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

i ee ew ae, eee oe

OQ

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

PLANNED PARENTHOOD OF

SOUTHEASTERN PENNSYLVANIA, et al.,

Petitioners and

Cross-Respondenis,

V.

ROBERT P. CASEY, et al.,

Kespondents and

Cross-Petitioners.

ra On Writs of Certiorari to the

is United States Court of Appeals

ie for the Third Circuit

BRIEF OF UNIVERSITY FACULTY FOR LIFE

AS AMICUS CURIAE IN SUPPORT OF

STATE OF PENNSYLVANIA

‘Of Counsel: CLARKE D. FORSYTHE *

Victor G. ROSENBLUM LEANNE McCoy

Professor of Law AMERICANS UNITED FOR LIFE

Northwestern University 343 S. Dearborn Street #1804

357 E. Chicago Avenue Chicago, IL 60604

Chicago, IL 60611 (312) 786-9494

(312) 508-8448 Counsel for Amicus Curiae

April 6, 1992 * Counsel of Record

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TABLE OF CONTENTS

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INTEREST OF THE AMICUS CURIAE ........000000000......

SUMMARY OF ARGUMENT.

r

I,

II.

III.

THE COMPARATIVE CLAIMS OF SOCIAL

SCIENCE ABOUT ABORTION DEMON-

STRATE THE RATIONAL BASIS FOR

TAAL

RESTRICTIVE ABORTION LAWS ARE AS-

SOCIATED WITH POSITIVE TRENDS IN

PREGNANCY, ABORTION AND BIRTH

A. Laws Requiring Parental Involvement Are

Associated With Reductions In Teen Preg-

Z

1. Minnesota’s teen pregnancy rate dropped

after its parental notice law took effect

2. Massachusetts’ teen pregnancy rate

dropped after its parental consent law

D r

B. Abortions, Births And Pregnancies Among

Medicaid-eligible Women Dropped In States

That Cut Off Public Funding For Elective

Z E ae A SG Er

STUDIES OF WOMEN DENIED ABORTION

SHOW THAT A HIGH PERCENTAGE OF

WOMEN AND CHILDREN HAVE POSITIVE

OUTCOMES AND THAT DENIED ABOR-

TION IMPOSES NO LONG-TERM, NEGA-

TIVE OUTCOMES ON ANY SIGNIFICANT

PERCENTAGE OF WOMEN OR THEIR

EE LE So ne

11

13

ii

TABLE OF CONTENTS—Continued

A. Denied Abortion Has No Long-term Or

Severely Negative Impact On The Vast Ma-

Af ee

B. Denied Abortion Has No Long-term Or

Severely Negative Impact On The Vast

Majority Of Children ........................2-.--.2--2.----

CONCLUSION ————— ̃

Page

16

iii

TABLE OF AUTHORITIES

CASES

Beal v. Doe, 482 U.S. 438 (1977) -............................

Bellotti v. Baird, 443 U.S. 622 (197999

Brown v. Board of Education, 347 U.S. 483

TS r

Buck v. Bell, 274 U.S. 200 (1927777

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393

EEE EE ee

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

Hodgson v. Minnesota, 648 F. Supp. 756 (D. Minn.

1986), aff'd and rev'd in part, 853 F.2d 1452

(8th Cir. 1988), aff’d, 110 S.Ct. 2972 (1990) ....6, 10, 20

Jane L. v. Bangerter, No. 91-345 (D. Utah)

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

McRae v. Califano, Nos. 7601804, 7601805

.

Muller v. Oregon, 208 U.S. 412 (1907)

Planned Parenthood League of Mass. v. Bellotti,

499 F. Supp. 215 (D. Mass. 1980), aff’d in part,

vac’d in part on other grounds and remanded,

641 F.2d 1006 (ist Cir. 19817

Plessy v. Ferguson, 163 U.S. 587 (1899)

20

Roe v. Wade, 410 U.S. 113 (1973 passim

Skinner v. Oklahoma, 316 U.S. 535 (194277

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

SE a

STATUTES

Mass. Ann. Laws ch. 112, §12S (Michie/Law.

Co-op. ~~ A

ES

Minn. Stat. Ann. 144.343 (2)-(7) (West 1989)

Minn. Stat. Ann. 145.413 (West 1989

Minn. Stat. Ann. 645.451 (West 1989)

N. D. Cent. Code 14-02.1-03.1 (1981 & 1989 Supp.) ..

MISCELLANEOUS

Arfwidsson & Ottosson, Pregnancy and *

of Unwanted Children, Acta Psychiat. Scand.

ä

16

iv

TABLE OF AUTHORITIES—Continued

Page

Associated Press, “Abortion Plaintiff, Daughter

Reunited,” Los Angeles Times, Dec. 10, 1989. 15

L. Baker, The Justice from Beacon Hill: The Life

and Times of Oliver Wendell Holmes (1991) 3

Benedict, Maternal Perinatal Risk Factors and

Child Abuse, 9 Child Abuse and Neglect 217

— — 18

Blomberg, Influence of maternal distress during

pregnancy on complications in pregnancy and

delivery, 62 Acta Psychiat. Scand. 399 (1980) 16

Blum, et al., The Impact of a Parental Notification

Law on Adolescent Abortion Decision-Making,

77 Am. J. Pub. Health 619 (1987) 10

Cartoof & Klerman, Parental Consent for Abor-

tion: Impact of the Massachusetts Law, 76 Am.

J. Pub. Health 397 (19868) eee 11-12

H. David, Z. Dytrych, Z. Matejeck & V. Schuller,

eds., Born Unwanted: Developmental Effects of

PF EE passim

H. David, Population and Mental Health (1964) 20

Dytrych, Children Born to Women Denied Abor-

tion, 7 Fam. Plan. Perspect. 165 (1975) passim

Forssman & Thuwe, One Hundred and Twenty

Children Born After Application for Therapeu-

tie Abortion Denied, 42 Acta Psychiat. Scand.

. . ane ee 16

Garbarino, Some Ecological Correlates of Child

Abuse: The Impact of Socioeconomic Stress on

Mothers, 47 Child Development 178 (1976) 18

Gardner, et al., Asserting Scientific Authority:

Cognitive Development and Adolescent Legal

Rights, American Psychologist 895 (June

— ˙ wm Asal A ee 3

Gold & Cates, Restriction of Federal Funds for

Abortion: 18 Months Later, 69 Am. J. Pub.

FEIT i: 15

Alan Guttmacher Institute, Teenage Pregnancy in

the United States: The Scope of the Problem

and State Responses (1989999‚9999 10

*

TABLE OF AUTHORITIES—Continued

Hook, Refused Abortion, 168 Acta Psychiat.

Scand. Supp. No. 168, 1 (1963) —........................ 17, 22

Hultin & Ottosson, Perinatal Conditions of Un-

wanted Children, Acta Psychiat. Scand. Supp.

r /.... 16

Illinois Department of Public Health, Vital Statis-

tics Illinois 1981 (March 1984) ............................. 4

Kalven, A Special Corner of Civil Liberties: A

Legal View I, 31 N.Y.U.L. Rev. 1223 (1956) 3

Kotelchuck, Child Abuse and Neglect: Prediction

and Misclassification, in R. Starr, Jr., ed., Child

Abuse Prediction: Policy Implications (1982) 18

J. Langmeier and Z. Matejcek, Psychological

Deprivation in Childhood (3d ed. 19755 28

Means, The Law of New York Concerning Abor-

tion, 14 N. T. L. F. 411 (1968) ...............................-. 4

Means, The Phoenix of Abortional Freedom, 17

tS gg TS Cerne 4

Ney, Relationship Between Abortion and Child

Abuse, 24 Can. J. Psychiat. 610 (197997 1 18

Petitti & Cates, Restricting Medicaid Funds for

Abortions: Projections of Excess Mortality for

Women of Childbearing Age, 67 Am. J. Pub.

