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

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Nos. 91-744 & 91-902

OCTOBER TERM, 1991

PLANNED PARENTHOOD OF

SOUTHEASTERN PENNSYLVANIA, et al.,

Petitioners and

Cross-Respondents,

é 5 V.

RoBERT P. CASRY, et al.,

Respondents and

ie, Cross-Petitioners.

On Writ of Certiorari to the United States Court

of Appeals for the Third Circuit

BRIEF AMICUS CURIAE OF THE

UNITED STATES CATHOLIC CONFERENCE,

THE CHRISTIAN LIFE COMMISSION,

SOUTHERN BAPTIST CONVENTION, AND THE

NATIONAL ASSOCIATION OF EVANGELICALS

IN SUPPORT OF RESPONDENTS

AND CROSS-PETITIONERS

MARK E. CHOPKO *

General Counsel

PHILLIP H. HARRIS

Solicitor

Of Counsel: UNITED STATES CATHOLIC

MICHAEL F. MOSES CONFERENCE

3211 Fourth Street, N.E.

Washington, D.C. 20017

(202) 541-3300

* Counsel of Record

(Counsel continued inside front cover.)

—

WILSON - as Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

, WOVE & 27

MICHAEL K. WHITEHEAD ForEST D. MONTGOMERY

General Counsel Counsel

CHRISTIAN LIFE COMMISSION NATIONAL ASSOCIATION OF

SOUTHERN BAPTIST CONVENTION EVANGELICALS

400 N. Capitol Street, N.W. Office of Public Affairs

Washington, D.C. 20001 1023 15th Street, N.W.

(202) 638-3223 Washington, D.C. 20005

(202) 789-1011

Attorneys for Amici

TABLE OF CONTENTS

TABLE OF AUTHORITIES————————

INTEREST OF AMI

rere.

D N

II.

III.

BEFORE ADDRESSING THE MERITS OF

THIS CASE, THE COURT SHOULD RECON-

THE COURT’S APPLICATION OF PRIVACY

PRINCIPLES TO ABORTION IN ROE v.

WADE WAS FUNDAMENTALLY FLAWED.

A. Abortion Is A Threat To The Preservation

Of A Legitimate Sphere Of Protected Pri-

B. Abortion Is A Threat To The Community

Values Necessary To A Free Society ...........

THE MEDICAL REGULATION ISSUES IN

THIS CASE EXEMPLIFY THE JURISPRU-

DENTIAL PROBLEMS ENGENDERED BY

e .

A. The Abortion Industry Has Been Arbitrarily

Exempted From Effective State Regulation.

F a

2. 24-Hour Waiting Periol —

B. States’ Interests In Health And Medical

Standards Are Especially Important To The

EE èÄ²⸗ éͤ·

C. States Must Be Allowed To Protect Patients

From The Adverse Effects Of Abor tion

Page

TABLE OF AUTHORITIES

CASES: Page

Akron v. Akron Center for Reproductive Health,

888904000 7, 16, 17, 20, 25

Allgeyer v. Louisiana, 165 U.S. 578 (18977 9

Barsky v. Board of Regents, 347 U.S. 442 (1954) — 4,17

Bender v. Williamsport Area School District, 475

U.S. 584 (1986) .................... 6,8

Bigelow v. Virginia, 421 U.S. 809 (197597 17

Brophy v. New England Sinai Hospital, 398 Mass.

