Amicus Curiae Brief — Casey v. Planned Parenthood of Southeastern Pennsylvania (Nos. 91-902, 91-744)

FILED

-

iS eg

Nos. 91-744, 91-902 -

IN THE —_

Supreme Court of the United States

OCTOBER TERM, 1991

PLANNED PARENTHOOD OF

SOUTHEASTERN PENNSYLVANIA, et al.,

Petitioners,

V.

ROBERT P. CASEY, et al.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF

THE AMERICAN COLLEGE OF OBSTETRICIANS AND

GYNECOLOGISTS, THE AMERICAN MEDICAL

WOMEN’S ASSOCIATION, THE AMERICAN

PSYCHIATRIC ASSOCIATION, THE AMERICAN

PUBLIC HEALTH ASSOCIATION, THE ASSOCIATION

OF REPRODUCTIVE HEALTH PROFESSIONALS,

THE NATIONAL LEAGUE FOR NURSING, AND

THE NATIONAL MEDICAL ASSOCIATION AS

AMICI CURIAE IN SUPPORT OF THE PETITIONERS

ANN E. ALLEN CARTER G. PHILLIPs *

AMERICAN COLLEGE OF MARK E, HADDAD

OBSTETRICIANS AND PAUL E. KALB

GYNECOLOGISTS SIDLEY & AUSTIN

409 12th Street, S.W. 1722 Eve Street, N.W.

Washington, D.C. 20024 Washington, D.C. 20006

(202) 638-5577 (202) 736-8000

Counsel for Amici Curiae

March 6, 1992 * Counsel of Record

(List of Counsel Continued on Inside Cover)

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

LAURIE R. ROCKETT

HOLLYER, JONES, BRADY, SMITH,

TOXELL, BARRETY & CHIRA

(Counsel to the American

Medical Women’s Association, Inc.)

342 Madison Avenue

New York, N.Y. 10173

(212) 818-1110

JOEL I. KLEIN

KLEIN, FARR, SMITH & TARANTO

(Counsel to the American

Psychiatric Association)

2550 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

NADINE TAUB

Women’s Rights Litigation Clinic

(Counsel to the American

Public Health Association)

Rutgers Law Schoo!

Newark, N.J. 07102

(201) 648-5637

BETH FOUNTAIN

ASHER & ASSOCIATES

(Counsel to the Association of

Reproductive Health Professionals)

1819 H Street, N.W.

Washington, D.C. 20006

(202) 452-1540

SARAH C. CAREY

STEPTOE & JOHNSON

(Counsel to the National

Medical Association)

1330 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 429-3000

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................ eeiecddiaatpassbdeseeneess iii

INTEREST OF THE AMICI CURIAE 000... 1

MEDICAL BACKGROUND .................. AS 1

SUMMARY OF ARGUMENT |... aeaciees Sideeaes 4

ARGUMENT ................. a iianaidibdisiminpenastan : 6

I. THIS COURT SHOULD REAFFIRM THAT

A WOMAN'S RIGHT TO CHOOSE WHETHER

OR NOT TO CARRY A PREGNANCY TO

TERM IS A FUNDAMENTAL RIGHT PRO-

TECTED AGAINST STATE INTERFER-

ENCE BY THE GUARANTEE OF LIBERTY

IN THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT |W. 6

A. A Woman’s Right To Choose Whether Or

Not To Carry A Pregnancy To Term Is A

Fundamental Right

B. This Court Should Reaffirm That State Abor-

tion Laws That Depart From Accepted Medi-

cal Practice And Increase Health Risks To

Pregnant Women Are Unconstitutional i)

C. This Court Should Not Adopt The Undue

Burden Analysis Employed By The Court

EES 13

Il. PENNSYLVANIA’S HUSBAND-NOTIFICA-

TION, INFORMED CONSENT, PARENTAL

CONSENT, MEDICAL EMERGENCY, AND

DISCLOSURE REQUIREMENTS ARE UN-

li ceccrenisscncnqnncovensoasecs nae 16

A. Husband-Notification ....._............ ee | 16

1. Husband-Notification Severely Burdens A

Woman’s Right To Obtain An Abortion

From Her Physician .............. cilaloeteabaiaisiton 17

~)

ii iii

TABLE OF CONTENTS—Continued TABLE OF AUTHORITIES

2. Husband-Notification Does Not Narrowly In re A.C., 573 A.2d 1235 (D.C. 1990) 12

Serve A Compelling State Interest .......... 20 Addington V. Texas ,441 U.S. 418 (1979)... ae 29

‘ Allgeyer Vv. Louisiana, 165 U.S. 578 (1897)... ~

B. Informed Consent REE BP 21 Aptheker V. Secretary of State, 878 U.S. 500

a at a tr al 26

C. Parental Informed Consent ............ — = Bates V. Little Rock, 361 U.S. 516 (1960)... 13

D. Exception For Medical Emergencies ............ 25 Beal v. Doe, 432 U.S. 438 (1977) 0. 11

, , : . Rellotti v. Baird, 443 U.S. 622 (1979) ........... 14, 17, 20

E. — And Public Disclosure mane 27 Bonner V. Moran, 126 F.2d 121 (D.C. Cir. 1941) 11

wey haa, SLA IR i Race ia aiioar Bowen Vv. Georgetown Univ. Hosp., 488 U.S. 204

F. Criminal Penalties .................. soonsenenensiasti — 28 eect a ey abs Pca Alas Lae a 26

Brown V. Socialist Workers '74 Campaign Comm.,

CE secsccecscncerersectseneensiommennnsseneccnsmmnansensaitii 30 a 28

Canterbury Vv. Spence, 464 F.2d 772 (D.C. Cir. ),

cert. denied, 409 U.S. 1064 (1972)... onan ae

Carey V. Population Servs. Int'l, 431 U.S. 678

Eas WUE ERAES Taira? RS We se Pees ae aia 13, 14, 28

City of Akron v. Akron Ctr. for Reproductive

Health, Inc., 462 U.S. 416 (1983) passim

Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632

On ial ek 7

Cobbs v. Grant, 502 P.2d if = aa 22

Colautti v. Franklin, 439 U.S. 379 (1979) 10, 16, 26, 27

Connecticut V. Menillo, 423 U.S. 9 (1975) 10

Cruzan V. Director, Missouri Dep't of Health, 110

i i 9

Curran V. Bosze, 566 N.E.2d 1319 (Tl. 1990) 11

Doe Vv. Bolton, 410 U.S. 179 (1972) 0000. 11, 28

Fisenstadt Vv. Baird, 405 U.S. 438 (1972)... sis«é, 2B

Fosmire V. Nicoleau, 551 N.E.2d 77 (N.Y. 1990) 12

Garcia V. San Antonio Metro. Transit Auth., 469

ns a 15

Griswold v. Connecticut, 381 U.S. 479 (1965) . 8, 20

Harris v. McRae, 448 U.S. 297 (1980) idiedies 11

Hodgson V. Minnesota, 110 8S. Ct. 2926 (1990) 17

Jefferson V. Griffen Spalding County Hosp. Auth.,

274 S.E.2d 457 (Ga. 1981) ............. CE ME a 12

Jehovah's Witness v. King County Hosp., 278 F.

Supp. 488 (W.D. Wasi. 1967), aff'd, 390 U.S.

SEE TIE siitscncisoncotnsiniadunigtientiocadeleanaiuniteetasinentais 12

iv

TABLE OF AUTHORITIES—Continued

Page

Kent v. Dulles, 357 U.S. 116 (1958) -~.....0020000000....... x

Kolender v. Lawson, 461 U.S. 352 (1983) ............. 27

Little v. Little, 576 S.W.2d 493 (Tex. Civ. App.

I ES ee of oa 11

Loving V. Virginia, 388 U.S. 1 (1967) .......0........... 8,13

Maher v. Roe, 432 U.S. 464 (1977) ............... Peau 11

McFall v. Shimp, 10 Pa. D. & C.3d 90 (County Ct.

FP ee — >

Meyer Vv. Nebraska, 262 U.S. 390 (1923) —.............. 7

NAACP vy. Alabama ex rel. Patterson, 357 U.S.

a 28

Palko v. Connecticut, 302 U.S. 319 (1987) ............ - g

Parham Vv. J.R., 442 U.S. 584 (1979) ........-.000000..... 29

Paul v. Davis, 424 U.S. 693 (1976) —.... x

Pension Benefit Guar. Corp. Vv. R.A. Gray & Co.,

gS RECS AN a 14

In re Pescinski, 226 N.W.2d 180 (Wis. 1975) ...... 11

Pierce Vv. Society of Sisters, 268 U.S. 510 (1925). 7

Planned Parenthood vy. Danforth, 428 U.S. 52

EGR IRS PAY IRE i GRRE ES CEE Sir OD SO RO ll

Poe v. Ullman, 367 U.S. 497 (1961) Ear ar ae ne 7,8

Prince Vv. Massachusetts, 321 U.S. 158 (1944) ....... 21

Public Health Trust Vv. Wons, 541 So.2d 96 (Fla.

STTTTTTTTI caiiinstcinieinchecnibeanbetieeedeteentansialtadsdiihanielieaatcanautiadiidenneicg 12

Pullman-Standard ¥ Vv. Swint, 456 U.S. 273 (1982). 28

In re Richardson, 284 So.2d 185 (La. Ct. App.),

cert. denied, 284 So.2d 338 (La. 1973) .............. 11

Roberts v. Wood, 206 F. Supp. 579 (S.D. Ala.

