state legislatures on the

parental consultation question is a function of the standard of

review adopted: strict scrutiny, rational basis or some inter-

mediate standard. “A woman's ability to choose an abortion is a

species of ‘liberty.’” Thornburgh v. American College of

Obstetricians and Gynecologists, 476 U.S. 747, 790 (1986)

(White, J., dissenting) (“Thornburgh”) see also Roe v. Wade,

410 U.S. at 113 (Rehnquest, J., disssenting). The presence of

such a liberty interest, however, ordinarily means only that

state regulation affecting that liberty interest must be pro-

cedurally fair and must bear a rational relation to valid state

objectives. See Williamson v. Lee Optial Co., 348 U.S. 483, 486

(1955).

State regulation will only be subjected to the higher stan-

dard of strict scrutiny, if it substantially interferes with a

fundamental constitutional right. City of Akron v. Akron Cen-

ter for Reproductive Health, 462 U.S. 416, 462 (O’Connor, J.,

dissenting) (“Akron I”).

Numerous other cases have adjudicated state abortion laws

on the rational basis standard. In Carey v. Population Ser-

vices International, 431 U.S. 678, 693, 696 (1977) for example,

the statute was measured by whether it provided “a rational

means for accomplishment of some significant state policy.” In

Maher v. Roe, 432 U.S. 474 (1977), Poekler v. Doe, 432 U.S.

519, 421 (1977); and Harris v. McRae, 448 U.S. 297, 325 (1980),

the Court again required only a showing that Congress’ autho-

rization of “reimbursement for generally, medically necessary

services generally but not for certain medically necessary

abortions was rationally related to the legitimate government

goal of encouraging childbirth.” Webster v. Reproductive

Health Services, 57 U.S.L.W. 5023, 5028 (U.S. June 27, 1989)

(emphasis added).

Three members of the Webster plurality referred to the

“rational basis test” and “promotion of States’ interest stan-

dard” throughout the opinion, and concluded:

It is true that the tests in question increase the expense of

abortion and regulate the discretion of the physician . . .

But we are satisfied that the requirement of these tests

issibly furthers State’s interest in protecting human

ife and we therefore believe the statutes to be constitu-

tional . . . The Missouri testing requirement here is rea-

sonably designed toensure.. . j :

legiti _ an end which all concede is

Webster, 57 U.S.L.W. at 5031 (emphasis added).

While strict scrutiny and rational basis tests have generally

been judicial reference points in review of state laws, the inter-

mediate standard of “undue burden” has also arisen in the

abortion context. Akron J, 462 U.S. at 461 and 461 n.8 (O’Con-

nor, J., dissenting). Justice O’Connor'’s two-tier approach to

reviewing state abortion laws acknowledges that even if the

state provisions do burden the right to seek an abortion, the

Court must then consider “whether this burden reasonably

relates to legitimate state interests.” /d. at 471 n.15(O’Connor,

J., dissenting), see Thornburgh, 476 U.S. at 828 (O’Connor, J.,

dissenting). If the regulation “unduly burdens” the protected

interest, Justice O’Connor would require states to demonstrate

a compelling interest in the legislation. This “second tier”

undue burden has only been found in situations involving

“absolute obstacles or severe limitations” on the abortion deci-

sion such, as in Danforth, 428 U.S. at 79, where prohibition of

saline amniocentesis was completely prohibited for abortions

after twelve weeks; and Bellotti I], 443 U.S. at 622 where

parental consent without a judicial bypass procedure was con-

sidered an arbitrary, total parental veto over the minor's abor-

tion decision. See Akron I, 462 U.S. at 464 (O’Connor, J.

dissenting). According to this test, if an undue burden is found

in the threshold inquiry, the Court should then decide whether

—" state interest justifies the undue burden. /d. at

The appropriate standard to review state notification and

consent laws should be whether the laws are reasonably

related to promote or further legitimate state interests. The

countervailing protected right to abortion is “qualified,” Roe,

410 U.S. at 154, and thus, where the state interests directly

impact its ability to protects its citizens, this Court should

defer to state legislative authority. In the parental consultation

context, the Court has recognized many legitimate and com-

pelling state interests: (1) to protect the mental and physical

well being of pregnant minors; (2) to promote informed,

rational decision making and family unit; and (3) to protect

potential human life—all of which notification and consent laws

promote and permissibly further.

