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

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FJiED

WAR 10 1992

7 HE CLERK |

Nos. 91-744 and 91-902

In The

Supreme Court of the United States

October Term, 1991

PLANNED PARENTHOOD OF

SOUTHEASTERN PENNSYLVANIA, ET AL.,

Petitioners,

ROBERT P. CASEY, ET AL.,

Respondents.

ROBERT P. CASEY, ET AL.,

Petitioners,

PLANNED PARENTHOOD OF

SOUTHEASTERN PENNSYLVANIA, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

Brief Amici Curiae of the

Alan Guttmacher Institute, et al.,

in Support of Planned Parenthood of

Southeastern Pennsylvania, et al.

Dorortny B. ZiImBRAKOS COLLEEN K. ConNELL

Rivkin, RaDLeR & KREMER Counsel of Record

30 N. LaSalle Street Tue Rocer BALpDwIN

Suite 4300 FOUNDATION OF ACLU, INC

Chicago, IL 60602 20 E. Jackson Boulevard

(312) 782-5680 Suite 1600

Chicago, IL 60604

(312) 427-7330

Counsel for Amici Curiae

————— ais

ARMI®

Legal Copies of America (312) 332-2764

TABLE OF CONTENTS ..... .

TABLE OF CASES AND OTHER

AUTHORITIES . ...+s..

INTEREST OF AMICI... .

BACKGROUND STATEMENT .. .

SUMMARY OF ARGUMENT . .

ARGUMENT . . . . . .

THE RIGHT OF REPRODUCTIVE

PRIVACY IS ONE OF OUR MOST

CHERISHED AND FUNDAMENTAL

RIGHTS . . «© «© «© © © © © «

Classifying "Privacy"

As A "Limited" Fundamental

Right Misconstrues Decades

Of This Court’s

Jurisprudence ..

Allowing States, Under

The "Undue Burden"

Standard, To Define

"Fetus" And "Life" In A

Scientifically Incorrect

Manner Threatens All

Reproductive Rights

“a * o £44 «

1. The Undue Burden TABLE OF CASES AND OTHER AUTHORITIES

Standard Would Allow

Severe Restrictions

On The Right To Use CASES Page

Contraceptives .... 37

Carey v. Population Services

2. Laws Defining International, 431 U.S. 678

Protectable Life As Te es 6 6 © @ «© «© «© © © «© «688, 23

The Fertilized Ovum

Unconstitutionally Charles v. Carey, 627 F.2d

Restrict The Use Of 722 (7th Cir. 1980) ...... 45

Reproductive

Technologies ..... 46 Charles v. Daley, 749: F.2d

452 (7th Cir. 1984, appeal

CONCTSGIGM ltt klk ee 54 dism’d sub nom. .....+.+.+. 46

City of Akron v. Center

for Reproductive Health,

462 U.S. 416 (1983) seevees 20, 24

City of Cleburne v.

Cleburne Living Center,

473 U.S. 432 (1985) se eeevee oe

Cruzan v. Director, Missouri

Department of Health,

U.S. _, 110 S. Ct. 2841

(1990 _ >. > . .* . _ >. . > 16

Diamond v. Charles, 476

DPT 6 6 6 6 «eo ec ee «(4G

Eisenstadt v. Baird

U.S. 438 (1972) ....... . passim

408 U.S. 104 (1972) ..+ ++ + 35

381 U.S.

Supp. 1361,

1990) .

479 (1965)

U.S. 1 (1967)

464 (1977)

(N.D.

- iv -

735 F.

Tll.

’

388

, 432 U.S.

277 U.S. 438 (1928)

Pierce v. Society of

Sisters, 268 U.S. 51

(1925) . . _ . . > . _ .

Planned Parenthood of

, 947 F.2d 682

[oe Gee BOOED « co oe

Roe v. Wade, 410 U.S. 113

(1973) .* . . . . . >. > .

Safley v. Turner, 482

= -— 8, | eee

316

U.S. 535 (1942)

’

Smith v. Cote, 513 A.2d

341 (N.H.

1986)

15, 17

- VY

Thornburgh v. American

College of Obstetricians

, 476 U.S.

van Gas ©) % 6% % 6 eo

Union Pacific Railway Co.

v. Botsford, 141 U.S. 250

(1891) * . > > . *. . >. * . .

Products Co., 304 U.S.

RS, are eae

Webster v. Reproductive

Health Services, 492 U.S.

Gye Guu oe ee ew ee

Whalen v. Roe, 429 U.S.

FL ere

STATUTORY PROVISIONS

Ill. Rev. Stat. ch 38,

§ 81-22 (1989) ...-. -»

Ky. Rev. Stat. § 311.720

(1990) . >. > . . . . >. . - .

La. Rev. Stat. Ann.

§ 40:1299.35.1 (West 1991)

Mass. Ann. Laws ch. 112,

§ 12K (West 1983) eeees

Minn. Stat. Ann. § 144.343

(West 1989) ..+ + © «© « «

16, 23

- vi -

Mo. Ann. Stat. § 188.015

(Vernon 1992) ......

Neb. Rev. Stat. § 28-326

(1989) . oe > oo . _ . >. _ .

Okla. Stat. Ann. tit. 63,

§ 1-730 (West 1984) ...

18 Pa. Cons. Stat. Ann.

§ 3203 (Purdon 1991) ...

Pa. Cons. Stat. Ann.

§ 3208.1 (Purdon 1991) .

Pa. Cons. Stat. Ann.

§ 3213(e) (Purdon 1991) .

Pa. Cons. Stat. Ann.

§ 3216(c) (Purdon 1991) .

Pa. Cons. Stat. Ann.

§ 3216(e) (Purdon 1991).

S.C. Code Ann. § 44-41-10

(Law Co-op 1991) .....

Wisconsin, Wis. Stat. Ann.

§ 940-04 (West 1982) ..

Wyo. Stat. Ann. § 35-6-101

(1990) >. 7 >. > . . >. . .

- vii -

OTHER AUTHORITIES

Adashi, The Morning After:

nove] hormonal approaches

postcoital interception,

39 Fertil. & Steril.

(1983) . - ee eee ee ee © © 48

Alan Guttmacher Institute,

’

Away (1981) . +++ ++ + © « » 8

American Fertility Society,

United States: 1989 results

- , 55

Fertil. and Steril.

(1991) > >. 8 — > >. > _ . . = . . 47

American Medical Association,

, 261

Data Assessment of IUD

J. A.M.A. 2127 (1989) ..... 38

American College of

Obstetricians & Gynecologists,

Standards for Obstetric-

Gynecologic Services (7th

ed.

1989) ef © # © @© * * >

Balieu, RU 486 as

From Receptor to Contragestion

and Beyond, 262 J. A.M.A. 1808

(1989) — oo _ >. >. a. . . >. > > > . 44

- viii -

Brahams, Abortion and

USA, 337 The Lancet 228

( ) re oe ee

Burgess & Homstrom, Rape:

214

(1979) :

Centers for Disease Control

Surveillance Summaries,

Health Surveillance (1991)

Cook, et al., Pregnancy

Prophylaxis: Parenteral

, 67

Obstet. & Gynecol.