EPS Ee ee ee aaah 22

Rochin Vv. California, 342 U.S. 165 (1952) ........... i)

Roe Vv. Wade, 410 U.S. 113 (1973) . passim

Schloendorff v. Society of New York Hosp., 105

N.E. 92 (N.Y. 1914) . - ioe: 12

Schmerber Vv. California, 384 U. S. 157 (1966) . ad 9

Schware Vv. Board of Bar Examiners, 353 U.S. 232

SES re x

Shapiro v. Thompson, 394 US. 618 (1969) . | ~

Simopoulos Vv. Virginia, 462 U.S. 506 (1983) _ | 10

Skinner v. Oklahoma, 316 U.S. 535 (1942) .......... 8

.

Vv

TABLE OF AUTHORITIES—Continued

Page

Snyder Vv. Massachusetts, 291 U.S. 97 (1934) ........ 9

Stanley Vv. Georgia, 394 U.S. 557 (1969) | 13

Strunk v. Strunk, 445 S.W.2d 145 (Ky. 1969) ...... 11

Thornburgh Vv. American College of Obstetricians

& Gynecologists, 476 U.S. 747 (1986) passim

Vasquez V. Hillery, 474 U.S. 254 (1986)... 15, 16

Webster v. Reproductive Health Servs., 492 U.S.

senile 6, 11

Winston Vv. Lee, 470 U.S. 753 (1985) .....-.00........ 9

Woolley Vv. Henderson, 418 A.2d 1123 (Me. 1980) . 22

STATUTES AND RULES

18 Pa. Cons. Stat. Ann. § $3208 ........................0000...... 25

18 Pa. Cons. Stat. Ann. § 3205 00. Fs aie 21

18 Pa. Cons. Stat. Ann. § 3205(a) (2) ....... AE eh 23

18 Pa. Cons. Stat. Ann. § 3205(a) (2) (i)-(iii) —.... 22

18 Pa. Cons. Stat. Ann. § 3206 sae fo 24

18 Pa. Cons. Stat. Ann. § 3209... Si iecicaaladentios 17

18 Pa. Cons. Stat. Ann. § 3209(a) 0 20

35 Pa. Cons. Stat. Ann. § 6923... as 25

LETT OT ie 28

OTHER AUTHORITIES

Amaro et al., Violence During Pregnancy and Sub-

stance Use, 80 Am. J. Pub. Health 575 (1990). 18

American College of Obstetricians & Gynecologists,

The Battered Woman (1989) ........... heii 18

American College of Obstetricians & Gynecologists,

Standards For Obstetric-Gynecologic Services

(7th ed. 1989) _....... seiheatesinaieatiiasiiaitininieiainninenianiannens 24

American Medical Association Council on Scientific

Affairs, Violence Against Women (1991) ....... : 18

T. Beauchamp & J. Childress, Principles of Bio-

medical Ethics (3d ed. 1989) ........................0....... 21

Binkin, Trends in Induced Legal Abortion Mor-

bidity and Mortality, 13 Clin. Obstet. Gynec. 83

REE ER ITT OO ee SE ele, 05 1

Binkin et al., /llegal-A bortion Deaths in the United

States: Why Are They Still Occurring ?, 14 Fam.

ns OD a ceemieionnesinens 2

vi

TABLE OF AUTHORITIES—Continued

Bracken et al., Hospitalization for Medical-Legal

and Other Abortions in the United States 1970-

1977, 72 Am. J. Pub. Health 30 (1982)

Buehler et al., The Risk of Serious Complications

from Induced Abortion: Do Personal Charac-

teristics Make a Difference?, 153 Am. J. Obstet.

Gynec. 14 (1985) 2.00.

Cates & Rochat, Mlegal Abortions | in the U nited

States: 1972-74, 8 Fam. Plann. Persp. 8&6

SUITED ix cueieshentscacuacieiscianmnaminiieiidiiadtditstbadtthiemiiadiidiaaiiasiate

Cates et al., The EP ife ct of Delay and Me thod Choice

on the Risk of Abortion Morbidity, 9 Fam.

Plann. Persp. 266 (1977) 0.000000...

J. Cosgriff & D. Anderson, The Practice of Emer-

gency Care (2d ed, 1984) ..

D. Danforth & J. Scott, Obstetrics é ‘Gynecology

(5th ed. 1986) ...........

Dorfman, Maternal Mortality i in » New ‘York City,

1981-1983, 76 Obstet. & Gynec. 317 (1990)

R. Gold, Abortion and Women’s Health (1990)

Helton et al., Battered and Pregnant: A Preval-

ence Study, 77 Am. J. Pub. Health 1337 (1987) .

W. Hern, Abortion Practice (1984)...

Koonin et al., Abortion Surveillance, United States,

1988, 40 Morbid. & Mortal. Weekly Rep'’t 15

(July 1991) .. a ae A oe

Noronha, Neurological Disorde rs During ‘Preg-

nancy and the Puerperium, 12 Clin. Perinat. 695

(1985) ;

L. Ohlin & M. Tonry, Family Vv iolence (1989)

Polgar & Fried, The Bad Old Days: Clandestine

Abortions Among the Poor in New York City

Before Liberalization of the Abortion Law, 8

Fam. Plann, Persp. 125 (1976) .. ......

1 President's Commission for the Study of Ethical

Problems in Medicine and Biomedical and Be-

havioral Research, Making Health Care Deci-

sions (1982) ESS aE LR Pea et eat

Page

21

vii

TABLE OF AUTHORITIES—Continued

Page

Restatement (Second) of Torts §§ 314-15 (1965) 11

Revinsky & Guttmacher’s Medical, Surgical, &

«synecological Complications of Pregnancy (5S.

Cherry et al., 3d ed. 1985)... 3

Strauss & Gelles, Societal Change and Change in

Family Violence from 1975 to 1985 as Revealed

by Two National Surveys, 48 J. Marriage &

Family 465 (1986) 18

C. Tietze & S. Henshaw, Induced Abortion: A

World Review, 1986 (6th ed. 1986) 3

Williams & Bitran, Cancer & Pregnancy, 12 Clin.

Perinat. 609 (1985) 4

Williams Obstetrics (F. Cunningham et al., 18th

ed. 1989) 1,3

INTEREST OF THE AMICI CURIAE

Amici curiae are seven national organizations of phy-

sicians and other health care professionals. Each amicus

is dedicated to promoting public health by maintaining

the highest professional standards and providing or en-

suring the provision of quality health care."

Amici’s interest in this case stems from their concern

about the profound impact that recently enacted state abor-

tion laws will have on the lives and health of the female

patients that their members serve. As_ individuals,

amici’s members hold differing views on the religious and

philosophical issues that abortion raises. They agree,

however, that when a patient seeks medical care and

treatment, such as abortion, state laws should not inter-

fere with a health care provider’s ability to exercise his

or her best medical judgment in treating that patient.

Because the Pennsylvania statute challenged here ser-

iously interferes with a woman’s ability, in consultation

with her physician, to obtain an abortion, and because

the standard of review adopted here will affect the con-

stitutionality of other statutes affecting the lives and

health of amici’s patients, amici wish to present their

views.”

MEDICAL BACKGROUND

Elective abertion, defined as the termination of a preg-

nancy before the fetus has reached the stage of viability,

is one of the most common medical procedures performed

in the United States today.* Approximately 1.5 million

American women obtain an abortion each year.*

! See Appendix A for a brief description of each amicus.

? Pursuant to Rule 37.3 of the Rules of this Court, the parties

have consented to the filing of this brief. The parties’ letters of

consent have been filed with the Clerk of the Court.

3 Williams Obstetrics 501 (F. Cunningham et al., 18th ed. 1989) ;

Binkin, Trends in Induced Legal Abortion Morbidity and Mortality,

13 Clin. Obstet. Gynec. 83, 83 (1986). Viability refers to the

point at which the fetus would have a reasonable potential for

survival if it were removed from the pregnant woman’s uterus.

Williams Obstetrics at 501.

*R. Gold, Abortion and Women’s Health 11 (1990).

2

When performed correctly by trained and experienced

physicians, abortion is a relatively safe procedure. In-

deed, it is far safer than childbirth: The risk of dying

from an abortion is currently about one-tenth the risk of

dying during childbirth.’ Illegal abortions, however, are

substantially riskier than legal abortions. Prior to this

Court’s decision in Roe v. Wade, 410 U.S. 113 (1973),

complications from illegal abortions constituted a “serious

public health problem, especially for the poor and minori-

ties.” * Although precise data are unavailable, statistics

from this era suggest that the overall death rate from

illegal abortions was about eight times greater than that

for legal abortions,” and that the rate was even higher

among minority women.* The incidence of non-fatal com-

plications from illegal abortions also was extraordinary.’

The high mortality rate for illegal abortions is not sur-

prising given the techniques that many women used—and

in some cases, continue to use—to abort their fetuses.’®

These include ingesting Chlorox, turpentine or massive

doses of quinine, or inserting such objects as coat hang-

ers, knitting needles, or tree bark into their uteruses."*

5R. Gold at 28-29; Dorfman, Maternal Mortality in New York

City, 1981-1988, 76 Obstet. & Gynec. 317, 320 (1990).