ES ae ae 14

Pohlman, Unwanted Conceptions: Research on

Undesirable Consequences, 14 Eugenics Quar-

Dee — 18

W. Reid & A. Smith, Research in Social Work

n n 19, 20, 22

Richardson, Child of ‘Jane Roe’ found, searcher

says,” Washington Times, June 29, 1989 15

Rogers, Inner-city Birth Rates Following Enact-

ment of the Minnesota Parental Notification

Law, Law and Human Behavior (forthcoming

Rogers, Utilization of Data in the Ongoing Public

Debate Over Abortion, 25 Family Perspective

44141 — Te See 3

vi

TABLE OF AUTHORITIES—Continued

Rogers, et al., Impact of the Minnesota Parental

Notification Law on Abortion and Birth, 81

Page

Am. J. Pub. Health 294 (1991) .... passim

Rogers, et al., Psychological Impact of Abortion:

Methodological and Outcomes Summary of Em-

pirical Research Between 1966 and 1988, 10

Health Care for Women Inter’] 347 (1989)

Sharpe, “Child from Roe v. Wade Located,” Cin-

South Dakota Vital Statistics (1982-1987)

Trussell, et al., The Impact of Restricting Medic-

aid Financing for Abortion, 12 Fam. Plan. Persp.

Wardle, “Time Enough”: Webster v. Reproductive

Health Services and the Prudent Pace of Justice,

G 2 ee

Werner, Children of the Garden Island,” Scien-

tific American 106 (April 1989) —.........................

E. Werner & R. Smith, Vulnerable But Invincible:

A Longitudinal Study of Resilient Youth (1982) ..

Zimlich & Watson, Maternal Attitudes of Accept-

ance and Rejection during and after Pregnancy,

23 Am. J. Orthopsychiat. 570 (1953)

INTEREST OF THE AMICUS CURIAE '

University Faculty for Life (UFL) is a multidiscipli-

nary, educational association formed in 1989 of more

than 340 faculty members from 80 colleges and univer-

sities across the country. UFL sponsors national and in-

ternational educational conferences on social and philo-

sophical issues to foster support for the sanctity of hu-

man life. UFL members publish books and articles in

peer-review journals on these issues. Among UFL’s pur-

poses are the encouragement and dissemination of scholarly

research on bioethical issues. To that end, UFL desires

to see that social science is used reliably in the formula-

tion of publie policy on abortion.

SUMMARY OF ARGUMENT

This Court’s decision in Roe v. Wade, 410 U.S. 113

(1973), cannot be justified on legal, medical or historical

grounds. Nor, in the judgment of this amicus, can it be

based on sociological grounds. In purporting to find a

right to choose abortion in the Constitution, this Court

in Roe primarily emphasized the deleterious social and

familial consequences of unwanted pregnancy. In so do-

ing, the Court made two key assumptions: first, that

restrictive abortion laws have no positive effect on the

behavior of men and women, and second, that the “un-

wanted pregnancies” of women who have been denied

abortion will result in “unwanted children” who will

suffer various dysfunctions.

As this brief demonstrates, neither assumption is war-

ranted. First, parental consent and notice laws, like the

Pennsylvania law, are associated with positive trends in

teen pregnancy prevention. During the four and one-half

years that the Minnesota parental notice law was in effect,

adolescent pregnancy, birth, and abortion rates declined

significantly, without an increase in late-term abortions.

This experience was largely replicated in Massachusetts

when its parental consent law was in effect. At the same

1This brief is filed with the written consent of the parties.

Letters of consent have been filed with the Clerk of this Court.

2

time, states which cut off public funding for abortion

also experienced fewer pregnancies, births, and abortions

among Medicaid-eligible women. Second, assumptions that

denied abortion predictably results in women abusing

their children or in children suffering severe social or

psychological dysfunction—like suicide, homicide, delin-

quency, or educational failure—are erroneous. Studies of

women denied abortion show that a high percentage of

women and children have positive outcomes and that de-

nied abortion imposes no long-term or severely negative

outcome on any significant percentage of women or

children. Therefore, research and experience have con-

firmed the positive effect of restrictive laws in supporting

responsible behavior and in inhibiting self-destructive be-

havior, and have shown the resilience of women and

children in overcoming the “unwantedness” of untimely

pregnancies to establish fulfilling lives and positive, en-

during relationships.

ARGUMENT

I. THE COMPARATIVE CLAIMS OF SOCIAL SCI-

ENCE ABOUT ABORTION DEMONSTRATE THE

RATIONAL BASIS FOR ABORTION LAWS.

At least since Muller v. Oregon, 208 U.S. 412 (1908),

this Court has explicitly relied on social science to decide

constitutional cases. However, when the basis for those

decisions has been called into question, this Court has

“bowled] to the lessons of experience and the force of

better reasoning. .. .” Burnet v. Coronado Oil & Gas

Co., 285- U.S. 393, 407-408 (1932) (Brandeis, J., dissent-

ing). Thus, in Plessy v. Ferguson, 163 U.S. 537 (1896),

this Court relied on contemporary assumptions about

inherent racial inferiority to uphold a “right” to segrega-

tion in American society, assumptions that have been

thoroughly rejected. Id. at 551; Brown v. Board of Edu-

cation, 347 U.S. 483 (1954). And in Buck v. Bell, 274

U.S. 200 (1927), this Court upheld a statute providing

for the involuntary sterilization of Carrie Buck, based

on assumptions about heredity and mental disabilities

which were subsequently rejected. Id. at 205-207.“ Cf.

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

Kalven observed:

The legal career of sterilization is thus a useful

example, first, of the law too quickly adopting a

popularized scientific premise without exposing it to

adequate scrutiny, and second, of the law’s consequent

difficulty in keeping abreast of the revisions of scien-

tifie hypotheses.

Kalven, A Special Corner of Civil Liberties: A Legal

View J, 31 N. V. U. L. Rev. 1223, 1234 (1956).*

Roe v. Wade, 410 U.S. 113 (1973), and its progeny

are a tragic example of the problems Kalven identified.

Roe was predicated upon social science propositions that

were subject to considerable dispute at the time, continue

to be questioned, and, in some cases, have been entirely

refuted. First, this Court in Roe reached decisive con-

2 These assumptions were not borne out in the life of Carrie

Buck. “Shortly after the Court’s opinion was announced, Carrie

Buck was sterilized. She was eventually discharged from the Vir-

ginia Colony for Epileptics and Feebleminded. She married twice—

her first husband died after twenty-four years of marriage—sang

in the Methodist Church choir, and took work helping a family in

Front Royal, Virginia, to care for an elderly relative. She died in

a state-operated nursing home near Waynesboro, Virginia, in 1983,

at the age of seventy-seven.

Considerable doubt surrounds her imbecility today. In fact, she

was said to display substantial intelligence as well as kindness, to

be an avid reader and a lucid conversationalist, even in her last

days. Her daughter, Vivian, lived only eight years, but she, too,

contradicted institutional and judicial estimates of her mental ca-

pacities. She went through the second grade in school and was

considered by her teachers to be ‘very bright.’” L. Baker, The

Justice from Beacon Hill: The Life and Times of Oliver Wendell

Holmes 603 (1991).

For example, briefs by abortion advocates, concerning the

maturity of minors to consider abortion without parental guid-

ance, have been criticized for overstating the findings of social

science. Gardner, et al., Asserting Scientific Authority: Cognitive

Development and Adolescent Legal Rights, American Psychologist

895 (June 1989). Cf. Rogers, Utilization of Data in the Ongoing

Public Debate Over Abortion, 25 Family Perspective 179 (1991).

4

clusions about the history of abortion based almost ex-

clusively on two law review articles. 410 U.S. at 136-

162.“ Those conclusions have been exploded by more re-

cent scholarship which has been sensitive to the law’s

limited ability to protect the unborn child in historical

eras of primitive medical science.’ Second, Roe was pred-

icated on the conclusion that abortion was safer (for the

mother) than childbirth. Id. at 149, 163. Yet, in this

century, both childbirth and abortion have become safer

(for women) through advances in medical science.“ This

issue, however, has become superfluous: the data used

are far from reliable; the difference in safety is negli-

gible in terms of the number of individual cases; and the

relative safety of the two is wholly immaterial in the

counsel that doctors provide, or the reasons that women

give, for 95% of the abortions now performed.’

Finally, the Court in Roe made negative assumptions

about the impact on women and children of prohibiting

elective abortion. The Court concluded that human be-

havior cannot be positively influenced by abortion law,

that even if abortion is restricted it will not affect

the number of women who experience undesired preg-

nancies or seek abortions, that the restriction of abor-

tion results in more unwanted births, and that children

who are unwanted during pregnancy will be unwanted

Means, The Phoenix of Abortional Freedom, 17 N. V. L. F. 335

(1971); Means, The Law of New York Concerning Abortion, 14

N.Y.L.F. 411 (1968).