(1986) .....

Creasy and Resnik, Maternal-

and Practice 1 13 apd ed.

1989) .. ,

Cunningham, F. & MacDonald,

P. & Gant, N., Williams

Obstetrics, (18th ed. 1989)

Dawson, Fertilization and

moral status: A scientific

perspective, in Embryo

Experimentation 49

(P. Singer at al. eds.,

1990) ° ° ee

31, 32

- ix -

Dawson, Introduction:

An_

in Embryo Experimentation

(D. Singer, et al., eds.

OO re aera ae

Drugan, et al., Determinants

of Parental Decisions To

, 10 Prenat.

Diag. 483 (1990)

Duke, et al., Women’s

266 J. A.M.A.

1846, (1991) cae» <

Fasoli, et al., Post-

overview of published

studies, 39 Contraception

459 (1989) a / *¢ «

Forrest, et al., U.S.

Women’s Contraceptive

Attitudes and Practice:

How Have They Changed in

20 Fam. Plan.

Persp. 112 (1988)

Glass, “Egg Transport

and Fertilization," in 5

ch. 46 at 1-3 (J. Sciarra,

ed., rev. ed. 1985)

Gold, R., Abortion and

Point for America (1990)

Goldsmith, As Data on

Antiprogesterone Compounds

Grow, Societal and

Scientific Aspects are

Scrutinized, 265 J. A.M.A.

1628, 1628 (1991) ...

Hatcher, R., et al.,

(15th ed. (1990)} .

Hutchings, et al., The

IUD After 20 Years: A

Review, 17 Fam. Plan. a

244 (1985) ......

Fertil. and Steril. 780,

TOG GOBUED 6-6 se 6 © et

Kaeser, Contraceptive

Jones, Cryopreservation

and its Problems

Development: Why the

Snail’s Pace?, 22 Fam. Plan.

Persp. 131 (1990)

Koonin, et al.,

due to AIDS in the United

States, 261 J. A.M.A. 1306

(1989) . —_ _ _ . > - + >.

Michael & Buckle, Screening

for genetic disorders:

IVF, 16 J. Med. Ethics

43 (1990) . 2s

38, 39

- xi-

Milunsky, "Genetic

Counseling: Prelude to

Prenatal Diagnosis", in

Genetic Disorders and the

Fetus: Diagnosis,

Prevention and Treatment

faeeee 6 6 6 6 eee 8 8

Mishell,

Intrauterine

Devices, 22 Clinics in

Obstet. and Gynecol. 679

(1984) . .« « « «

Ory, et al., Making

Birth Control] Methods (Alan

Guttmacher Institute 1983)

Potts, Birth Control Methods

am.

Plan. Persp. 288 (1988)

Roberts, U.S. Lags on

247 Science 909 (1990)

Sacker & Neuhoff, "Medical

and Psychological Risk

Factors in the Pregnant

Adolescent," in Pregnancy

and Adolescence: Needs,

107

Problems and Management

(I. Stewart, et al., acs.

| ae

11, 54

- xii - Nos. 91-744 and 91-902

Saxena, Measurement IN THE

and clinical significance SUPREME COURT OF THE UNITED STATES

of preimplantation blastocyst OCTOBER TERM, 1991 -

» J. Reprod. & 747 7 7 7 a a

Fertil. 115 (1989) ....... 33

PLANNED PARENTHOOD OF SOUTHEASTERN

Shoupe & Mishell, Norplant: PENNSYLVANIA, et al.,

160 Petitioners

Am. J. Obstet. Gynecol. 1286

(1989) . . > . . >. . — 7 . . > > 38 Vv.

Tribe, L., ee ROBERT P. CASEY, et al.,

Pa a | | Respondents.

Ulmarn, et al., RU 486 ROBERT P. CASEY

262 Scientific American 42 =——

(1990) . 7. 7 . . . . — . >. . . . 44 Petitioners,

U.S. Dept. of HHS, "IUDs: Vv.

1a87 - ,* PLANNED PARENTHOOD OF SOUTHEASTERN

) . . . . . . . . + . . . . 38 PENNSYLVANIA, et al. ’

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF AMICI CURIAE OF THE

ALAN GUTTMACHER INSTITUTE, et al.

IN SUPPORT OF PLANNED PARENTHOOD OF

SOUTHEASTERN PENNSYLVANIA, et al.

——

INTEREST OF AMICI CURIAE

Amici curiae, the Alan Guttmacher

Institute, the Los Angeles Regional

Family Planning Council, the

International Women’s Health Coalition,

the National Association of Nurse

Practitioners in Reproductive Health,

the National Family Planning and

Reproductive Health Association, the

National Society of Genetic Counselors,

and the individual members of the

associational amici, are integrally

involved in women’s reproductive health

care: they provide or supervise

reproductive medical care; they teach in

medical schools; and they provide

information and counseling about

reproductive health care matters,

including contraception and genetics.’

' A more complete description of

each amicus is set forth in Appendix A

to this brief.

=S«

The interest of amici stems from their

obligation to provide medical care of

the highest quality. Amici file this

brief on behalf of petitioners, after

securing the consent of petitioners and

respondents,’ and submit that that part

of the Court of Appeals’ decision

Classifying the right to privacy as a

"limited" fundamental right and

upholding the Pennsylvania law should be

reversed.

Women’s reproductive health care is

in crisis. High rates of maternal and

infant mortality, increased incidences

of breast cancer, unintended

pregnancies, declining contraceptive

options, restrictions on abortion,

increased infertility, and an epidemic

? See Appendix B for copies of

these letters of consent.

e3e

of sexually transmitted diseases,

including the HIV virus, all threaten

the well-being of women.’ Although the

sutuntens to many of these problems are

well known, health professionals’

remedial efforts are stymied by

restrictive laws -- such as the

Pennsylvania statute -- which endanger

both women and reproductive health care

providers.‘

The sound practice of reproductive

health care requires the ready

availability of the full range of modern

medical services, including

contraceptives, genetic screening, and

safe and legal abortion. Amici’s

3 R. Duke, et al., Women’s

266 J. A.M.A. 1846 (1991) (hereinafter

cited as "Women’s Reproductive Health”).

* See id. at 1847.

— 2

professional experience is that

obstructing or delaying the availability

of appropriate reproductive health care

will severely impair medical practice

and will result in serious injury or

death to many women and their children.

Amici are particularly concerned

that any further erosion of the woman’s

fundamental right of privacy articulated

in Roe v. Wade, 410 U.S. 113 (1973), as

applied to abortions, inevitably will

have an adverse impact on the right of

privacy in every other aspect of

reproductive health care, including

contraception, genetic testing, and

medically-assisted conception such as in

vitro fertilization.

BACKGROUND STATEMENT

Amici include the primary health

care providers of many of the 55 million

e Ge

women of reproductive age in the United

States.’ Each of these women has unique

needs and medical conditions which

influence her decisions about whether

and when to become pregnant.

It is difficult to overestimate the

importance to a woman of controlling her

own fertility: the power to plan each

pregnancy often foretells the woman’s

educational attainment, economic

stability, and very health and

longevity. With safe and accessible

contraceptives, women live longer,

healthier lives.°

S ory, et al., Making Choices:

Evaluating the Health Risks and Benefits

10 (Alan

Guttmacher Institute 1983) (hereinafter

cited as "Making Choices").

