# Amicus Curiae Brief — Hodgson v. Minnesota > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1061%3A16 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 497 U.S. 417 ## Text See ee eee a FILED Q@ NG 28 Bag 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, V. 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 BEST AVAILABLE COPY — ms i 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 iv 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 Vv 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 vi 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 19 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. 2 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- 3 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. 19 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 20 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. 21 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." 22 2. 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 2 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). 23 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 24 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). 25 A. 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 4 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 5 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 26 The Supreme Court never revealed the "hazardous" abortion "procedure" to which it was referring. Actually, the 19th century physicians generally used the 6 ancient method, which one physician traced 7 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). 27 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. B. 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 28 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 29 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 30 legislatures prohibited safe abortions by physicians, despite the great danger to the 9 mother from abortions by criminals, shows their great respect for unborn life. D. 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, 10 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 31 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 12 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. 32 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). 33 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 "a 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. 34 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) 35 (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 36 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. 37 E. 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. 38 3. 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. A. 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). 39 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 3 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 40 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 41 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. 42 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.” 43 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. 44 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" 10 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). 45 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. 46 4. 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 47 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. E. 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. 48 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. 49 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. 50 6 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). 51 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. 52 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. 53 - TTY Se 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 54 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.” 55 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). 56 First, the evidence makes it as clear as daylight why the Court is silent in the face of the charges: the charges are proved 3 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 57 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. 58 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 59 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. 60 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. 61 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 62 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. 63 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 64 65 4 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- 5 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- 6 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- 7 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 8 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 9 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. 10 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. 1] 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. 2 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. 13 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 14 (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 15 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 16 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: 17 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 18 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 19 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. 20 “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. 21 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. 22 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- 23 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 24 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... bo 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 qv 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 25 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 26 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 (19 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1061%3A16. Public record. Not legal advice.