417, 497 N.E.2d 626 (19885 17

Colautti v. Franklin, 439 U.S. 379 (1979777 13, 25

Connecticut v. Menillo, 423 U.S. 9 (1975955 17

Dent v. West Virginia, 129 U.S. 114 (1889) ........... 18

Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga. 1970) 7

Doe v. Bolton, 410 U.S. 179 (1973 3, 7

Doe v. Scott, 310 F. Supp. 688 (N. D. III. 1970) 7

Duncan v. Louisiana, 391 U.S. 145 (1968) 16

Eisenstadt v. Baird, 405 U.S. 438 (19727 11

Fried man v. Rogers, 440 U.S. 1 (1979999 17

Furman v. Georgia, 408 U.S. 238 (1972) 14

Griswold v. Connecticut, 381 U.S. 479 (1965) 3, 11, 13

H. L. v. Matheson, 450 U.S. 398 (198177 26

Hagans v. Lavine, 415 U.S. 528 (19747 113 7

Harris v. McRae, 448 U.S. 297 (1980⸗ 24

Hodgson v. Minnesota, 110 S. Ct. 2926 (1990) 21

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

— —V2 To 21

In re Guardianship of Grant, 109 Wash. 2d 545,

PD „ 17

Jacobson v. Massachusetts, 197 U.S. 11 (1905) 8, 9, 15

Lehr v. Robertson, 463 U.S. 248 (1983 — 19

Loving v. Virginia, 388 U.S. 1 (196777 11, 13

Mansfield C. & L. M. R. Co. v. Swan, 111 U.S. 379

. 6, 8

Meffert v. Packer, 66 Kan. 710 (1903), aff'd mem.,

SF FF —.. 18

Meyer v. Nebraska, 262 U.S. 390 (1923) ................. 3, 13

Mitchell v. Maurer, 293 U.S. 237 (1984) ................ 6

Moore v. City of East Cleveland, 431 U.S. 494

6 10, 20

Palko v. Connecticut, 302 U.S. 319 (1937) 9

iii

TABLE OF AUTHORITIES—Continued

Page

Parham v. J. R., 442 U.S. 584 (197999 11

Pierce v. Society of Sisters, 268 U.S. 510 (1925) 11, 13

Planned Parenthood Ass’n v. Ashcroft, 462 U.S.

/ x 16, 24

Planned Parenthood v. Casey, 744 F. Supp. 1323

r RS a a ee 6, 21

Planned Parenthood v. Casey, 947 F.2d 682 (3rd

Cir. 1991), cert. granted, 112 S. Ct. 931 (1992) 6

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

REESE SERS OES ere nO 11,17

Poe v. Ullman, 367 U.S. 497 (1961) 10, 12

Prince v. Massachusetts, 321 U.S. 158 (1944) 11, 13, 14

Roe v. Wade, 410 U.S. 113 (197330;)) passim

Semler v. Board of Dental Examiners, 294 U.S.

r r.. * 17

Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122

17 ̃ ↄ2———ʃ3 — wüm — ⁰wV———— 9

Terry v. Ohio, 392 U.S. 5 (19688)))))))) 11

Thornburgh v. American College of Obstetricians

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

Virginia Board of Pharmacy v. Virginia Citizens

Consumer Council, 425 U.S. 748 (1976) 18

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

gE Ee en passim

West Virginia State Board v. Barnette, 319 U.S.

gg eee SEE Ee 13

Whalen v. Roe, 429 U.S. 589 (19777 17

Wynn v. Scott, 449 F. Supp. 1302 (N. D. III. 1978),

appeal dismissed, Carey v. Wynn, 439 U.S. 8

(1978), aff'd, 599 F.2d 193 (7th Cir. 19799 24

CONSTITUTION, STATUTES & REGULATIONS:

Constitution of the United States, amend. 14... passim

28 U.S.C. § 1331 (1966 and 1990 Supp.) ) 5, 6

28 U.S.C. § 1343 (a) (3) (1976 and 1990 Supp.) 5, 6

28 U.S.C. § 1343 (a) (4) (1976 and 1990 Supp.) 5

42 C. F. R. § 441.253 (d) (1991) ee cece eee 21

42 C. F. R. § 441.257 (a) (1991 21

42 C. F. R. § 441.258 (1991) 1 21

TABLE OF AUTHORITIES—Continued

Page

42 C.F.R. Part 441, Subpt. F, App. (1991777 21

Ala. Code § 22-11A-51 (Michie Supp. 199177 19

Ariz. Rev. Stat. Ann. § 20-448.01 (West Supp.

ES ALAS TSS ee 19

Colo. Rev. Stat. § 10-3-1104.5 (Supp. 199177 19

Fl. Stat. Ann. § 381.004 (West Supp. 1992) 19

Fl. Stat. Ann. § 458.324(2) (West 19917777 19

Fl. Stat. Ann. § 458.325 (West 19917777 18

Hawaii Rev. Stat. Ann. § 325-16 (Michie 1991) __.... 19

Ind. Stat. Ann. §§ 16-8-7-6, 16-8-7.5-14 (Burns

Re SE 19

Ky. Rev. Stat. Ann. §§ 214.181, 214.625 (Michie

c a es 19

Mass. General Laws Ann. c. 123, § 23 (West Supp.