6 See F. Cunningham, P. MacDonald

& N. Gant, villians Onatetrics 4 & Table

1-2 (18th ed. 1989) (hereinafter cited

as "Williams Obstetrics”).

eé@e«

No contraceptive method, however,

is perfect. Although more than 92 per

cent of sexually active women use some

contraceptive method,’ every year more

than three million American women face

an unintended pregnancy. Approximately

45 per cent of women in the United

States will have an abortion during

their lives.'

Even in the age of modern

obstetrics, women face considerable

risks from pregnancy, especially those

that are unintended. Mentally retarded

’ Forrest, et al., U.S. Women’s

Contraceptive Attitudes and Practice: —

Fam. Plan. Persp. 112, 116 (1988).

‘

Making Choices, at 10. It is

estimated that in the United States,

about two thirds of women will have an

—naneee puegnanty in their lifetime

r ce

SS ee pe ; nt will have an

at 1847.

e%9-«

women unable to understand how they

became pregnant experience elevated

health risks, as do women with other

medical conditions such as coronary

artery disease, diabetes, and

hypertension. Even healthy women over

30 have a higher risk of maternal death

than do younger women.’

Pregnant women younger than age 15

particularly face elevated medical

perils. Teens suffer higher incidences

of toxemia, anemia, miscarriage, and

premature and prolonged labor. The

maternal mortality rate for mothers

* Centers for Disease Control

Surveillance Summaries,

9 (July

1991), (hereinafter cited as "CDC

*).

Women between the ages of 35-39 are

almost four times more likely to die

than women ages 20-24; this risk is

almost ninefold for women over 40. Id.

at 9 and Table 2.

-8-

under 15 is 1000 times higher than for

women in their 20’s and 200 times higher

for women between 15 and 19."

Some medical difficulties arise

during the pregnancy. These include

problems caused by the pregnancy itself,

such as toxemia or preeclampsia, which

may elevate the woman’s risk of death or

injury if the pregnancy continues."

Pregnancy often accelerates the progress

Psychological Risk Factors in the

Pregnant Adolescent," in Pregnancy and

Management 107, 127 (I. Stewart et al.,

eds. 1982). Children born to teens

suffer, too. Teens who give birth at an

age younger than 15 particularly risk

low birth weight infants and premature

deliveries. Alan Guttmacher Institute,

Hasn’t Gone Away 29 (1981). Low birth

weight and premature labor are the

leading causes of infant mortality and

childhood disease.

at 4.

" Williams Obstetrics at 3.

= 2

of the HIV infection (AIDS),

jeopardizing the life of the woman and

any child she might have.”

Effective contraception and legal

abortion present less of a threat to

women’s health and lives than does

childbirth. More than 51 per cent of

maternal deaths occur in connection with

a live birth; only 4.7 per cent of

maternal deaths occur in connection with

legal abortions.” Thus, forcing even

healthy women of optimal age to carry an

unintended pregnancy to term increases

2 Koonin, et al., Pregnancy

United States, 261 J. A.M.A. 1306, 1308

(1989).

— at 11. Similarly,

00 live

ratio of deaths per 100,0

piste for the years 1979 to 1986 was

9.1, id. at 9; the ratio of deaths per

100,000 abortions for 1981-85 is 0.6.

R. Gold,

Abortion and Women’s Health: A

Turning Point for America 28-29 (1990).

e 20 «

their risk of death and disease. State

laws which impede access to legal

abortion and effective contraception

inevitably will force some women to turn

in despair to illegal abortion.

For millions of women who want to

conceive and bear a child, complete

reproductive health care must include

the option of genetic counseling,

prenatal testing, and diagnosis, all of

which are threatened by statutes -- like

Pennsylvania’s -- defining protected

life as beginning at fertilization.”

4 At least 11 states define

protected life as the equivalent of the

fertilized ovum. Those states include

Illinois, Ill. Rev. Stat. ch 38, § 81-22

(1989); Kentucky, Ky. Rev. Stat. §

311.720 (1990); Louisiana, La. Rev.

Stat. Ann. § 40:1299.35.1 (West 1991);

Massachusetts, Mass. Ann. Laws ch. 112,

§ 12K (West 1983); Minnesota, Minn.

Stat. Ann. § 144.343 (West 1989);

Missouri, Mo. Ann. Stat. § 188.015

(Vernon 1992); Nebraska, Neb. Rev. Stat.

§ 28-326 (1989); Oklahoma, Okla. Stat.

Prenatal diagnosis is especially

essential for women who have an

increased risk of giving birth to a

child with a serious disease or genetic

condition.

Once a physician learns that the

fetus has a genetic anomaly,

professional medical standards mandate

that, within appropriate time

limitations, the woman be informed of

her option to terminate the pregnancy.”

Ann. tit. 63, § 1-730 (West 1984); South

Carolina, S.C. Code Ann. § 44-41-10 (Law

Co-op 1991); Wisconsin, Wis. Stat. Ann.

§ 940-04 (West 1982); and Wyoming, Wyo.

Stat. Ann. § 35-6-101 (1990).

'S See American College of

Obstetricians & Gynecologists, Standards

= 62,

64-65 (7th ed. 1989) (hereinafter cited

as "ACOG Standards"); see also A.

Milunsky, “Genetic Counseling: Prelude

to Prenatal Diagnosis", in Genetic

Disorders and the Fetus: Diagnosis,

Prevention and Treatment 4, 20-21 (1986

(hereinafter cited as "Milunsky, Genetic

Counseling”).

« 49 «

State laws -- like Pennsylvania’s --

that force those women to receive

certain information about the developing

fetus and to wait a specified time

period after they have already decided

to terminate the pregnancy only increase

the severe emotional trauma of such

tragedies.

Finally, for the millions of

couples who want children but experience

fertility problems,” medical assistance

in achieving pregnancy is indispensable.

Technological advances used to help

women desiring children become pregnant

include: in vitro fertilization, and

its variations of gamete intrafallopian

transfer ("GIFT") and zygote

intrafallopian transfer ("ZIFT"); the

flushing of an embryo from the uterus of

eo 43 «

one woman for subsequent insertion into

the uterus of another woman; and the

cryopreservation of any excess embryos

produced. By defining the fertilized

Ovum as a person with legal rights, the

states inhibit research that advances

their stated goal of fostering

childbirth.

SUMMARY OF ARGUMENT

If upheld, the Pennsylvania statute

and others like it, unquestionably will

disrupt the delivery of the full range

of reproductive health care to millions

of American women. The Pennsylvania

definition of fetus as the equivalent of

"fertilization" and of "conception" --

"the fusion of a human spermatozoan with

a human ovum" -- and similar

7 18 Pa. Cons. Stat. Ann. § 3203

(Purdon 1991).