* W. Hern, Abortion Practice 21 (1984).

7™Cates & Rochat, /llegal Abortions ‘n the United States: 1972-

74, 8 Fam. Plann. Persp. 86, 91-92 (1976).

®R. Gold at 5 (minority women twelve times more likely than

white women to die from such abortions).

®In 1962, for example, nearly 1,600 women were admitted to one

New York City hospital for treatment of non-fatal complications

of abortions. /d. at 6.

1° Even after Roe some women continue to seek illegal abortions

because legal abortions are either too expensive or not readily avail-

abl¢ or because of a variety of cultural, religious or personal rea-

sons. Binkin et al., [llegal-Abortion Deaths in the United States:

Why Are They Still Occurring?, 14 Fam. Plann. Persp. 163 (1982).

11 Polgar & Fried, The Bad Old Days: Clandestine Abortions

Among the Poor in New York City Before Liberalization of the

Abortion Law, 8 Fam, Plann. Persp. 125, 126 (1976).

3

Because legal abortions are so much safer than illegal

ones, abortion-related deaths and other complications

dropped sharply after the widespread legalization of abor-

tion.'"? However, such serious medical problems as infec-

tion, hemorrhage, perforation of the uterus, or even death,

still complicate about 0.5% of all abortions.’* While the

risk of such complications is relatively small, “any delay

increases the risk of complications to a pregnant woman

who wishes an abortion. Moreover, this risk appears to

increase continuously . . . as the length of gestation in-

creases.” '' After eight weeks of gestation, the risk of

maternal death doubles with every two weeks of delay,”

and the risk of other health complications increases at a

rate of about 20% per week."®

Delays—and the concomitant increase in risk—are of

particular concern for women with pre-existing medical

conditions that may be exacerbated by pregnancy.’ De-

12 For example, 39 deaths from unlawful abortions were reported

nationwide in the year preceding this Court’s decision in Roe,

while only five deaths were reported in the following year. Cates

& Rochat at 87. Similarly, non-fatal complications of abortion also

declined after legalization. Sec, e.g., Bracken et al., Hospitalization

for Medical-Legal and Other Abortions in the United States 1970-

1977, 72 Am. J. Pub. Health 30, 30 (1982) (hospital admissions

for septic abortions in California dropped by 68-75 following

liberalization of that state’s abortion law in 1967).

13 Buehler et al., The Risk of Serious Complications from Induced

Abortion: Do Personal Characteristics Make a Difference?, 153

Am. J. Obstet. Gynec. 14, 16 (1985).

14 Cates et al., The Effect of Delay and Method of Choice on the

Risk of Abortion Morbidity, 9 Fam. Plann. Persp. 266, 268 (1977) ;

Buehler et al. at 16.

15 Williams Obstetrics at 506.

16C, Tietze & S. Henshaw, Induced Abortion: A World Review,

1986 108 (6th ed. 1986).

17 These conditions include congenital malformations of the heart

and its valves, cancer, chronic renal failure, multiple sclerosis,

asthma, arthritis, inflammatory bowel disease and epilepsy. Sve

D. Danforth & J. Scott, Obstetrics & Gynecology 494-97 (5th ed.

1986); Rovinsky & Guttmacher's Medical, Surgical & Gynecological

1

lays are also problematic for pregnant adolescents. Un-

like older women, many teenagers—because of «rregular

menses, lack of experience with health care facilities, and

difficulty in paying for medical care—wait until late in

their pregnancies, often well into their second trimester,

before seeking any medical care."

SUMMARY OF ARGUMENT

: L

The threshold question in this case concerns the stand-

ard of review. In Roe v. Wade, 410 U.S. 113 (1973),

City of Akron v. Akron Center for Reproductive Health,

Tne., 462 U.S. 416 (1983), and Thornburgh v. American

College of Obstetricians & Gynecologists, 476 U.S. 747

(1986), this Court held that strict scrutiny applies to all

statutes that interfere with a woman’s right, in consulta-

tion with her physician, to choose whether or not to termi-

nate her pregnancy. The court of appeals, however, held

that strict scrutiny should apply only to state regula-

tions that severely interfere with or present absolute ob-

stacles to a woman’s right to choose an abortion. Pet.

App. 14a, 30a.

This Court should put to rest the current confusion

over the standard of review by reexamining and then

reaffirming its prior holdings that a woman has a funda-

mental right to decide whether or not to have an abortion.

Recognition of this right follows logically and ineluctably

from this Court’s decades-old recognition that the liberty

protected from state interference by the Fourteenth

Amendment includes the right to make persona! choices

regarding family life, marriage, and procreation. This

Complications of Pregnancy 73 (S. Cherry et al., 3d ed. 1985);

Williams & Bitran, Cancer & Pregnancy, 12 Clin. Perinat. 609

(1985); Noronha, Neurological Disorders During Pregnancy and

the Puerperium, 12 Clin. Perinat. 695 (1985).

'S Koonin et al., Abortion Surveillance, United States, 1988, 40

Morbid. & Mortal. Weekly Rep’t 15, 17 (July 1991).

5

Court should also reaffirm that states may not regulate

that right in ways that increase the health risks that

pregnant women face.

None of the objections to Roe provides a basis for

overturning two decades of constitutionally required pro-

tection for women’s health. The principle that the state

may not force a woman to accept increased health risks in

order to further the state’s interest in preserving fetal

life is not arbitrary. To the contrary, that principle is

fully supported by basic common law principles respecting

the autonomy and bodily integrity of each individual. Nor

is there any reason to think that reversing Roe will extri-

cate federal courts and this Court from the need to review

state abortion legislation. In fact, altering the standard

of review will simply initiate another protracted legal

battle over which new restrictions are constitutional.

II.

By enacting the Abortion Control Act Amendments of

1989, Pennsylvania has again passed a statute that will

delay, discourage, and defeat women in their attempt to

obtain a medically provided abortion. The specific provi-

sions at issue here place a variety of obstacles—notifica-

tion, consent, waiting periods and public disclosure—in

the path of a woman seeking an abortion. Each will

operate to increase the risks to the health of pregnant

women. As was the case with Pennsylvania’s previous

abortion amendments, “|c|lose analysis . . . shows that

they wholly subordinate constitutional privacy interests

and concerns with maternal health in an effort to deter a

woman from making a decision that, with her physician,

is hers to make.” Thornburgh, 476 U.S. at 759. Indeed,

these provisions violate our most basic notions of liberty

by subjecting individuals to significant health risks solely

to further the state’s interest in protecting potential life.

Each therefore is unconstitutional.

6

ARGUMENT

I. THIS COURT SHOULD REAFFIRM THAT A

WOMAN’S RIGHT TO CHOOSE WHETHER OR

NOT TO CARRY A PREGNANCY TO TERM IS A

FUNDAMENTAL RIGHT PROTECTED AGAINST

STATE INTERFERENCE BY THE GUARANTEE

OF LIBERTY IN THE DUE PROCESS CLAUSE OF

THE FOURTEENTH AMENDMENT.

In Roe v. Wade, 410 U.S. 113, 153 (1973), this Court

held that the “Fourteenth Amendment’s concept of per-

sonal liberty and restrictions upon state action...

encompass|es} a woman’s decision whether or not to

terminate her pregnancy.” Accordingly, this Court held

that state laws that interfere with this right are subject

to strict scrutiny. /d. at 162-64. In the nearly two

decades since Roe was decided, this Court has repeatedly

reaffirmed this fundamental holding.’

More recently, however, members of the Court, in

separate and plurality opinions, have questioned the

trimester-based framework set forth in Roe as applied

to particular state laws.” Relying on these opinions,

the court below held that “the strict scrutiny legal

standard endorsed by the Court in Roe, Akron, and

Thornburgh” is no longer the applicable standard of

review. Pet. App. 24a. Instead, the court held, the

correct standard is one that applies strict scrutiny only

to those state regulations that “impose an undue burden

[on a woman’s abortion decision| and rational basis

review to those which do not.” /d. at 30a.

This Court should reaffirm that a woman’s right to

decide whether or not to carry her pregnancy to term is

a fundamental right protected against state interference

" Big., Thornburgh, 476 U.S. at 747; Akron, 462 U.S. at 416.

*” See, e.g., Webster Vv. Reproductive Health Servs., 492 U.S, 490,

517-21 (1989) (opinion of Rehnquist, C.J.) ; id. at 525-31 (opinion

of O'Connor, J.) ; id. at 532-37 (opinion of Scalia, J.).

7

by the guarantee of liberty in the Due Process Clause of

the Fourteenth Amendment. This Court also should re-

affirm that states may not regulate that right in ways

inconsistent with accepted medical practice. Less strin-

gent standards that allow states to interfere with this

fundamental right are inconsistent with basic constitu-

tional principles and will only provoke a new round of

constitutional line-drawing. States have no interest suffi-

ciently compelling to deny pregnant women the personal

liberty enjoyed by all other persons to obtain medical

treatment and to preserve their health free from state

interference.

A. A Woman’s Right To Choose Whether Or Not To

Carry A Pregnancy To Term Is A Fundamental

Right.

Prior to Roe, the Court had not considered the constitu-

tionality of abortion laws. But like any proper “decision

of an apparently novel claim,” Roe took “ ‘its place in

relation to what went before and further [cut!| a channe]

for what |was] to come.’” Poe v. Ullman, 367 U.S. 497,

544 (1961) ‘Harlan, J., dissenting) (citation omitted).