ES es ee 19

Md. Health Gen. Code Ann. § 18-336 (Michie

N.D. Cent. Code Ann. §§ 23-07.5-02, 23-07.5-03

ET ETE Lee 19

N.H. Rev. Stat. Ann. § 141-F:5 (1990: 19

N. M. Stat. Ann. § 24-2B-2 (1991) .............................. 19

N.Y. Public Health Law Ann. § 2500-a ( McKinney

(I ayy 18

N.Y. Public Health Law Ann. § 2505 (McKinney

ITI siccnttienhiisthiaiiahdnpadneniibittiimainmnetantbinmunettesainiiipennenemns 19

N.Y. Public Health Law Ann. § 2503 (McKinney

REE iE RS a 18

Or. Rev. Stat. § 483.045 (1991) .......................-.-...-.-... 19

Pennsylvania Abortion Control Act, 18 Pa. Cons.

Stat. Ann. 88 3205-3206, 3209 (West 1983 &

111 CCC . 17, 20, 28

Pennsylvania Abortion Control Act, 18 Pa. Cons.

Stat. Ann. § 3203 (West 1983 & Supp. 1991) ...... 28

Pennsylvania Abortion Control Act, 18 Pa. Cons.

Stat. Ann. §§ 3207, 3214 (West 1983 & Supp.

— 7. «. 28

Va. Code Ann. § 32.1-37.2 (Michie Supp. 19917 19

Wis. Stat. Ann. § 146.025 (West 1989 & Supp.

a — . 19

TABLE OF AUTHORITIES—Continued

BOOKS & STUDIES:

M.A. Glendon, Rights Talk: The Impoverishment

of Political Discourse (1991

B. Harrison, Our Right to Choose (1983) aes

S. Jordan, Decision Making for Incompetent Per-

!!!

Neonatal-Perinatal Medicine: Diseases of the

Fetus and Infant (A. Fanaroff & R. Martin 4th

r .

J. Noonan, A Private Choice: Abortion in America

EST a en

B. Spirt, L. Gordon & M. Oliphant, Prenatal Ultra-

sound: A Color Atlas With Anatomic and

Pathologic Correlation (1987)

8 The Writings of Thomas Jefferson, (H.A. Wash-

ington, ed.) (18717 Ek ee

Williams Obstetrics vii (J. Pritchard & P. Mac-

Donald 16th ed. 1980)

MISCELLANEOUS:

Adolescent Abortion: Psychological and Legal Is-

sues, Report of the Interdivisional Committee on

Adolescent Abortion, American Psychological

Association (Univ. of Nebraska Press 1986)

Blakeslee, “Fetus Returned To Womb Following

Surgery,” The New York Times (Oct. 7, 1986)

— RE Ae ee ee: 5 ee OEP

Callahan, “How Technology is Reframing the

Abortion Debate,” Hastings Center Report 33

IRI EES SESS) Se

Chervenak, et al., “Current Concepts: Advances in

the Diagnosis of Fetal Defects,” 315 New Eng.

J. Med. 306 (July $1, 1066) ..................................

Chopko, Harris, Alvaré, “The Price of Abortion

Sixteen Years Later” 69 National Forum 18

Chopko, Webster v. Reproductive Health Serv-

ices: A Path to Constitutional Equilibrium”

12 Campbell L.R. 181 (Spring 1990)

Page

11,13

23, 24

TABLE OF AUTHORITIES—Continued

Clift, King, Gonzalez, “Taking Issue With NOW,”

Newsweek 21 (Aug. 14, 198999)))9999:

Daffos, et al., Prenatal Management of 746 Preg-

nancies At Risk for Congenital Taxoplasmosis,”

318 New Eng. J. Med. 271 (Feb. 4, 1988) ...........

Ely, “The Wages of Crying Wolf: A Comment on

Roe v. Wade” 82 Yale L. J. 920 (Apr. 1973)

Fletcher & Evans, “Sounding Boards: Maternal

Bonding in Early Fetal Ultrasound Examina-

tions,” 308 New Eng. J. Med. 392 (Feb. 17,

— .

Harrison, et al., Successful Repair in Utero of a

Fetal Diaphragmatic Hernia,” 322 New Eng. J.

Med. 1582 (May 31, 1990) .