@ 14 «

definitions adopted by at least 11 other

states contravene science and modern

medical practice. By upholding a

statute premised upon this definition

and by devaluing reproductive privacy to

the status of a "limited" fundamental

right, the Court of Appeals has opened

the door to government interference not

only in decisions about abortion, but

also in such inherently personal matters

as decisions about contraception,

assisted conception, and other uses of

reproductive technology. Such

interference, if sustained by this

Court, will strike at the heart of basic

concepts of individual liberty in our

free society. See Griswold v.

Connecticut, 381 U.S. 479 (1965); Loving

v. Virginia, 388 U.S. 1 (1967);

Eisenstadt v. Baird, 405 U.S. 438

- 15 -

(1972); see also Skinner v. Oklahoma,

316 U.S. 535, 541 (1942).

I. THE RIGHT OF REPRODUCTIVE PRIVACY

Is ONE OF OUR MOST CHERISHED AND

Central to our Constitution’s

concept of ordered liberty is the right

of individuals to make informed

decisions about “whether to bear or

beget a child." Eisenstadt, 405 U.S. at

453. This constitutional right of

privacy, whose heritage is “older than

the Bill of Rights," Griswold, 381 U.S.

at 486, resolutely "protects individual

decisions in matters of childbearing,"

Carey v. Population Services

International, 431 U.S. 678, 687 (1977)

(White, J., concurring in pertinent part

and concurring in result), because "such

decisions are none of government’s

- 16 -

business." Thornburgh v. American

College of Obstetricians &

Gynecologists, 476 U.S. 747, 792 n.2

(1986) (White, J., dissenting). Indeed,

no right can be more fundamental or more

firmly rooted in this nation’s history

and tradition than the right to personal

bodily integrity and autonomy."

The fundamental right of

reproductive privacy enunciated in

Griswold, Eisenstadt, and Roe was the

culmination of a long continuum of cases

stemming back at least as far as Union

Pacific Railway Co. v. Botsford, 141

penaxtnant of Maniin, en OE ee ae

S. Ct. 2841, 2856 (1990) (O’Connor, J.,

concurring) ("({bJecause our notions of

liberty are inextricably entwined with

our idea of physical freedom and self-

determination, the Court has often

deemed state incursions into the body

repugnant to the interests protected by

the Due Process Clause").

- 17 -

U.S. 250, 251 (1891) (citation omitted),

in which this Court stated:

No right is held more sacred or is

more carefully guarded, than the

right of every individual to the

possession and control of his own

person(.) .. . "The right to one’s

person may be said to be a right of

complete immunity; to be let

alone."

This right, which has come to be known

as the right of privacy, protects a

broad spectrum of individual

decisionmaking from governmental

interference, Whalen v. Roe, 429 U.S.

589, 599-600 (1977), including decisions

about: marriage, Safley v. Turner, 482

U.S. 78, 95-96 (1987); child rearing and

education, Pierce v. Society of Sisters,

268 U.S. 510, 535 (1925); procreation,

Skinner v. Oklahoma, 316 U.S. 535, 541-

42 (1942); contraception, Griswold, 381

U.S. at 486, and Eisenstadt, 405 U.S. at

453; and abortion, Roe, 410 U.S. at 150-

54. To snip at even one thread of the

carefully woven fabric of constitutional

privacy, as the Third Circuit does by

severing abortion from this continuun,

threatens to unravel the entire

doctrine.

AD Classifying “Privacy” As A

“Limited” Fundamental Right

Misconstrues Decades Of This

Court’s Jurisprudence. _

The Third Circuit’s notion that a

woman’s privacy right to choose an

abortion is but a “limited” fundamental

right, and that only an “undue burden”

on the exercise of that right may be

found unconstitutional, Planned

Parenthood of Southeastern Pennsylvania

v. Casey, 947 F.2d 682, 688, 694-98 (3d

Cir. 1991), is inaccurate and propounds

an illegitimate and unworkable standard

of constitutional litigation. There is

no such thing as a limited fundamental

right, and no right has ever been so

designated in this Court’s

jurisprudence. (See Brief of

Plaintiffs-Petitioners for a

comprehensive discussion of the problems

created by such a standard.)

Classification of a right as

“fundamental” reflects a judgment that

the right is so important in our

constitutional constellation that the

government’s power to regulate or limit

the exercise of that right must, of

constitutional necessity, narrowly be

constrained. See United States v.

Carolene Products Co., 304 U.S. 144, 152

n. 4 (1938). For the past half-century,

this Court’s decisions have delineated

between rights which are considered

fundamental, and those which are not.

See L. Tribe, American Constitutional

» 26 «

Law §§ 11-1 - 11-5, at 769-84 (2d ed.

1988) and cases cited therein.

In creating the "limited"

fundamental rights classification, 947

F.2d at 688, the Court of Appeals

misconstrues this Court’s fundamental

rights jurisprudence as well as its

privacy and abortion jurisprudence.”

One searches the annals of

constitutional law in vain to find a

decision of a majority of this Court

8 Neither this Court’s majority

opinion nor Justice O’Connor’s dissent

~ , 462 U.S. 416

(1983), create the separate

Classification of “limited” fundamental

right. To the contrary, in her Akron

dissent, Justice O’Connor specifically

embraces the fundamental rights

classification, albeit disagreeing with

the result reached by the majority.

Akron, 462 U.S. at 452-53 (O’Connor, J.,

dissenting).

@ 23 «

creating a third category of rights --

"limited" fundamental rights.”

The Third Circuit’s analysis has

profound implications for all of the

other rights which this Court has long

deemed fundamental and has evaluated

under the strict scrutiny standard. The

practical effect of the Third Circuit’s

“limited” fundamental right/undue burden

analysis could be to evaluate nearly all

state restrictions on all fundamental

rights under the rational basis test.

The Court of Appeals’ designation

of privacy as a "limited" fundamental

* Notwithstanding the foregoing,

the Constitution does not deny

government all authority to enact laws

that may touch upon or even limit

certain exercises of fundamental rights.

But, in such cases, the government must

show a compelling state interest and

that the statute at issue is narrowly

tailored to advance that interest. See

L. Tribe,

§ 11-1, at 770 and cases cited therein.

- 22 -

right, 947 F.2d at 688, also profoundly

misconceives the nature of the privacy

right in such cases as Griswold and

Eisenstadt. Constitutional protection

for the right of privacy does not depend

on the absence of the fetus, but rather

is a right "as against the Government .

. to be let alone," Olmstead v. United

States, 277 U.S. 438, 478 (1928)

(Brandeis, J., dissenting) to make

procreative decisions. As this Court

acknowledged in Roe, the presence of the

fetus does not undercut the

“fundamental” nature of the privacy

right, but instead invokes the

countervailing state interests of

maternal health and fetal life at

various stages of the pregnancy. Roe,

410 U.S. at 162-63.

» 23 «

Indeed, the right of privacy may be

more critical after conception given the

profound and inevitable effect of

bearing a child on a woman’s future

life. A pregnant woman has no choice

but abortion to avoid bearing a child

against her will, whereas a woman denied

the use of contraceptives can avoid

pregnancy by abstaining from sexual

intercourse. Carey, 431 U.S. at 713

(Stevens, J., concurring) .”!