5 See the Brief of the American Academy of Medical Ethics as

Amicus Curiae and the Brief of Certain American State Legislators

as Amici Curiae in Support of Pennsylvania.

In Illinois, for example, maternal deaths (defined as deaths

attributed to “complications of pregnancy, childbirth, and the puer-

perium”) dropped from 1,141 in 1920, to 699 in 1930, to 114 in

1950, to 40 in 1972 (the last full year before Roe). Between 1972

and 1981, however, maternal deaths dropped from 40 to 27, and the

rate dropped from 2.2 to 1.5. Illinois Dept. of Public Health, Vital

Statistics Illinois 1981 1.11 (March, 1984) (Table A).

7 See Brief of the American Association of Prolife Obstetricians

and Gynecologists, et al., as Amicus Curiae.

5

during childhood, resulting in serious social dysfunctions.

410 U.S. at 153, 165. These conclusions are not sup-

ported by the experience since Roe.“ In fact, the impact

of those few abortion regulations enforced since Roe dem-

onstrate that restrictions on access to abortion are as-

sociated with a reduction in both the abortion and the

pregnancy rate. This supports the determination that

abortion restrictions actually encourage personal respon-

sibility and reduce the number of women who experience

the stress of an unwanted pregnancy.

The comparative claims of social science about the rela-

tive effects of abortion, or restrictive abortion laws, on

women and children do not support a „fundamental“

right to elective abortion. Abortion laws do have a

rational basis in protecting the unborn child, inhibiting

unplanned pregnancy and abortion, and protecting women

from social pressure to abort and the physical or mental

injury that some women will suffer. Rogers, et al., Psy-

chological Impact of Abortion: Methodological and Out-

comes Summary of Empirical Research Between 1966 and

1988, 10 Health Care for Women Inter’! 347 (1989).

II. RESTRICTIVE ABORTION LAWS ARE ASSOCI-

ATED WITH POSITIVE TRENDS IN PREGNANCY,

ABORTION AND BIRTH RATES.

This Court’s abortion decisions have left almost no

regulatory authority to the States. Nevertheless, the ex-

perience in those States that have exercised that authority

* Counsel for the abortion clinic in Webster claimed that an

abortion rate of thirty percent (of all pregnancies) “has not

changed one whit from the time that the Constitution was enacted

through the 1800’s and through the 1900's.” Wardle, “Time

Enough”: Webster v. Reproductive Health Services and the Pru-

dent Pace of Justice, 41 Fla. L. Rev. 881, 948 (1989). Yet, since

Roe, “the number of induced] abortions has more than doubled,

the rate of [induced] abortion has nearly doubled, and the ratio

of [induced] abortions has increased by over fifty percent.” Id. at

948, 985. And the nineteen years since Roe legalized elective

abortion nationwide have seen a significant increase in the rate

of repeat (two or more) abortions—from 15.2% to 42.9%. Id. at

985.

6

discloses that abortion regulations may result in lower

pregnancy, abortion and birth rates. The following evidence

suggests that returning full authority to the States to regu-

late abortion will have positive public health consequences

by reducing the incidence of unwanted pregnancies.

A. Laws Requiring Parental Involvement Are Associ-

ated With Reductions In Teen Pregnancy Rates.

1. Minnesota’s teen pregnancy rate dropped after

its parental notice law took effect.

During the four and one-half years the Minnesota paren-

tal notice law was in effect and enforced (August 1, 1981

to March 2, 1986), teen abortion and pregnancy rates

dropped substantially; and the teen birth rate continued

its slow decline.’ This brief presents an analysis of the

pregnancy,” abortion, and birth rates in Minnesota for

two periods—one before the law took effect (the pre-

enactment period 1978-1980) and one during its enforce-

ment (the post-enactment period 1982-1985). See Rogers,

et al., Impact of the Minnesota Parental Notification Law

on Abortion and Birth, 81 Am. J. Pub. Health 294

(1991). The Rogers analysis relied upon demographic

data the Minnesota Department of Health collected from

Minnesota abortion providers under mandatory statutory

reporting requirements. Id. at 295; Minn. Stat. Ann.

145.413 (West 1989). These data include the number of

teen pregnancies, abortions and births to Minnesota resi-

Minn. Stat. Ann. 144.348 (2)-(7) (West 1989); Hodgson v.

Minnesota, 648 F.Supp. 756, 760, 781 (D. Minn. 1986), aff'd and

rev'd in part, 853 F.2d 1452, 1455 (8th Cir. 1988), af d, 110 S.Ct.

2926 (1990).

10 Pregnancies are approximated by the sum of induced abortions,

live births and fetal deaths.

4 Rates, as opposed to the raw numbers, take into account

changes in the population. In this study, rates equal the occurrence

(incidence) of a given phenomenon per 1000 females. Thus, for

any particular age category, the numerator represents the incidence

of the phenomenon and the denominator is the population in thou-

sands (phenomenon/ population).

7

dents and the gestational age at which the abortions have

been performed.“ Rogers at 295.

For the Rogers analysis, the data are organized in age-

specific groupings appropriate for an evaluation of the

law—ages 15-17, 18-19, and 20-44. The researchers as-

sumed that any change in the incidence of pregnancy,

abortion and childbirth due to the notice law would fall

most heavily on teens age 15-17, who were directly af-

fected by the notice law (Minn. Stat. Ann. 645.451 (West

1989) ). They further assumed that the law would impact

less heavily on teens age 18-19 who recently would have

been subject to the law.“ Although a few women who

fell in the 20-44 age group in later years would have been

subject to the law in the earlier years of its enforcement,

proportionately the numbers of such women are very

small; and these women were further removed from the

effect of the law than the 18-19 year-olds. Therefore, the

researchers assumed that this 20-44 age group would be

least affected by the law. Id.

12 The data analyzed by Rogers do not include females whose

ages were unknown or non-Minnesota residents. Live births to and

fetal deaths of Minnesota residents are included regardless of

whether they occurred inside or outside of Minnesota. Induced

abortions reflect only those performed in the state since the De-

partment of Health does not collect data on abortions performed on

Minnesota residents outside the state. Because yearly population

data by sex and appropriate age group were not available from the

Census Bureau, the Department provided official population esti-

mates. Rogers at 295.

13 Some teens who gave birth at 18 might have been 17 at the

time they became pregnant and thus were directly affected by the

law. Those who were 18 in 1985 were subject to the law from

1981-1984; and the group as a whole reasonably could have been

influenced by the law through socialization, including schooling and

peer contacts. Additionally, it is possible that behaviors “learned”

as a result of the law may have remained with the young women

even when they were no longer under the law’s influence. For

instance, a girl who was encouraged to practice abstinence or

contraception as a minor may continue to practice that behavior in

her adult years.

8

Significantly, the analysis of the data reveals that

between the pre- and post-enactment years, pregnancy

and abortion rates declined substantially for the teenage

groups. Birth rates continued to decline slowly in line

with long-term trends.

a. Teen Pregnancies (age 15-17) fell by more than 20%.

For the 15-17 age group, the average pregnancy rate

during the post-enactment period (29.3 per 1000 between

1982 and 1985) was 20.4% lower than the average rate

during the pre-enactment period (36.8 between 1978 and

1980). More specifically, between 1978 and 1980, the

pregnancy rate hovered around 37 per 1000. After the

law took effect, it declined to a low of 27.5 in 1983 and

then rose slightly to 29.7 in 1985. See Table 2 in the

Appendix to this Brief.

For the 18-19 age group, the pregnancy rate rose from

91.8 in 1978 to a high of 100.2 in 1980. It fell to 93.5

in 1982 and stabilized near 83 between 1983 and 1985.

Thus, the average pregnancy rate declined 11.1% (from

96 to 85.3) between the pre-enactment and post-enact-

ment periods. By contrast, the 20-44 age group experi-

enced almost no change in its pregnancy rate between the

two time periods—only a 1.3% drop. See Table 2.

b. Teen Abortions (15-17) fell by more than 28%.

After the notice law took effect, the abortion rate de-

clined for 15-17 and 18-19 year-olds. Significantly, the

decline was substantially greater for teens age 15-17

than for those age 18-19. The abortion rate actually in-

creased for women age 20-44 who were not subject to the

law. Rogers at 295. Table 2 shows that for 15-17 year-

olds, the average abortion rate dropped 28.4% (from

19.0 to 13.6) between the pre- and post-enactment periods.