Henig, Saving Babies Before Birth,” The New

York Times (Feb. 26, 1982) 18 (Magazine)

Kolata, “Fetuses Treated Through Umbilical

Cords,” The New York Times (Mar. 29, 1988)

TIES 1

Longaker, et al., “Maternal Outcome After Open

Fetal Surgery,” 265 J.A.M.A. 737 (Feb. 13,

Kꝶ6»» — ee ae ee

“Medical Progress: Pediatric Surgery,” 319 New

Eng. J. Med. 94 (July 14, 198)

National Conference of Catholic Bishops, Pastoral

Plan for Pro-Life Activities: A Reaffirmation

“Occasional Notes: Fetal Treatment 1982,” 307

New Eng. J. Med. 1651 (Dec. 23, 1982) ...............

Steinem, “A Basic Human Right,” Ms. 39 (Aug.

“Warns of Negative Psychological Impact of So-

nography in Abortion” Ob. Gyn. News (Feb. 15-

Page

IN THE

Supreme Cuurt of the United States

OCTOBER TERM, 1991

Nos. 91-744 & 91-902

PLANNED PARENTHOOD OF

SOUTHEASTERN PENNSYLVANIA, et al.,

Petitioners and

Cross-Respondents,

RoBERT P. CASEY, et al.,

Respondents and

Cross-Petitioners.

On Writ of Certiorari to the United States Court

of Appeals for the Third Circuit

BRIEF AMICUS CURIAE OF THE

UNITED STATES CATHOLIC CONFERENCE,

THE CHRISTIAN LIFE COMMISSION,

SOUTHERN BAPTIST CONVENTION, AND THE

NATIONAL ASSOCIATION OF EVANGELICALS

IN SUPPORT OF RESPONDENTS

AND CROSS-PETITIONERS

INTEREST OF AMICI

All active Catholic Bishops in the United States are

members of the United States Catholic Conference (“Con-

ference”), a non-profit corporation organized under the

laws of the District of Columbia. The Roman Catholic

Church, the largest religious denomination in the United

States, has over 57 million adherents in 20,000 parishes

throughout the country. The Bishops’ Conference advo-

cates and promotes the pastoral teachings of the Bishops

in such diverse areas as education, family life, health

care, social welfare, immigration, civil rights, criminal

justice, and the economy. When permitted by court rules

and practice, the Conference files briefs as amicus curiae

in litigation of importance to the Catholic Church and its

people throughout the United States. Of the values that

the Conference seeks to promote through its participation

in litigation, respect for human life is of the highest

importance.

The Christian Life Commission (“Commission”) is the

moral concerns and public policy agency for the Southern

Baptist Convention, the nation’s largest Protestant de-

nomination, with over 15.2 million members in over

38,000 autonomous local churches. The Christian Life

Commission has been charged by the Convention to ad-

dress public policies affecting the sanctity of human life,

the integrity of marriage and the family, and other sub-

jects. Southern Baptists have expressed themselves in

repeated resolutions, passed in national conventions over

the past two decades, overwhelmingly opposing abortion

except to save the life of the mother and calling for the

reversal of Roe v. Wade, 410 U.S. 113 (1973). The

Christian Life Commission seeks to advocate positions

consistent with these resolutions by filing briefs as

amicus curiae in important litigation such as this case.

The National Association of Evangelicals (“NAE”)

is a nonprofit association of evangelical Christian denom-

inations, churches, organizations, institutions and individ-

uals. It includes some 45,000 churches from 74 denomina-

tions and serves a constituency of approximately 15 mil-

lion people. As its official resolutions attest, NAE is com-

mitted to defending the sanctity of human life. The

NAE, the Commission, and the Conference believe that

the practice of abortion-on-demand in this country under-

mines respect for all life and jeopardizes other vital in-

terests of individuals, the family, and the community.

For this reason, any retreat from the review of abortion

jurisprudence begun by this Court in Webster v. Repro-

ductive Health Services, 492 U.S. 490 (1989), will serve

only to confuse the law and derogate other fundamental

rights, most especially those of countless unborn children.

Because the federal right created in Roe v. Wade under-

lies jurisdiction in this case, reconsideration of that case

without further delay is appropriate here.

Through their counsel, the parties have consented to the

appearance of these amici.