Thus, any attempt to limit the

privacy right based on the

“potentiality” of the life of the fetus

must fail. Although perhaps "potential

* See also Thornburgh, 476 U.S. at

776 (Stevens, J., concurring): "I fail

to see how a decision on childbearing

becomes less important the day after

conception than the day before. Indeed,

if one decision is more ‘fundamental’ to

the individual’s freedom than the other,

surely it is the postconception decision

that is the more serious."

e 94

life is no less potential in the first

weeks of pregnancy than it is at

viability or afterward," Akron, 462 U.S.

at 461 (O’Connor, J., dissenting), for

that matter, life is no less "potential"

at the point at which a man and a woman

engage in sexual intercourse. Nor is it

any less “potential” at fertilization,

the point at which Pennsylvania would

protect life. However, protecting all

such “potential” life could eviscerate

modern contraceptive practice. See

infra at 37-45.

It is not the abstract "potential"

for life that the Court in Roe

recognized as compelling enough to

justify narrow restrictions on post-

viability abortions. Rather, it is the

probability of a live-born person that

Justice Blackmun’s viability

e 28 «

determination addressed as the point at

which the state’s interest in the life

of the fetus becomes compelling. Roe,

410 U.s. at 164-65. As Justice Stevens

stated in his concurrence in Thornburgh,

476 U.S. at 778 (citations omitted):

I should think it obvious that the

state’s interest in the protection

of an embryo -- even if that

interest is defined as "protecting

those who will be citizens," ibid.

-- increases progressively and

dramatically as the organism’s

capacity to feel pain, to

experience pleasure, to survive,

and to react to its surroundings

increases day by day. The

development of a fetus -- and

pregnancy itself -- are not static

conditions, and the assertion that

the government’s interest is static

simply ignores this reality.

To deny the fundamental nature of

the privacy right and to lower the

standard of review from "strict

scrutiny” to “undue burden" could, if

the Court of Appeals is upheld,

eviscerate not only the right to

e 2

abortion, but every other aspect of the

right to privacy. This case

demonstrates that the practical effect

of the Third Circuit’s "limited"

fundamental rights/undue burden analysis

on restrictions on reproductive privacy

is to almost always find no undue burden

and to uphold nearly all such

restrictions under the rational basis

test; the Court of Appeals itself

concedes that the relevant challenged

provisions of the Pennsylvania statute

would fail to pass constitutional muster

under the strict scrutiny standard.

Casey, 947 F.2d at 697, 706 and n.20.

Under the Court of Appeals’

analysis, restrictions on the right to

use contraception and technology-

assisted methods of conception arguably

could be sustained under the rational

—

e 27 «

basis standard of review, absent a

showing of undue burden. Given this

deferential standard, could government,

in a time of overpopulation, force a

pregnant woman to use Norplant, or,

given today’s concerns over AIDS, could

government compel every man to wear a

condom?

The consequences of a decision

upholding the Court of Appeals would be

dire indeed. At a minimum, women in at

least eleven other states could be

stripped of the right to use effective,

post-fertilization contraception; and

women in the remaining states could face

protracted legislative and judicial

battles over the scope of their now-

limited right of reproductive privacy.

- 28 -

B. Allowing States, Under The "Undue

Burden” Standard, To Define "Fetus"

And “Life” In A Scientifically

Incorrect Manner Threatens All

Reproductive Rights.

Neither the undue burden test nor

the rational basis test, also used by

the Court of Appeals, achieves in any

principled manner the state’s purported

goal of protecting potential life. The

practical effect of both tests could be

to permit state legislatures to

inaccurately define the fetus and life,

and thereby place such restrictions on

abortion, contraception, and other

reproductive health care as to all but

ban then.

All of the challenged Pennsylvania

provisions are premised on the

definitions in section 3203. Contrary

to Pennsylvania’s attempt to define the

fetus as the equivalent of

- 29 -

"fertilization" and "conception,"

conception is not a single stage or one-

step process, let alone something as

simplistic as the mere "fusion of the

spermatozoan with a human ovum."

Fertilization of the ovum by the spern,

the first stage in conception, is itself

a continuum of multiple interdependent

steps before the first cell division

(cleavage).” Only if a normal first

2 R. Glass, “Egg Transport and

Fertilization," in 5

Gynecology and

Obstetrics ch. 46 at 2-3 (J. Sciarra,

ed., rev. ed. 1985).

The fertilization period of the

human ovum is estimated to range between

12 and 24 hours. During this period, a

sperm cell must penetrate the zona

pellucida, an acellular glycoprotein,

which surrounds the ovum at ovulation.

The head of the sperm cell that has

penetrated the zona pellucida makes

initial contact with a second membrane,

the vitelline (egg) membrane. The egg

membrane engulfs the sperm head

resulting in a fusion of egg and sperm

membrane. The chromatin material of the

sperm head then decondenses, forming the

—

cleavage does occur, has fertilization

been successful.

Implantation also is a multi-stage

continuum. The fertilized ovum oe

zygote -- undergoes a slow cleavage into

a blastocyst. After the blastocyst is

transported into the uterus, the zona

pellucida dissolves, a prerequisite to

successful implantation. The blastocyst

then adheres to the surface of the

endometrium (lining of the uterus) in

the first stage of implantation. After

a process in which the epithelium (a

sheetlike layer of tissue) of the

endometrium erodes, the blastocyst sinks

male pronucleus. Subsequently, the

female and male pronuclei move toward

each other. As this happens, the

limiting membranes surrounding each

nucleus break down, and a spindle is

formed on which the chromosomes become

arranged. The cell (called a zygote) is

now ready for the first cell division.

See Glass at 3.

e 32 «

into the endometrium and, finally,

becomes totally encased.” When this

staged process is complete,

approximately six to seven days after

the fertilization process set forth

above, implantation has finally

occurred.”

* Williams Obstetrics at 40.

“ Even then, the formation of a

single individual with a unique

immutable genetic blueprint (and thus a

single "“soul") is not assured. There is

a possibility that twins may develop

from the blastocyst until at least 12

days after fertilization. Dawson,

, in Embryo

Experimentation 49 (P. Singer et al.

eds., 1990) (hereinafter cited as

Conversely, a chimera may be formed when

two or more pre-embryos fuse and

contribute to the development of a

single prenate. JId.at 56. Also, even

after implantation, the growing mass of

cells can become a hydatidiform mole

(tumor) rather than a fetus, a medically

dangerous condition for the woman which

will never produce a live birth.

Williams Obstetrics at 540-42.

- 32 -

At each of the various and

complicated stages described above,

development may stop. It is estimated

that "for up to 78 per cent of

fertilizations the endpoint is loss

rather than progression to the next

developmental stage."”

Defining pregnancy and the fetus as

the equivalent of the fertilized ovun,

and then defining abortion as

terminating a clinically diagnosable

pregnancy, brings post-fertilization

birth control methods within the ambit

of Pennsylvania’s criminal abortion

statute because ‘t now is possible to

detect fertilization even prior to

implantation and thereby act early on to

at 49.