Prior to the law, the abortion rate for these teens rose

from 18.25 in 1978 to a high of 19.57 in 1980. In 1982,

it fell to 14.25, reached a low of 12.80 in 1983 and then

rose to 14.54 in 1985.

9

The abortion rate also fell for the 18-19 age group while

the notice law was in effect. Although the rate rose from

35.71 in 1978 to a high of 40.26 in 1980, it fell to 36.45

in 1982 and then to 34.07 in 1985. Thus, the average

abortion rate for 18-19 year-olds fell 9.4% (from 38.2

to 34.6) between the two time periods. For the 20-44 age

group, it increased 4.5% (from 13.3 to 13.9).

Critics of parental involvement laws claim that these

laws delay minors from having abortions, pushing them

into later gestational periods, thereby increasing the risk

of abortion."* However, Rogers found that after the

notice law went into effect, the late abortion rate (after

12 weeks) actually declined for teens age 15-17. It in-

creased for women age 20-44 and remained nearly con-

stant for women age 18-19. /d. at 296. “The early abor-

tion rate (those performed at 12 weeks or less) “closely

track fed] the overall abortion rate[,]” which declined for

both groups of teenagers.” Id.

Moreover, there is no evidence that significant numbers

of teens left or migrated from Minnesota to evade the

law. Four states border Minnesota: North Dakota, South

Dakota, lowa and Wisconsin. North Dakota has had a

parental consent law in effect since 1981. N.D. Cent. Code

14-02.1-03.1 (1981 & 1989 Supp.). South Dakota reports

only 5, 19, 20, 30, 20 and 17 abortions performed on

Minnesota teens age 19 and under during 1981-1986,

respectively. South Dakota Vital Statistics (1982-1987).

In fact, Amici NAACP Legal Defense and Educational Fund,

et al., claim that the Minnesota parental notice requirement “in-

creased the number of minors who obtained second trimester abor-

tions by 26.5%.” Br. at 28. The data from Minnesota establish

that this claim is patently false.

15 In all age groups, the late-to-early abortion ratio (late abor-

tion rate/early abortion rate, i.e., the number of late abortions

for every early abortion) increased after the law took effect. The in-

crease for ages 15-17 was greater than that for women age 20-44,

but not significantly greater than that for 18-19 year-olds. When

examined closely, the data revea! that a steep decline in early abor-

tions, and not an increase in late abortions, accounts for the in-

creased ratio in 15-17 year-olds. Id.

10

Iowa had no parental or reporting law in effect. Wiscon-

sin had no mandated reporting before 1987. However, an

independent researcher concluded that “there is little evi-

dence to indicate large numbers of Minnesota youth

[were] leaving the state for abortion. .. .” Blum, et al.,

The Impact of a Parental Notification Law on Adolescent

Abortion Decision-Making, 77 Am. J. Pub. Health 619,

620 (1987). This is confirmed by data from the Alan

Guttmacher Institute (AGI), which have been adjusted

to reflect state residence, that show a sharp decline in

the abortion and pregnancy rates for 15-17 year-olds in

Minnesota after the parental notice law went into effect.

AGI, Teenage Pregnancy in the United States: The Scope

of the Problem and State Responses 38 (1989).

c. Teen Births continued their decline.

Birth rates decreased for all age groups after the

notice law took effect.“ However, the decline was sub-

stantially greater for teens in the 15-17 and 18-19 age

groups than for women age 20-44. Rogers at 296. For

16 In Hodgson v. Minnesota, the plaintiffs claimed that the notice

law caused a 38.4% increase in the birth rate to teens age 15-17

by relying only on statistics for residents of the City of Minne-

apolis between 1980 and 1984. See Brief Amicus Curiae of the

Association of American Physicians and Surgeons in Hodgson at

25-29. However, statistics throughout the state show that this

increase was unique to teens in Minneapolis, who represent only 6%

of the state’s population of 15-17 year-olds, and did not occur in

the greater metropolitan area of Minneapolis or in the state as a

whole. Jd. Also, when the Minneapolis population is examined in

more detail, the increase in births to girls under 18 is largely con-

fined to the minority population, specifically the population of

Asian-Pacifics. Since it is implausible that the notice law would

selectively affect Asian-Pacifics more than other ethnic groups in

Minneapolis, other explanations for that city’s increase in teen

birth rate need to be explored. One explanation that is supported

by available data is that there was a substantial increase in the

population of Asian-Pacific teens between 1980 and 1987 in Minne-

apolis and in the percentage of births to minors for this popula-

tion. Id.: Rogers, Inner-city Birth Rates Following Enactment of

the Minnesota Parental Notification Law, Law and Human Behavior

(forthcoming 1992). .

11

the 15-17 age group, the birth rate fell 1.8% between

1978 and 1980 (right before the law took effect), but the

average rate fell 12.4% (from 17.7 to 15.5) between the

pre- and post-enactment periods. The average birth rate

also fell 12.4% (from 57.3 to 50.2) for 18-19 year-olds.

For the 20-44 age group, it fell only 2.3% (from 78.0

to 76.2) between the two periods.

An evaluation of these pregnancy, abortion and birth

rates between the pre- and post-enactment years strongly

Supports the conclusion that the notice law effectively

caused a decrease in the teen pregnancy rate. It seems

undisputed that the notice law did directly decrease abor-

tion rates. Since birth rates simultaneously decreased,

the law must have decreased abortion rates by affecting

pregnancy rates. Obviously, when the abortion rate falls

28.4% for 15-17 year-olds and 9.4% for 18-19 year-olds,

while the birth rate simultaneously falls 12.4% for both

age groups, the pregnancy rate has declined. Thus, the

notice law apparently changed adolescent behavior by

encouraging teens to prevent pregnancy.

2. Massachusetts’ teen pregnancy rate dropped after

its parental consent law took effect.

Similarly, the teen pregnancy rate in Massachusetts

declined significantly after its parental consent law went

into effect on April 23, 1981.“ In fact, the average preg-

nancy rate for minors decreased 16.6% between the time

immediately before and after the law took effect. See

Cartoof & Klerman, Parental Consent for Abortion: Im-

This law requires the consent of both parents or a Superior

Court judge before an unmarried woman under age 18 can obtain

an abortion. Mass. Ann. Laws ch. 112, §12S (Michie/Law. Co-op.

1985). The former parental consent provision (Mass. Gen. Laws

Ann. ch. 112, § 12S (West Supp. 1979)) was declared unconstitu-

tional by the Supreme Court in Bellotti v. Baird, 443 U.S. 622

(1979). The current provision amended the original to cure the

defects and, as amended, was upheld. See Planned Parenthood

League of Mass. v. Bellotti, 499 F. Supp. 215 (D. Mass. 1980),

aff'd in part, vacated in part on other grounds and remanded, 641

F.2d 1006 (Ist Cir. 1981).

12

pact of the Massachusetts Law, 76 Am. J. Pub. Health

397 (1986).

Table 3 reports the impact of the Massachusetts law

on Massachusetts minors age 12-17 based on the data in

Cartoof and Klerman’s article.“ With regard to the

birth rate for these minors, it peaked in 1979 at 8.9 per

1000. In 1980, when the consent law was passed, it

dropped to 8.4 and then remained fairly constant through

1982. Jd. at 399. The abortion rate also peaked in 1979

at 18.2. Then it dropped to 15.5 in Jan.-April 1981, just

prior to the law’s implementation. From May-Dec. 1981,

when the law was in effect, it hit a low of 13.1 and then

remained fairly constant. The pregnancy rate followed

a similar pattern. It hit a high of 27.1 in 1979. In 1980,

it dropped to 25.8 and then down to 23.7 during the first

part of 1981. After the law went into effect, it dropped

again to 21.4 and then stayed fairly stable.

Table 3 also provides the average birth, abortion and

pregnancy rates for two time periods—one prior to the

law’s implementation (1978-1980) and one afterwards

(May 1981-1982)—and then compares the change that

took place. It shows that the average birth rate dropped

3.4% from 8.7 to 8.4; the average abortion rate fell

18 Cartoof & Klerman obtained data on the number of abortions

performed in the state each month from August 1977 through De-

cember 1982 from the Massachusetts Department of Public Health.