SUMMARY OF ARGUMENT

In 1973, this Court held that its privacy jurisprudence

“is broad enough to encompass a woman’s decision

whether or not to terminate her pregnancy.” Noe v.

Wade, 410 U.S. at 153. It did so, however, recognizing

that this decision involved more than the decisions given

constitutional protection in cases from Meyer v. Ne-

braska, 262 U.S. 390 (1923), to Griswold v. Connecticut,

381 U.S. 479 (1965). Abortion involves the termination

of a life and the infringement of other personal and com-

munity interests. Roe v. Wade, 410 U.S. at 159. For this

reason, the Court held open the possibility that these in-

terests could not only be balanced against, but at times

override, the now protected choice of abortion. In nine-

teen years of legislative efforts and litigation experience,

that prospect has never meaningfully materialized. So-

ciety, the family, men, women, and millions of unborn

children have suffered exceedingly as a result.

In his concurring opinion in Roe v. Wade and Doe v.

Bolton, 410 U.S. 179 (1973), Justice Douglas discussed

the nature of “liberty” as including “autonomous control

over the development and expression of one’s intellect,

interests, tastes, and personality.” 410 U.S. at 211 (em-

phasis in original). This right, the Justice said, is “ab-

solute, permitting of no exceptions.” Id. No other rights

encompassed by his notion of liberty, including the right

of privacy, were denominated autonomous, and no other

Justice spoke of autonomy in relation to personal liberty or

privacy in those first abortion cases. 410 U.S. at 113-223.

Yet by the time the Court reached its decision in Thorn-

burgh v. American College of Obstetricians and Gynecol-

ogists, 476 U.S. 747 (1986), a majority had come to em-

ploy the concept of autonomy in direct relation to a

woman’s decision to abort her child. 476 U.S. at 772.

By so doing, the Court truly caused the pregnant woman

to be “isolated in her privacy” from all other legitimate

interests of society, of her community, of her family, and

of her unborn child—an outcome that Roe v. Wade orig-

inally disavowed. 410 U.S. at 159. Having been promised

“freedom of choice” by abortion’s supporters, pregnant

women find themselves poorly served by the abortion in-

dustry’s contrived “autonomy.” The result of isolating

expectant mothers from the aid and support they need has

been to expose them to victimization by an abortion in-

dustry that masquerades as operating in their best inter-

ests, while in fact it seeks to avoid legitimate state regu-

lation aimed at protecting health and safety.

When Pennsylvania enacted minimal medical regula-

tions for clinics performing abortions, the United States

District Court for the Eastern District of Pennsylvania

enjoined them at the request of the abortion providers.

This result protected abortion notwithstanding the state’s

legitimate authority to license and regulate medical prac-

titioners in the interest of protecting all patients. Barsky

v. Board of Regents, 347 U.S. 442, 449 (1954). The

lower court disregarded this Court’s teaching that the

states have compelling interests in protecting maternal

health, preserving prenatal life, and upholding profes-

sional standards. Yet the district judge was only apply-

ing the hyperextension of Roe, especially the sweeping

opinion in Thornburgh. That decision completed the dis-

tortion of the law begun in Roe, and its demise as prece-

dent would be a healthy step. For this reason, this Court

must complete the process begun in Webster v. Reproduc-

tive Health Services.

The primary problem lies not in Thornburgh, whose

abandonment is presaged by Webster, but in Roe v. Wade

and the collapsing foundation on which it was based. To

explain its original extension of the constitutional right

of privacy to abortion, this Court had to engage in spec-

ulation as to how certain perceived medical, social, or

psychological “detriments” to pregnant women might

be alleviated by abortion. Roe v. Wade, 410 U.S. at 153.

This nation’s experience shows that those predictions were

unfounded. Unsafe abortion, maternal and infant mor-

tality, family instability, teenage pregnancy, and similar

difficulties continue unabated. Widespread abortion has

not solved such problems. Indeed, abortion has created

its own list of unexpected and undesirable detriments to

our society. The only solution for this Court is not to en-

trench its decisional law further, but to reconsider its

rationale for including abortion within the Due Process

Clause of the fourteenth amendment. The Court can and

should do so because subject matter jurisdiction over this

case depends upon abortion remaining a constitutional

right. In order for the Court to examine properly its

own jurisdiction, as it is bound to do in every case, Roe

v. Wade must be reconsidered and should, on reflection,

be abandoned.