Even if the undue burden test is applied, notification laws

with a judicial bypass procedure as in the present case should

stili be upheld. Unlike Akron I, Danforth or Bellotti I1, the

parental notifications here do not place “a complete prohibition

on abortion in certain circumstances,” Akron I, 462 U.s. at 429

n.11. Nor does it place an absolute and possibly arbitrary

parental veto over the abortion decision. Danforth 428 U.S. at

74 and Bellotti I], 43 U.S. at 642-644. Since the laws do not

unduly burden the minors’ right to have an abortion, the com-

pelling interests of the state do not have to be examined.

Ill. FEDERAL COURTS MUST GIVE GREAT JUDICIAL

DEFERENCE TO STATE ABORTION LEGISLATION,

PARTICULARLY IN MATTERS INVOLVING PARENT-

CHILD RELATIONS.

In the last three abortion cases, the Court appears to recog-

nize the dangers of judicial law making:

The rigid Roe framework is hardly consistent with the

notion of a Constitution cast in general terms, as ours is,

and usually speaking in pone principles, as our does.

The key elements of the Roe framework—trimesters and

viability—are not found in the text of the Constitution or

in any place else one would ex to find a constitutional

principle. Since the bounds of the inquiry are essentially

indeterminate, the result has been a web of rules that

have become increasingly intricate, resembling a code of

regulation rather than a body of constitutional doctrine

Webster, 57 U.S.L.W. at 5023 (Rehnquist, C.J. joined by White,

J. and Kennedy, J.); See Akron I, 462 U.S. at 468-472 (O’Con-

nor, J., dissenting); Thornburgh, 476 U.S. at 782-833 (Burger,

C.J., White, J., and O’Connor, J., dissenting).

This Court has sailed from Roe into uncharted waters for

sixteen years by constantly superseding legislative judgment

and “making Constitutional law in this area a virtual Procrus-

tean bed.” Webster, 57 U.S.L.W. at 5030. a

The Court must keep in mind that:

the appropriate forum for . . . resolution [of extreme!

sensitive issues like abortion] in a nd is the eae

lature. We should not forget that legislatures are ultimate

guardians of the liberties and welfare of the people in quite

as great a degree as the courts. .

Akron I, 462 U.S. at 465 (O’Connor, J., dissenting). (citati

omitted). See Maher, 432 U.S. at 479-480. ————

. Dissenters in Thornburgh, Akron I and at least three jus-

tices in Webster appear poised to return this Court to adjudicat-

ing state abortion laws and regulations based on the correct

judicial review standard of “rational basis” and to giving state

legislatures greater leeway to effectuate legitimate state inter-

ests. Thornburgh, 476 U.S. at 796-797 (White, J., dissenting);

see Oregon v. Michell, 400 U.S. 112, 206-207 (1970) (Harlan, J.,

concurring), id. at 247-48 (Brennan, J., concurring). If accom-

plished, state laws routinely struck down by this Court, “would

be sustained.” Webster, 57 U.S.L.W. at 5030; Thornburgh at

802 (White, J., dissenting); id. at 783 (Burger, C_J., dissenting).

Withour reference to the constitutional right to

notification implied in Pierce, Yoder, Prince he Sat ag pr

suggested in Bellotti i], 443 U.S. at 639 n.18, it is clear that

judicial authorities should give greater deference to state legis-

latures to effectuate important state interests such as parental

prerogatives to raise their children, to participate in their

medical, moral and religious decisions and to unify their fam-

ilies. These are not issues in which federal courts have any

particular expertise or historical authority:

Our jurisprudence historically has reflected Western civi-

lization concepts of the family as a unit with boond saentel

authority over minor children . . . [H]istorically it has

recognized that natural bonds of affection lead parents to

act in the best interests of their children.

Parham v. J.R., 442 U.S. 584, 602 (1979). See further, Moore vy.

City of East Cleveland, 431 U.S. 494 (1974); Prince v. Mas-

sachusetts, 321 U.S. 158 (1944).

