Amicus Curiae Brief — Hodgson v. Minnesota

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i: FILED

. ~41} QCT 44. 1988

a r JOSEPH F. SPANIOL, JR.

Nos. 88-1125 and 88-13 CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

JANE HODGSON, M.”n., et al.,

Petitioners,

STATE OF MINNESOTA, et al.,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Eighth Circuit

BRIEF AMICUS CURIAE OF THE ELLIOT

INSTITUTE FOR SOCIAL SCIENCES RESEARCH,

AND THE AMERICAN ACADEMY OF MEDICAL ETHICS.

Stephen R. Kaufmann

P.O. Box 5131

Illinois Buiiding, Suite 800

Springfield, Illinois 62705

(217) 544-1144

Attorney for Amici Curiae

TABLE OF CONTENTS

page

TABLE OF AUTHORITIES ....+.-+-e«-. «+. Wi

pe go a 1

SUMMARY OF ARGUMENT .......+ +2468 -s 1

ee -§ © oe ce @ Sok e086 es « © © © © 5

I. PARENTAL NOTIFICATION

REQUIREMENTS SERVE TO PROTECT MINORS

FROM BEING COERCED INTO UNWANTED

ee ee ee ee ee 5

II.‘ PARENTAL NOTIFICATION

‘REQUIREMENTS PROVIDE HELP TO REDUCE

OR PREVENT THE HARMFUL AFTEREFFECTS

OF ABORTION IN MINORS. ...... 11

III. ROE DID NOT GRANT WOMEN A

FUNDAMENTAL RIGHT TO ABORTION, BUT

FOUND THIS NEW RIGHT AS EVOLVING

FROM THE DEVELOPMENT OF NEW

TECHNOLOGIES WHICH MAY HAVE MADE

ABORTION "SAFER THAN CHILDBIRTH." . 13

A. ABORTION TECHNOLOGIES INVOLVE

HEALTH RISKS WHICH WERE NOT

KNOWN, WERE NOT UNDERSTOOD, OR

ii page

WERE OTHERWISE IGNORED IN ROE V.

WADE. o © © 6 oe 8 Se Ue ee ee

B. THE STATE'S TWO-FOLD INTEREST IN

PROTECTING THE HEALTH OF WOMEN

AND PROTECTING THE LIFE OF HUMAN

EMBRYOS MITIGATES AGAINST ANY

ABSOLUTE RIGHT TO ABORTION

TECHNOLOGY. oe «© e ee & eel ae

IV. ROE DID NOT RECOGNIZE AN

ABSOLUTE RIGHT OF ABORTION, BUT

RATHER FOUND THIS NEW "RIGHT" AS

HAVING EVOLVED FROM TECHNOLOGICAL

ADVANCES. . «© «© s © 6 » © © eee

V. THE STATE HAS A LEGITIMATE

INTEREST IN REGULATING BIRTH CONTROL

TECHNOLOGIES SUCH AS ABORTION. .. 20

A. THE MEDICAL COMMUNITY IS ALREADY

LEGITIMATELY REGULATED BY

GOVERNMENT BODIES, AND THIS

REGULATION INCLUDES REGULATION OF

BIRTH CONTROL TECHNOLOGIES. .. 20

111i page

B. THE RIGHT OF THE STATE TO CONTROL

BIRTH CONTROL TECHNOLOGIES IS

ALREADY ESTABLISHED IN

CONSTITUTIONAL LAW. ..... . 20

STATES MUST BE FREE TO ADJUST

REGULATION OF BIRTH CONTROL

TECHNOLOGIES TO MEET CHANGING

STATE REGULATION OF BIRTH

CONTROL TECHNOLOGIES IS

ESPECIALLY JUSTIFIED BECAUSE

PHYSICIANS, FAMILY PLANNING AGEN-

CIES AND DRUG MANUFACTURERS HAVE

A FINANCIAL INTEREST IN PROMOTING

BIRTH CONTROL TECHNOLOGIES WHICH

MAY HAVE DETRIMENTAL SIDE-EFFECTS

OR MAY BE LESS THAN FULLY

BOUMeenwes oc ec te ee we te te we te el HQ

STATE REGULATION OF BIRTH

CONTROL TECHNOLOGIES IS

ESPECIALLY JUSTIFIED BECAUSE MANY

PHYSICIANS, FAMILY PLANNING

iv page ) Vv page

AGENCIES AND DRUG MANUFACTURERS NATURAL FERTILITY OR PREVENT

ARE IDEOLOGICALLY BOUND TO PERSONS FROM NATURALLY CONCEIVING

REDUCING BIRTHS AMONG SOME OR BEARING CHILDREN, AND 2) THE

CLASSES OF WOMEN REGARDLESS OF STATE MAY NOT FORCE ANY PERSON TO

THE DETRIMENTAL SIDE-EFFECTS CONCEIVE CHILDREN NOR COMPEL ANY

WHICH THEIR TECHNOLOGIES WILL PERSON TO PROVIDE REPRODUCTIVE

IMPOSE ON WOMEN. ........ 31 MATERIAL FOR THE ARTIFICIAL

VI. THREATS TO TRUE REPRODUCTIVE CONCEPTION OR GESTATION OF

FREEDOM FROM PRIVATE INTERESTS AND ee ee ee ee ee ee ee ee ee ee ee ee eee

THE STATE REQUIRE THAT THE B. THE STATE'S REGULATION OF BIRTH

INDIVIDUAL'S NATURAL RIGHT TO CONTROL TECHNOLOGIES POSES NO

REPRODUCTIVE FREEDOM MUST BE THREAT TO THE INDIVIDUAL'S

CLARIFIED AND STRENGTHENED. .... 45 NATURAL RIGHT TO REPRODUCTIVE

A. THE FUNDAMENTAL RIGHTS OF BBCESIGMS. « © se sc eee eve ene ce FG

REPRODUCTIVE FREEDOM AS

GUARANTEED IN THE CONSTITUTION- NS es ke a de 4

ALLY RESERVED RIGHTS OF

INDIVIDUALS ARE THOSE NATURAL APPENDIX A -

RIGHTS WHICH ARISE FROM A DESCRIPTION OF AMICI ....... la

PERSON'S NATURAL SEXUALITY.

SPECIFICALLY, 1) THE STATE MAY APPENDIX B -

NOT FORCIBLY LIMIT ANY PERSON'S

vi page | vii page

A SUMMARY OF SOME PUBLISHED CASES OF | Roe v Wade, 410 U.S. 113

MENGRS AD WOMEN CUSRCED IHEO Se ee eee ee

a ee a a oe 3a

Wells v Ortho Pharmaceutical Co., 615

F.Supp. 262 (N.D. Ga. 1985) ...... 26

TABLE OF AUTHORITIES

Cases

Buck v. Bell, 274 U.S. 200 (1927) . 46, 47 Other Authorities

Eisenstadt v Baird, 405 U.S. 438 "Doctor's Abortion Business Is Lucrative",

San Diego Union, Oct. 12,, 1980 Bl:1. . 38

(29738) « «© © «© © 0 0 0 oe oe BBR, - 86, 3

"The China Solution," Science Digest, 91:4,

Griswold v. Connecticut 381 U.S. 479 ee ee

(1966) . 2. «© we se we eo ew wo © 2 © BB, 82, 2S

Blumberg, et.al. "The Psychological

Hodgson v Minnesota, 648 F.Supp. 764-65 Sequelae of Abortions Performed for a

(1988) 6 ww ee ee ee eee ee ee 05 Genetic Indication", American Journal of

Ob&Gyn. (1975), 122:7. .........8

Poe v. Ullman, 367 U.S. 497 (1960) “To

viii page

Chase, The Legacy of Malthus: The Social

Costs of the New Scientific Racism (New

York: Alfred A. Knopf, 1977). . 33, 38, 42,

a es Se

Craven, “Abortion, Poverty and Black

Genocide: Gifts to the Poor?", Abortion and

Social Justice, eds. Hilgers and Horan,

(New York: Sheed & Ward, 1972). 36, 44, 46

Denes, In Necessity and Sorrow: Life and

Death in the Abortion Clinic (New York:

FF | ee a ee ee

Drogin, Margaret Sanger (Coarsegold, CA:

CUL Publications, 1980). + es 6 6 0 OF

Ehrenreich, et.al., "The Charge: Genocide,"

Mother Jones (November 1979). ..... 39

Family Planning Perspectives, Special

supplement-U.S. Population Growth and

1x page

Family Planning: A Review of the

Literature, vol. 2, no. 4, October 1970,

eS a a ee ee a a a ee ee a oe ee oe

FDA Consumer 25 (April 1976) pate ie pe A

Francke, The Ambivalence of Abortion (New

York: Random House, 1978). oi ees ae

Friedman,et.al.,"The Decision-Making

Process and the Outcome of Therapeutic

Abortion", American Journal of Psychiatry

(December 12, 1974), vol.131, 1332-1337. 6

Greer, Sex and Destiny: The Politics of

Human Fertility (New York:Harper & Row,

2906). «cere sv 6 « © Be BB, 86, SO

Hardin, "The Tragedy of the Commons,"

Science December, 1968, 1243-1248. 43, 44

x page

Heath,"Psychiatry and Abortion", Canadian

Psychiatric Association Journal (1971),

vol.16, 55-63. ; nt se & be 2 Se es elec

Jick, "Vaginal Spermicides and Congenital

Disorders" 245 J.A.M.A. 1329-32 (1981). 26

Kasun, The War Against Population: The

Economics and Ideology of Population

Control, (San Francisco: Ignatius Press,

3908). «+ -«-e«-« « BS, 3, 42, 446, 48, 60

Kippley, The Art of Natural Family

Planning, (Cincinnati: Couple To Couple

League International, 1984.) ea ee ae,

Lader, Abortion II: Making the Revolution

(Boston: Beacon Press, 1973). ...... 34

Lazarus, “Psychiatric Sequelae of Legalized

Elective First Trimester Abortion", Journal

xi page

of Psychosomatic Ob&Gyn, (1985),vol.4, 141-

ees we ete She ee-e & 6 48 4s € 8 Oe

Ludmerer, Genetics and American Society: A

Historical Appraisal (Boston: John Hopkins

University Press, 1972). ioe 4 ee eee

Mahkorn, "Pregnancy and Sexual Assault", ,

The Psychological Aspects of Abortion, Mall

and Watts, ed., (Washington D.C.: Univer-

sity Publications of America, 1979). —

Maloof "The Consequences of Incest: Giving

and Taking Life", The Psychological Aspects

of Abortion, Mall and Watts, eds.