Roe followed, in the first instance, “|t!his Court[’s]

... long recogni|tion| that freedom of personal choice in

matters of marriage and family life is one of the liberties

protected by the Due Process Clause of the Fourteenth

Amendment.” Cleveland Bd. of Educ. v. LaFleur, 414

U.S. 632, 639-40 (1974). By 1923, this Court had recog-

nized that “the liberty thus guaranteed . . . denotes not

merely freedom from bodily restraint but also the right

... to marry, establish a home and bring up children.”

Meyer Vv. Nebraska, 262 U.S. 390, 399 (1923). Over

the five decades between Meyer and Roe, the Court in-

validated state laws that infringed the right to choose

whether to send one’s children to a private school,*' to

2! Pierce Vv. Society of Sisters, 268 U.S. 510, 535 (1925).

8

marry someone of one’s choice,” to refuse sterilization,”

and to obtain and use contraceptives.**

At the core of the liberty protected from state inter-

ference, then, has been “the right of the individual, mar-

ried or single, to be free from unwarranted governmental

intrusion into matters so fundamentally affecting a person

as the decision whether to bear or beget a child.” Eisen-

stadt v. Baird, 405 U.S. 438, 453 (1972). The right in

question in Roe, “a woman’s decision whether or not to

terminate her pregnancy,” 410 U.S. at 153, is inextricably

part of the web of intensely personal choices in “matters

relating to marriage, procreation, contraception, family

relationships, and child rearing and education” that

the Court had previously protected.

The right recognized in Roe also has another important

common law and constitutional antecedent. It follows di-

rectly from the common law tradition that protects the

autonomy of each individual to decide what medical treat-

ments to accept or to refuse. “Before the turn of the

century, this Court observed that ‘!n|o right is held more

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

than the right of every individual to the possession and

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

22 Loving V. Virginia, 388 U.S. 1 (1967).

23 Skinner Vv. Oklahoma, 316 U.S. 535, 536 (1942) (state law

infringes on “the right to have offspring” ).

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

couples); Eisenstadt v. Baird, 405 U.S. 438 (1972) (any individ-

ual); see also Poe Vv. Ullman, 367 U.S. 497, 539-55 (1961) (Harlan,

J., dissenting).

25 Additional rights encompassed within the liberty protected by

the Fourteenth Amendment include, inter alia, the right to travel,

Kent V. Dulles, 357 U.S. 116, 125-27 (1958); Shapiro v. Thompson.

394 U.S. 618 (1969); and the mght to pursue an occupation,

Schware Vv. Board of Bar Eraminers, 353 U.S. 232 (1957): Allgeyer

Vv. Louisiana, 165 U.S. 578, 589 (1897).

** Paul V. Davis, 424 U.S. 693, 713 (1976).

terference of others, unless by clear and unquestionable

authority of law.’” *’ This common law “notion of bodily

integrity” underlies the requirement of informed con-

sent for medical treatment.** Respect for bodily integrity

has led state courts to refuse to order individuals to

put their own health at risk or otherwise to suffer a

bodily invasion (such as an operation) even when such

an effort is necessary to save the life of another person.”

It has also led this Court to invalidate state laws that

would have compelled individuals to undergo physically

invasive procedures in furtherance of the state’s interest

in investigating crime.” The right to have the state

respect each individual's bodily integrity is “so rooted in

the traditions and conscience of our people as to be

ranked as fundamental,” “' and therefore provides a sec-

ond constitutional and common law antecedent to a

woman’s right to choose not to carry a pregnancy to term.

B. This Court Should Reaffirm That State Abortion

Laws That Depart From Accepted Medical Practice

And Increase Health Risks To Pregnant Women

Are Unconstitutional.

In Roe, this Court held that courts should apply strict

scrutiny to state laws regulating abortion, and provided

an analytica! framework based on the trimesters of preg-

27 Cruzan V. Director, Missouri Dep't of Health, 110 S. Ct. 2841,

2846 (1990) (quoting Union Pac. R.R. v. Botsford, 141 U.S. 250,

251 (1891)).

28 Cruzan, 110 S. Ct. at 2846-47.

2% See infra pp. 11-12 & nn. 37, 40.

* See, ¢.g., Winston Vv. Lee, 470 U.S. 753, 763-66 (1985) (state

may not compel criminal defendant to undergo minor surgery to

remove bullet) ; Schmerber Vv. California, 384 U.S. 757, 772 (1966):

Rochin V. California, 342 U.S. 165, 173-74 (1952).

3! Snyder Vv. Massachusetts, 291 U.S. 97, 105 (1934); see also

Palko v. Connecticut, 302 U.S. 319, 324 (1937) ‘(rights that are

“implicit in the concept of ordered liberty” are immune from state

interference).

10

nancy to assist courts in performing that analysis.” As

the court of appeals explained, a majority of the members

of the Court, through separate opinions, has taken the

view that the trimester analysis is problematic. Pet. App.

24a-30a. Amici believe that the framework provided in

Roe has proved useful to lower courts and that the Court

should not abandon that framework.

Any dispute over the trimester framework, however,

should not obscure the fundamental principle that under-

lies Roe. That principle is that states are not free to re-

quire individuals, including pregnant women, to subject

themselves to increased health risks or significant intru-

sions of their bodily integrity in order to further the

state’s interest in the potential or actual life of another

person.

This principle—which forbids states to “requirfe] a

trade-off between the woman’s health and fetal survival”

—is not dependent on trimesters of pregnancy for imple-

mentation.” It simply looks to the impact of abortion

regulation on women’s health. Laws that “depart from

accepted medical practice” should presumptively be un-

constitutional, because such departures likely will pose a

risk to the patient’s health. Akron, 462 U.S. at 431.

This principle is consistent with the cases decided since

Roe. Thus, this Court has upheld laws that legitimately

furthered maternal health™ or that placed no obstacles

%2 Specifically, the Court held that a state has a compelling inter-

est in protecting maternal health beginning at the second trimester

of pregnancy, and a compelling interest in preserving the potential

life of the fetus beginning at the time of viability, roughly coin-

cident with the third trimester. 110 U.S. at 162. State laws that

are not reasonably related to these interests or that sweep more

broadly than necesscry to further those interests therefore are un-

constitutional. Jd. at 163-64.

33 Thornburgh, 476 U.S. at 768; see also Colautti v. Franklin, 439

U.S. 379, 387-401 (1979): Roe, 410 U.S. at 164.

4 See, ¢.g., Simopoulos v. Virginia, 462 U.S. 506 (1983) (per

curiam ) ; Connecticut v. Menillo, 423 U.S. 9 (1975).

- il

in a woman’s path to an abortion.” The Court, however,

has invalidated laws that, “under the guise of protecting

maternal health or potential life,” have served in fact to

increase the risk to maternal health by introducing need-

less delay into the process or otherwise by interfering with

the relationship between patients and their physicians or

nurses.”

The existence of a competing state interest in preserv-

ing fetal life is not sufficient to require departure from

this basic principle. Common jaw principles illustrate the

point. The common law imposes no general duty upon

individuals to rescue others from life-threatening peril.

Restatement (Second) of Torts §§ 314-15 (1965). In

particular, states have not required individuals to under-

go surgery, or to donate tissue, blood or organs, in order

to save the actual life of another person.” Certainly this

is true of Pennsylvania. In McFall v. Shimp, 10 Pa.

D. & C.3d 90 (County Ct. Allegheny 1978), a Pennsyl-

vania court refused to order the defendant to donate

bone marrow needed to save the life of his cousin:

“For our law to compel defendant to submit to an in-

trusion of his body would change every concept and

principle upon which our society is founded. To do so

% Webster v. Reproductive Health Servs., 492 U.S. 490 (1989):

Harris Vv. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464

(1977); Beal v. Doe, 432 U.S. 438 (1977).

% Thornburgh, 476 U.S. at 759; see, e.g., Akron, 462 U.S. at

416; Planned Parenthood Vv. Danforth, 428 U.S. 52 (1976): Doe v.

Bolton, 410 U.S. 179 (1972).

37 See, e.g., Bonner ¥. Moran, 126 F.2d 121 (D.C. Cir. 1941)

(surgery upon one person without consent to save the life of

another is battery); Curran ¥. Bosze, 566 N.E.2d 1319, 1331 (II.

1990) (parent may not give consent on behalf of minor for dona-

tion of bone marrow to sibling unless to do so would be in minor’s

best interest); Little y. Little, 576 S.W.2d 493 (Tex. Civ. App.

1979) (same); In re Pescinski, 226 N.W.2d 180 (Wis. 1975)

(same); Jn re Richardson, 284 So.2d 185 (La. Ct. App.) (same),

cert. denied, 284 So.2d 338 (La. 1973); Strunk v. Strunk, 445

S.W.2d 145 (Ky. 1969) (same).

12

would defeat the sanctity of the individual, and would

impose a rule which would know no limits, and one could

not imagine where the line would be drawn.” Jd. at 91.

The holding in McFal/ is consistent with the respect

for individual autonomy that is a traditional element of

American common law. The familiar proposition that

“lel]very human being of adult years and sound mind

has a right to determine what shall be done with his own

body” ** is “fundamental in American jurisprudence

...’™ And as McFall and other cases illustrate, this is

a a “strong right,” one that is strictly enforced rather than

balanced against competing interests.*”

At common law, then, the state’s interest in preserving

actual human lives, weighty though it is, is insufficient to

38 Schloendorff Vv. Society of New York Hosp., 105 N.E. 92, 93

(N.Y. 1914) (Cardozo, J.).