In parental notification and consent cases, the Court has

recognized these principles. In Matheson, the Court upheld

parental notification because “the Constitution does not compel

a state to fine tune its statutes so as to encourage or facilitate

abortions. 450 U.S. at 413; see also Akron I, 462 U.S. at 469

(O’Connor, J., dissenting).

Bellotti I and II, Danforth, Matheson and Ashcroft demon-

strate the legitimacy of parental consultation and waiting peri-

ods to protect immature, unemancipated teenagers having

abortions. Non-abortion surgical procedures involving minors

require no less. Thornburgh, 476 U.S. at 785 (Burger, J.,

dissenting) (no surgeon would perform an amputation or even

an appendectomy on a fourteen old girl without the consent of a

parent).

The Court in this case should exercise traditional judicial

deference in the parental rights and abortion context and steer

this misguided ship back into port by following channel lights

which flash broad, constitutional principles for parental noti-

fication. Enunciating more intricate and complex rules for par-

ental consultation will only continue this ill-fated voyage. The

Court should return to traditional constitutional principles

where judicial deference to state legislatures is practiced and

state abortion laws are appropriately reviewed by their

rational relationship to legitimate state interests.

CONCLUSION

The Court should apply the rational basis test to the state

parental notification and consent law in this case and the state

law should be upheld.

Respectfully submitted,

H. RoBpeERT SHOWERS

(Counsel of Record)

RicHARD M. CAMPANELLI

GAMMON & GRANGE

1925 K Street, N.W.

Suite 300

Washington, D.C. 20006

® (202) 862-2000

Attorneys for Amici Curiae

APPENDIX

APPENDIX A

DESCRIPTION OF AMICI

Amicus Focus on the Family is a Christian, nonprofit

organization that is committed to strengthening the emotional,

psychological and spiritual health of families in the United

States and throughout the world. Its daily radio broadcasts

dealing with family concerns and interests are heard by more

than one million people daily over 1300 stations. Its monthly

magazine has a circulation of 1.7 million. It receives an average

of more than 8000 letters daily, many of which describe the

causes and results of past trauma, including the abortion expe-

rience.

Amicus Family Research Council, a division of Focus on

the Family, is a voice for the pro-family movement in Wash-

ington, D.C., and provides policy analysis and research sup-

port for pro-family and religious groups across America. As

such, it studies matters affecting the family, including the

effects of abortion.

The central issue in this case—parental notification and con-

sent for minors undergoing abortions—represents a unique

intersection of the concerns of Focus on the Family and the

Family Research Council. The issue of parental consultation

goes to the heart of the parent-child relationship, and the

proper involvement of the state in protecting that relationship

from undue interference or preemption. Both Focus on the

Family and the Family Research Council have significant and

substantial knowledge and experience in this area that can

assist this Court.

Amicus Rachel Ely was a seventeen year old unmarried

high school student when she learned that she was pregnant.

Her high school counselor recommended that she have an

abortion, arranged for State funding for the abortion, and

recommended a particular abortion clinic. No other alter-

natives were discussed. Rachel was afraid to tell her parents

that she had become pregnant. Because Rachel was not aware

of any alternatives, she consented to the abortion. Had

Rachel's parents known their daughter was pregnant, they

would have provided her with the alternatives of keeping her

child or placing the child for adoption.

After her abortion, Rachel received no discharge instruc-

tions from her physician. Several days later she developed

some flu-like syn:ptoms in her chest, which she did not associ-

ate with her abortion because she believed that any symptoms

she might have as a result of a complication from an abortion

would be in her pelvic area. She went to her family doctor when

these symptoms became worse. She did not tell the doctor

about the abortion because she did not think the symptoms

were related.

Sometime later, Rachel became very sick, and her father

took her to a local hospital because of her persistent flu-like

symptoms. The next morning Rachel was found in her hospital

bed in a comatose condition. Subsequently, it was discovered

that she had developed bacterial endocarditis—a condition

directly attributable to a post-abortion surgical infection. The

bacterial endocarditis had caused blood clots to develop and

become lodged in the vascular system of her brain, causing a

stroke. When Rachel recovered from her coma, she was left a

permanently wheelchair-bound hemiplegic.