(Washington D.C.: University Publications

of America, 1979). a oe ee ee ee eer

Mendelsohn, Male Practice: How Doctors

Manipulate Women (Chicago: Contemporary

a ee ee

xii page

Miller, "Native American Peoples on Trail

of Tears Once More," America, 9 December

ee & os se es 6 Se Oe ee es

Nathanson, Aborting America (New York:

National Right to Life News, "Mother Files

$1 Million Lawsuit...", October 23,

0 6g a ee a oe a? on ee ee ne

Osofsky, eds., The Abortion Experience (New

York: Harper and Row Publishers, Inc.,

ae eee ae ee ee ee ee

Pare and Raven,"Follow-up of Patients

Referred for Termination of Pregnancy", The

Lancet (1970) vol.1,635-638. a ee Re

Rayburn and Laferia,"Mid-Gestational

Abortion for Medical or Genetic

xiii page

Indications", Clinics in Ob&Gyn. (March

SESS). Cb mach «6 ce ee eee ee eS

Reardon, Aborted Women - Silent No More,

(Chicago, Loyola University Press,

Sees | +6 "so" 6 ew ee oe eee ae, eee ae

Rosenblum, "Coercion in Liberation's

Guise," Abortion and Social Justice, ed.

Hilgers and Horan, (New York: Sheed and

Po eens. ¢ ~e oe ets 87s £006 6 OR

Sanger, The Pivot of Civilization (New

york: Brentano's Publishers, 1922). .. 44

Senay, "Therapeutic Abortion: Clinical

Aspects", Archives of General Psychiatry

(1970),vol.23,pp408-415. ..... +... 6

Simon, The Ultimate Resource (Princeton:

Princeton University Press, 1981).

33, 36, 42, 60

IN THE

xiv page SUPREME COURT OF THE UNITED STATES

October Term, 1989

The Human Right to Family Planning,

International Planned Parenthood qf | 9<qq9q2<2 <<< <2ae=

Federation, London, ee eo pa a

Zeckman and Warrick, "Abortion Profiteers" | JANE HODGSON, .D., et al.,

. Petitioners,

Special Reprint, Chicago Sun-Times,

Cg ee, UR SS ee a ie v.

Zimmerman, Passage Through Abortion (New STATE OF MINNESOTA, et al.,

Respondents.

York: Praeger Publishers, 1977). a

On Writ of Certiorari to the United States Court

of Appeals for the Eighth Circuit

BRIEF AMICUS CURIAE OF THE ELLIOT

INSTITUTE FOR SOCIAL SCIENCES RESEARCH,

AND THE AMERICAN ACADEMY OF MEDICAL ETHICS.

INTERESTS OF AMICI

The Elliot Institute for Social Sciences

Research, and the American Academy of

Medical Ethics favor holding the Minnesota

statute, Minn. Stat. Ann. $§ 144.343 (2)-

(7) (1987) constitutional in its entirety.

Amici believe that limitations on State

regulation of abortion have resulted in the

exploitation of women and minors who are at

high-risk of suffering abortion related

complications. Knowing that these high-

risk women are being coerced into abortion

for the convenience of others, Amici

supports parental and State involvement

which protects women from unwanted

abortions and which preserves their natural

rights to reproductive freedom.

SUMMARY OF ARGUMENT

Thirty to sixty percent of all women

having abortions actually want their child-

ren. Many of these women submit to

unwanted abortions only because they feel

pressured or coerced into aborting pregnan-

cies which are "unwanted" by their

boyfriends, husbands, physicians,

counselors, welfare workers, or population

planners. The involvement of parents may

often be the only protection a minor has

from the pressures which make her feel

abortion is her "only choice."

It is an undeniable fact that abortion

involves health risks. Though the exact

frequency and extent of these risks are in

dispute, the right to evaluate these

threats properly lies with the State. The

State has a right to judge the "signifi-

cance" of the health risks of any product

or service and to regulate or prohibit

trades or practices accordingly. This

]

M. Zimmerman, Passage Through Abor-

tion, 110-112 (1977) (hereinafter Zimmer-

man); D. Reardon, Aborted women ~ Silent No

More, 12,51 (1987) (hereinafter Reardon) .

right includes the right to regulate repro-

ductive technologies, including abortion.

Abortion, itself, is not a fundamental

right, but rather an "evolved" right. In

Roe v Wade, 410 U.S. 113, 163 (1973) this

right was described as evolving from advan-

ces in medical technology by which abortion

may now be safer than childbirth. According

to this reasoning, as technological changes

reveal abortion to be more or less danger-

ous, the State's “compelling” interests

increase or decrease proportionately.

Therefore, since abortion involves risks

even in the first trimester, some of which

were not recognized prior to Roe, the State

has a compelling interest in regulating

abortion throughout pregnancy.

The fundamental issue before this Court

is to identify the proper balance between

the rights cf individuals and of the State.

Amici will show that the right of States to

regulate birth control technologies

includes the right to regulate abortion.

Yet at the same time, Amici recognizes that

the State's right to regulate these tech-

nologies, is properly limited by the

inherent and natural right of individuals

to conceive and bear children.

Such a balance of natural rights versus

regulation of technology can and should be

enunciated, especially now when individual

rights are being threatened as never

before. In the place of the present con-

fusion surrounding "privacy" rights, Amici

offers the Court a clear rationale and

timeless standard for protecting both the

natural reproductive rights of individuals

and the right of State to regulate

technologies and commerce.

ner ee =

ARGUMENT

I. PARENTAL NOTIFICATION REQUIREMENTS

SERVE TO PROTECT MINORS FROM BEING COERCED

INTO UNWANTED ABORTIONS.

Many women and minors face coercive

pressure to undergo unwanted abortions of

desired pregnancies.’ Furthermore, it has

been shown that 65 to 70 percent of women

: Between 30 and 60 percent of women

having abortions have a positive desire to

carry the pregnancy to term and keep their

babies. [Zimmerman,110-12,120; Reardon,

12,51] This desire to keep the child is

overcome only by external pressures. [In 4a

study of over 250 womex who had suffered

physical or psychological aftereffects from

abortion, 55 percent felt "forced" into an

unwanted abortion by others and 64 percent

felt "forced" by their circumstances. Only

33 percent felt free to make their own

decision, and 61 percent felt their lives

and decisions at that time were very much

"controlled by others." [Reardon, 10-11)

Pro-choice researchers have similarly found

that over two-thirds of the women made

statements suggesting they had "no choice”

or were "forced" to have an abortion. [Zi-

mmerman, 193] Testimony from minors who

were coerced into abortion are included in

the appendices to this brief.

seeking abortions have a negative moral

view of abortion.’

Coercion and moral ambivalence are the

primary factors which determine whether or

not a woman is likely to suffer long-term

mental health problems as a result of her

abortion. Women are at high risk of severe

post-abortion psychiatric reactions if: 1)

they feel coerced by others, either overtly

or covertly, into choosing an abortion; 2)

they feel "forced" by circumstances into

aborting a wanted pregnancy; 3) they have

ambivalent feelings about the moral

rightness of their abortion; or 4) if they

have unresolved feelings of desire for

their pregnancies or their babies.’

; Zimmerman, 69; Reardon, 13

‘ Friedman,et.al.,"The Decision-Making

Process and the Outcome of Therapeutic

Abortion", Am. J. Ps chiatry, v.131, 1332-

1337 (1974) (hereinafter Friedman); Senay

"Therapeutic Abortion: Clinical Aspects"

23 Archives of Gen. Psych., 408-415,

(1970); Lazarus, "Psychiatric Sequelae of

Legalized Elective First Trimester

Abortion", 4 J. of Psychosomatic Ob&Gyn,

141-150 (1985); Pare and Raven, "Follow-up

of Patients Referred for Termination of

Pregnancy",The Lancet, v.1, 635-638 (1970);

Reardon, 131-38.

If any of these conditions exist, the

woman is likely to experience her abortion

as in conflict with her maternal instincts

and moral self-image. For these women,

abortion is not a glorious right by which

they are able to reclaim control over their

lives; instead it is an “evil necessity" to

which they are forced to submit because

they "have no choice." Rather than affirm-

ing their values, these women feel forced

to compromise and betray their values. The

resulting blow to a woman's self-image can

result in: suicidal behavior, drug and

alcohol abuse, radical personality changes,

loss of interest in previously enjoyed

activities, emotional breakdown, memory

loss, eating disorders, sexual dysfunction,

psychosomatic illness, emotional numbness,

sleep disorders, increased tendency toward

violence, child abuse, difficulty bonding

with later children, and more. The summary

of a detailed survey of 100 high-risk

abortion patients, entitled "Post-Abortion

Reactions of High Risk Abortion Patients,"

has been lodged with this brief.

It is noteworthy that the criteria for

high risk abortion patients - feelings of

being under pressure to abort and feelings

of ambivalence - are typical of women who

abort for reasons of physical health. psy-

chological health, fetal malformation, and

rape or incest. Indeed, when viewed within

the framework of high-risk criteria, all of

the categories typically associated with

"hard case" abortions are actually contra-

indications for abortion. While there are

Sixty to eighty percent of all women

having illegal abortions can be classifiec

as "soft-core" aborters who choose abortion

only to please others, or because they feel

} For these

at a loss for other options.

women, abortion is at best a marginal

choice, at worst a choice which is

literally forced upon them. Very few of

these women would freely choose abortion in

many reasons for this, a simplified explan-

ation is that the harder the circumstances

which a pregnant woman faces, the more

likely she is to feel "forced" into a deci-

sion which is not freely her own. See Ray-

burn and Laferia,"Mid-Gestational Abortion

for Medical or Genetic Indications",

Clinics in Ob&Gyn. (1986), vol.13,no.1.,

Heath, "Psychiatry and Abortion", 16 Canad-

ian Psych. Assoc. Journal, 55-63 (1971);

Blumberg, et.al. "The Psychological Sequel-

ae of Abortions Performed for a Genetic

Indication", 122:7 Am. J. Ob&Gyn. (1975),

Mahkorn, “Pregnancy and Sexual Assault",

and Maloof "The Consequences of Incest:

Giving and Taking Life", The Psychological

spects of Abortion, Mall and Watts, eds.

1979); Reardon, 161-218; Friedman, 1332-

1337.

> Reardon, 131-134,297-300.

rae

ee te atm lls ~ ally

ON ee OD

the presence of emotional, social, or fin-

ancial support. Very few would have had an

illegal abortion under the protection of

pre-Roe laws.°

Thus, one effect of legalizing abortion

has simply been to make it easier to pres-

sure women into unwanted abortions.

Parents are frequently the only ones who

can help to alleviate these pressures.’

Ironically, nothing prevents parents

from forcing their daughters to have

abortions. Such coercion is in fact, rela-

6 Only 6 to 20 percent of the women

having abortions would have been willing to

seek an illegal abortion. Osofsky, eds.,

The Abortion Experience, 196-98 (1973);

Reardon, 13

} In the Reardon sample of 252 high-

risk women, 83 percent stated they would

have kept the pregnancy if they had been

encouraged to do so by one or more other

persons, and 84 percent would have carried

to term under "better circumstances." To

the degree that parents may provide the

encouragement or circumstantial aid which a

minor needs and wants, young girls can be

helped to avoid the "evil necessity" of an

unwanted abortion. [Reardon, 10-11]

tively common. [Reardon, 11] There are

even documented cases where the parent with

custody of a child forced an abortion on

the girl which the non-custodial parent

would have prevented. [Reardon, 212-218]

Parents who would take a pro-abortion

stance almost inevitably get the opportun-

ity to force their will upon their child,

since a pregnancy cannot be hidden forever.