They also collected monthly records of the number of Massachusetts

minors who obtained abortions in five surrounding states—New

Hampshire, Rhode Island, Connecticut, Maine and New Vork

during 1980-82. d. at 397. Data on abortions performed in Maine

on Massachusetts minors were not available until April 1981. /d.

at 3908. Unfortunately, the researchers could not get data on the

number of Massachusetts minors who went out of the state for

abortions prior to the law’s implementation. However, they con-

cluded that “the effect of the omission of out-of-state abortions to

Massachusetts minors in the preintervention period is compen-

sated for by the inclusion of in-state abortions to non-Massachusetts

minors during these 45 months.” /d. at 399. The Department pro-

vided data on births to Massachusetts minors from 1970-82. Id.

at 397.

13

22.7% from 17.2 to 13.3; and the average pregna

rate fell 16.6% from 25.9 to 21.6. 4 “09

This drop in the pregnancy rate is especially remark-

able since Massachusetts is a small state surrounded by

other states that did not have parental involvement laws

at the time. These factors probably account for the

marked and immediate shift in the number of minors

that left Massachusetts to get abortions in the surround-

ing states after the law required parental consent. Id.

at 398. Nevertheless, even though more teens left the

state to get abortions after the law went into effect, the

total number of Massachusetts teens getting abortions

(in and out of state) declined even more. As a result,

both the teen abortion and pregnancy rates declined.”

B. Abortions, Births And Pregnancies Among Medi-

caid-eligible Women Dropped In States That Cut

Off Public Funding For Elective Abortions.

In 1977 and 1978, the Hyde Amendment limited the

use of federal Medicaid dollars that could pay for abor-

tions to those done when the life of the mother was en-

dangered by continuation of the pregnancy, when severe

and long-lasting physical health damage could result from

the continued pregnancy, and when the pregnancy re-

sulted from rape or incest. See Harris v. McRae, 448 U.S.

297, 300-306 (1980) (discussion of historical background of

Hyde Amendment). Although originally passed in 1976,

the Hyde Amendment did not take effect until August 4,

1977, because of a multitude of court challenges.”

The impact of this funding cutoff was studied and

reported on by Trussell, et al., in The Impact of Restrict-

ing Medicaid Financing for Abortion, 12 Fam. Plan. Persp.

% Therefore, the data presented by Cartoof and Klerman contra-

dict their own conclusion that “Massachusetts minors continue to

conceive, abort, and give birth in the same proportions as before

the law was implemented.” Id. at 400.

Order entered in open court by Judge Dooling lifting his in-

junction against the enforcement of the Hyde Amendment in

McRae v. Califano, Nos. 76C1804, 76C1805 (E.D.N.Y.).

14

120 (1980). Trussell studied the number of abortions

and births to Medicaid-eligible women in Ohio, Georgia

and Michigan before and after the Hyde Amendment went

into effect (1977 and 1978). Jd. at 122-123. Although

Ohio and Georgia adopted the federal restrictions on abor-

tion funding, Michigan continued to pay for abortions for

Medicaid-eligible women with state funds. Id. at 122,

128-29. Since Michigan continued to fund abortions pub-

licly, Trussell expected and found very little change in

the number of abortions or live births among Medicaid-

eligible women from 1977 to 1978. As Table 1 shows, the

number of abortions went down by 150 from 7213 to

7063. There were 6 additional spontaneous abortions and

74 additional live births. Therefore, the number of preg-

nancies dropped by 0.4%. Id. at 127-129.

However, in Ohio, the number of induced abortions fell

by 1367 from 3958 to 2591; and there were 20 fewer

spontaneous abortions. Moreover, this drop in abortions

was not replaced by an increase in the number of live

births. In fact, there were 224 fewer births to Medicaid-

eligible women in 1978, resulting in a 15.1% drop in the

number of pregnancies. Similarly, in Georgia, the num-

her of induced abortions declined by 310 from 1474 to

1164; spontaneous abortions fell by 2; and live births

decreased by 25. Therefore, the number of pregnancies

went down by 3.8%. Jd. Obviously, the lack of public

funds did not result in an increase in “unwanted” births.

Instead, fewer children were conceived.“ Thus, whether

21 Although Trussell, et al., relate a couple of undocumented

tragic anecdotes about women who supposedly died from self-

induced abortions as a result of the restriction on public funding,

they admit that the Center for Disease Control only linked “four

deaths of indigent women from illegal or self-induced abortions to

the unavailability of Medicaid financing” and that “the relatively

small number suggests that there was little demographic impact

from recourse to illegal or self-induced abortion.” Id. at 121, 129.

Cf. Petitti & Cates, Restricting Medicaid Funds for Abortions:

Projections of Excess Mortality for Women of Childbearing Age,

67 Am. J. Pub. Health 860 (1977) (predicting up to 90 deaths

annually if publicly funded abortions were restricted by the Hyde

15

the law affects minors or adults, restrictive laws appar-

ently result in fewer pregnancies, abortions and births.

III. STUDIES OF WOMEN DENIED ABORTION SHOW

THAT A HIGH PERCENTAGE OF WOMEN AND

CHILDREN HAVE POSITIVE OUTCOMES AND

THAT DENIED ABORTION IMPOSES NO LONG-

TERM, NEGATIVE OUTCOMES ON ANY SIGNIFI-

CANT PERCENTAGE OF WOMEN OR THEIR

CHILDREN.

From Roe to Webster, advocates like the City of New

York have contended that elective abortion serves society

by preventing the birth of “unwanted children” who

psychologically and financially burden families. Brief for

the City of New York, et al., as Amicus Curiae at 5 & n.5.

Indeed, the rationale in Roe for the privacy interests of

the mother was primarily based on this proposition. Al-

legedly, mothers who bear an “unwanted child” suffer

“a distressful life and future. Psychological harm may be

imminent.” Roe, 410 U.S. at 153.% Likewise, children

raised by mothers who are denied abortion allegedly grow

up more troubled.”

Amendment) with Gold & Cates, Restriction of Federal Funds for

Abortion: 18 Months Later, 69 Am. J. Pub. Health 929 (1979)

(finding only three deaths “associated to some degree” with fund-

ing restrictions).

* Both Jane Roe in Roe and Jane Doe in Doe were allegedly

denied abortion, never had an abortion, and eventually gave birth.

Richardson, “Child of ‘Jane Roe’ found, searcher says,” Washing-

ton Times, June 29, 1989, at A-1; Sharpe, “Child from Roe v. Wade

located,” Cincinnati Enquirer, June 26, 1989. Jane Doe has an on-

going relationship with her daughter. Associated Press, “Abortion

Plaintiff, Daughter Reunited,” Los Angeles Times, Dec. 10, 1989.

See also Beal v. Doe, 432 U.S. 438, 447-48 n.15 (1977); id.

at 451 n. (Brennan, J., dissenting); id. at 456 (Marshall, J., dis-

senting) (the statutes “brutally coerce poor women to bear children

whom society will scorn for every day of their lives. Many thou-

sands of unwanted minority and mixed-race children now spend

blighted lives. ); id. at 462 (“The effect will be to relegate

millions of people to lives of poverty and despair.”):; id. at 463

(Blackmun, J., dissenting) (“And so the cancer of poverty will

16

A. Denied Abortion Has No Long-term Or Severely

Negative Impact On The Vast Majority Of Women.

Although many women may have initial, negative reac-

tions to an unplanned pregnancy,“ those same women

generally (though not invariably) experience positive

transformations toward their children once born.” A

continue to grow.”); Maher v. Roe, 432 U.S. at 484 (Brennan, J.,

dissenting) ; Bellotti v. Baird, 443 U.S. at 642 (Powell, J.); Harris

v. McRae, 448 U.S. at 330-31 & n.4 (Brennan, J., dissenting) ; id.

at 338-346 (Marshall, J., dissenting).

2 There is no competent evidence that a woman’s attitude toward

her unborn child has any measurable relationship to possible com-

plications of pregnancy. A number of studies, noted by David,

found that unwantedness and denied abortion did not adversely

affect pregnancy, prematurity, perinatal mortality, delivery, or

presence of fetal malformations. David at 50-51; Hultin & Ottos-

son, Perinatal Conditions of Unwanted Children, Acta Psychiat.

Scand. Supp. No. 221, 59 (1971); Arfwidsson & Ottosson, Preg-

nancy and Delivery of Unwanted Children, Acta Psychiat. Scand.