Had Rachel's parents been notified of the abortion, they

would have questioned the possible relationship between the

abortion and Rachel’s symptoms. With simple antibiotic

therapy, her devastating life-long disabilities would not have

occurred.

Amicus Myoshi Callahan was fifteen when she had an

abortion without her parents’ consent. To use Myoshi’s words,

deciding to have an abortion was like a skydiver's “free fall.”

Her boyfriend and she decided—in view of the fact that they'd

planned on getting maried anyway—that the “solution” to the

situation was to get marrried “now instead of later.” However,

when his parents learned of her condition their reaction was

one of total, incensed rejection. They insisted that the only way

the situation could be resolved was for her to have an abortion.

Earlier, when Myoshi had informed her mother that she was

pregnant, she was aware that her mother was terribly disap-

pointed in her. She wasn’t angry, she didn’t reject her, but

Myoshi knew that the overriding reaction was disappointment.

To her young mind, having the baby would only add to her

mother’s disappointment, and in view of her boyfriend’s par-

ents’ reaction to her pregnancy, she “free fell” into deciding on

an abortion without notifying her parents.

At the clinic, she received no counselling whatsoever. As she

says, what does one know at fifteen? Her “choice,” according to

them, was abortion. Unfamiliar with the strategy of the clinic

afraid, and to her mind, alone, she had the abortion.

As a result of the procedure, Myoshi’s periods became (and

continued to be) abnormally severe, and she eventually had to

have a hysterectomy. Emotionally and physically, she has suf-

fered and continues to suffer. She has since told both parents

who grieved with her—grieved not only at the lost life, but

because Myoshi went through the ordeal alone, an ordeal that

would have been prevented had their consent been mandatory.

Myoshi is convinced that lack of parental notification and

consent abrogates a parent's rights. “After all,” she says, “how

better to demonstrate responsibility and love than by giving

them the benefit of their (mature) advice, and in my case

withholding their consent.” She has no doubt whatsoever that

had their consultation for an abortion been mandatory, she

would never have had an abortion. )

Amici Teresa Wibblesman Fangman, Holly Trimble, and

Linda Roselli are women who procured abortions as minors

without their parents’ knowledge. To a large extent, their

abortion decisions were uninformed. In retrospect. they

believe that prior notice of their abortions to their parents

would have significantly altered their experiences dealing with

their problem pregnancies. The amici are aware of the parental

notice requirement at issue in this case, and they offer their

experiences to the Court to illustrate the need many young

girls have for that protection in making abortion decision.

Teresa Wibblesman was sixteen years old when she learned

she was pregnant. She had been raised in a Catholic home and

attended -parochial schools. All she knew about abortion was

that it would “take care of” the problem. No one at the family

planning center, where her pregnancy was diagnosed, offered

her any counseling except a referral to an abortion clinic. She

made her decision to abort primarily because she was afraid to

tell her parents of her pregnancy; she did not want them to

know she had disappointed them. Her boyfriend took her from

her Ohio home to a Louisville, Kentucky abortion clinic. At the

clinic she signed consent forms which were placed in front of

her without explanation. She does not remember reading the

forms. The only counseling she received at the clinic was a brief

description of the abortion procedure using a plastic anatomy

model, given to a group of seventeen girls at once.

Teresa's abortion proceeded smoothly and she suffered no

known physical complications. The abortion exacted an emo-

tional toll, however. Teresa blocked the abortion from her mind

but her self-worth had plummeted. She slipped into promis-

cuity and drug and alcohol abuse. She began to play what she

calls “car games’—closing her eyes while driving over bridges,

or accelerating on the freeway and closing her eyes until fear

forced her to open them again.

Five years after Teresa's abortion, her fifteen-year old sister

was impregnated on a “date rape.” Teresa's sister, rather than

obtaining a secret abortion, went to her parents with her

problem. Together, they decided that the child would be car-

ried to term and placed for adoption. Seeing her sister's trust in

her parents and their warm support for her in her crisis pro-

duced feelings of jealousy in Teresa, causing her to wish she

had handled her pregnancy the same way.

Nearly six years after her abortion, Teresa consciously

acknowledged that she felt tremendous guilt over the abortion.