- 33 «

prevent it.” Recognizing that, since

Griswold, this Court has not upheld any

state law shown to restrict birth

control, Pennsylvania attempts to save

its law by cosmetic surgery that on the

surface is appealing but that doesn’t

solve the problem. Pennsylvania

attempts this charade by exempting

certain methods of post-fertilization

birth control from the definition of

abortion in section 3203, namely the

birth control pill and the intrauterine

* Although all pregnancy tests

test for the presence of human chorionic

after fertilization but even before

implantation occurs. See,

, J. Reprod. & Fertil.

115, 118 (1989). See also R. Creasy and

R. Resnik Maternal-Feta] Medicine:

Principles and Practice 113 (2d ed.

1989).

device ("IUD"), ent, more generally in

section 3208.1, by prohibiting any

interference with "medically appropriate

methods of contraception." Those

attempts, however, must fail as must

those of any statute whose definition of

abortion is premised on an erroneous and

irrational definition of the fetus as

the fertilized ovun.

First, by specifically exempting

only the IUD and the birth control pill,

Pennsylvania ostensibly could ban other

well-established methods of post-

fertilization contraception such as

Norplant and some uses of RU 486. Other

post-fertilization methods of

contraception not presently available or

developed also apparently would be

banned by section 3203. Section 3208.1

does not vitiate the ban because 4

physician must guess at his or her peril

what Pennsylvania considers “medically

appropriate methods of contraception."

Such vagueness and uncertainty offends

even the most elemental concept of due

process of law because, at a minimun,

criminal laws must be drafted so clearly

as to leave no umcertainty as to what

conduct is prohibited. Grayned v. City

of Rockford, 408 U.S. 104, 108-09

(1972).

Second, the Perinsylvania statute,

as well as every other state statute

premised on the erroneous definition of

protectable life as the fertilized ovun,

must also fall because it is irrational.

It is irrational because there is no

scientific, medical, or moral basis for

creating a legal distinction between

fertilized ova, enforced by criminal

- 36 -

sanctions, based solely on the method

used to prevent the ovum from developing

into a term pregnancy. There is no

moral distinction between preventing a

fertilized egg from implanting by

chemical means such as a pill or

preventing implantation by mechanical

means such as menstrual extraction.

Line drawing by a state legislature must

at least meet the standard of

rationality, see, e.g., City of Cleburne

¥. Cleburne Living Center, 473 U.S. 432,

446-47 (1985), and any statute premised

on an erroneous definition is, a

fortiori, irrational.

The consequence of the definitional

errors made by Pennsylvania, and at

least 11 other states, have profound

implications for women’s reproductive

health care. Faced with an inaccurate

definition of when protectable life

begins, a reproductive health care

provider is left to flounder in a sea of

legal uncertainty when prescribing well-

accepted contraceptives that may prevent

implantation of the blastocyst, and when

using medical advances aimed at

assisting conception and pregnancy.

1. The Undue Burden standard

Would Allow Severe

Restrictions On The Right To

Many common methods of

contraception, as one possible working

mechanism, interfere with the

implantation of the blastocyst in the

- 38 -

endometrium. The IUD,” Norplant,” and

certain low dose oral contraceptives”

7 Hutchings, et al., The IUD After

20 Years: A Review, 17 Fam. Plan.

Persp. 244, 245 (Nov./Dec. 1985). See

also U.S. Dept. of HHS, JUDs:

and Use, (1987); R. Hatcher, et al.,

377 (15th ed.

1990) (hereinafter cited as

"Contraceptive Technology").

Although experts cannot ascertain

how the IUD prevents pregnancy in each

individual case, it is generally

recognized that prevention of

implantation is one working mechanism of

this contraceptive device. American

Medical Association,

IUD, 261 J. A.M.A. 2127, 2128 (1989); D.

Mishell, Intrauterine Devices, 22

Clinics in Obstet. and Gynecol. 679, 680

(1984).

% As with the IUD, Norplant has

several mechanisms of action, including

suppressing ovulation. In addition, one

of its functions is to inhibit

development of the endometrium, thereby

preventing implantation. Shoupe &

Mishell, : Bo

Am. J. Obstet.-Gynec. 1286, 1287 (1989).

2% The newer combined oral

contraceptives, in addition to

suppressing ovulation, also frustrate

@ 99 «

ail are thought on occasion to prevent

implantation.

By adopting a scientifically

invalid definition of when life begins,

states interfere with the rights of

millions of women who use contraceptive

methods that can act after

fertilization, forcing them to use

barrier contraceptive methods which are

less reliable contraceptives. Eighteen

per cent of diaphragm users, 12 per cent

of condom users, and 28 per cent of

sponge users experience an accidental

conception in other ways, including

affecting the transportation of the

fertilized ovum through the fallopian

tubes, so as to decrease the likelihood

of implantation. Making Choices at 5;

See Contraceptive Technology at 228-29.

Many women use combined oral

contraceptives, which have lower levels

of estrogen, because of the perceived

health risks of the older, higher

estrogen-dose pills. See Contraceptive

Technology at 228.

» 4

pregnancy within the first year of

use.” Given these high rates of

failure and the millions of unintended

pregnancies resulting every year, women

using less effective methods of

contraception have a heightened interest

in abortion when their contraception

fails. Similarly, when prescribing a

less effective contraceptive, physicians

have a responsibility to advise a woman

of her option to terminate her

pregnancy. Thus, ironically, and

somewhat irrationally, the Pennsylvania

law and the similar laws of other

states, could result in more unintended

pregnancies and the need for even more

abortions.

Some contraceptives, such as high

doses of oral contraceptives, are

* Contraceptive Technology at 134.

@ 43 «

administered with the specific intent of

preventing implantation after

fertilization has occurred, especially

in treatment for sexual assault victims.

A woman who has been raped is desperate

to avoid pregnancy,* and it is standard

treatment for a physician to administer

post-coital contraceptives in such a

case. This treatment most likely will

prevent implantation,” as will post-

coital insertion of an IUD.”

. = See Burgess & Homstrom Rape: _

Crisis and Recovery 214 (1979).

% See C. Cook, M.D., et

, 67 Obstet. &

Gynecol. 331-33 (1986); E. Adashi, M.D.,

39 Fertil. & Steril. 267-69 (1983).

% M. Fasoli, M.D., et al., Post-

39 Contraception 459

465-66 (1989). “

» @e

Used in this manner, post-coital

contraceptives spare the woman who has

suffered sexual assault the agonizing

wait until the onset of the next

expected menstrual period to learn

whether she is pregnant. She thus is

relieved of the need to consider whether

to undergo a surgical abortion at that

point. Yet, the Pennsylvania law and

others like it threaten this humane use

of post-coital contraceptives.

Such laws also will restrict

research on the development of new

contraceptives which are thought to

inhibit implantation.” The most

4 Restricting access to certain

contraceptives appears to be the goal of

manv of the opponents of legal abortion.

Kaeser, :

the Snail’s Pace?, 22 Fam. Plan. Persp.

1990); Brahams, Abortion and

131, 132 ( ); P tlon-and

Lancet 228, 228 (1991); Roberts, Te

’

» 46 «

significant new development in post-

coital contraceptive technology, RU 486,

is considered to have great potential

precisely because it can act during the

indeterminate period between

fertilization and a viable pregnancy.