Supp. No. 221, 77 (1971); Blomberg, Influence of maternal dis-

tress during pregnancy on complications in pregnancy and delivery,

62 Acta Psychiat. Scand. 399 (1980). In the Prague study, more

medical complications during pregnancy “were found among the

control group of mothers (35 percent) than among those who were

denied abortion (26 percent); the same is true for puerperium

complications (17 percent, compared to nine percent).” Dytrych,

7 Fam. Plan. Perspect. at 167. “Compared to the AP [accepted

pregnancy] children, the UP [unwanted pregnancy] children did

not show more signs of major biological stress during their in-

trauterine life.” David at 111.

25 Most studies show that upwards of 85% of women who are

denied abortion eventually carry the child to term, rather than

otherwise obtain legal or illegal abortion, or experience spon-

taneous abortion. Three studies found that about 85% of women

denied abortion carried the child to term. Hultin & Ottosson,

Perinatal Conditions of Unwanted Children, Acta Psychiat. Scand.

Supp. 221, at 62 (1971) (citing Hook (1963), Hultgren, (1959),

and Lindberg (1948)). A 1971 Swedish study found that 81.2%

of the women carried the child to term. /d. at 59. A fifth study

of Swedish women during World War II found that 65% earried

to term. Forssman & Thuwe, One Hundred and Twenty Children

Born After Application for Therapeutic Abortion Denied, 42 Acta

Psychiat. Scand. 71 (1966). See also, David at 47.

17

study of 249 Stockholm women concluded that 81% of

the women denied abortion who gave birth (173 of 213)

were satisfied with their denied abortion and with their

present condition with the child. Hook, Refused Abortion,

Acta Psychiat. Scand. Supp. No. 168, 109 (1963). Like-

wise, a Prague study showed that the subsequent

development of the mother’s relationship with the child

had, however, proceeded in such a way as to obliterate

any difference between the groups [unwanted pregnancy

mothers (UP) and accepted pregnancy mothers (AP)].

Accordingly, the mothers of both groups expressed about

the same satisfaction with the child.” H. David, Z.

Dytrych, Z. Matejcek & V. Schuller, eds., Born Un-

wanted; Developmental Effects of Denied Abortion 77

(1988) [hereinafter cited as David]. Of the UP moth-

ers, 92% described their level of satisfaction with the

child as “average” or “satisfied,” and 86.4% viewed the

change produced in the family by the child’s birth as

“favorable” or “none at all.” David at 77 (Table 6.21).

Significantly, when the UP children were nine, 38% of

their mothers “placed themselves in a category of not

having asked for an induced abortion” when they were

pregnant with the child. Dytrych, et al., Children Born

to Women Denied Abortion, 7 Fam. Plan. Persp. 165,

171 (1975); David at 75-76. Consequently, the authors

of the Prague study concluded that “[b]y and large, the

study group mothers did move from initial rejection to

ultimate acceptance” of their children. Dytrych, 7 Fam.

Plan. Persp. at 171.“

2% David elaborates: “only a small group of UP [unwanted preg-

nancy] children rejected at the outset of pregnancy remain, in

their mothers’ words, still unaccepted at the end of eight years.

. Notwithstanding the tendency of the UP mothers to distort

facts to suit social conventions, most of them must be credited

with a significant positive shift in attitudes toward the child, par-

ticularly on the conscious level.” Id. at 78-79.

27 The Prague study points up the transitory nature of un-

wantedness” in many cases. “As will be noted in the Prague

studies, not every child unwanted during pregnancy remained un-

wanted. Some became wanted gradually, usually as the result of

18

B. Denied Abortion Has No Long-term Or Severely

Negative Impact On The Vast Majority of Children.

Abortion advocates cite various studies to support the

proposition that the majority of “unwanted” children ex-

perience negative outcomes as a result of denied abortion.

These studies uniformly ignore the critical philosophical

questions at stake. If the question is whether it is better

for children to be wanted than unwanted, these “studies”

are hardly needed. If the question is whether it is better

to be dead than unwanted, these studies never address,

and cannot resolve, this issue. Yet, the answer to this

question is presumed in the focus on unwantedness ; and

it is precisely on this point that the studies lack any

predictive value. That is, they are unable to predict

whether a child will suffer developmental detriments, and

if so, how severe these detriments will be, whether any

alternative supporting relationships or networks will off-

set the detriments, and what the long-term outcome will be.

a variety of interacting factors and circumstances. Thus, a child

originally unwanted for seemingly economic reasons may benefit

from changing parental attitudes as the economic situation im-

proves. However, no matter how important, economic factors may

not be decisive. Parental maturity, community support, and the

help of friends and grandparents may be equally important con-

tributors to changing the perception of what was once considered

a hopeless situation. Experiencing life with a child may also create

conditions for changing attitudes from negative to positive.” David

at 33.

Other studies establish that denied abortion is not a reliable

indicator of future child abuse. See Benedict, Maternal Perinatal

Risk Factors and Child Abuse, 9 Child Abuse and Neglect 217

(1985); Kotelchuck, Child Abuse and Neglect: Prediction and

Misclassification, in R. Starr, Jr., ed., Child Abuse Prediction:

Policy Implications (1982); Garbarino, Some Ecological Corretates

of Child Abuse: The Impact of Socioeconomic Stress on Mothers,

47 Child Development 178 (1976); Ney, Relationship Between

Abortion and Child Abuse, 24 Can. J. Psychiat. 610 (1979); Pohl-

man, Unwanted Conceptions: Research on Undesirable Conse-

quences, 14 Eugenics Quarterly 143 (1967) ; Zimlich & Watson,

Maternal Attitudes of Acceptance and Rejection During and After

Pregnancy, 23 Am. J. Orthopsychiat. 570 (1953).

19

Beyond the philosophical questions, social science stud-

ies of denied abortion are subject to a number of method-

ological guidelines, which must be followed in order for

the conclusions to be valid. The key requirement is called

internal validity. W. Reid & A. Smith, Research in Social

Work 121 (1981). In this context, the issue is whether

the observed differences between one group of children

and another are attributable to the factor investigated

or to some other factor. Thus, internal validity refers

to the degree of certainty that the “unwanted” child’s

social and psychological development (the outcome meas-

ure) is attributable to “unwantedness” (the independent

variable) rather than some other pre-existing or co-exist-

ing factor (e.g., poverty or family instability).** Only

if the children of denied abortion (the study group) can

be equated at the outset with a group of “wanted” chil-

dren (control group) on all other potentially influential

factors except the factor of denied abortion can an ac-

ceptable degree of internal validity be achieved. Al-

though perfect matching is impossible, this matching

process can be successful if the differences (on confound-

ing variables) that remain between the two groups after

matching are no greater than could be expected by chance

alone. Then these differences are not statistically “sig-

nificant.” W. Reid & A. Smith, Research in Social Work

259-69 (1981). The key problem in this area of re-

search is that women cannot be randomly assigned to

wanted or unwanted categories, because they have al-

28 For example, a recent study examined all 698 children born on

the Hawaiian island of Kauai in 1955, beginning with prenatal

histories from mothers and following the children at periodic ages

until age 31-32. With the help of innate qualities, support networks,

and mediating institutions, many of the children who were identi-

fied as “high risk” (subject to four or more serious disadvantages,

including poverty, family instability, and dysfunctional parents)

“went on to develop healthy personalities, stable careers and strong

interpersonal relationships.” Werner, “Children of the Garden

Island,” Scientific American 106 (April, 1989). (Denied abortion

was not a focus of this study.) See also, E. Werner & R. Smith,

Vulnerable But Invincible: A Longitudinal Study of Resilient

Youth (1982).

20.

ready adopted an attitude toward the child. As a result,

the research can only be quasi-experimental (nonequiva-

lent group design). Id. at 155. Internal validity for this

type of research depends on the careful selection of a

matched control group. As will be seen, this was not

achieved in any of the various studies examined which pur-

port to find negative consequences from denied abortion.

In all of them, the researchers were unable to sufficiently

equate the unwanted pregnancy (UP) and accepted

pregnancy (AP) groups at the outset. Consequently, the

studies fail to isolate unwantedness or denied abortion

(rather than other conditions) as the cause of the child’s

developmental condition.