Although she was still unmarried, she determined a time when

she would be fertile and deliberately became pregnant on a

“one-night stand.” She made adoption arrangements in Louis-

ville. Her little girl was born on the anniversary of her abor-

tion. Teresa took her to Louisville for adoption to “replace” the

child she had aborted there.

Teresa is convinced that if she had known at the time of her

abortion decision what she now knows about her parents’ sup-

portive reaction to a problem pregnancy, she would not have

chosen to abort. Thus, a parental notice requirement would, in

Teresa's case, have saved her from the anguish which followed a

decision that turned out to have been wrong for her.

Holly Trimble was also sixteen years old when she became

pregnant. She was personally opposed to abortion, but she was

afraid her parents would be hurt if they knew of her pregnancy.

Her boyfriend's older brother and his girlfriend persuaded her

that obtaining a secret abortion was the best thing for her to

do. Holly recalls that she was not in good condition to make a

decision; the pregnancy made her feel ill, and she was vomiting

every day. Although she was ten weeks pregnant, she believed

at the time that her fetus was just a “little egg.” Prior to her

abortion, she asked a matronly counselor at a state family

planning office if women felt badly after abortions. “No, they’re

usually relieved because they can go on with their lives,” she

was told. “Sometimes a woman is bothered if she feels the fetus

move before her abu rtion and she thinks it’s alive; but she

shouldn’t because it's really not.” She asked the physician

about possible physical complications and was told by him that

an abortion was much safer than carrying the child to term.

Within a week of her abortion, Holly did begin to feel bad!

. . . y

about it. Because the main purpose of her abortion was to hide

her pregnancy from her parents, she could not talk to them

about her turmoil. When Life magazine ran pictures of ten--

week-old fetuses, Holly saw them and became horrified at what

she had done. She felt intense guilt whenever she saw a baby.

Eventually she sought help from a priest and her conscience

was temporarily assauged. However, she abused drugs for

several years and developed an eating disorder which lasted a

decade.

Nine years later, Holly had married and become pregnant.

She had learned more about fetal development and was acutely

aware of the new life she was carrying within her body. That

awareness stirred up memories and remorse over her earlier.

Her depression became so severe that she sought professional

help. Her psychiatrist finally hospitalized her in the psychiatric

ward of a local hospital three months after the birth of her son.

Eventually she was referred to another psychiatrist who

placed her on anti-depressant medication for several months.

Only after careful counseling did she improve to the point

where she was able to go through another pregnancy and post-

partum period without debilitating depression.

Holly still looks back at her abortion decision with great

regret. She believes that if she had not felt it necessary to

shield her parents from knowledge of her pregnancy, she would

not have obtained her bortion. She also is certain that, if she

had been exposed to information about fetal development at the

time of her decision, she would have chosen to carry her child to

term.

Linda Roselli was fifteen when she had an abortion without

the consent of her parents. She went to a Planned Parenthood

clinic to have a pregnancy fest. With hindsight, she says now

that she was a very “unenlightened” fifteen-year-old and, based

on what she had watched on television, “suspected” that she

might be pregnant. The people at Planned Parenthood told her

she was losing her baby and arranged her next appointment.

Linda returned thinking that they were going to help her

through what she thought was to be a premature birth. She felt

sure her mother would help her look after the baby, once it was

born.

On the morning of the abortion they dilated her, put in a

“seaweed,” and told her to come back in the afternoon. When

she returned to the clinic in the afternoon, Linda told them that

“something was wrong.” She was still under the impression

that what was happening was all part of having a premature

baby. She refused to take the drug (she believes it was Valium)

they gave her. They ignored her tears and pleas for her mother.

She was then strapped to the table, a needle was inserted into

her stomach, and they hooked her up to a machine that, she

recalls, made a noise like a vacuum cleaner. While this was

happening, the nurse held her head down, telling her “not to

look.” When the noise stopped, she did look. She saw the large

jar, and realized that they had performed an abortion, and that

her baby was dead.

Yet the fact that her baby had been aborted did not “regis-

ter” in her mind, and she kept crying and screaming and asking

what they had done to her baby. When she insisted that all she

had wanted was a pregnancy test and (on being told that she

was losing her baby) help in delivering a “premature” baby,

they produced the papers she had signed—unfortunately with-

out questioning the people at the clinic, or reading the papers

for herself.