Yet parents who would support and encourage

a daughter to keep her child are often

denied any input.

In short, without parental notification,

present law acts as a one way funnel which

allows parents to pressure their daughters

into abortions, yet prevents those parents

who would support childbirth from helping

their daughters avoid unwanted abortions.

II. PARENTAL NOTIFICATION REQUIREMENTS

PROVIDE HELP TO REDUCE OR PREVENT THE

HARMFUL AFTEREFFECTS OF ABORTION IN MINORS.

Roe recognized that women do not have an

absolute right to abortion, but rather that

it is "primarily a medical decision, and

basic responsibility for it must rest with

the physician." (at 166, also 163) Yet

parental involvement is equally important,

and perhaps even more important, since the

attending physician may have little or no

knowledge of the girl's medical history.

Worse yet, the abortion providers may have -

a blatant disregard for a young girl's

medical history.’

‘ In 1986, Mrs. Wallis B. Renner filed

a $1 million lawsuit against Planned Paren-

thood of Central Indiana claiming they

risked the life of her 16-year-old daughter

in providing her with an abortion despite

two court orders blocking the abortion.

Mrs. Renner had obtained the court orders

because her daughter had certain abnormali-

ties of the cervix which her own doctor

testified would cause serious physical

problems or even death if the girl under-

went an abortion. The Planned Parenthood

In addition parents have an obvious need

to know when their child has been through

an abortion so that they can provide spe-

cial care if and when it becomes necessary.

The fact that a minor might be too ashamed

to tell her parents about an abortion is

highly suggestive that she has conflicting

feelings about her decision, and thus is

more likely to be a high-risk patient.

Furthermore, to allow the abortion to

remain hidden only increases the pressure

on the daughter to repress and hide her

feelings which, in turn, may aggravate her

long-term reaction.

counselors even denied Mrs. Renner the

right to ensure that the out-of-state abor-

tionist was informed of her daughter's

zondition. Following the abortion, Mrs.

Renner's daughter suffered severe cramps

for which she required treatment. Bond,

"Mother Files $1 Million Lawsuit," National

Right to Life News, October 23, 1986, pé.

III. ROE DID NOT GRANT WOMEN A FUNDAMENTAL

RIGHT TO ABORTION, BUT FOUND THIS NEW RIGHT

AS EVOLVING FROM THE DEVELOPMENT OF NEW

TECHNOLOGIES WHICH MAY HAVE MADE ABORTION

"SAFER THAN CHILDBIRTH."

The challenge against State notification

laws hinges on the contention that such |

laws impose undue hardship on a minor's

exercise of her fundamental rights. But

access to abortion technology is clearly

not a fundamental right of women, as can be

seen by the fact that Roe assigns

responsibility and control over abortion

primarily to the attending physician. Roe,

410 U.S. at 163 and 166.

But if the consultation and consent of a

physician can be required in the making of

this health decision, why not the consulta-

tion and consent of parents? Why not the

consultation and consent of the State?

Parents and the State have an interest in

safeguarding the health of women which is

14 |

equal to or greater than that of individual

physicians.

The following arguments will examine the

State's compelling interest in safeguarding

the health of women through parental

notification or direct regulation of abor-

tion technology.

A. ABORTION TECHNOLOGIES INVOLVE HEALTH

RISKS WHICH WERE NOT KNOWN, WERE NOT UNDER-

STOOD, OR WERE OTHERWISE IGNORED IN ROE V.

WADE.

While Roe considered only the mortality

rate of abortion in its determination that

abortion is "safe," new evidence suggests

that there are unforseen psychological and

reproductive complications resulting from

abortion. These health risks have been

amply documented for the Court in other

briefs and the medical literature and will

not be elaborated on here.

Notably, even proponents of abortion do

not claim that it is risk free.’ Indeed,

they oppose notification requirements on

the grounds that a delay in procuring an

abortion can result in a statistically

significant increased mortality risk.

Hodgson v Minnesota, 648 F.Supp. 756, 764-

65 (1988). But if such statistical risks

are compelling enough to warrant judicial

action, then certainly the State can also

find in the same statistical risks compell-

ing reasons for regulating abortion.

Abortion's defenders do not deny its

risks so much as downplay them, arguing

’ In fact, the undesirable nature of

abortion is universally acknowledged.

Abortion providers go to great lengths to

encourage sterilization or improved birth

control practices for patients, and fre-

quently express disdain toward women who

come back seeking repeat abortions.

{[Francke, The Ambivalence of Abortion, 182

(1978)] If there is nothing wrong with

abortion, why do abortion supporters advo-

cate its avoidance? If abortion is "safe,"

why not promote its use in place of the

Pill which has numerous health risks.

that the damages caused by 1.5 million

abortions per year are "acceptable" or

"minimal." But such evaluations are clear-

ly value judgments. If the State can be

concerned about unintended deaths from

abortion, why not subsequent miscarriages

or ectopic pregnancies? Who is to decide

what the "acceptable" limits of abortion

induced depression, guilt, suicide, or

child abuse are to be?

If the Court continues to reserve to

itself the right to judge the relative

risks of abortion, will it require that the

Surgeon General bring future research into

the aftereffects of abortion before the

Court to be ratified and approved? Or is

all future research irrelevant once the

Court has declared this technology to be

safe? Obviously not.

Given the uncertainty surrounding the

impact of all technologies, the State's

compelling interests may change with time.

The State must be free to adjust regulation

of technology in accordance with such new

information and needs.

B. THE STATE'S TWO-FOLD INTEREST IN

PROTECTING THE HEALTH OF WOMEN AND

PROTECTING THE LIFE OF HUMAN EMBRYOS

MITIGATES AGAINST ANY ABSOLUTE RIGHT TO

ABORTION TECHNOLOGY.

Since abortion has health risks, even

during the first trimester, the State may

find in these risks a compelling interest

to protect women from these risks

throughout pregnancy.”

10 The State's right to regulate this

technology is especially important since

there is no guarantee that women consider-

ing abortions will be adequately and ac-

curately informed of the health risks or

will be in the proper emotional state to

rationally weigh these risks. The record

of abortion providers withholding informa-

tion about the risks of abortion for fear

of discouraging their client from "the

right choice" has been well documented by

numerous sources. For a review of the

literature see Reardon, 232-271.

IV. ROE DID NOT RECOGNIZE AN ABSOLUTE

RIGHT OF ABORTION, BUT RATHER FOUND THIS

NEW "RIGHT" AS HAVING EVOLVED FROM

TECHNOLOGICAL ADVANCES.

The rationale for the abortion right

enumerated in Roe rests entirely on the

disputed "fact" that advances in medical

technology make "abortion in early pregnan-

cy...relatively safe"(at 149) and that to-

day "mortality in abortion may be less than

mortality in normal childbirth." (at 163).

But how can a "fundamental" human right

come into existence only when abortion

appears to be safer than childbirth? If it

is a fundamental right, then it is a right

which exists regardless of its dangers. By

what power can any fundamental right be

expanded or contracted merely by changes in

medical technology?

The answer is that abortion is not a

fundamental right. Rather, it is an

evolved right which rests upon advances in

medical science.

Because it was dealing with an evolved

right, the Roe majority erred in thinking

that the medical “facts" which it found to

be compelling in 1973 would not change with

the acquisition of new knowledge, new tech-.

nologies, and new social values in 1990 and

beyond. If at one moment in history the

State's "legitimate interests in protecting

both the pregnant woman's health and the

potentiality of human life" (Roe, 410 U.S.

at 115,149) can contract, then at another

point in history they can expand. If, for

example, new technologies make unsuspected

risks more apparent, the State's rights may

expand. Similarly, kmowledge of fetal

development, new theories of "meaningful

life," and advamces in fetal medicine and

artificial wombs may also change the Stat-

es “compelling” interests over time.!!

V. THE STATE HAS A LEGITIMATE INTEREST IN

REGULATING BIRTH CONTROL TECHNOLOGIES SUCH

AS ABORTION.

A.. THE MEDICAL COMMUNITY IS ALREADY

LEGITIMATELY REGULATED BY GOVERNMENT

BODIES, AND THIS REGULATION INCLUDES

REGULATION OF BIRTH CONTROL TECHNOLOGIES.

B. THE RIGHT OF THE STATE TO CONTROL BIRTH

CONTROL TECHNOLOGIES IS ALREADY ESTABLISHED

IN CONSTITUTIONAL LAW.

i In its eagerness to grant physic-

ians the right to perform "safe" abortions,

which many States were already recognizing,

the Roe majority's fundamental error was in

granting itself the authority to restrict

and define those interests which the State

could find to be “compelling.” If the

State is not free to be guided by its own

judgments of what is compelling and what it

not, then the State is not free at all.

In Griswold v. Connecticut 381 U.S. 479

(1964), at 485, the Court recognized that

the State could regulate the manufacture,

sale, and distribution of contraceptives in

the same way that it is empowered to

regulate any other trade or commerce.”

As emphasized in Griswold, the failure

of the Connecticut law was not that its

goals, or even its means were illegitimate,

but rather that its means were incongruous

with other laws. To allow the manufacture

and distribution of contraceptives, but to

ban their "use" is unreasonable. Such a

12 In his dissent in Poe v. Ullman,

367 U.S. 497 (1960), which anticipated his

majority opinion in Griswold, Justice

Douglas recognizes that States would have a

right to ban completely the sale of con-

traceptives through drug stores, or even

ban the manufacture of contraceptives be-

cause: "Where either the sale or the manu-

facture is put under regulation, the stric-

tures are on business and commercial deal-

ings that have had a long history with the

police power of the States. The present

law, however, deals not with sale, not with

manufacture, but with use." (at 519).

means, in the absence of less intrusive

controls, “sweep unnecessarily broadly and

thereby invade the area of protected

freedom." (at 485) The necessity of prov-

ing the use, not just possession, of

contraceptives to enforce this law clearly

would involve severe invasion of marital

privacy. Nonetheless, as Griswold allows,

the State does have the right to regulate

contraceptives by other means.

Similarly, in Eisenstadt v Baird, 405

U.S. 438, 443,454 (1971) and White concurr-

ing, at 463, the plurality allows for the

State's legitimate interests in regulating

contraceptives for the purposes of

protecting health or discouraging extra-

marital relations. In its recognition of

these interests, Eisenstadt supports the

present arguments of Amici.

But the Eisenstadt decision warrants

further discussion because while the Court

therein acknowledged the State's right to

regulate birth control technologies, in

fact the plurality did not allow itself to

be governed this principle. Instead the

Court gave itself the authority to strike

down the Massachusetts law on the grounds

that it doubted the sincerity of the Mas-

sachusetts legislators' goals.!