8° Canterbury Vv. Spence, 464 F.2d 772, 780 (D.C. Cir.), cert.

denied, 409 U.S. 1064 (1972).

*” Amici are aware of no state that has required a healthy adult

to undergo a medical procedure to protect the health or save the

life of another individual; such procedures may be ordered for a

minor only if they are in the minor's best interest. Sce supra p. 11

n.37 (citing cases). Some courts have required parents to accept

medical treatment where, in contrast to the abortion context, the

required intrusion furthers both the state’s interest in protecting

the life of the parent and the state’s interest in the welfare of a

minor or viable fetus. Thus, courts have required parents of minor

children to accept blood transfusions, Jehovah's Witnesses v. King

County Hosp., 278 F. Supp. 488 (W.D. Wash. 1967), aff'd, 390

U.S. 598 (1968), and pregnant women at term to have cesarean

sections where vaginal delivery would endanger the lives of both

mother and child, e.g., Jefferson v. Griffin Spalding County Hoep.

Auth., 274 S8.E.2d 457, 458 (Ga. 1981). More recently, however, and

correctly in amici’s view, courts have held that a state cannot require

a woman to submit to a life-saving post-partum blood transfusion

for the benefit of her minor child or-other dependents, Fosmire v.

Nicoleau, 551 N.E.2d 77 (N.Y. 1990); Public Health Trust vy. Wonse,

541 So.2d 96 ‘Fla. 1989), or to undergo a cesarean section if she

has not (or would not have) consented to the surgery, In re AC.,

573 A.2d 1235 (D.C. 1990).

13

justify forcing persons to endure intrusions of their bodies

and concomitant health risks to save those lives. It fol-

lows, a fortiori, that the state’s interest in protecting

potential lives, significant though it may be, is not suffi-

ciently compelling to justify forcing a woman to carry

her fetus to term or to endure delays and obstacles to

abortion that increase her health risks.

C. This Court Should Not Adopt The Undue Burden

Analysis Employed By The Court Below.

In adopting what it called “the undue burden stand-

ard,” the court of appeals held that strict serutiny ap-

plies only to laws that are initially found to impose

“ ‘absolute obstacles or severe limitations’” on the free-

dom of a woman, in consultation with her physician, to

make a decision whether or not to continue her preg-

naney. Pet. App. 14a, 24a-25a (quoting Thornburgh, 476

U.S. at 828 (O’Connor, J., dissenting)). A majority of

this Court has not yet adopted that undue burden stand-

ard, and it should not do so here, for three reasons.

First, such a standard is inconsistent with established

constitutional principles. This Court has never required

a showing of “absolute obstacles” or “severe limitations”

on a fundamental right as a threshold for triggering strict

scrutiny. Rather, the Court has held that fundamental

personal rights and liberties are protected by the Due

Process Clause of the Fourteenth Amendment from “in-

fringement” by the States. Stanley v. Georgia, 394 U.S.

557, 564, 568 n.11 (1969). E.g., Carey vy. Population

Servs. Int'l, 431 U.S. 678, 686 (1977) (strict serutiny

is required for “regulations imposing a burden on” a

fundamental right) ‘emphasis added) ."'

*! Even where the Court has used language qualifying the degrees

of intrusion necessary, it has not required severe intrusions or

absolute obstacles. E.g., Bates vy. Little Rock, 361 U.S. 516, 524

(1960) (“significant encroachment”).

14

The effect of the undue burden standard, as applied

below, is to subject state regulations that significantly

burden a fundamental right to review under a mere

“rational relationship” standard. Rational-relation re-

view, while appropriate for “legislative Acts adjusting the

burdens and benefits of economic life,” “ has never been

accepted as adequate in reviewing legislation affecting

“individual decisions in matters of childbearing” or other

similarly private matters. Carey, 431 U.S. at 687.“ In

the abortion context, such an approach would lead to a

subjective, unpredictable balancing in every case of the

degree of health risk and the degree of burden that a

particular state law imposes against the weight of the

State’s interest. Such a balancing approach is squarely

rejected in analogous common law cases such as McFall,

and should be rejected here.

Second, the undue burden test, by weakening protection

of women’s health and introducing an inherently subjective

standard of evaluation, would simply increase the need for

this Court’s perennial monitoring of state abortion laws.

As the Brief Amici Curiae of William J. Guste, Louisiana

Attorney General, et al. in support of Robert P. Casey's

petition for certiorari in this case illustrates, states

are now passing legislation that returns state law to

the pre-Roe era. Thus, a decision to adopt a weaker

undue-burden rational relationship standard of review

will require this Court to resolve a host of new and diffi-

* Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 US. 717,

729 (1984).

*8 Indeed, the very label “undue burden” reflects the confusion

this standard—as a threshold test—introduces into constitutional

analysis. The threshold question is simply whether a “burden” has

in fact been imposed; the question whether that burden is “undue”

—i.e., “unwarranted” or “unjustified”—logically should be an-

swered only at the end of the analysis, after the state’s interests and

any overbreadth have been considered. This Court initially used the

phrase “undue burden” to refer not to any threshold standard for

triggering strict scrutiny but to the completed analysis. E.g.,

Bellotti v. Baird, 443 U.S. 622, 647 (1979) (plurality).

15

cult questions. Must states allow abortion when necessary

to preserve the health of the mother? Must they do so

when necessary to preserve her life? Must abortion be

available when the pregnancy results from rape or from

incest? Is evidence that pregnancy may render a woman

suicidal evidence that it poses a threat to her life? Car

a state require clear and convincing objective evidence

that an exception is met? Must there be an exception to

criminal penalties for women and physicians who act in

good faith? Such questions inevitably will arise so long as

the abortion issue remains justiciable. The stakes for

personal liberty are too high to expect otherwise.

Abandoning the principle that states may not place

women’s health at risk in regulating abortion therefore

will not extricate this Court from the need to draw fine

lines between what is permissible legislation and what is

not. Reaffirming the basic principle that underlies Roe.

however, would largely end this Court’s oversight role.

As discussed below, the Court has already resolved most

of the issues that can arise under Roc, and has provided

the lower courts with ample guidance to deal with any

new legislation.

Third, there is no reason not to respect stare decisis

here, because the principle that underlies Roe provides a

workable standard that is consistent with constitutiona!

precedent. Roe is therefore not a case that has proved

“unsound in principle and unworkable in practice.” Gar-

cia V. San Antonio Metro. Transit Auth.. 469 U.S. 52k,

246 (1985). There have been no “changes in society or in

the law” since 1973 to require a reversal of Roe’s holding

——the same concerns raised now were raised at the time

Roe was argued- ‘and reargued). Vasquez Vv. Hillery, 474

U.S. 254, 266 (1986); see Akron, 462 U.S. at 419 n.1.

Respect for sere decisis is thus compelling here, because

it is necessary to demonstrate “that bedrock principles

are founded in the law rather than in the proclivities of

individuals, and thereby [to] contribut{e] to the integrity

of our constitutional system of government, both in

16

appearance and in fact.” Vasquez, 474 U.S. at 265-66.

This Court has never before withdrawn fundamental

status from any right previously recognized as funda-

mental. To depart from that precedent in this or any

setting would so undermine accepted notions of “ordered

liberty” that it should not be undertaken at all.

In sum, it is not the division of pregnancy into tri-

mesters that determined the standard of review adopted

in Roe. While the trimester framework was intended to

and has provided helpful guidance to lower courts, the

essential holding of Roe was that strict scrutiny was re-

quired where a state law interfered with a woman’s right

to decide, in consultation with her health care providers,

whether or not to continue a pregnancy. That holding is

valid today, just as it was two decades ago. This Court

therefore should reverse the holding below adopting an

“undue burden” standard of review for abortion legisla-

tion.

Il. PENNSYLVANIA’S HUSBAND-NOTIFICATION, IN-

FORMED CONSENT, PARENTAL CONSENT, MED-

ICAL EMERGENCY, AND DISCLOSURE REQUIRE-

MENTS ARE UNCONSTITUTIONAL.

Each of the challenged provisions of Pennsylvania’s

Abortion Control Act is unconstitutional. In upholding all

but one of these provisions, the court of appeals errone-

ously required a high threshold showing of an undue

burden and ignored uncontroverted factual findings that

each provision wil! cause substantial harm to women’s

health. The state interest repeatedly asserted in defense

of these provisions—preserving the life of the fetus—

is inadequate, because this Court’s decisions establish that

the woman’s life and health must always prevail over the

fetus’ life and health when they conflict. Thornburg,

476 U.S. at 768-69; see also Colautti v. Franklin, 439

U.S. 379, 400 (1979) ; Roe, 410 U.S. at 163-64.

A. Husband-Notification.

Section 3209 of the Act makes it a crime for a married

woman to obtain an abortion unless she provides her

physician a signed statement that she either has notified

17

her husband of her iniention to obtain an abortion or has

met one of four narrow exceptions to this requirement,

and that she understands that a false statement is punish-

able by law. 18 Pa. Cons. Stat. Ann. § 3209 (1983 &

Supp. 1991); Pet. App. 61a n.24, 191a-193a. As the cour’

of appeals concluded, even if a showing of undue burden

is required, this husband-notification requirement is uncon-

stitutional.“* This provision severely burdens a woman’s

fundamental right to choose an abortion without further-

ing any compelling state interest.