Linda’s mother did not know of her abortion at the time.

Linda has since learned that if she had sought her mother’s

permission, it would not have been given and the abortion

would not have been done. She knows now that her mother

would instead have helped her raise her baby.

Emotionally, Linda has suffered greatly. It took her several

years to learn to live with the guilt she felt. She says she “felt

unclean.” It seemed to her as though she would always be sad,

and that the whole world knew, and considered her to be “a

pig.” For many years, she would not go out with boys; she says

she was afraid of men. For many years—in fact, until approx-

imately five or six months ago—Linda would go to a Planned

Parenthood clinic rather than go to their family doctor because

she felt ashamed and embarrassed.

To use Linda's words, “These people at the clinics don’t really

care. Never once did they offer any counselling, and never once

did they suggest helping me to keep the baby. Parents must

give their consent.

Ann Maire Lozinski, Debra’s mother, had absolutely no

idea that her daughter was pregnant, and therefore no knowl-

edge that Debra had decided to have an abortion. On April 11,

1985, while Debra was on Easter vacation, she went to the

clinic, accompanied by her girlfriend. There, the abortion was

performed without adequate care. They did not monitor Debra

during the procedure. No airway was inserted, and during the

surgery Debra swallowed her tongue. The attendants at the

clinic were unable to restore her breathing and consciousness

to normal. Debra’s mother was called at work by the Director of

the clinic, who informed her that her daughter was at the clinic

for “minor surgery,” and that she (Debra) was having “respira-

tory problems.” They rushed Debra to the hospital, where she

lay in a coma for two-and-a-half months. Debra died on June 21,

1985.

The emotional toll on the family has been immeasurable.

Since that time, Mrs. Lozinski has gone downhill emotionally.

She has had professional counselling, but is still depressed. She

and Debra had an extremely close relationship, and she is

convined that Debra’s reason for deciding on an abortion was to

avoid hurting her mother. Had it been mandatory for Debra to

obtain parental consultation in order to have an abortion, Mrs.

Lozinski is certain they would have worked it out and that

neither Debra nor the baby would have been lost. The trauma

of Debra’s abortion and death have been, if not insurmountable,

then unforgettable. Debra’s nineteen-year-old brother is “very

bitter.” And as Debra’s mother says, “the law will not allow

children at school to be given an aspirin without parental

consent, yet a clinic is allowed to perform an abortion on a

minor without even letting the parents know, leave alone get-

ting their consent.” She is positive that had she known Debra

had gone to the clinic for an abortion, they would never have

= their consent and Debra and the baby would be alive

Mrs. Lozinski unequivocally believes that this should be

made the law of the land. Primarily it would save lives, but it

would avoid, in her words “the heartaches that never goes

away.”

Amicus Robert C. Wibblesman is the father of amicus

Teresa Wibblesman Fangman. He recalls, with deep regret,

the “terrible guilt she had to carry all by herself,” for the six

years from the time of her abortion until he eventually learned

what had happened. Recalling that period, Mr. Wibblesman

says:

I knew that she was having psychological problems .

(bjut I thought this was a carry over from the early death

of her Mother. How wrong I was. How tough it was for her

to carry the inevitable guilt of finally realizing that “I

killed my baby.” She carried that guilt all by herself.

Mr. Wibblesman is convined that if his consultation with his

daughter had been required, “all of this could have been

avoided.” His experience supports that conclusion. As related

in Teresa's story, Mr. Wibblesman had a second daughter who

also became pregnant. Fortunately, she confided in her father

and stepmother, and they provided care and support for her

throughout the pregnancy. This second daughter's experience

was not without pain. As Mr. Wibblesman describes it, he is

“sure she still has the hurt of knowing that there is a child out

there somewhere whom she loves. But she certainly doesn’t

have the guilt trip that Terri had to carry by herself all these

years.” Thus, Mr. Wibblesman can testify to the drastically

different results that can occur, depending on whether or not

parents are involved in this most critical decision for adolescent

women.