Henry David’s Born Unwanted: Developmental E ffects

of Denied Abortion (1988) is a widely cited work on

denied abortion.” David examined five major studies of

groups (cohorts) of children born to women denied abor-

tion in Europe. Buried in the book, David concedes that

“Ty]nwanted pregnancy alone does not specifically harm

the child’s development, but in its wake come a variety

of other factors, which collectively appear to influence

the development of the child and his or her social inte-

gration.” Id. at 84.“ But this nuanced statement begs the

question. If “unwanted pregnancy” does not specifically

harm the child’s development, while “other factors” ad-

2° David has been an abortion rights researcher for over 20 years

(H. David, Population and Mental Health (1964)) and an expert

witness for abortion rights litigants in at least Hodgson v. Minne-

sota and Jane L. v. Bangerter, No. 91-345 (D. Utah). In Born

Unwanted, the agenda is clear: “involuntary childbearing is rarely

conducive to sound public health practice. Unwantedness can pose

significant risks for child development, with socially undesirable

long-term implications. Hopefully, our attempt to share experiences

from Northern and Central Europe will strengthen the worldwide

efforts to reduce the incidence of unwanted pregnancy, while main-

taining ready access to safe legal abortion for women in need.”

Id. at 22. :

0 Likewise, David concedes: “In sum, the findings around age

nine suggested that 2 woman's originally rejecting attitude toward

her pregnancy does not inevitably lead to behavioral! difficulties in

the child.” David at 85-86.

21

mittedly do affect development, unwanted pregnancy”

cannot be isolated reliably as having any effect on the

child’s development. Therefore, the flaws in the research,

as well as the minimal consequences observed, do not

support David’s sweeping conclusions, much less a “fun-

damental” right to abortion in American law.

1. The Goteborg Cohort.

In the Goteborg study, Forssman and Thuwe studied

120 children born during 1939-42 to women who were

refused abortion sought for psychiatric reasons. David

at 37. The control group consisted of the next same-sex

child born after each of the study group children in the

same hospital or registered in a city hospital. An initial

study was conducted at age 21, with a follow-up study

at age 35.

The researchers found statistically significant differ-

ences in psychiatric care, delinquency, public assistance

dependency, and educational level for the children of

mothers denied abortion, but there were no statistically

significant differences for drunken misconduct, mental

retardation, and other categories. David himself reached

a tepid conclusion about the findings: “individuals born

after refusal of an application for a therapeutic abortion

are at greater risk than the controls for adverse psycho-

social problems during their developmental years with

such differences gradually diminishing in adulthood.”

David at 19, 45.

However, the authors of a study done in Prague ac-

knowledged that this study was flawed “by the failure

to match the study population with controls of similar

background.” Dytrych, 7 Fam. Plan. Persp. at 165. Sig-

nificantly more UP children were born out of wedlock

(26.7% v. 7.5%); significantly fewer of the UP chil-

dren lived with both natural parents (50% v. 82%); and

socio-economic status was significantly different. David

at 39. For these reasons, the results of the Goteborg

study cannot be generalized to other settings or popula-

tions (“external validity”).

2. The Stockholm Cohort.

A second, retrospective study conducted in 1963 exam-

ined 249 Stockholm women denied abortion. Hook, Re-

fused Abortion, Acta Psychiat. Scand. Supp. No. 168, 3

(1963). In this study, there were significant differences

between the mothers at the outset. As Hook noted, many

of the UP women “had already shown signs of mental

disturbance in some form prior to the pregnancy in

question” and 10% sought treatment for mental illness

before they applied for the abortion. Jd. at 29, 53. Even

so, the percentage of UP children with some mental dis-

turbance (22%) did not differ significantly from the per-

centage of all Stockholm school children (20%). David

at 48.

Subsequently, Hook conducted a follow-up study at

age 18 of 88 UP children in Stockholm. David at 48-49.

Hook found that more UP children than AP children had

a criminal record (20% v. 12%). However, there was

no significant difference in overall school performance.

The UP children, at age 23, incurred more sick leave

and were more likely to have received economic assist-

arice. Id. But, this follow-up study has serious methodo-

logical flaws. Hook failed to ensure that the interviewer

and psychologist were blinded to the group membership

of the children (ruling out experimenter expectancy

effects). Reid & Smith at 142-43. He also made no at-

tempt to match the two groups at the outset on highly

relevant factors such as marital and socioeconomic status.

With these flaws, the study has no external validity.

3. The Swedish Cohort.

A third researcher examined, over a 15-year period,

the development of a group of 90 Swedish children born

in 1960. David at 50. The 90 UP children were matched

with 90 AP children born in the same hospital. According

to David:

Blomberg observed that all the differences in his

study, whether statistically significant or not, were

uniformly to the disadvantage of the UP children.

23

When taken together, they led to the conclusion that,

in the aggregate, the UP children ‘grew up in a

more insecure environment, performed worse in

school, and more often needed treatment for nervous

and psychosomatic disorders. There was also a tend-

ency toward worse social adjustment.’

David at 51-52. However, the design flaws with this

study render these results scientifically invalid. As with

prior studies, no attempt was made to equate the UP and

AP children at the outset on other, confounding factors.

Moreover, the differences observed were statistically in-

significant when UP and AP children who lived with both

natural parents were compared. And, as Blomberg and

David conceded, many differences were not statistically

significant. David at 51. Some differences that were

significant diminished over time. /d.

4. The Northern Finland Cohort.

A fourth study was based on a group of 12,058 chil-

dren born to 11,931 women in Finland in 1966. David at

103. In contrast to the other studies, “unwantedness” was

determined, not by denied abortion, but by statements by

the women late in gestation that the pregnancy “should

not have occurred at all.” Jd. at 103-104. Once again,

the UP and AP children were not equated at the outset in

this study. Their families lived under significantly dif-

ferent conditions—UP mothers were more often unmar-

ried, had more children, and lived in lower socio-economic

conditions than AP mothers. Although a follow-up study

was initiated at age 8, the success of the attempt at pair-

matching is not revealed. Jd. at 107. Differences in school

performance were not statistically significant and “no

differences” were observed in emotional development. /d.

Based on the father’s occupation, UP families experienced

more downward social mobility. David's conclusion is less

than compelling:

On the whole, the follow-up study at age eight

showed slightly poorer development among the UP

children, which could be ascribed to unwantedness

24

late in pregnancy or to differences in family social

conditions, or to a combination of these factors.

Id.

5. The Prague Cohort.

A fifth study was initiated in 1971 of 220 boys and

girls born between 1961-63 to women who requested an

abortion twice for the same pregnancy in Prague.

Dytrych, et al., 7 Fam. Plan. Persp. at 165-66. This

study is promoted by David as the most reliable of the

five studies because of its longitudinal basis, its elaborate

attempt to match the study group with a control group,

and the extraordinarily high number of outcome measures

examined.

Yet, the Prague study also suffers from design flaws

which render any conclusions from the data scientifically

invalid. The researchers in this study went to consider-

able length to match the study group with a control

group. But, despite their claims, they were ultimately un-

successful in equating the groups at the outset. The UP

children were born into lower socioeconomic circum-

stances. In addition, the UP children were subject to

more family instability. The UP mothers were more

likely to be divorced (13% v. 8%) and to be married to a

man other than the child’s father (10% v. 3.6%). A

greater percentage of the UP children were not raised by

their birth mothers or fathers. Also, a greater percentage

of UP children were not living at home (47% v. 29%).

Dytrych, 7 Fam. Plan. Persp. at 170. These factors, by

themselves, could account for the observed differences be-

tween the groups on psychosocial measures.

Furthermore, serious complications that are assumed

to result from denied abortion (suicide, homicide, or path-

ological conditions) are nowhere to be found. As the au-

thors concede, no cases of extreme forms of unwanted-

ness, like permanent isolation, are found in the Prague

children. David at 31. The data show that few children

suffered significant problems. Only mild differences were

seen in behavior at elementary school and in school per-

formance in secondary school. David at 89. No differ-

TRG A lh

25

ences between the UP children and the AP children were

observed on many social, psychological and health vari-

ables. For example, no differences were seen in adapta-

tion to school. On other variables, differences were ob-

served, but they were not statistically significant: these

included visual impairment, hearing impairment, long- —

term disease, hospitalization, minor accidents or minor

surgery, perceptions of ‘naughtiness” and “stubborn-

ness.” Dytrych, 7 Fam. Plan. Persp. at 167. Only fre-

quent acute illness and perceptions of bad temper were

statistically significant in being more common among the

UP children. Id. The researchers frankly concluded in a

1975 article that they “found no gross maladjustment or

maladaptation” and that the “expectation that unwanted

conceptions would lead inevitably to the children being

unwanted proved not to be the case.” Id. at 165.

Only a few mild differences were observed in a follow-

up study at the age of 9. No differences were seen in

average IQ scores or family relations on recognized scales.