1. Husband-Notification Severely Burdens A

‘Woman’s Right To Obtain An Abortion From

Her Physician.

The district court’s extensive factual findines, none of

which was or could be found to be clearly erroneous on

this record, unambiguously support its conclusion that

husband-notification imposes “a coustitutionally signifi-

cant burden on the woman’s right to an abortion.” Pet.

App. 193a-201a, 254a. These findings also support the

circuit court’s finding that the provision imposes an “un-

due burden” because it “may effectively prevent the abor-

tion or may severely penalize the woman in other ways”

for choosing to seek an abortion. Jd. at 63a. Indeed, the

burden here is comparable to, if not more severe than,

the unconstitutional burden imposed upon minors by the

notification requirements at issue in Bellotti v. Baird, 443

U.S. 622, 647 (1979), and Hodgson v. Minnesota, 110

S. Ct. 2926, 2945 & n.36 (1990). :

a. As both courts below noted, the vast majority of

married women seeking an abortion have discussed their

plans with their husbands. Pet. App. 66a. Section 3209

is thus targeted at. and will chiefly affect, women who

fear that notifying their husbands will lead to physical or

psychologica! intimidation or abuse. :

“Amici refer here to “hushand-notification” rather than

“spousal notice” because the Act’s gender-neutral label is deceptive.

It camouflages the foct that Section 2200 epplics exelu ively t

women. Moreover, Section 3209 is unique: no other Commonwealth

law imposes any intra-marital notice requirement, Pet. App. 199u.

18

For many women such concerns are all too real.

Women in Ae society are at shockingly high risk for

physical and psychological abuse by their husbands. .

cording to one survey, nearly one in eight husbands ha

physically abused his wife during 1985, and almost >

third of the assaults involved severe aggression. ie

medical community, recognizing the enormity of this

problem, has efforts underway to educate health care pro-

fessionals about the nature of this problem and its physi-

cal and psychological manifestations.”

The district court correctly found that requiring preg-

nant women to notify their husbands of their pregnancy

and of their intent to seek an abortion will exacerbate

the problem of violence against women because “preg-

nancy is frequently a flashpoint for battering and violence

within the family.” Pet. App. 196a. Studies demonstrate,

for example, that as many as eight percent of women =

physically or sexually abused during pregnancy.’ In a

dition, abuse may take the form of actual or threatenec

violence to the couple’s children, dissolution of a marriage,

curtailment of financial support, psychological abuse

(verbal degradation, food and sleep deprivation, isolation

and monitoring), or disclosure of the wife’s decision to

family, friends and acquaintances. Id. at 194a, 196a,

199a.""

45 Strauss &-Gelles, Societal Change and Change im Family Vio-

lence From 1975 to 1985 As Revealed By Two National Surveys,

48 J. Marriage & Family 465, 470 (1986). See also L. Ohlin awe

Tonry, Family Violence 177-80 (1989) (reviewing other empirica

studies ) . 7 _

46 See American Medical Association Council on Scientific Af-

fairs, Violence Against Women (1991): American College of Ob-

stetricians & Gynecologists, The Battered Woman ( 1989).

47 Amaro et al., Violence During Pregnancy and Substance Use,

a0 Am. J. Pub. Health 575 (1990); Helton et al., Dottgred and

Preqnant: A Prevalence Study, 77 Am. J. Pub. Health 1337 (1987).

4* In addition to fostering abuse, the requirement that a womar

notify her husband will jeopardize the confidential nature of the rela-

19

b. The narrow exception for wives who can claim that

they fear “the infliction of bodily injury upon [them]” by

their husband or someone else is insufficient to eliminate

the burden imposed by husband notification. The excep-

tion simply does not cover the range of coercive actions

that husbands in an abusive situation typically take.

Moreover, as the district court found, the “coping strat-

egy” that “most battered women” have developed, i.e.,

“learned helplessness,” leaves them without “the psycho-

logical ability to avail themselves of the exceptions of

Section 3209.” Pet. App. 200a-201la. Accordingly, such

abuse serves both strongly to deter women from seeking

an abortion and severely to penalize those who in fact go

forward with notification.

ce. The dissenting judge below argued that the husband-

notification provision could not constitute an undue bur-

den because it would affect, at most, only a small “per-

centage of all women desiring abortions” and “plaintiffs

failed to show even roughly how many of the women in

this small group would actually be adversely affected by

Section 3209.” Pet. App. 92a. The dissent’s conception

of what constitutes a burden on a fundamental right is

erroneous as a matter of law.

Because a fundamental right is held by an individual

against the state, the abridgment of such a right is sig-

nificant even if only a small number of individuals are

affected. In Bellotti, the Court invalidated a Massachu-

setts statute requiring that parents be notified of any

judicial proceeding brought by their daughter to obtain

an abortion. Justice Powell, in an opinion joined by

then-Chief Justice Burger, then-Justice Rehnquist, and

Justice Stewart, acknowledged that there was “no reason

to believe” that parents would seek to obstruct their

daughter’s access to court “in the majority of cases where

tionship between the woman and her physician. See Pet. App. 195a.

Concerns about confidentiality may cause some women to delay

seeking care or perhaps forgo appropriate medical care entirely.

20

consent is withheld.” 443 U.S. 622, 647 (1979). Never-

theless, the Massachusetts law was declared unconstitu-

tional because “{i}t would be unrealistic .. . to assume

that the mere existence of a legal right to seek eo Pi

superior court provides an effective avenue of relief or

some of those who need it most.” Jd. Thus, this Court

invalidated the statute in Bellotti even though it would

burden only a very small proportion of the total number

of women seeking abortion, and even though no precise

estimate of that percentage was offered.

2» Husband-Notification Does Not Narrowly Serve

A Compelling State Interest.

The Commonwealth asserts an interest in “promoting

the integrity of the marital relationship.” 18 Pa. Cons.

Stat. Ann. £ 3209(a); Pet. App. 300a. Undoubtedly, the

state has an interest in the integrity of marriages; laws

prohibiting bigamy or restricting the availability of di-

voree, for example, are constitutional. But such Jaws

define and reculate the nature and structure of the insti-

tution: they are.constitutional precisely because they do

not intrude into the marital relationship itself. Marriage

“is an association that promotes a way of life, not

causes”: thus, state intrusions on marital relations are

suspect when they promote a_ political agenda and par-

ticularly suspect when designed to advance the state's

agenda on a matter as personal to individuals as pro-

creation. Griswold v. Connecticut, 381 U.S. 479, 486

(1965). The state cannot intrude more deeply into a

marriage than when it conditions one individual's exer-

cise of constitutional rights on an agreement to engage

in state-mandated conversations with his or her spouse.

More critically, regardless of how the state’s goal of

nromoting marital integrity is labeled, that goal is not

served by forcing a husband and wife to communicate

about a particular topic. As the district court found,

21

“[m]arital accord arises from within the relationship not

from the intervention of the state.” Pet. App. 262a.*”

B. Informed Consent Provisions.

Section 3205 of the Act makes it a crime for a physician

to perform an abortion unless he or she first obtains the

“informed consent” of the patient as defined by detailed

procedures. 18 Pa. Cons. Stat. Ann. § 3205; Pet. App.

289a. Far from promoting true informed consent, how-

ever, Section 3205 will interfere with constructive con-

sultation between physicians and their patients and will

undermine patients’ health.

1. The requirement that a physician or nurse obtain a

patient’s informed consent to a medical procedure is

fundamental to the common law and medical ethics. The

doctrine is rooted in the respect for patient autonomy

and the recognition that each patient is an individual with

unique beliefs and needs.” The point of the consultation

is not to inundate a patient with predetermined details

on every conceivable facet of all available medical pro-

cedures; indeed, a health care provider has an obligation

to limit disclosure where necessary to avoid causing the

patient anxiety and fear that could jeopardize effective

* The Commonwealth's other asserted interest, in promoting

the husband's interests in “having children within the marriage”

and in the “prenatal life” of his child, are not compelling. The

interest Pennsylvania seeks to protect is only that of married men,

not of biological fathers. The Commonwealth offers no explanation,

however, why it is appropriate (let alone compelling) for the state

to throw its weight behind one spouse and not the other on the

question whether or not the wife will bear a child. In siding with

one spouse and against another, the Commonwealth impermissibly

intrudes inte “the private realm of family life which the state

cannot enter.” Prince V. Massachusetts, 321 US. 158, 166 (1944).

™ See, «.g., Canterbury Vv. Spence, 464 F.2d 772, 780 (D.C. Cir),

cert. denied, 409 U.S. 1064 71972): T. Beauchamp & J. Childress,

Principles of Biomedical Ethies, 74-75, 91-93 (2d ed. 1989) : 1 Presi-

dent's Commission for the Study of Ethical Problems in Medicine

and Biomedical and Behavioral Research, Making Health Care

Decisions 18-39 (1982).

22

treatment of the patient." Rather, the requirement that

a physician or nurse obtain informed consent provides an

opportunity for the provider and patient to discuss the

risks and benefits of potential therapies germane to that

patient, so that the patient can make an informed treat-

ment decision. The information appropriate to each con-

sultation will differ from patient to patient, and providers

therefore do and must retain discretion to determine what

specific information is relevant.