Amicus American Victims of Abortion (AVA) is a national

organization of persons whose lives have been adversely

affected by abortions—their own or a family member's. The

10a

objective of AVA is to provide a forum for these individuals to

educate legislatures and the public about the tragic con-

sequences of abortion for some women. Based on the experi-

ences of AVA members who obtained abortions as minors, AVA

supports legislation, such as the parental consultation statutes

at issue in this case, which may protect young women from

making uninformed abortion decisions.

lla

APPENDIX B

THE CONFUSED STATE OF PARENTAL CONSULTATION

LAW

1. The following twenty one states require parental consent

before a minor can obtain an abortion: Alabama, Ala. Code

§ 26-21-3 (Supp. 1988); Alaska, Alaska Stat. § 18.16.010

(1987); Arizona, Ariz. Rev. Stat. Ann. § 36-2151 (Supp. 1987;

Arkansas, Ark. Stat. Ann. § 41-2555 (Supp. 1985); Califor-

nia, Cal. Health & Safety Code § 25958 (Supp. 1988); Dela-

ware, Del. Code Ann. tit. 13, § 708 (1981); Florida, Fla. Stat.

Ann. § 390.001(4)(a) (West Supp. 1985); Indiana, Ind. Code

Ann. §35-1-58.5-2.5 (Burns, Supp. 1988); Kentucky, Ky.

Rev. Stat. Ann. § 311-732 (1983); Louisiana, La. Rev. Stat.

Ann. § 40.1299.35.5 (West, Supp. 1988); Massachusetts,

Mass. Ann. Laws. Ch. 12 § 125 (Law Co-op. 1985); Mis-

sissippi, Miss. Code Ann. § 41-41-53 (1988); Missouri, Mo.

Stat. § 188.028 (Vernon, Supp. 1988); North Dakota, N.D.

Cent. Code § 14.02.1-03.1 (Supp. 1987); Oklahoma, Okla.

Stat. Ann. tit. 63, § 1-738 (West 1984); Pennsylvania, Pa.

Stat. Ann. tit 1, §3206 (Purdon1983); Rhode Island, R.I.

Gen. Laws § 23-47-6 (1985); South Dakota, S.D. Codified

Laws Ann. § 34-223A-7 (1986); South Carolina S.C. Code

Ann. § 44-41-30 (Law Co-op. 1985); Tennessee, Tenn. Code

Ann. §39-4-202 (1982); Washington, Wash. Rev. Code

§ 9.02.070 (1985). See Appellant’s Jurisdictional Statement

(J.S.) at 14, in Ohio v. Akron Center For Reproductive

Health, No. 88-805 (U.S.) (Akron II).

. The following twelve states require parental notification in

the event a minor chooses to have an abortion: Georgia, Ga.

Code Ann. § 24A-4401 (Supp. 1988); Idaho, Idaho Code

§ 18-609(6) (1988); Illinois, Ill. Ann. Stat. ch. 38, § 81-64

(Smith-Hurd Supp. 1988); Maine, Me. Rev. Stat. Ann. tit. 22

§ 1595 (1980 & Supp. 1988); Maryland, Md. Health-Gen.

Code Ann. § 20-103 (1987); Minnesota, Minn. Stat. Ann.

§ 144.342(3) (Supp. 1988); Montana, Mont. Code. Ann.

§ 50-20-105 (1987); Nebraska, Neb. Rev. Stat. § 28-347

(1985); Nevada, Nev. Rev. Stat. § 442.255 (1986 & Supp.

12a

1988); Ohio, Ohio Rev. Code. Ann. § 2919.12 (Page Supp.

1985); Utah, Utah Code Ann. § 76-7-304 (1978); West Vir-

ginia, W. Va. Code § 16-2F-3 (1985). See Akon II, Appellant's

J.S. at 14.

. Sixteen states have had their parental consultation law

stayed or enjoined. Arkansas (Smith v. Bentley, 493 F.

Supp. 916 (E.D. Ark. 1980); Florida (Scheinberg v. Smith,

659 F.2d 476 (5th Cir. 1981), and Jacksonville Clergy Con-

sultation Serv. v. Martinez, No. 88-809—CIV-J-16, 1988.