ARGUMENT

I. BEFORE ADDRESSING THE MERITS OF THIS

CASE, THE COURT SHOULD RECONSIDER ROE

v. WADE.

Since November 7, 1991, when petitioners and their

counsel publicly announced their strategy for filing a

petition for certiorari in this case, there has been ram-

pant speculation across this nation as to whether Roe v.

Wade would, could or should be reconsidered. For the

most part, however, prognosticators have ignored the fun-

damental fact that subject matter jurisdiction is always

open to review, and that jurisdiction over this case de-

pends on this Court’s decision in Roe v. Wade.

Without discussion, the district judge proclaimed, “I

have subject matter jurisdiction over this controversy

pursuant to 28 U.S.C. § 1331 (1966 and 1990 Supp.), 28

U.S.C. § 1343 (a) (3), (4) (1976 and 1990 Supp.), and

the fourteenth amendment to the United States Constitu-

tion.” Planned Parenthood v. Casey, 744 F. Supp. 1323,

1325 (E.D. Pa. 1990). The court of appeals opinion, on

review here, abbreviates but essentially reiterates the dis-

trict court’s jurisdictional proclamation. Planned Parent-

hood v. Casey, 947 F.2d 682, 687 (3rd Cir. 1991), cert.

granted, 112 S. Ct. 931 (1992). Yet this Court has stated

that:

[E]very federal appellate court has a special obliga-

tion to “satisfy itself not only of its own jurisdic-

tion, but also that of the lower courts in a cause

under review,” even though the parties are prepared

to concede it.

Bender v. Williamsport Area School District, 475 U.S.

534, 541 (1986) (quoting Mitchell v. Maurer, 293 U.S.

237, 244 (1934)). Every federal court is therefore

obliged to exarnine its subject matter jurisdiction,

whether the issue is raised by a party, a witness, an in-

tervenor, an amicus curiae, or by the court itself. The

question of jurisdiction is so “fundamental” that “the

court is bound to ask and answer [it] for itself, even when

not otherwise suggested, and without respect to the rela-

tion of the parties to it.” Bender, 475 U.S. at 547 (quot-

ing Mansfield C. & L.M.R. Co. v. Swan, 111 U.S. 379,

382 (1884) ).

The abortion cases filed in federal courts since the

Court’s decision in Roe v. Wade have relied, as this case

does, on 28 U.S.C. 88 1331 and 1343 for federal juris-

diction. Those statutory provisions require, of course, a

“deprivation, under color of any State law, statute, ordi-

nance, regulation, custom or usage, of any right, privilege

or immunity secured by the Constitution of the United

States” or a claim “arising under the Constitution, laws,

or treaties of the United States.” 28 U.S.C. § 1343

(a) (3) and 1331. Because of this Court’s pivotal holding

in Roe v. Wade that the constitutional “right of privacy

. . is broad enough to encompass a woman’s decision

whether or not to terminate her pregnancy,” federal

courts presume that the jurisdictional requirement of a

constitutional deprivation or claim is always extant where

abortion is involved. In fact, many parties do not even

raise the issue, concentrating instead on other jurisdic-

tional issues such as plaintiffs’ standing, as the parties in

this case did below.

Prior to Roe v. Wade’s elevation of abortion to consti-

tutionally protected status, federal jurisdiction over abor-

tion cases was not at all clear; lower courts cited one

another for assurance that they ought even to entertain

these complaints. See, e.g., Doe v. Bolton, 319 F. Supp.

1048, 1052 (N.D. Ga. 1970) and Doe v. Scott, 310 F.

Supp. 688, 689 (N.D. III. 1970). This Court has itself

assumed jurisdiction in several abortion cases, beginning

with Doe v. Bolton, 410 U.S. 179 (1973), without ever

mentioning that subject matter jurisdiction is wholly de-

pendent on the continued efficacy of Roe v. Wade’s central

holding.* Such silence, however, is decidedly not a bind-

ing jurisdictional decision. As this Court noted in another

action brought under 28 U.S.C. § 1343:

Moreover, when questions of jurisdiction have been

passed on in prior decisions svb silentio, this Court

has never considered itself bound when a subsequent

case finally brings the jurisdictional issue before us.