David at 88. “Both the UP and the AP children had as-

sessed their relationships with their parents and those of

their parents with them in the same positive way.” David

at 89. Likewise, David conceded: “overall differences be-

tween the children born following unwanted conception

and the matched controls were not dramatic around nine

years of age.” David at 84. Those differences that were

allegedly statistically significant included school tests on

the Czech language.

In a number of ways, the authors strained to find dif-

ferences between the groups on subjective criteria in

order to reach illogical conclusions. For example, they re-

ported that teachers and parents rated the UP children

“as significantly less conscientious and more excitable.”

David at 88. Also, they observed that the UP and AP

children perceived their parents differently. David con-

cluded that:

there is considerably more disagreement between the

mother’s and father’s parental warmth as perceived

by the UP subjects in comparison with the AP con-

trols. UP parents are perceived discordantly, one as

warm ond the ether an esi, which aay sellest come

kind of compensation mechanism operating in the

family.

David at 90. Nevertheless, the authors concede that at

age nine “the aggregate differences between the children

born following unwanted conception and the control chil-

dren are not dramatic. ...” Dytrych, 7 Fam. Plan. Persp.

at 171. Yet, they insist on speculating:

a strong source of stimulation leading to a certain

behavior pattern which, in a given situation, is sys-

tematicaily enhanced and may become a more or less

permanent trait.

Id. at 171. Most people do not view the need to achieve

satisfaction or to assert oneself as inherently negative.

In any case, the authors admitted that “[a]t present, this

trait is well within the bounds of social viability; there

27

have been no excessive cases of breakdowns or conflicts

that have come to the attention of psychological dispen-

saries or child psychiatrie clinics.” Id. Yet, they cau-

tioned that “[{n]evertheless, there may be a question con-

cerning the future development of these children. What

will they be like in puberty and adolescence?” Id. at 171.

A misleading analysis in the Prague study is the crea-

tion of a “Maladaptation Score” for the children. David

at 79-81, 93-94. David reported that “the UP children

had significantly higher maladaptation scores than the

AP controls.“ Id. at 81. But the methodology in creating

this “Score” was completely flawed. The authors observed

all marks of differences between the groups on the out-

come measures—whether statistically significant or not—

and simply added them up. This calculation exploits dif-

ferences that were not statistically significant and may

have occurred by chance alone to render a total score that

gives an aura of significance. Furthermore, the “Score”

is not a recognized index, nor a scale that has been vali-

dated by application to other samples. It was entirely

created, for this study, by the authors.

Another serious flaw in this study is the authors’ at-

tempt to demonstrate that the UP children suffered from

“psychological subdeprivation.” David at 84-85. David

explains that:

the relationship is not that of direct rejection of the

child by his/her mother and family (which is the

exception), . . . Rather, acceptance is incomplete,

ineffective, and ambivalent, leading to more or less

deviant interactions, less maternal empathy with the

child’s needs, less understanding of his her behav-

ioral signals, less warm emotional interchange of

stimuli, ete. . . . In the case of unwantedness, the

picture takes on a subdued and less dramatic appear-

ance

Id. at 85. However, like the “Maladaptation Score,” the

concept of “subdeprivation” was created by the authors;

it is not an objective, defined, or recognized psychological

term and cannot be found in the authority to which David

refers. See J. Langmeier & Z. Matejcek, Psychological

Deprivation in Childhood 1-23 (3d ed. 1975). Moreover,

David provides no data or hard evidence to support such

a concept.

A follow-up study conducted at age 14 also found only

minor differences. “While intelligence tests were not re-

peated at ages 14-16, teachers’ assessments of intelligence

on a rating scale were entirely similar for both groups.”

David at 88. David stated that difference in school per-

formance between UP and AP children “reached statis-

tical significance.” Id. However, the data show that the

difference observed was not greater failure among UP

children but merely that more UP children were average

and fewer UP children were found among the above-

average or outstanding students. Id. Likewise, “a sig-

nificantly larger number of UP children did not continue

their education to secondary school, but instead became

apprentices or started jobs without prior vocational train-

ing.” Id. These findings are less than compelling in sup-

port of the original thesis that elective abortion is neces-

sary to avert dangerously troubling psychological devel-

opment.

David claimed to find behavioral disorders

in the UP children at age 14. The official records indi-

cated that 43 UP children and 30 AP children were re-

ferred to child psychiatric and school counseling. David

concluded that “although differences in number of re-

ferrals were slight, the UP children were seen signifi-

cantly more often because of serious behavioral disorders

requiring therapeutic treatment.” David at 87. H ,

David never provides any data or objective definitions of

these “behavioral disorders” or their severity. At 14, UP

children were rated “significantly less obedient” than the

AP children by their teachers, and the UP children “were

seen as either less sociable or more hyperactive than the

AP controls.” Jd. at 88-89. With these subjective find-

ings, David reaches strained conclusions:

Even if the differences in specific indicators are still

not very dramatic and easy to detect at the indi-

vidual level, they are important in the aggregate,

having attained increasing statistical significance over

time . . In the social integration and competence

of UP subjects as a group and in their school achieve-

ments, it is the lack of pluses rather than surplus of

marked minuses that becomes most apparent. Still

... the fact that differences between UP subjects and

AP controls persist and have actually widened after

nearly 18 years of family life suggests that “un-

wantedness” during early pregnancy constitutes a

not negligible factor for the child’s subsequent life.

Id. at 90. However, David provides no basis to support

the conclusion that the differences between the AP and

UP children “widened” over time or had “an accelerating

momentum.” Id. at 91. In order to conclude that the al-

leged “widening” occurred, the authors would have had to

conduct a special statistical analysis (multivariate analy-

sis of variance Apparently, no such analysis was done.

Fatal flaws also infected a follow-up study conducted

when the children reached age 21-23. There was appar-

ently no effort to remedy the loss of a significant number

of subjects, which directly undermines internal validity.“

Even so, only minor differences were observed: “[e]duca-

tional attainment ... did not differ significantly,” al-

though UP children stil] showed more average achieve-

ment. David at 95. Self-administered personality tests

This is called differential attrition, which refers to the loss of

different types of subjects (e.g., higher-income children or mothers)

from one or both groups which may result in a change in the

were examined in this follow-up study (a follow-up rate of 73 per-

cent for UP subjects and 70% for AP subjects) (David at 91),

several pages later it is revealed that only 112 of the original 220

matched pairs were available for study, which means that the real

follow-up rate was only 50.9%. David at 95. The threat from dif-

ferential atirition is that the samples over time may change on

relevant characteristics for which they were equated at the outset

of the study (baseline characteristics), with the result that the UP

children that remain may have more diminished characteristics

than the original group.

that are accepted as standard measures “did not produce

any significant differences between the UP subjects and

the AP controls taken as a whole.” Id. at 98.

The myth of the unwanted child is that unwantedness

results in long-term or severe negative impacts on the

mother and child. But these studies undermine this myth.

Not only are the findings scientifically invalid, the au-

thors strained to find observed differences that were sta-

tistically significant. Even those that were allegedly sig-

nificant showed no gross maladaptation, but merely mild

differences, for which David presents no meaningful cri-

teria for demonstrating that abortion would have been

better for the children or their families. Can David be

taken seriously for suggesting that abortion is socially

indicated to prevent unwanted children from “suffering”

merely average school performance? Remarkably, these

data show that unwantedness and denied abortion cannot

be isolated as significant causes of any abnormal or long-

term maternal dysfunction or impaired child develop-

ment. Likewise, short-term negative consequences that

are so widely assumed recede into the background as chil-

dren grow older. Children have a resilience that the em-

phasis on short-term consequences and options, like abor-

tion, conveniently ignores. Certainly, the data examined

here belie the assumptions that formed so much of the

rationale of Roe v. Wade and its progeny.

CONCLUSION

The judgment of the United States Court of Appeals

for the Third Circuit should be affirmed in No. 91-744

and reversed in No. 91-902.

Respectfully submitted,

Of Counsel: CLARKE D. ForsYTHE *

Victor G. RosENBLUM LEANNE McCoy

Professor of Law AMERICANS UNITED For LIFE

Northwestern University 343 S. Dearborn Street #1804

357 E. Chicago Avenue Chicago, IL 60604

Chicago, IL 60611 (312) 786-9494

(312) 503-8443 Counsel for Amicus Curiae

April 6, 1992 * Counsel of Record

APPENDIX

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