Specifically, the Court questioned the

sincerity of the Massachusetts’ legislation

3 Though the State sincerely claims

its legislation is intended to be a health

measure, the majority rejects that claim.

(at 452) The State claims further that its

legislation is intended to deter immoral-

ity, and the Court finds this claim to be

absurd. (at 449) When the Court thus

judges the sincerity of duly elected legis-

lators, the Court overreaches itself. Tf

legislators are insincere and oppressive in

their legislative efforts, they will be

forced to answer to the people when seeking

reelection -- especially if their insin-

cerity is leading them to oppress the

people's rights. But if their reasoning,

even if flawed, represents the opinion of

the majority of citizens, than the legisla-

ture's rationale is a reasonable represen-

tation of the people's will. Similarly,

whether or not a State's legislation is

effective at reaching difficult goals is an

issue for the legislatures to decide, not

the judiciary.

regulating distribution of contraception on

moral grounds because the State allowed for

the "exception" of unregulated distribution

of condoms.(at 448,449) But this "except-

ion" existed because the State chose to

classify condoms as being primarily a pro-

phylactic with a secondary effect as a con-

traceptive. For logical reasons the State

therefore chose to regulate prophylactics

differently than other contraceptives."

Given the present AIDS crisis, wh'ch

Surgeon General Koop assures us can be

alleviated by the promotion of condoms, the

Eisenstadt decision appears in hindsight to

have dismantled an important public health

lf and even if condoms should be clas-

sified as a contraceptive, the simple fact

that a State prefers to encourage the use

of one contraceptive method over another,

does not provide constitutional grounds for

preventing States from regulating birth

control technologies which it does not

favor.

policy which gave preferable treatment to

prophylactic birth control devices.

The existence of "exceptions" in any law

is not proof of a legislature's

insincerity, much less its unconstitution-

ality. If the laws appear to be filled

with "exceptions", such is the natural

result of legislatures working to achieve

‘compromises which reflect both charity and

justice, freedom and control. Though the

law in question was imperfect and prone to

"exceptions," such compromises are the

backbone of American legislation.”

The Eisenstadt plurality further ruled

that States could not limit distribution of

contraceptives to physicians simply because

the Court did not believe that protecting

the health and ensuring accurate contracep-

15 When the judiciary sets itself up

to judge the sincerity of legislator's

motives and the logical purity of their

laws, it is doing nothing less than engag-

ing in judicial activism. (see Griswold,

381 U.S., Black dissenting, 520-524)

tive advice was the true intention of the

legislature. (at 450-451) But even if one

ignores this disparagement of the Massachu-

setts legislature's integrity, this argu-

ment fails because it takes a very narrow

view of the State's health concerns. Birth

control technologies involve a broad range

of health and social issues, including the

risk of unplanned pregnancies.

Specifically, the Eisenstadt majority

forbad State regulation of the distribution

of contraceptives which have no health

risks. (at 451, White concurring, 464) But

spermicidal agents, the contraceptive at

issue in Eisenstadt, are now known to carry

the risk of causing genital irritation,

infection, serious fetal malformations, and

miscarriage.’

16 Jick, "Vaginal Spermicides and

Congenital Disorders" 245 J.A.M.A. 1329-32

(1981). In Wells v Ortho Pharmaceutical

Co., 615 F.Supp. 262 (N.D. Ga. 1985),

plaintiffs were awarded $5.6 million in

compensatory damages for birth defects

Since the health effects of any technol-

ogy can remain undetected for many years,

it is imprudent for the Court to ever

classify any contraceptive as "safe" merely

on the evidence available at one point in

time. Determination of when a contracep-~-

tive has been sufficiently proven to be

"risk-free" is properly left to the

individual States.

In addition spermicides, like many other

contraceptive devices, have a high failure

rate in preventing conception. Therefore,

State regulation of those who distribute

and counsel others in the use of birth con-

trol technologies is clearly reasonable

when the State's "health" interests are

broadly construed to include concern for

unplanned pregnancies.

resulting from spermicide use.

C. STATES MUST BE FREE TO ADJUST

REGULATION OF BIRTH CONTROL TECHNOLOGIES TO

MEET CHANGING CONDITIONS.

Reproductive control decisions have a

number of personal and social implications.

For example, during a time of a great

venereal disease threat such as AIDS, it is

conceivable that the State may seek to

promote prophylactic contraceptives and

discourage other methods. At other times,

the State may wish to ban contraceptives

which are less effective or have greater

risks than other alternatives.!’

Judicial intervention in the regulation

of birth control technologies threatens the

ability of the States to respond to chang-

ing social and public health needs. If at

times legislation falls behind current

i Such was the case when the FDA

forced the removal of "sequential pills"

from the market because, according to cur-

rent data, combination pills are more ef-

fective and have fewer risks. FDA Consumer

25 (April 1976).

rh .

knowledge of what is "safe" or "effective,"

public opinion will soon force change. The

judiciary should restrain its desire to

intervene as a super-legislature.

In the cases of Eisenstadt and Roe, the

Court forced changes upon the States which

the legislatures were already freely

considering. The result of such judicial

activism is the establishment of arbitrary

and confusing law, an invitation to dupli-

cate such activism in the lower courts, and

heightened tension between the courts and

the legislatures. Let legislators legis-

late, and eventually they will get it right

on their own.

D. STATE REGULATION OF BIRTH CONTROL

TECHNOLOGIES IS ESPECIALLY JUSTIFIED

BECAUSE PHYSICIANS, FAMILY PLANNING AGEN-

CIES AND DRUG MANUFACTURERS HAVE A FINAN-

CIAL INTEREST IN PROMOTING BIRTH CONTROL

TECHNOLOGIES WHICH MAY HAVE DETRIMENTAL

SIDE-EFFECTS OR MAY BE LESS THAN FULLY

EFFECTIVE.

The birth control and abortion indus~

tries in America encompass 4 multi-billion

dollar market plus hundreds of millions in

gove: ment subsidies. Drug manufacturers,

physicians, and family planning agencies

all enjoy a share in these profits, and all

of these parties have a financial interest

in these technologies.

Part of this promotion includes

defending their technologies from charges

of being unsafe. Thus, like the tobacco

industry which publishes a study exonerat-

ing cigarettes for every study which

condemns them, so the drug companies

publish a study "proving" their contracep-

tives are "safe" for every study which

suggests the opposite. The controversies

surrounding the health risks of the IUD and

the Pill, for example, have gone on for

decades and are still unresolved.

Thus, while evidence exists to defend or

condemn any birth control device, those who

sell these products will tend to believe

and promote the evidence which supports

their interests. If the State considers

such a one-sided assessment of risks to be

an exploitation of the people, it may

properly regulate these technologies

according to its own assessment of risks

and effectiveness.

E. STATE REGULATION OF BIRTH CONTROL

TECHNOLOGIES IS ESPECIALLY JUSTIFIED

BECAUSE MANY PHYSICIANS, FAMILY PLANNING

AGENCIES AND DRUG MANUFACTURERS ARE

IDEOLOGICALLY BOUND TO REDUCING BIRTHS

AMONG SOME CLASSES OF WOMEN REGARDLESS OF

THE DETRIMENTAL SIDE-EFFECTS WHICH THEIR

TECHNOLOGIES WILL IMPOSE ON WOMEN.

The natural reproductive rights of

persons are being threatened. But contrary

to the rhetoric surrounding the abortion

issue, the rights of individuals are

threatened not by anti-abortionists, but by

pro-abortionists.

Many of the persons and organizations

who advocate abortion under the banner of

"reproductive freedom" are in fact less

concerned about the reproductive freedom of

individuals than about the control of

individuals' reproduction. These popula-

tion controllers and social engineers real-

ize that in order to achieve their eventual

goal of forced reproductive control for the

"common good" they must first expand

individual "rights" to include the tools

they will need. After all, if abortion is

accepted for the individual good of women,

why not require forced abortion for the

“common good?"

A good case can be made that it is

population controllers who initiated the

movement to legalize abortion, financed the

movement, promoted abortion, and provided

abortions, and have erected social struc-

tures to pressure women, especially among

the poor, into having unwanted abortions.

These groups and individuals have exploited

women's rights rhetoric to advance their

own goals at the expense of women's rights

and with the intent of further exploitation

of women.’

The examples of "pro-choice" advocates

supporting coercive population control,

including forced abortion, are numerous.

For example, Lawrence Lader, founder of the

National Abortion Rights Coalition, and

author of the pro-abortion tract Abortion

(1966) which cited as an authority eight

18 While this argument is only tangen-

tially related to the issues at hand, ample

evidence can be found in the J. Kasun, The

War Against Population: The Economics and

Ideology of Population Control, (1988)

(hereinafter Kasun); A. Chase, The Legacy

of Malthus: The Social Costs of the New

Scientific Racism (1977) (hereinafter

Chase), J. Simon, The Ultimate Resource

(1981) (hereinafter Simon); G. Greer, Sex

and Destiny (1984) (hereinafter Greer).

times in Roe v. Wade, was instrumental in

convincing N.O.W. to adopt a pro-choice

position because of the symbolic importance

of the "right of women to control their own

bodies."'? But while Lader defends a "pro-

choice" position on one hand, +e is also a

radical proponent of coercive population

control, arguing that forced population

control, including forced abortion, is

"imperative," both at home and abroad,

since "We must accept the principle that

having a child is no longer a matter of

private will, but of public welfare."

{[Lader, 218-222. ]

In a review of the Chinese program of

forced population control which includes

forced abortion, forced sterilization,

forced contraceptive implants, and infan-

ticide of handicapped newborns and undesir-

12 Lader, Abortion II: Making the Re-

volution, 36-40 (1973).

able female offspring, Lader has only the

highest praise.” Similarly, N.O.W. presi-

dent Molly Yard has defended the Chinese

anti-choice policy, saying: "I consider the

Chinese governments policy among the most

intelligent in the world...a one-child per

family policy." And the international

arm of Planned Parenthood has willingly

sacrificed millions of dollars of U.S.

government funding rather than stop provid-

ing personnel and funding to support the

coercive population control in China.

Planned Parenthood has frequently sup-

ported coercive population control. For

example, at the White House Conference on

Hunger in 1969, Dr. Charles U. Lowe of

H.E.W. and Dr. Alan Guttmacher of Planned

Parenthood urged a national policy of (1)

20 Lawrence Lader, "The China

Solution," Science Digest, 91:4, April

1983, 78.

21 Transcript of "Oprah Winfrey Show,"

July 6, 1989.

mandatory abortion for any unmarried girl

found pregnant within the first three

months of pregnancy, and (2) mandatory

sterilization of any such girl giving birth

out of wedlock for a second time.” planned

Parenthood president Faye Whattleton has

likewise promoted an us~egainet~thes. rich-

versus-poor mentality as motivation for

population control at any price.”