This drug will induce menses in women

who are not pregnant and also will block

the working action of progesterone --

the hormone which supports implantation

of the fertilized ovum -- thus

Science 909 (1990).

Restrictive contraceptive laws long

have had a negative impact on

reproductive health care. For example,

the two American scientists who

developed the first oral contraceptives

were barred by state law from performing

their clinical trials in the state in

which they practiced. They were forced

instead to conduct such trials in Puerto

Rico. Potts,

Birth Control Methods in

the United States, 20 Fam. Plan. Persp.

288, 289 (1988).

- 44 -

terminating pregnancy when implantation

has occurred.”

%* Baulieu, RU 486 as an

, 262 J.

A.M.A. 1808, 1811-13 (1989); A. Ulmarn,

et al., RU 486, 262 Scientific Am. 42,

46-47 (1990). Similarly, researchers

are currently developing a vaccine of

anti-sperm antibodies. Instead of

testing this vaccine in a limited

clinical trial which could result in

unwanted pregnancies or abnormalities in

subsequent children, the effectiveness

of the vaccine is being assessed by

blocking fertilization in vitro. Unless

the vaccine is 100 per cent effective,

pre-embryos will inevitably be created,

and ultimately destroyed.

Restrictions on the use of RU 486

as a contraceptive or contragestive also

have profound, and negative,

implications for its use in treating

other conditions such as breast cancer.

Preliminary trials, which have not been

conducted in this country because of

anti-abortion pressure on the political

system, strongly suggest that RU 486, is

highly effective in treating breast

cancer. Goldsmith, As Data on

Antiprogesterone Compounds Grow,

Societal and Scientific Aspects are

Scrutinized, 265 J. A.M.A. 1628, 1628

(1991); Ulmarn, et al., RU 486, 262

Scientific American 42, 48 (1990).

By restricting the use of

contraceptives which prevent

implantation, such statutes interfere

with the fundamental right of privacy to

use contraception and thus violate the

Constitution. Webster v. Reproductive

Health Services, 492 U.S. 490, 523

(1989) (O’Connor, J., concurring) (the

use of post-fertilization contraceptive

devices is constitutionally protected by

Griswold and progeny); 492 U.S. at 564

(Stevens, J., concurring in part,

dissenting in part) ("(tjo the extent

the Missouri statute interferes with

contraceptive choices, ... it is

unconstitutional") ; Griswold, 381 U.S.

at 485-86; Eisenstadt, 405 U.S. at 453-

55.*

- also , 627

F.2d 772 (7th Cir. 1980) (striking down

Illinois abortion law which defined the

- 46 -

2. Laws Defining Protectable Life

As The Fertilised Ovum

Unconstitutionally Restrict

The Use Of Reproductive

Technologies.

The right to privacy includes the

right to bear a child, see Maher v. Roe,

432 U.S. 464, 472 n.7 (1977) (right to

carry a pregnancy to term is

fundamental), and to seek assistance of

a physician to effectuate one’s

reproductive plans. City of Akron v.

Akron Center for Reproductive Health,

462 U.S. 416, 427 (1983) (full

vindication of right to make

reproductive decisions requires that

physician be given room to make "best

fetus to mean "a human being from

fertilization until birth"); Charles v.

Daley, 749 F.2d 452, 462 (7th Cir. 1984)

(statutory sections which would affect

use of post-fertilization contraceptives

infringe upon privacy right to use

contraceptives), appeal dism’d sub non.,

Diamond v. Charles, 476 U.S. 54 (1986).

- 47 <-

medical judgment"). Further, the right

to privacy includes a right to use

reproductive technologies, such as in

vitro fertilization (IVF). See Lifchez

v. Hartigan, 735 F. Supp. 1361, 1376-77

(N.D. Ill. 1990). State laws defining

protectable life as the conceptus .

unconstitutionally restrict the use of

reproductive technology.

IVF for example, provides a unique

opportunity for the study of human

reproduction and early development with

far ranging implications for the

treatment of infertility and other areas

of research.” With IVF or any of its

” Through IVF, gamete

intrafallopian transfer (GIFT), and

zygote intrafallopian transfer (ZIFT)

technologies, 3,472 couples gave birth

to children in 1989 alone. The American

Fertility Society, In vitro

IVF-ET Registry, 55 Fertil. and Steril.

es @e«

derivative procedures, physicians often

fertilize ten or more ova than will be

transplanted into the woman’s uterus.

Because embryos do not survive in the

lab more than six days past

fertilization,™ many of the excess

embryos ultimately will be discarded.

Some embryos may be preserved through

cryopreservation for subsequent cycles

if the first transfer fails or may be

donated to other infertile couples. But

even then, 30 per cent of the embryos

cannot survive the freezing process.”

14, 15 (1991).

% Dawson, Introduction: An

embryo, in Embryo Experimentation 6 (D.

Singer, et al., eds. 1990).

% Jones,

Problems, 53 Fertil. and Steril. 780,

783 (1990).

@ 49 «

Physicians, fearing prosecution for

the destruction of pre-embryos under a

statute that defines the fertilized ovum

as a person with legal rights, may

decline not only to perform these life-

generating procedures, but also to

conduct research into others.

Recognizing that its abortion statute

thus frustrates rather than advances its

stated goal of promoting and protecting

live childbirth, Pennsylvania, as with

contraception, ostensibly permits in

vitro fertilization by setting forth in

section 3213(e) specific public

reporting requirements for all persons

involved in conducting or experimenting

in in vitro fertilization. These

requirements not only add to the burdens

imposed by the other challenged

provisions of the statute, but also are

- 50 -

totally irrational because they can

serve no purpose but to eliminate

technologically-assisted reproduction.

What legitimate purpose is served by

requiring reproductive heaith

professionals to report the number of

eggs fertilized and destroyed or

discarded, the number of women implanted

with a fertilized egg, and the names and

addresses of all persons and facilities

involved in technologically-assisted

reproduction?

More importantly, all who employ

reproductive technology are still left

to guess at their peril whether

discarding the fertilized egg is

“abortion” within the ambit of the

statute because section 3216(e)

expressly provides that nothing in the

statute shall “be construed to condone

2 B82 eo

or prohibit the performance of in vitro

fertilization and accompanying embryo

transfer."

The restrictive consequences of

state laws defining the conceptus as

protectable life are not confined to

IVF, but also limit advances in genetic

testing, a critical component of modern

obstetric care. See note i5, supra.

For example, embryo biopsies soon will

be able to detect genetic abnormalities

in an embryo before implantation. This

procedure could eliminate the need for

an infertile couple to undergo a

possibly emotionally devastating

therapeutic abortion. Fertile couples

with a high risk of passing a genetic

disorder on to their children also could

avoid a therapeutic abortion with an

e 68 «

embryo biopsy.“ The right to obtain

genetic information about the zygote so

as to make an informed decision about

whether to choose to have an abortion

because of genetic indications, see

generally, Roe, 410 U.S. 113; Smith v.

Cote, 513 A.2d 341, 355 (N.H. 1986)

(Souter, J., concurring), is restricted

by the Pennsylvania law, which would

appear to demand compliance with the

challenged "informed" consent and

mandatory waiting period provisions.“

“ See Michael & Buckle, Screening

for genetic disorders: therapeutic

abortion and IVF, 16 J. Med. Ethics 43,

43 (1990).