2. The procedures that Pennsylvania would require

under the rubric of “informed consent” are in fact anti-

thetieal to informed consent as currently understood and

practiced. To begin with, Section 3205 requires that each

patient be told that (1) the State Department of Health

has prepared “printed materials which describe the un-

born child” and that “list agencies that offer alternatives

to abortion” which the physician will provide to her “free

of charge”: (2) that “medical assistance benefits” may be

available to her and that the state’s materials contain

additional information on such benefits: and (3) that the

“father of the unborn child” is liable for child support.

18 Pa. Cons. Stat. Ann. § 3205(a) (2) (i}-(iii); Pet. App.

290a,

As this Court previously held in Thornburgh, “{t}he

printed materials required by § 3205... . fare] nothing

less than an outright attempt to wedge the Common-

wealth’s message diseouraging abortion imto the privacy

of the informed-consent dialogue between the woman and

her physician.” 476 U.S. at 762453. Beeause the Com-

monwealth’s materials “create the impression in women

that the Commonwealth disapproves of the woman’s de-

cision” to seek an abortion, bringing these materials to

the attention of a woman who has al decided with

her physician that it is appropriate to n an abor-

* See, eg., Woolley V. Hendersor, 418 A2d 1123, 1130 (Me.

1980) : Cobbs v. Grent, 502 P.2d 1 (Cal. 1972) (en banc) ; Roberts V.

Wood, 206 F. Supp. 279, 583 (S.D. Ala. 1962).

tion is misleading and can produce needless i

emotional pain. Pet. App. 179a. There Higmney omy

mate medical justification” to recite such information to

each patient, id.; indeed, much of the information relates

to issues about which physicians or other health pro-

fessionals have no special knowledge or expertise. Yet

|floreing the physician or counselor to present ma-

terials and the list {of state agencies] makes him or he~

in effect an agent of the State in treating the woman

and places his ov her imprimatur upon both the ma-

ay and the list.” Thornburgh, 476 U.S. at 762-63.

orced disclosures of Section 3205 thus “serve only to

confuse and punish [a pregnant woman] and to heighten

he : - :

—— contrary to accepted medical practice.” Jd.

3. Section 3205 further intrudes on ici

patient relationship by criminalizing the aes

any abortion until at least 24 hours have elapsed follow-

ing the informed consent discussions between the physi-

cian or counselor and patient. 18 Pa. Cons. Stat. Ann.

N 3205 (a) (2); Pet. App. 290a. As the district court found,

— of scheduling problems and the scarcity of abor-

ion clinies, this waiting requirement wil! in fact impose

on the majority of women seeking an abortion in Penn-

sylvania delays of two days to two weeks between the

me's woman consents: to the procedure and the time

er physician is legally entitled to perform it. Pet. App.

172a. This waiting period will! significantly increase the

yn oi and other complications associated with

correlate direct r

= ee. ly with gestational age.

To be sure, where there is some reason i

r . | to think tha

# particular woman needs time to reach a considered jude-

Pte. 3205(a) also requires the physician, to the exclusion of

r qualified counselors, to supply certain information about

health risks. including risks that may be irrelevant to a particular

woman's situation. This Court in Akron held that euch a require-

ment is overbroad, 462 U.S. at 447-49, and the Court should invali

date Section 3205(a) for this reason as well. .

24

amici would agree that additional time for reflec-

rg be appropriate and the individual physician

would so advise the patient.” But sound medical practice

requires the physician to explain to the patient that any

benefit of waiting must be weighed against the demon-

strated increase in the risks to a woman’s health caused

by delay. Because the requirements of Section 3205 serve

no compelling state interest but will cause harm to women,

they are unconstitutional.”

C. Parental Informed Consent.

on 3206 forbids physicians from providing abor-

sante women under the age of 18 unless the physician

first obtains the informed consent not only of the woman

but also of one of her parents. 18 Pa. Cons. Stat. Ann.

§ 3206: Pet. App. 292a. The requirement that the parent's

consent be “informed” distinguishes this statute ee

other state statutes restricting the abortion rights o

minors reviewed by this Court. Pet. App. 250a-251a.

Here, even an approving parent must visit the clinic

in person and sit through the mandatory cca nage a

presentation prescribed in Section 3205 before an r-

tion may be performed. . =

Section 3206 is unconstitutional because it ensures

minors will face needless and health-threatening delay

in obtaining an abortion. Those minors whose —

approve will, in many cases, be delayed because ao

difficulties parents face arranging an in-person visit.

App. 249a. These suineve whess pavente <> net approve

must resort to the inherently time-consuming process 0

obtaining permission from a state court. The adverse ef-

fect of this built-in delay is particularly acute for minors,

53 See, e.g., American College of Obstetricians & Gynecologists,

Standards For Obstetric-Gyfecologic Services 68 (7th ed. 1989)

(physician should counsel woman to take time necessary to be

certain her abortion decision is the correct one).

5 Indeed, Section 3205's waiting requirement is identical to tha

sscchieaad ter tite Court in Akron, 462 U.S. at 450-51, and should

be invalidated for this reason alone.

25

who comprise a high percentage of women who obtain an

abortion in the second trimester, where the health risks

of abortion are greatest. See supra pp. 3-4. Because Sec-

tion 3206 will impose delays on virtually all minors, and

not just on those who elect to use the judicial bypass

procedure, it is unconstitutional.

D. Exception For Medical Emergencies.

Section 3203 of the Act provides a definition of the

term “medical emergency” applicable uniquely to abor-

tions. The Act then incorporates this definition as an

exception to the requirements of husband notification, in-

formed consent, and parental informed consent.

As the court below recognized, Roe requires a medical

emergency exception to any statute that regulates abor-

tion in a way that may cause a health-threatening delay

in the performance of an abortion. Pet. App. 36a. On its

face, the Commonwealth’s exception is inadequate. It

makes it a crime for a physician to perform an abortion

sooner than 24 hours after initially evaluating a pa-

tiemt unless the physician, in good faith, believes

that an abortion is necessary “to avert [the patient’s]

death” or that “delay will create serious risk of substan-

tial and irreversible imwairment of major bodily func-

tion.” 18 Pa. Cons. Stat. Ann. § 3203: Pet. App. 289a.

The Act’s definition is notably narrow when compared

to Pennsylvania’s genera! definition of medica] emergency

and to sound medical practice.” The Act precludes phy-

% For all procedwres besides abortion, Pennsylvania defines a

medical emergency as “{a! combination of circumstances resulting

in a need for immediate medical intervention.” 25 Pa. Cons. Stat.

Ann. § 6923 (1977 & Supp. 1991). This ix consistent with the

definition generally accepted by the health care community. Sec,

¢.9., 4. Cosgriff & D. Anderson, Th: Practice of Emergeney Care

20 (2d ed. 1984; (“An emergency is an unforeseen combination

of circumstances creating « condition which in the prefessional

judgment of a physician and surgeon of good standing acting under

the same or similar circumstance« requires immediate care, trest-

ment, or surgery in order to protect a person's life or health’).

26

sicians from responding in a medically appropriate man-

ner to women for whom pregnancy poses a health risk

that, while significant, does not amount to a “serious risk

of substantial and irreversible impairment of major bodily

function.” It therefore requires physicians to place the

health of a woman at risk in order to further the state’s

interest in protecting fetal life, a “trade-off” this Court

has repeatedly disapproved. Thornburgh, 476 US. at

768-69; Colautti v. Franklin, 439 U.S. 379, 400 (1979) ;

Roe, 410 U.S. at 163-64.

court of appeals upheld the definition of emergency

ws ieee it liberally to include all circumstances

that “in any way pose a significant threat to the life or

health of a woman.” Pet. App. 40a ‘emphasis added.

But it is impossible to reconcile the court of appeals inter-

pretation with the statute's plain language. Courts, in

attempting to save a statute from constitutional attack,

may not engage in “judicially rewriting it.” Aptheker Vv.

Secretary of State, 378 U.S. 500, 515 (1964).

The court of appeals also suggested that the statute

was constitutional because the Commonwealth conceded

on appeal that three common medical emergencies—in-

evitable abortions, premature rupture of the membranes,

and preeclampsia—that do not appear to meet the stat-

ute’s requirements for an emergency would in fact be con-

sidered by the Commonwealth as emergencies. Pet. App.

37a. This concession cannot save the statute.” First, the

district court found as a matter of fact that no reasonable

physician reading the plain language of the statute would

believe that these medical conditions would be covered.

% This concession——and this interpretation of the statutory lan-

guage—is no more than a “convenient litigating position which is

entitled to no deference. Bowen Vv. Georgetown Univ. Hosp., ont

US. 204, 212-13 (1988). The Commonwealth's position in this cave

is not binding on the Pennsylvania courts which are free to, and

likely will, interpret the statute in exactly the way it is pene

ie., to criminalize the medically appropriate treatment of severa

of the most common complications of pregnancy.

27

Pet. App. 162a-163a. Second, the three examples were

only illustrative of a broader category of conditions that

most physicians would conclude do not meet the plain

language of the statute. For example, Section 3203 may

prevent physicians from appropriately treating various

cardiovascular, renal, pulmonary or neurologic disorders

that are exacerbated by pregnancy, see supra p. 3 n.17,

but that do not necessarily present an immediate and seri-

ous risk of irreversible impairment. These points are dis-

positive, because a criminal statute that is asserted to

mean what no reasonable person subject to the statute

would interpret it to mean is unconstitutionally vague.