22 E. Craven, "Abortion, Poverty and

Black Genocide: Gifts to the Poor?", Abor-

tion and Social Justice, eds. Hilgers, 235

(1972). Similarly, Frederick Jaffe, Vice

President of the Planned Parenthood/World

Population and head of research for Alan

Guttmacher, has argued for government popu-

lation programs which would require "pe-

rmits for children", "compulsory steriliza-

tion of all who have two children", "compu-

lsory abortion", “encourage homosexuality",

and "fertility control agents in water

supply." Family Planning Perspectives,

Special supplement-U.S. Population Growth

and Family Planning: A Review of the Liter-

ature, vol. 2, no. 4, October 1970,

ff.p.24.

3 Ina fundraising letter [Simon,

327] Whattleton inflames the fears of true-

blue Americans against the rising expect-

ations of Third World peoples, writing:

Thai women and millions of other women

like them in India, China, Africa and

a a ee

Pro-choice sources also reveal that some

abortionists openly display sexist and even

misogynous attitudes toward women ;“! they

throughout the developing nations con-

trol our destiny. Their decisions--

decisions of hundreds of millions of

young women--abou eir family's size-

-control your future more surely, more

relentlessly than the oil crisis or the

nuclear arms race.

. unless ulation growth is harness-

ed and slowed to meet the limited re-

sources and human services of these

nations, development will be shattered.

Chaos, mass Tantne and war will continue

to increase. We will be affected for

better or worse.

The great tinderbox of revolution and

international anarchy is rising expecta-

tions of the world's masses coupled with

unrestrained population growth. Starva-

tion, revolution and violent repression

will fill our headlines unless human

fertility is reduced... (Emphasis her

own. )

In short, her message is that if we do not

control them, they will breed themselves

into a position of power over us; preserva-

tion of America's dominance depends on

aborting, sterilizing, and contracepting

the Third World at any price.

24 Denes, In Necessity and Sorrow

227,79,134 (1976); Nathanson, Aborting

America, 110 (1979); Zeckman and Warrick,

"Abortion Profiteers" Special Reprint,

Chicago Sun-Times, 11-15, (1978); Reardon

p266-

provide abortions less: to help the women

than to prevent these "unfit" persons from

raising "unfit" children.® Such attitudes

are pervasive, throughout the medical and

population control industry.”°

Persons or organizations who advocate

coercion, privately or publicly, would

certainly not hesitate to conceal or under-

25 Dr. Edward Allred, owner of the

largest chain of abortion clinics in Cali-

fornia is a staunch advocate of abortion as

a method of controlling the population of

minority groups: "Population control is too

important to be stopped by some right-wing

pro-life types. Take the new influx of

Hispanic immigrants. Their lack of respect

of democracy and social order is frighten-

ing. I hope I can do something to stem

that tide; I'd set up a clinic in Mexico

for free if I could.... When a sullen black

woman can decide to have a baby and get

welfare and food stamps and become a burden

to all of us it's time to stop." "Doctor's

Abortion Business Is Lucrative", San Diego

Union, Oct. 12,, 1980 Bl:1l.

26 For an in depth analysis of the

population controller's shocking disregard

for the health of Third World women, see

noted feminist Germaine Greer's, Sex and

Destiny (1984). See also Simon, Chase, and

Kasun.

Ss Me Aen

state the risks of abortion or birth

control, or even experiment on women with

insufficiently tested technologies.’

ie For example, at a 1962 conference

sponsored by the Population Council, the

IUD was being promoted as the panacea for

controlling the world's "overpopulation."

Arguing that the risks of IUD use were

acceptable, Dr. J. Robert Willson, of the

University of Michigan School of Medicine

defended its wide-spread promotion saying:

"If we look at this from an overall, long-

27 In 1970, Planned Parenthood Presi-

dent, Dr. Alan Guttmacher testified before

a Senate subcommittee that the health dan-

gers of the Pill are secondary to the so-

cial "dangers" of pregnancy and overpopula-

tion.- "Expert Decries 'Alarm' on Birth

Control Pill," New York Times, Feb. 26,

1970, 50:3. Similarly, Dr. Ravenholt, head

of AID's population control programs, de-

fended the widespread promotion of Depo-

Provera, despite initial negative results,

on grounds that the ill-effects could not

be fully ascertained until tested on tens

of millions of women. Ehrenreich, et.al.,

"The Charge: Genocide," Mother Jones, Nov-

ember 1979, p30.

range view, perhaps the individual patient

is expendable in the general scheme of

things, particularly if the infection she

acquires is sterilizing but not lethal."

These "expendable" patients are, of course,

the "non-productive" welfare rectptente,

"irresponsible" teenagers, and the

"ignorant masses" of the world's under-

developed nations.”

Dr. Robert S. Mendelsohn has criticized

the medical community for participating in

the social engineering program of popula-

tion controllers at the expense of women's

health:

...some of the worse examples of callous

experimentation on unsuspecting women

involve new forms of birth control...It

is clear to me that present-day

physicians will do almost anything to

28 R. Mendelsohn, Male Practice: How

Doctors Manipulate Women 120 (1981) (here-

inafter Mendelsohn).

A ee AE es I a a OE tee A

prevent women from having babies, par-

ticularly if they are black or brown,

uneducated, or poor. They have been so

brainwashed by the population control

zealots that no price is too high to pay

to lower the birth rate among welfare

mothers or in the underdeveloped

countries of the world. [{Mendelsohn,126]

Population control zealots have announc-

ed their determination to advance their

goals without regard to local customs,

religious beliefs, or national sovereignty.

According to Planned Parenthood policy,

population control agencies in America and

abroad "should not use the absence of law

or the existence of an unfavorable law as

an excuse for inaction [in promoting birth

control and abortion technologies]; action

outside of the law, and even in violation

of it, is a part of the process of

stimulating change. "”?

If population controllers are willing to

promote their agenda in violation of public

law, certainly they are willing to promote

it in violation of individual rights.

‘3 The Human Right to Famil Planning,

International Planned Parenthood Federa-

tion, London, 20-21 (1984). Accordingly,

International Planned Parenthood has es-

tablished a policy of promoting and train-

ing illegal abortions in developing coun-

tries which forbid abortion. [Kasun,188]

Similarly, in the U.S., pro-abortion groups

such as the Federation of Feminist Women's

Health Centers have vowed to train illegal

abortionist and teach women self-abortion

techniques, the most dangerous kind of

abortion, if abortion becomes illegal.

("Group says it will teach do-it-yourself

abortion technique," State Journal-

a4 Clearly, these abortion proponents

are willing to encourage dangerous

abortions even at the risk of killing

women; indeed if such deaths occur, they

will use such deaths to prove the need for

"safe and legal abortions" as they have in

the past. But in fact, the legality of

abortion has never guaranteed its safety,

in terms of morbidity or mortality. See the

Feminists for Life Brief in Webster v.

Reproductive Health Services.

While the sincerity of population con-

trollers beliefs are not at issue here, it

is noteworthy that the myth of overpopula-

tion has been thoroughly exploded and the

overwhelming benefits of population growth

are only now being understood.”! For

over seventy years eugenicists have been

using the threat of imminent national and

worldwide disaster as an excuse to inter-

fere with the reproductive lives of people,

both at home and abroad, who are either

poor, illiterate, or disenfranchised. When

30 See authorities Simon, Kasun,

Chase. Even population controllers and

eugenicists admit that the arguments

against their theory of limited world

resources and overpopulation are difficult

to refute, but insist merely that their

approach of population control is a safer

bet. [Hardin, "The Tragedy of the Commons,"

Science, December, 1968, 1243-1248. }

Hardin, incidentally, was one of the earl-

iest proponents of abortion as a “woman's

right to control her own body," yet he too

supports coercive population control pro-

grams, especially of "feeble-minded"

groups, because "Injustice is preferable to

total ruin." ibid.

boiled down to its essence, their overpopu-

lation theory is predicated on 1) the fact

that on average poor people (and nations)

always have more children than rich (and

nations), and 2) the fear that the children

of the poor pose a threat to the wealth and

security of the rich. 31

31 See Authorities Chase, Greer,

Kasun, Hardin. For many wealthy individu-

als and nations, population control has

become a substitute for charity. According

to one Planned Parenthood supporter, "I'm

hooked on this charity...It prevents the

need for other charities." (New York Times,

Feb. 4, 1978, p20.) Indeed, Planned Par-

enthood founder, Margaret Sanger abhorred

supportive charities for the poor,

especially pre-natal medical care, because

such charities "perpetuate constantly in-

creasing numbers of defectives, delinquents

and dependents. My criticism, therefore,

is not directed at the ‘failure’ of philan-

thropy, but rather at its success." Sanger,

The Pivot of Civilization 105-123 (1922).

For many individuals and governments,

advocacy of population control of the poor

has supplanted truly progressive social

legislation. [Craven, 223-242] It is not

poor women who have lobbied the government

for abortion and birth control, it is the

rich who iobby for it for them. ibid For

most poor women, it far easier to get birth

control pills than aspirin, easier to get

an abortion than dental care. This fact of

discrimination is not lost on minorities.

Vi. THREATS TO TRUE REPRODUCTIVE FREEDOM

FROM PRIVATE INTERESTS AND THE STATE RE-

QUIRE THAT THE INDIVIDUAL'S NATURAL RIGHT

TO REPRODUCTIVE FREEDOM MUST BE CLARIFIED

AND STRENGTHENED.

- While Amici asks the Court to explicitly

confirm the State's right to regulate birth

control technologies, such as abortion,

Amici also recognizes a need to clarify and

strengthen the legitimate and inherent

reproductive rights cof all persons.

As noted above, population controllers

pose a real threat to reproductive freedom.

According to Mrs. Laura Anderson, a black

social worker: "The current issue of popu-

lation, in my mind, displaces an emerging

American conscience for human dignity and

eradication of poverty and hunger....In my

opinion, when we attempt to solve problems

by getting rid of people or potential

people who will have these problem, like

welfare recipients and those who will be

poor or hungry, that's genocide. And I

join with many people in making this charge

against the move toward population con-

trol." [Rosenblum, "Coercion in Libera-

tion's Guise," Abortion and Social Justice,

ed. Hilgers, 154 (1972).]

The State in turn may also pose such a

threat. Federally funded family planning

programs have periodically come under

attack from recipients who felt coerced

into "voluntary" sterilizations or

"elective" abortions.

In Buck v. Bell, 274 U.S. 200,207 (1927)

the Court explicitly allowed the State to

force sterilization on any person con-

sidered a "potential parent of socially

inadequate offspring" because it is “better

for all the world, if instead of waiting to

22 "(T)here is uncontroverted evidence

in the record that...poor people have been

improperly coerced into accepting sterili-

zation..." U.S. District Court of D.C.,

Judge Gesell, Relf V. Weinberger, civil

actions Nos. 73-1557,74-243, March 1974.)