‘' Once again, section 3216(c) of

the Pennsylvania statute forces the

reproductive health professional to

guess at his or her peril precisely what

is prohibited when it specifically

provides that "nothing in this section

shall be construed to condone or

prohibit the performance of diagnostic

tests while the unborn child is in utero

e @9 «

Carrying a pregnancy to term when

the child is destined to be stillborn or

to die shortly after birth is

emotionally devastating.* In a recent

Clinical trial, 97 per cent of the women

carrying a fetus with severe genetic

anomalies chose to terminate the

pregnancy.” The additional

requirements of the challenged

provisions of the Pennsylvania abortion

statute -- such as the 24 hour waiting

period -- serve only to increase the

emotional trauma experienced by women

who have already made the decision to

“ Furthermore, many women may not

have the financial or emotional ability

to care for a seriously ill child. If a

woman already has children or a job, she

may be forced to neglect the other

members of her family and quit her job.

“ Drugan, et al., Determinants of

, 10 Prenat.

Diag. 483, 486 (1990).

» $6 «

abort because of genetic abnormalities.

Furthermore, people who know they are at

risk of having a child with a severe

genetic anomaly, most often desist from

even attempting to have a child unless

prenatal diagnosis is available.“

Thus, once again, laws which erroneously

define the conceptus as protectable life

frustrate a purported purpose of such

laws -- promoting the birth of children.

CONCLUSION

Any further erosion in the

fundamental right status of reproductive

privacy will open the door to state laws

restricting not only abortion, but aiso

contraception and reproductive

technology. Such restrictions will

exacerbate the existing crisis in

“ -Milunsky, Genetic Counseling at

- 55 -

reproductive health care, with life-

endangering consequences for many of the

55 million American women of

reproductive age. For these reasons,

amici submit that the Court of Appeals

erred in classifying privacy as a

"limited" fundamental right, the

Pennsylvania statutory scheme is

unconstitutional, and this Court should

affirm its past decisions recognizing

the fundamental nature of the right of

reproductive privacy.

Respectfully submitted,

Colleen K. Connell

(Counsel of Record)

Roger Baldwin Found’n of

ACLU of Illinois

20 East Jackson

Suite 1600

Chicago, IL 60604

(312) 427-7330

- 56 -

Dorothy B. Zimbrakos

Rivkin, Radler & Kremer

30 North LaSalle Street

Suite 4300

Chicago, IL 60602

(312) 782-5680

Dated: March 6, 1992

Special recognition is given to Will Van

Lonkhuyzen, Law Student, University of

Chicago, for his contributions to this

brief.

A-1

APPENDIX A

The Alan Guttmacher Institute (AGI)

The Alan Guttmacher Institute (AGI) is

an independent, nonprofit corporation

for research, policy analysis, and

public education in the fields of

reproductive health, population, and

broadly related areas of health and

social policy. AGI’s nonpartisan

programs and activities are aimed at

promoting public understanding,

developing sound public policy, and

creating workable public and private

sector programs that will enhance the

ability of all women and men, in freedom

and dignity, to exercise their rights

and responsibilities with regard to

reproduction and family formation.

International Women’s Health Coalition

(IWHC)

The International Women’s Health

Coalition (IWHC) is a private North

American organization working in

alliance with women’s health advocates,

women’s organizations, health

professionals, and government officials

in Southern countries and Northern

institutions. The IWHC promotes women’s

reproductive health and rights and

serves as a catalyst for action. It is

concerned with the daily realities of

women’s lives and with programs and

policies that affect their ability to

A-2

manage their sexual health and attain

their reproductive rights.

Los Angeles Regional Family Planning

Council, Inc.

The Los Angeles Regional Family Planning

Council (LARFPC) is a non-profit health

care management agency which includes a

network of over seventy clinic sites

located throughout Los Angeles County.

In 1991, the LARFPC clinics provided

comprehensive contraceptive services to

approximately 170,000 low-income

individuals. In addition to serving as

an umbrella agency for the clinics,

LARFPC also provides extensive training

and educational programs for health care

professionals and conducts clinical

research on contraceptive products.

National Association of Nurse

Practitioners in Reproductive Health

The National Association of Nurse

Practitioners in Reproductive Health

(NANPRH) was founded in 1980 for the

purpose of assuring accessible quality

family planning services which guarantee

reproductive freedom to all women, and

to promote and protect the delivery of

family planning services by nurse

practitioners. NANPRH is committed to

the principle that decisions about

reproductive health, including abortion,

should be made by women and qualified

clinicians.

A-3

National Society of Genetic Counselors

The National Society of Genetic

Counselors (NSGC) was founded in 1978

and represents approximately 1000

genetic counselors in the United States.

In 1987, the NSGC adopted a policy which

states: "The NSGC, as an organization,

publicly supports a woman’s right to

reproductive freedom, including her

right to prenatal diagnosis and access

to safe and legal abortion."

National Family Planning and

Reproductive Health Association (NFPRHA)

The National Family Planning and

Reproductive Health Association (NFPRHA)

is a nonprofit membership corporation

designed to improve and expand the

delivery of comprehensive family

planning and reproductive health care

information and services throughout the

United States. NFPRHA represents over

eighty-five percent of the agencies and

organizations that operate family

planning programs with funds received

under Title X of the Public Health

Services Act of 1970.

APPENDIX 8B

OIVMONAE AL TH OF PENNSYL. aN

SEE CE DF ATTORNEY JENERAL

March 3, 1992 Reo, *

iSth Floor, Strawberry Square

Harrisburg, PA 17120

(717) 7803-1471

Vie Express Mail

Kathryn Kolbert, Esquire

American Civil Liberties

Union Foundation

132 W. 43ed Street

New York, New York 10036

w. Sas@y, No. 91-744

Dear Ms. Kolbert:

On behalf of respondents in the above-referenced case,

I consent to the filling of Driefs amici curiae in support of

petitioners on behalf of the groups and individuals in the

attached list.

Sincerely,

‘

—

A —

JOHN G. KNORR, [II

Chief Deputy Attorney Genere.

Chief, Litigetion Section

IGE: te

Brief in Support of Birth Control

Alan Guttmacher Institute

International Women’s Health Coalition

Loe Angeles Regional Family Planning Council, Inc.

National Association of Nurse Practitioners in Reproductive Health

National Family Planning & Reproductive Health Association

National Society of Genetic Counselors

26980. Cf REET Cw CRr_ Em “? to cae

March 4, 1992 ware ae

cap me

Colleen Connell eo tad

Roger Baldwin Foundation of erep~aniogs

ACW of Illinois “ene

20 East Jackson, Suite 1600

Chicago, IL 60604

RE:

v. Casey. ef al,, (Nos. 91-744 and 91-902).

Dear Ms. Connell:

On behalf of petitioners in the above-referenced case, I

hereby consent to the filing of « brief amicus curiae in support

of petitioners by the Allan Guttmacher Institute, et al., as

indicated on the attached list.

Sincerely yours,

Latin hotbed

Kathryn Kolbert

Counsel of Record

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.