Colautti, 439 U.S, at 390-97; Kolender vy. Lawson, 461

U.S. 352, 357 (1983).

Finally, the court of appeals erred in holding that the

statute was constitutional because a physician can be

criminally liable only if he or she “violate[s] his or her

own good faith clinical judgment.” Pet. App. 42a. The

court’s reliance on the subjective standard built into the

statute simply misses the critical point that the grounds

available to the physician for invoking his or her judg-

ment are unduly narrow. Thus, a physician may, in good

faith, believe that delay wi'l cause significant risk to the

patient, but not a risk of irreversible impairment to a

major bodily function. The statute places that physician

in an intolerable dilemma: The physician cannot, in good

faith, authorize the performance of an abortion under the

law, yet the physician cannot, in good conscience, and con-

sistent with the ethical standards of the medical profes-

sion, foree the woman to wait out the many delays im-

posed by the statute.

E. Reporting And Public Disclosure Requirements.

Physicians, nurses, and counselors who provide abortion

services, and women who seek their services, regularly

face picketing and verbal harassment both at their offices

and their homes, harassment of their families, and peri-

odie threats of death, bombing, and kidnapping. Pet. App.

21la-213a, 267a. The effect of such constant harassment

YS

has been to reduce the number of health care providers

willing to assist women in obtaining abortions, and to

force others to take steps to preserve their anonymity.

Id. at 219a-221la. By requiring public disclosure of the

names and addresses of abortion facilities and affiliated

organizations and of the number of abortions performed

‘total and by trimester’ each quarter, and by requiring

confidential reports of the names of referring physicians,

Sections 3207(bi, 3214'(f), and 3214(a' (1) will facili-

tate and exacerbate this harassment, and make it diffi-

cult, if not impossible, for “indigent . . . victims of rape

or incest or who suffer from a life-threatening condition

. to obtain abortion services.” Pet. App. 213a-214a,

220a-2la: see id. at 298a, 302a-304a.

In reversing, the court of appeals simply disagreed

with the district court’s factual findings. Pet. App. 79a,

S2a-83a. The district court’s findings are not clearly er-

roneous, however, and the court of appeals plainly erred

in substituting its own assessment of the record for that

of the district court.” Moreover, quite apart from Roe,

where, as here, it is plain that state-mandated disclosure

requirements can only exacerbate private threats, harass-

ment and reprisals, those disclosure requirements cannot

stand. F.a.. Brown Vv. Socialist Workers ’74 Campaiqn

Comm.,, 459 U.S. 87, 92-94 (1982): NAACP vy. Alabama

ex rel, Patterson, 357 U.S. 449, 462-63 (1958).

F. Criminal Penalties.

The Due Process Clause limits the degree to which

states may criminally punish health care providers for as-

sisting individuals in matters of personal choice. See gen-

erally Doe v. Bolton, 410 U.S. 179, 199-200 (1972); Carey

V. Population Servs, Int'l, 431 U.S. 678, 686-91 (1977);

Kisenstadt Vv. Baird, 405 U.S. 438 (1972). The imposition

of criminal penalties upon physicians who perform abor-

tions in cireumstances where continued pregnancy poses a

significant risk to a woman’s health (but not a defined

57 See Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982); Fed.

R. Civ. P. 52a).

29

“emergency”) is unconstitutional. Uncertainty is an in-

escapable element of medicine. Parham v. J.R., 442 U.S.

584, 604 (1979); Addington v. Texas, 441 U.S. 418, 429

(1979). When physicians are uncertain about the degree

of risk that delay may present to a patient, they should

choose to err on the side of protecting the health of the

patient. Yet, Pennsylvania would make it a crime to do so.

Such a law serves no legitimate purpose. The criminal law

exists to protect the public safety, health, and welfare;

where, as here, its only effect is to subvert public health,

the Fourteenth Amendment precludes its enforcement.

* * * +

Each of the Pennsylvania Abortion Contro| Act’s chal-

lenged provisions, considered individually, unconstitution-

ally burdens the right of pregnant women to choose

whether or not to terminate their pregnancies. Viewed

as a whole, however, a clearer picture emerges. This is

not a statute designed to protect maternal health. Nor is

it a statute intended, through good faith efforts at educa-

tion and social change, to minimize the need for abortion

by getting at the root causes of unwanted pregnancy.

Rather, it is a statute that seeks to discourage, deter, and

defeat women in their attempts to obtain abortions by

replacing the provider-patient relationship and medical

judgment with a procedural obstacle course fraught with

criminal and civil penalties.

The most bitter irony for those among amici’s members

who practiced medicine or nursing prior to 1973 is that

restrictive abortion laws in the end will do little to re-

duce the number of abortions. Rather, they will shift

many abortions out of the sterile confines of licensed

clinics and into the back rooms of those who are willing,

for a price and without regard for patient health, to defy

State law. Thus, the health care provider’s role in refer-

ring or performing an abortion will be replaced by their

role in repairing and treating the consequences of illegal

abortions. This Court rightly concluded in 1973 that the

Fourteenth Amendment protects women from state laws

_—

30

that compel recourse to such desperate anc destructive

measures, and it should reaffirm that conclusion.

CONCLUSION

The judgement challenged in No. 91-744 should be re-

versed and the judgment challenged in No, 91-902 should

be affirmed.

Respectfully submitted,

ANN E. ALLEN CARTER G. PHILLIPS *

AMERICAN COLLEGE OF MARK E. HADDAD «

OBSTETRICIANS AND PAUL E. KALB

GYNECOLOGISTS SIDLEY & AUSTIN

409 12th Street, S.W. 1722 Eye Street, N.W.

Washington, D.C, 20024 Washington, D.C. 20006

(202) 638-5577 (202) 736-8000

Counsel for Amici Curiae

March 6, 1992 * Counsel of Record

31

LAURIE R. ROCKETT

HOLLYER, JONES, BRADY, SMITH,

TOXELL, BARRETT & CHIRA

(Counsel to the American

Medical Women’s Association, Inc.)

342 Madison Avenue

New York, N.Y. 10173

(212) 818-1110

JOEL I. KLEIN

KLEIN, FARR, SMITH & TARANTO

(Counsel to the American

Psychiatric Association)

2550 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

NADINE TAUB

Women’s Rights Litigation Clinic

(Counsel to the American

Public Health Association)

Rutgers Law School

Newark, N.J. 07102

(201) 648-5637

BETH FOUNTAIN

ASHER & ASSOCIATES

(Counsel to the Association of

Reproductive Health Professionals)

1819 H Street, N.W.

Washington, D.C. 20006

(202) 452-1540

SARAH C. CAREY

STEPTOE & JOHNSON

(Counsel to the National

Medical Association)

1330 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 429-3000

la

APPENDIX

AMICI CURIAE

Amicus American College of Obstetricians and Gyne-

cologists (ACOG) is a private, voluntary, non-profit or-

ganization of physicians who specialize in obstetric and

gynecologic care. ACOG is the leading group of profes-

sionals providing health care to women: its 25,000 mem-

bers represent approximately ninety percent of all obste-

tricians and gynecologists practicing in the United States.

Amicus American Medical Women’s Association, Inc.

(AMWA) is a non-profit organization of 12,000 women

physicians and medical students. One of AMWA’s pri-

mary missions is to promote quality health care for

women. AMWA strongly opposes laws which adversely

affect the health of women, or impose constraints on the

right of the pregnant patient, in consultation with her

physician, to make a personal and medically informed de-

cision whether or not to continue a pregnancy.

Amicus American Psychiatric Association (APA) is

the nation’s largest professional association specializing in

psychiatry, with a membership exceeding 30,000 physi-

cians. APA’s purposes include promoting the welfare of

patients who require psychiatric services.

Amicus the American Public Health Association

(APHA) is a national organization devoted to the promo-

tion and protection of personal and environmental health

and to disease prevention. Founded in 1872, APHA is

the largest public health organization in the world with

over 50,000 members. It represents all disciplines and

specialties in public health, including patients and health

professionals such as physicians, nurses, health educators

and family planning specialists.

Amicus Association of Reproductive Health Profes-

sionals ‘ARHP) is an interdisciplinary professional or-

2a

ganization comprised of over 1,500 obstetricians gynecol-

ogists and other physicians, researchers, educators, ad-

ministrators, and other professionals in reproductive

health, ARHP’s mission is to educate health care pro-

fessionals and the public on family planning, contracep-

tion and other reproductive health issues including sexu-

ally transmitted diseases and urogenital infections, HIV,

abortion, Menopause, cancer prevention detection, sexual

health, and infertility.

Amicus National League for Nursing is an organiza-

tion of 12,000 individuals and 2,000 agencies. It represents

nurses from all settings of education and practice, as well

as other health professionals and health policy makers.

The league is the accrediting body for all levels of nursing

schools. It works to promote access to affordable, high

quality health care.

Amicus National Medical Association (NMA), founded

in 1805, is a professional organization representing 16,000

Black physicians and medical students in the United

states. The NMA actively addresses all issues affecting

the ability of its members to deliver quality health care.

It has aggressively sought to ensure equal access and

availability to health care services.