See also Craven, 263; Reardon 272-278; and

Chase, 16-19. In a study of four Indian

Health Service hospitals between 1973 and

1976, the GAO found that 3406 steriliza-

tions were performed without the patient's

informed consent as a result of a general

policy to restrict population growth of

Indians. Miller, "Native American Peoples

on Trail of Tears Once More," America, 9

December 1978, 423.

ne el

execute degenerate offspring for crime, or

let them starve for their imbecility,

society can prevent those who are manifest-

ly unfit from continuing their kind. "3

The threat of government control of

reproduction even extends outside our

33 Two years prior to Buck v. Bell, an

unknown European foreshadowed Holmes’ deci-

sion claiming that the unfit were sapping

the strength of the State, and in order

regulate their births, "the State will have

to avail itself of modern medical discover-

ies. It must proclaim as unfit for procre-

ation all those who are afflicted...and

practical measures must be adopted to have

such people rendered sterile." The book

calling for control of reproduction as a

cornerstone of social policy was Mein

Kampf, by Adolf Hitler. [Chase,135]

By 1932, American sterilization programs

had forcibly sterilized 15,000 persons.

German health officials, in turn, struc-

tured German eugenic programs on the Ameri-

can model. Ludmerer, Genetics and American

Society 118 (1972); Drogin, Margaret Sang-

er, (1980). When the Germans surpasse

America's population control efforts, Paul

Popenoe of the American Birth Control

League (the criginal Planned Parenthood),

praised the Germans for "proceeding toward

a policy that will accord with the best

thought of eugenicists in all civilized

countries." Ludmerer, 117.

borders. In 1976 U.S. policy, which condi-

tions foreign aid on aggressive population

control policies, prodded India into

forcibly sterilizing three million people

American policy

in mobile tent-camps.

has similarly encouraged coercive popula-

tion control programs in numerous other

Third World nations. [Kasun,79-94]

But for population controllers, the

model government program of pepuleticn

control is China's one-child policy which

includes the forced abortion of women who

are “handcuffed, tied with ropes or placed

in pig's baskets." [Kasun, 91]

True reproductive freedom does not exist

under present interpretation of Constitu-

tional rights. If under Bell the State has

4 Kasun, 85-86. At approximately the

same time, Dr. Ravenholt, director of AID's

Office of Population insisted that one-

quarter of the fertile women of the world

must be sterilized to meet U.S. goals of

population control and to maintain "the

normal operation of U.S. commercial inter-

ests around the world." [ibid, 81]

the right to prevent the reproduction of

undesirable persons, then surely this would

encompass the right to implement forced

abortions, or forced contraceptive

implants. All that currently separates

American population control policy from

Chinese policy is the legislative will to

openly embrace coercion.

Amici argues that the first step which

must be taken toward restoring reproductive

freedom is the abandonment of the umbrella

"right of privacy." It must be recognized

that when the Court first began to

articulate this "right," it burdened itself

with vague terminology which by its very

nature can be either totally meaningless or

irresistibly powerful.”

35 The right of privacy presently

guiding judicial decision is an undefinable

enigma; it "cannot be said to be absolute”

{[Roe, 154] yet it is a "fundamental" right

which repeatedly prevails over State inter-

ests. Does the "right of privacy" include

only sexual behavior? Birth control ac-

cess? Reproductive freedom? All private

Envisioned as arising from the shadowy

penumbra of the Constitution, this "right"

lacks clear guiding principles or even a

common understanding which can serve to

protect the people, guide the judiciary, or

justly restrict the legislatures. Thus, if

only for the sake of clarity in the law,

this catch-all "right of privacy" must be

repudiated.

Amici argues that in the place of the

"right of privacy" the Court should recog-

nize the "natural reproductive right" of

individuals. This more narrowly defined

right addresses the issues raised by the

contraception and abortion cases, and draws

a clean line between the rights of individ-

uals and the privileges of the State.

With seventy years of legal confusion

surrounding issues related to reproductive

freedom, such a clarification of the law is

behaviors? Semi-private behaviors?

—

Or et ee ee ee i

ip Ate

urgently and immediately needed from the

Court. A logical and timeless framework

for defining the "natural reproductive

rights" of persons is described in the

remainder of this brief.

A. THE FUNDAMENTAL RIGHTS OF REPRODUCTIVE

FREEDOM AS GUARANTEED IN THE CONSTITUTION-

ALLY RESERVED RIGHTS OF INDIVIDUALS ARE

THOSE NATURAL RIGHTS WHICH ARISE FROM A

PERSON'S NATURAL SEXUALITY. SPECIFICALLY,

1) THE STATE MAY NOT FORCIBLY LIMIT ANY

PERSON'S NATURAL FERTILITY OR PREVENT

PERSONS FROM NATURALLY CONCEIVING OR BEAR-

ING CHILDREN, AND 2) THE STATE MAY NOT

FORCE ANY PERSON TO CONCEIVE CHILDREN NOR

COMPEL ANY PERSON TO PROVIDE REPRODUCTIVE

MATERIAL FOR THE ARTIFICIAL CONCEPTION OR

GESTATION OF CHILDREN.

Whether or not one velieves the

Declaration of Independence's claim that

the inalienable rights of all persons are

endowed upon them by their Creator, the

natural reproductive rights of all people

are clearly central to our biological

humanity. Any law which transgresses these eis

timeless rights for the sake of any social

goal, whether to eliminate the "unfit" or

to “create a race of thoroughbreds” through

eugenic manipulations, violates all human

dignity and freedom.

History demonstrates that the more

totalitarian a State becomes, the more

likely it is to seek to control every

aspect of life, even and especiaily human

reproduction, so as to control both the

"quality" and quantity of its population.

Accordingly, no just government has the

right to coerce or force sterilization,

contraception, or abortion upon any person

or group of persons. Recognition of this

right must begin with a rejection of Buck

v. Bell.

Amici would further argue that the right

to natural fertility includes the right to

enter into a natural, heterosexual marriage

for the purpose of establishing a family.

But while the right to intercourse with-

in marriage is an inalienable corollary to

the natural right of reproduction, sexual

activity outside of the marital covenant is

not similarly included. The distinction

lies in the fact that extramarital inter-

course is rarely intended as an exercise of

reproductive freedom, but instead is an

exercise of sexual self-gratification.

Furthermore, the State has had a long

standing, and well recognized interest in

safeguarding and promoting the special na-

ture of marital relations and protecting

the stability of the family unit. Sexual ~

activity outside of marriage such as

fornication, adultery, homosexuality,

incest, statutory rape, and bestiality have

never been recognized as natural rights,

and the State should retain the power to

legislate against such activities. Such

activities are contrary to nature,

destructive of the family, exploitive of

persons, diminish human dignity, and beget

children into unstable families.

On the other hand, the State's right to

discourage sexual activity outside of mar-

riage must still be limited to the extent

that it may not forcibly limit the natural

fertility of persons engaged in extra-

marital activities. Furthermore, the

children of illicit unions should be

accorded the same rights and status of all

other persons since by their conception,

their parents entered into a de facto mar-

riage covenant, though perhaps a bigamous

one, which invokes mutual responsibilities

and duties toward their children and each

other.

The right of natural reproductive

freedom was alluded to by the Court in

Eisenstadt v. Baird, 405 U.S. 438, at 453,

in its statement regarding the right to

self determination with regard to an indi-

viduals "decision whether to bear or beget

a child."

While Amici agrees with the core

principle of individual reproductive rights

which underlies this statement, the con-

clusions reached in Eisenstadt are overly

broad. For while every individual has the

right to control his or her natural

reproductive powers, this right does not

include the right to use any means or

technology a person wants to control the

bearing and begetting of children.

While the State must be prohibited from

infringing on natural reproductive rights,

the State does have a legitimate right to

regulate and even proscribe birth control

technologies which can be used to limit

fertility, enhance fertility, or artifici-

ally create new human, or non-human, life.

Since all technologies have social and eco-

nomic consequences, health consequences,

moral consequences, and very frequently,

unforseen consequences, and are subject to

abuse, nearly all technologies have at one

time or another been subject to liability

claims in the courts and regulation by duly

empowered governments .*§

With regard to birth control technolog-

ies, a term which includes artificial con-

ception and gestation technologies as well

as contraceptive and abortifacient tech-

nologies, the consequences of these tech-

nologies are becoming increasingly complex.

For example, the issues of surrogate

mothers, custody of frozen human embryos,

46 The only types of technology

which might have some claim to Constitu-

tional protection are technologies related

to the right to bear arms. But even this

technology cannot be given an absolute

status. Individuals are not entitled to

own any conceivable weapon, but rather are

entitled to "reasonable" access to

firearms.

in vitro fertilization, and visitation

rights of sperm donors, are even now per-

plexing both the judiciary and the legisla-

ture. In the future, such issues as gen-

etic engineering, artificial wombs, animal

wombs, cloning for replacement organs, and

a whole host of other technologies will

arise which will dwarf the present

quagmire. Surely the State must have a

legitimate interest in regulate present as

well as future birth control technologies.

There is no Constitutional basis for

distinguishing between birth control tech-

nologies and any other technology. There-

fore, the Court cannot and should not treat

birth control technologies as a "favored

technology" and impose restraints on the

right of States to regulate this class of

technologies.

To limit the right of States to regulate

technology on the basis of a shadowy "right

of privacy” which is dimly perceived within

the Constitution and hazily-defined within

this Court's rulings, is a short-sighted

course which will surely lead to ever more

confusion in the decades ahead. Perhaps

worse, such a limitation on the States will

serve as an invitation to technocrats to

exploit men and women with ill-conceived

and dangerous technologies which will wreak

havoc on individuals and society.

B. THE STATE'S REGULATION OF BIRTH CONTROL

TECHNOLOGIES POSES NO THREAT TO THE

INDIVIDUAL'S NATURAL RIGHT TO REPRODUCTIVE

DECISIONS.

While the State has a right to regulate

birth control technologies, it is obvious

that the State has no interest or desire to

enact a general prohibition of birth

control technologies. Indeed, quite to the

contrary, federal, state, and local govern-

ments have been spending hundreds of

millions of dollars promoting contraceptive

use. Given the overwhelming public and

government support for increasing contra-

ceptive use, there is no realistic basis in

the allegations of abortion proponents that

allowing the States to regulate reproduc-

tive technologies would lead to a ban

against all birth control. Even if some

States were to choose to regulate some

birth control technologies for reasons of

health, moral, or social interests, it is

evident that such regulation would be

accompanied by promotion of other contra-

ceptives as a substitute.”

7 It has been falsely argued that

anti-abortionists seek to eventually ban

all birth control technologies. But in

fact no one has ever suggested any ration-

ale or desire to seek a Constitutional ban

or court ruling which would limit or ban

the states from allowing contraceptives.

The grain of truth to these allegations is

that if constitutional safeguards for the

human embryo are ever recognized or enact-

ed, this safeguard would prohibit chemical

abortifacient as well as surgical abortion.

But such a turn of events, would not effect

contraceptive and sterilization technolo-

gies and would serve only to direct birth

control research into the pursuit of these

Furthermore, even the abstract possibil-

ity that the State might one day seek to

"force" population growth by a ban on

contraceptives poses no threat to reproduc-

tive freedom. The history of population

growth, around the world, shows that even

without access to contraceptive technology

or abortion, peoples of all eras and

nationalities have limited their births

according to their needs through the

employment of delayed marriage, withdrawal,

periodic or total abstinence, or even with

unreliable rhythm methods.”