U.S. Dis. Lexis 11088 (M.D. Fla., October 6, 1988); Georgia

(Planned Parenthood Ass’n of Atlanta Area, Inc. v. Harris,

691 F. Supp. 1419 (N.D. Ga. 1988); Illinois, (Zbaraz v. Har-

tigan, 763 F.2d 1532 (7th Cir. 1985) aff'd mem. 108 S. Ct. 479

(1987); Indiana (Gary-Northwest Women’s Serv. Inc. v.

Bowen, 421 F. Supp. 734 (N.D. Ind. 1976, aff'd, 429 U.S.

1067 (1977); Kentucky (Eubanks v. Collins, 604 F. Supp. 141

(W.D. Ky. 1984); Maine (Women’s Community Health Cen-

ter v. Cohen, 477 F. Supp. 542 (D. Me. 1979); Mississippi

(Barnes v. Mississippi, No. J86-0458W (stayed)); Nebraska

(Orr v. Knowles, No. C.V.-81-0-301 1983 WL. 1570 (D. Neb.

Sept. 19, 1983)); Nevada (Glick v. McKay, 616 F. Supp. 322

(Nev. 1985)); Ohio (Akron Center for Reproductive Health v.

Slaby, 854 F.2d 852 (6th Cir. 1988) (Akron II)); Pennsylvania

(Planned Parenthood of Southeastern Pennsylvania v.

Case, 686 F. Supp. 1089 (D. S.C. 1977)); South Carolina

(Floyd v. Aders, 440 F. Supp. 535 (D.S.C. 1977)); Tennessee

(Planned Parenthood of Nashville v. Alerander No. 79-843-

II (Tenn. Chauncery Ct. Oct. 24, 1979)); Utah (L. R. v.

Hanson, No. C80-0078 J (D. Utah Feb. 8, 1980) (Utah

statute unconstitutional as it applies to mature emancipated

minors)); and Washington (State v. Koome, 84 Wash.2d 901,

530 F.2d 260 (1975). See Akron IT, Appellant’s J.S. at 15.

. Only five state’s parental consultation laws have passed con-

stitutional muster. Louisiana consent state (Margaret S. v.

Treen, 597 F. Supp. 636 (T.D. La. 1984); Massachusetts

consent statute (Planned Parenthood League v. Bellotti,

641 F.2d 1006 (ist Cir. 1981); Missouri consent statute

13a

(Planned Parenthood Ass’n of Kansas City v. Ashcroft, 462

U.S. 476 (1983); Minnesota notice statute (Hodgson v. Min-

nesota, 853 F.2d 1452 (8th Cir. 1988) (en banc); Utah notice

statute (H. L. v. Matheson, 450 U.S. 398 (1981) (constitu-

tional as it applied to “immature” minors). See Akron II,

Appellant’s J.S. at 15.

. The following eight decisions on parental consultation have

been rendereed by the U.S. Supreme Court with conflicting

results. Planned Parenthood v. Danforth, 428 U.S. 82

(1976) (no blanket parental consent requirement); Bellotti v.

Baird I, 428 U.S. 132 (1976) (Abstained and certified nine

questions to State Supreme Court); Bellotti v. Baird I], 443

U.S. 622 (1979) (declined to equate notification require-

ments with consent requirements, but required a judicial

bypass alternative in parental consent laws); H. L. v. Mathe-

son, 450 U.S. 398 (1981) (Utah notification law upheld with-

out judicial bypass procedure); Planned Parenthood Ass’n

v. Ashcroft, 462 U.S. 476 (1983) (Missouri consent law

upheld with judicial bypass procedure); City of Akron v.

Akron Center for Reproductive Health, 462 U.S. 416 (1983)

(Akron I—Ohio consent law with limited judicial bypass

procedure held unconstitutional); Thornburgh v. American

College of Obsetetricians and Gynecologists, 476 U.S. 747

(1986) (Pennsylvania consent law with judicial bypass pro-

cedure remanded); Hartigan v. Zbaraz, 763 F.2d 1532 (7th

Cir. 1985) affd mem 108 S. Ct. 479 (1987) (affd without

opinion per curiam) (Illinois notification law with judicial

bypass procedure held unconstitutional by Court's split deci-

sion)

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