These natural methods of fertility

regulation have been advanced in the last

twenty years by the discovery of at least

six new methods of natural family planning,

each with many variations, which employ

non-abortive alternatives.

Simon

See authorities Greer, Kasun and

from one to seven body symptoms for iden-

tifying the exact time of female fertility.

The most commonly recommended methods have

method effectiveness ratings for avoiding

pregnancy of from 97-99 percent, rates

which are at least comparable to the Pill,

and easily exceed the effectiveness rates

of IUDs, condoms, jellies and the rest.”

These natural methods of fertility

control, both the old and the new, employ

no technology, only self-knowledge. The

dissemination of such knowledge would be

protected by First Amendment rights.

Therefore, it is unreasonable to believe

39 The final report of a 1978 fed-

eral study of NFP, found a 100 percent

method effectiveness rate for a Sympto-

Thermal variation of NFP and a 94%

effectiveness rate for the Ovulation

Method. The highest tested effectiveness

rate ever reported belongs to a variation

of the Temperature-Only method which has

been demonstrated to have only 7 unplanned

pregnancies per 10,000 fertile woman-years,

a rate which is less than half the failure

rate for vasectomy. J. Kippley, The Art of

Natural Family Planning, 14-17 (1984).

that even an oppressive government's ban

against all birth control technologies

could never "force" people into having

"unwanted" children.

The existence of natural methods of

birth control demonstrates that individuals

will always have reasonable alternatives to

birth control technologies and a reasonable

opportunity to exercise their reproductive

freedom. The State is not obligated to

guarantee any more than these natural

opportunities, though in its sovereignty it

is certainly free to provide technological

aids if it so chooses.

In some ways, natural reproductive

rights are similar the right of free

speech. Ultimately, the inalienable right

to free speech is guaranteed by the natural

abilities of humans to communicate. But

while the right of free speech is enhanced

by mass communication technologies, not all

persons have equal access to these techno-

logies, nor is the State required to

provide access to these technologies.

Clearly, while speech is a natural right

which the State may not infringe upon, tec-

hnological enhancements of this right are

open to regulation.

If regulation of free speech or repro-

ductive technologies become unduly oppres-

sive, the natural rights of individuals

provide a safeguard by which the people can

subvert or overthrow an oppressive rule.

Thus, the Court can and should restrict

itself to protecting these natural rights.

When these timeless, natural rights are

protected, the people will be able to press

the government for the subsidiary "rights"

to the technologies they desire to enhance

their natural rights. Left alone, the laws

passed by properly elected legislatures

will eventually come to reflect the

"compelling" interests of the people. Such

laws cannot, by definition, be oppressive

of natural rights since the people of a

democracy will not freely vote to oppress

themselves.

CONCLUSION

In summary of the above arguments, Amici

respectfully petitions the Court to: (1)

hold that the Minnesota statute, Minn.

Stat. Ann. §§ 144.343 (2)-(7), is consti-

tutional; (2) reject Roe v. Wade and its

progeny; (3) sustain the result of Gris-

wold v. Connecticut; (4) reject the overly

broad results of Eisenstadt v. Baird; (5)

reject Buck v. Bell; (6) reject the "right

of privacy" as unconstitutionally vague;

and (7) recognize the "natural right of

reproductive freedom" as a fundamental and

inalienable right of all human beings.

It is clear that the confusion created

by these prior cases and mishandled issues

has led to the conflict at hand. The

natural right of reproductive freedom

suggested here is in keeping with the

historical and moral values of both the

Western and Eastern heritages, and is in

accord with the natural law, right reason,

and the fundamental respect of individual

human dignity. Such a timeless principle

would certainly have received the unanimous

consent of America's Founding Fathers.

Sixty years of judicial activism in the

area of reproductive control must necessar-

ily be reversed swiftly and completely.

Amici urges the Court to recognize the

right of States to regulate reproductive

technologies however they deem necessary,

and at the same time, restore protection in

the law for every individual's natural

right to reproductive freedom.

Respectfully submitted,

Stephen R. Kaufmann

P.O. Box 5131

Illinois Building, Suite 800

Springfield, Illinois 62705

(217) 544-1144

Attorney for Amici Curiae

APPENDICES

APPENDIX A

DESCRIPTION OF AMICI

The Elliot Institute for Social Sciences

Research is an independent, not-for-profit

research group committed to a program of

original research in the areas of abortion,

birth control, and population control. It

is a leader in researching the long-term

physical and psychological effects of

abortion on women, and it is actively

involved in research exposing the myth of

overpopulation and its origin in the racist

and exploitive of the eugenic and

population control movements.

The American Academy of Medical Ethics

is a professional organization with an

affiliation of 20,000 physicians who are

committed to preserving the guiding

principles of the original Hippocratic

Oath. As a consequence of its member's

fidelity to this ancient and honored oath,

the AAME is dedicated to the preservation

and protection of all human life, from the

moment of conception until the moment of

natural death. Therefore, the AAME opposes

the use of medical technology to destroy

the lives of unborn children, opposes the

abuse of medical science for the purpose of

exploiting women and the poor, and opposes

the withholding of medical treatment from

the disabled or infirm for the purpose of

shortening their lives.

APPENDIX B

A SUMMARY OF SOME PUBLISHED CASES

OF MINORS AND WOMEN COERCED INTO ABORTION

Some summaries from D. Reardon, Aborted

Women - Silent No More (1987):

Gaylene "Hayes" was manipulated into an

abortion by school authorities and was

encouraged to conceal the pregnancy and

abortion from her parents. After the

abortion, at age 14, she became self-

destructive. p36-40.

. Alice Gilmore, 18, was manipulated into

an abortion by clinic despite her

repeated announcements that she wanted

to keep her baby. Afterwards, she

suffered sexual dysfunction, loss of

self esteem, and severe depression.

p147-150

"Tammy Conrad," 18, discovered she was

pregnant while she was hospitalized for

psychiatric care. She desired to keep

the baby, but was subsequently coerced

by her psychiatrist into an unwanted

abortion "for her own good." She

subsequently become suicidal. p179-182

Jakie Bakker became pregnant as the

result of rape at age 19. After being

counseled to abort, she suffered many

physical and emotional aftereffects

which were more severe and longlasting

than her reaction to the rape. She

feels lied to by abortion providers.

p206-210.

Edith Young was forced into abortion

without her understanding or consent at

age twelve to hide the fact of her

pregnancy resulting from an incestuous

rape by her step-father. When she later

learned what abortion was, and that she |

had been forced not only into sex, but

into the "murder" of her child, she

suffered severe a emotional impact on

her subsequent self-destructive

behavior. She believes she and her baby

could have been protected if her natural

father had been informed. p212-218.

Jerri "Porter", 18, was pressured by her

boyfriend into aborting a pregnancy

which she wanted to keep. Family

planning counselors encouraged the

abortion, insisting that her desires to

keep the baby were not "realistic."

p278-279.

Lorijo Nerad and her husband Jim, during

a time of temporary unemployment, were

pressured by welfare caseworkers into

sterilization and abortion of a wanted

child. The negative emotional impact on

both of them led to child abuse, drug

abuse, and radical personality changes.

p273-278.

Some summaries from C.M. Friedman, et al.

"The Decision-Making Process and the

Outcome of Therapeutic Abortion," American

Journal of Psychiatry, (1974)

"Candice," a 22-year old woman with

borderline intelligence but with no

previous history of mental illness, was

pressured into an unwanted abortion by a

genetic counselor, a surgeon, and her

parents. Forty-eight hours later she

began to go through denial of the

abortion and became so agitated that she

was transferred to psychiatric

hospitalization because she lacked the

"ego resources to deal with her grief."

"Krista" felt pressured into an abortion

by a boyfriend who backed down from a

promise of marriage. She subsequently

post-abortion psychiatric illness which

required psychiatric treatment.

Samples of testimonies of coercion contrib-

uted to the files of the Elliot Institute

for Social Sciences Research.

Testimony of "Susan Blossmor" on file at

the Elliot Institute.

Dear Sir,

Thank you for your interest in

abortion. I want to tell my story in order

to help others from making the same mistake

and feeling the horrible pain. Although it

is hard for me to do it helps me face my

feelings. Thank you for giving me this

chance. If you have questions feel free to

contact me.

After I became pregnant, my family

would not support my decision to keep my

baby. My boyfriend said he would give me

no emotional or financial help whatsoever.

All the people that mattered to me told me

to abort. When I said I didn't want to

they started listing reasons why I should.

"It would be detrimental to your career and

health. You will have no social life, no

future with men." Could I actually do it?

I started feeling like maybe I was crazy to

want to keep it. I finally just told

everyone that I would have the abortion

just to get them off my back, but inside I

still didn't want to have the abortion.

Unfortunately when the abortion day came I

shut off my inside feelings. I was scared

to not do it because of how my family and

boyfriend felt.

I know my decision would have been

different if at least my parents would have

supported me. I just felt so alone in my

feelings to keep my baby.

I'm so angry at myself for giving in to

the pressure of others. If there is one

thing that I learned from this experience -

that is never to give in to other people's

10a

opinions on your own situation. Stand up

for what you know is right!!

When I went to the clinic, the

counselor that I spoke with did not ask me

if I was sure about my decision. She did

not try to ask me how I felt about the

whole thing. She just explained the

procedure briefly. Inside I was screaming

for her to ask me how I felt about what I

was going to do so I could tell her that I

just didn't feel rigat about it, but I was

just too far away from my feelings at that

point to be able to speak out. I had

turned off my feelings for the moment.

When I was lying on the procedure

table waiting for the doctor a nurse sat

with me and held my hand. I started crying

and she said that I wasn't sure that I was

doing the right thing. She just said that

I was fortunate that abortion was legal and

I was able to have this procedure done.

She then said that the procedure was safe

lla

and didn't hurt very much. She said, "We

just ask that you don't scream or yell

because the other patients in the next room

would be able to hear." She then tried to

get my mind off of what was going to happen

by asking me about boating on Lake

Michigan. I wanted to get up off that

table then but was afraid of what my

boyfriend and parents would say and do.

That nurse did not want to hear about my

doubts.- She could not have cared much

about how I felt about the abortion. She

was worried about other patients hearing

me. My God! All she was worried about was

her job -- assisting in the procedure.

After the procedure while I was in the

recovery room I was very upset and crying.

The nurses would not even look at me. It

was like they just didn't want to deal with

my feelings. I was the last person done

that day so they started to clean the

procedure room. A nurse came out of the

12a

procedure room and started rinsing the

clear plastic tubes of the suction tubes in

the sink in the recovery room. They were

full of blood! I couldn't believe how

insensitive they could be.

As soon as I came out of that

procedure room I knew I had made the

biggest mistake of my life. While still in

the room I said to myself, "Ok, now you're

suppose to feel relieved." That's what the

books said I would feel (I read about

abortion beforehand). Well I kidded myself

with that idea for about 30 seconds I did

not feel relieved. I hated myself! But

it was too late -- my baby was dead! It

was the worst feeling of frustration that

I've ever had in my entire life. I could

not reverse what I had done. God help me!

Two days after the abortion I wrote a

suicide note to my parents and boyfriend.

I just couldn't fathom how I could possibly

live with the knowledge of what I had done.

13a

I killed my own baby! I went down the

basement an figured out how to shoot my

father's pistol. Hysterical and crying I

put the barrel of the gun into my mouth.

All of a sudden I heard someone upstairs.

For some reason my father had stopped by to

pick up something (at 10 a.m. usually no

one is home). I stopped what I was doing

and went upstairs. He saw that I was upset

and asked me if I wanted to have lunch with

him at noon. I felt I at least owed him

lunch. By the time lunch was over I was

too scared to do it. Eventually I came to

the conclusion that I should look to the

future.

Since the month after my abortion I've

been trying to get pregnant again. I've

tried 4 months in a row now. But since my

boyfriend is away at school my timing of

sexual intercourse and ovulation has not

coincided. He does not know that I am

doing this. I know that is not fair to

14a

him. But I can't think of any other way to

make up for what I have done. Rationally I

know what I'm doing is maybe stupid. But a

big part of me just has to make up for

things. I can't explain but I just have to

get pregnant again. I just got off the

phone with my boyfriend. I'm going to see

him this weekend to try again.

I still am not satisfied with my

choice today. It has not been that long

since the abortion. I would be just about

7 months pregnant right now. My baby was

due at the beginning of April. But I do

not think my feelings on this will ever

change. I killed my own child. How can

anyone ever feel that type of choice was a

right one? The only thing that gives me

some comfort is the knowledge in my heart

that my child is in a much better place

then we know with God. I believe that when

I die I will finally be able to see my

baby. I'm so sorry.

15a

Sincerely, .

"Susan Blossmor"

Testimony of "Jill Nolan" on file at the

Elliot Institute

Dear Sir,

This is a letter from one who regrets

her abortion very much. I was still 19

when I got pregnant living with a boyfriend

(who is soon to be my ex-husband) in

Detroit on Michigan Avenue by Livennois.

And I was faced with "the CHOICE". How I'd

wished I could've been like the wholesome

looking mother-to-be on the T.V.

commercials. The one with a cute maternity

dress and a nursery all made up ready and

waiting and a warm protective husband

coming home, putting his arms around her

saying "honey, I can hardly wait."

16a

My boyfriend wanted nothing to do with

a future with me. A baby implied a future,

commitment. He had already gotten the cow

for free - why raise the calf?

Yet in the face of abandonment, I did

not look at reality and use my courage to

squarely tell him what I wished to do.

"I'm going to have this baby, whether you

stay and meet my emotional needs or not.”

‘As human beings, we have 2 basic

needs; for love and worth, to love and to

be loved, to feel worth about yourself and

to have the security of knowing someone

sees worth in you. In desperation, to meet

these needs in my life even temporarily,

even imaginarily, I grasped on to my

boyfriend and his insistence that I have an

abortion. “ Thus I sacrificed my first born

to the idol of temporary emotional

security.

It was so easy to be swayed, despite

vague moral convictions that abortion was

17a

murder. For I felt so immature, selfish

and unready to have a child.

Are mothers ever ready? Babies and

children bring out the best and the worst

in us. Yes, we have the potential for

learning of a noble self sacrificial,

forbearing kind of love, but, more often

than that, children on a daily basis, also

expose our own innate selfishness. The

power both to train and scar our children

lies in our hands. And there is little

support in our society to help a woman

choose to keep and raise her child.

Parents, many from scarred backgrounds need

education on how to train and love their

children and this is not readily available.

My boyfriend and my family insisted

that there was no way out but to choose

abortion. I chose to be verbally

manipulated to carry out their point of

view, rather than thinking through the

choice. I was given no alternatives. A

18a

clinic was quickly found to take care of

our little "problem."

At the clinic, the doctor seemed so

abrupt and angry, so tense and under

pressure. I felt like the only difference

in his eyes between me and the unborn child

in my womb was 19 years. Had I been 19

years younger, unable to speak and

helpless, I too would have met the same

fate in his office, the death penalty. The

crime, being a “useless” member of society.

My life seemed so valueless in the doctor's

sight.

A person's self esteem (the worth they

feel about themselves) determines the value

they place on the lives of others. "Love

others as you love yourself." Yet how do

you love others when, deep down, you

despise yourself?

The Nazi movement didn't start with

Hitler. He just jumped on the bandwagon of

a movement originating in the 20's by a

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groups of doctors and psychiatrists in

Germany. They proposed "mercy" killing of

elderly or mentally impaired members of

society. These dear peoples lives were

valueless in their sight. Hitler just

extended this kind of thinking to the Jews

(the apple of God's eye) and other minority

groups. I believe that this same kind of

thinking (stemming from zero self esteem)

is what is behind abortions in this

country.

At the clinic I learned a shameful

lesson I wished I'd never learned, perhaps

the same lesson Nazi soldiers learned when

"just carrying out orders" in concentration

camps. I too, was just "following orders."

I wanted to be a "good" girlfriend. I pray

that now, I can be (instead of a spineless

robot, the gutless wonder) a woman of

conviction.

The weeks, months, years following the

abortion, I fell in and out of depression

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(only masked for a time by bursts of

desperate hyperactivity). The sadness over

what happened hangs about me like the

hovering scent of funeral flowers that

linger in a room after the funeral has come

and gone.

I later got pregnant. But this time,

I battled with my own selfishness and fears

and my boyfriend and stood up for my rights

to be a mother and for the rights of my

unborn child, who is soon going to be nine

and is very beloved by us all.

I am now being divorced. I never

enjoyed sex for years and this damaged my

live-in relationship and shortlived

marriage to this same boyfriend. Whenever

we made "love" I saw the CHOICE of abortion

looming behind every expression of "love"

between us.

Now, I am engaged to be married to one

in whose eves I am loved, one who sees me

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and all human beings as a pearl of great

price. His name is Christ.

I'm pro choice now. I'm determined |

not to let anybody but Christ (through the

common sense plan of conduct transformation

laid out in his word, the Bible) influence

my moral choices anymore. I want to be an

independent thinker and not let man do my

thinking for me anymore. If you don't "do"

your own thinking, someone else will "do"

your thinking for you.

Testimony of Jeanene Clark on file at the

Elliot Institute.

When I was 16 years old I became

pregnant and subsequently had an abortion.

This decision was based upon lies and lack

of knowledge has caused me many years of

anguish and will continue to do so for the

rest of my life. Here is my story:

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August 1977 - I was 16 and I was

pregnant. I knew this because I had gone

to the local Health Department for a free

pregnancy test and they had called me back

that morning. The counselor on the phone

asked me what I was going to do. What was

I going to do? I had just began

"experimenting" with sex. I wasn't suppose

to get pregnant. That happened to other

people, not me. I answered the counselor,

"I don't know, maybe an abortion. I just

don't know." The counselor picked up on

this statement and offered to make an

appointment for me at a Dallas abortion

clinic. I agreed. I was never counselled

towards anything, or offered any

alternative other than abortion. My

abortion was publicly funded.

A few days later I was taken to the

Fairmont Abortion Clinic in Dallas, Texas.

Upon arrival I was "counselled" about the

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abortion I was about to have. - The

counselor showed me a picture of a six week

old “fetus." (The aye they had decided on

for my baby) This picture looked like

chopped liver. I was told by the counselor

that at this stage of development, the

fetus was not a baby. That it was no more

than a "wad of tissue." I was informed

that there was nothing to the procedure.

It would not hurt any more than menstrual

cramps, and there were few side effects. I

was told that I would have to stay there

for an hour after the abortion (which I did

not do) to make sure my bleeding was not

too severe. That I should take a morphine

pill to relax me and I could have a

morphine shot with the pill if I wanted it.

I did not. I was taken to an exam room

when I was placed in an examination

position. The doctor asked if I minded if

a woman who was being trained observed the

procedure. I agreed. The doctor dilated

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my cervix and proceeded to insert the

vacuum aspirator. I felt when the baby

caught and immediately began having severe

cramps. The doctor finished and they

rushed the bottle (which contained my baby)

out of the room before I could see it.

This tends to disturb the patient when she

sees her baby (who only minutes ago was

sleeping peacefully in her womb) ripped to

shreds in a glass jar. I was then taken to

a waiting area to make room for another

woman who had made the "choice" to murder

her baby. I continued to have severe

cramps for the rest of the day. I felt sad

and empty, as if a part of my soul had been

taken away. |

As I looked back at my post-abortion

life, I realize that so many of the

mistakes that I made and created for myself

were due to the subconscious image I had

created of myself, I had killed my own

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baby. How could anyone love me when I

couldn't love myself?

I began to drink heavily and use

drugs. I had severe depressions in which I

contemplated suicide. I had and still have

horrible nightmares involving babies and

people trying to kill me. I still get

depressed and cry a lot. TI pray at night

that God will let my baby know that I

didn't kill him because I hated him. I

long to hold him so much now that it hurts,

and I want him to know that.

I harbor secret fears that one of my

children will be taken from me because of

this horrible act that I have committed.

This fear was compounded when I almost

miscarried one of my children at twelve

weeks. I feel sure the problem was

connected to my abortion. The problems go

on and on. I had never allowed myself to

calculate the month that my baby would have

been born. Recently I figured out when the

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baby would have been born and was horrified

when I realized that it was within weeks of

when both of my children were born. I had

felt intense pressure from within myself to

become pregnant at this particular time

with both my children. And now the

realization has hit me that subconsciously

I have substituted my live children for my

dead child, by conceiving and giving birth

at the same times.

I have spent many years trying to push

the memory of what I have done to the back

of my mind, but it won't stay there. I

have constantly compared my dead child to

what he would have been doing had he lived.

I understand that most women who choose to

abort experience the same feelings. My

child would have been in first grade this

year. It's very hard for me to look at a

first grader.

I have shed many tears over the last

few vears and now I'm angry. I'm angry at

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myself, my family, Fairmont Clinic, their

counselors, the doctors, (who can commit

murder on a daily basis) and most of all

I'm mad at my government, who prints "IN

GOD WE TRUST" on our coins, yet has

legalized the daily painful, violent

slaughter of the youngest members of our

society.

I hope and pray that our great nation

can turn this thing around before it is too

late for all of us. and most of all before

we as individuals have to stand before God

and confess what we have done to His most

perfect creation.

Signed

Jeanene Clarke

BEFORE ME, the undersigned authority on

this day appeared Jeanene Clarke who

affirmed the above statements under oath,

and has stated that they are true and

correct.

Lillian E. Mahoney

Notary Public in and for Texas

My commission expires: 7/31/85

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.