We therefore approach the question of the District

Court’s jurisdiction to entertain this suit as an open

one calling for a canvass of the relevant jurisdic-

tional considerations.

Hagans v. Lavine, 415 U.S. 528, 533 n.5 (1974) (cita-

tions omitted). Similarly, this Court is now faced with a

consideration of federal jurisdiction under 28 U.S.C.

§§ 1331 and 1343; indeed, the obligation to address the

issue “is inflexible and without exception,” applying “in

1 See, e.g., Defendants’, Robert P. Casey’s, et al., Pretrial Memo-

randum of Law (filed July 20, 1990) at 3-4; see also Thornburgh

v. American College of Obstetricians & Gynecologists, 476 U.S. at

754-55.

2In both Thornburgh, 476 U.S. at 759, and Akron v. Akron

Center for Reproductive Health, 462 U.S. 416, 420 n.1 (1983), this

Court reaffirmed Roe v. Wade without commenting upon the juris-

dictional ramification of that holding.

all cases“ and “[o]n every writ of error or appeal.”

Bender, 475 U.S. at 547 (quoting Mansfield C. & L. M. R.

Co. v. Swan, 111 U.S. at 382). In proceeding then to

“canvass all relevant jurisdictional considerations,” the

Court must begin with studied reconsideration of its de-

cision in Roe v. Wade, for it is that decision upon which

federal jurisdiction rests.

II. THE COURT’S APPLICATION OF PRIVACY PRIN-

CIPLES TO ABORTION IN ROE v. WADE WAS

FUNDAMENTALLY FLAWED.

In undertaking reconsideration of Roe v. Wade, this

Court should be guided by its line of privacy cases pre-

dating this Court’s legitimization of abortion-on-demand.

Those precedents show proper balance of individual and

societal interests—allowance for personal liberty within

a framework that protects human life, respects family

relationships, promotes the common good, and preserves

our free society. Historically, it was always understood

that liberty to engage in certain personal actions is not

license. In Jacobson v. Massachusetts, 197 U.S. 11, 26

(1905), Justice Harlan, writing for the majority, ex-

plained:

[The liberty secured by the Constitution of the

United States to every person within its jurisdiction

does not import an absolute right in each person to

be, at all times and in ali circumstances, wholly freed

from restraint. There are manifold restraints to

which every person is necessarily subject for the com-

mon good .... Real liberty for all could not exist

under the operation of a principle which recognizes

the right of each individual person to use his own,

whether in respect of his person or his property, re-

gardless of the injury that may be done to others.

Although the ability to make certain choices was some-

times given constitutional foundation, often under the

Due Process Clause of the fourteenth amendment, this

Court has always done so in balance with legitimate,

sometimes competing interests rationally related to the

choice. E. g., Allgeyer v. Louisiana, 165 U.S. 578 (1897).°

Protection of basic constitutional values has been the

Court’s dominant adjudicative principle.“

The early debate on what became the privacy doctrine

in this century occurred during the process of incorporat-

ing “federal” rights to the states through the fourteenth

amendment. In a seminal decision, Palko v. Connecticut,

302 U.S. 319 (1937), the Court articulated the necessary

standard to distinguish those rights “incorporated” from

those “unincorporated.” The “incorporated” rights were

not necessarily enumerated in the Constitution but were

those “fundamental principles of liberty and justice

which lie at the base of all our civil and political institu-

tions.” Id. at 326. Only those liberties “found to be im-

plicit in the concept of ordered liberty” were incorpo-

rated.“ Id. at 591.

In Allgeyer, the Court found that there was certainly a basic

right to engage in business contracts as an element of personal

liberty that deserved to be protected. But for purposes of this

discussion, it should be noted that the Court did “not intend to

hold that in no such case can the State exercise its police power.”

Indeed the Court found that this fundamental right “may be reg-

ulated, and sometimes prohibited, when the contracts or business

conflict with the policy of the state as contained in its statutes.

„ Allgeyer v. Louisiana, 165 U.S. at 591.

* Throughout its cases, the Court has engaged in an effort to

apply faithfully those values. Justice Harlan in Jacobson v.

Massachusetts (197 U.S. at 22) cites approvingly Chief Justice

John Marshall in Sturges v. Crowninshield, 17 U.S. (4 Wheat.)

122, 202 (1819) for the idea that the spirit of the Constitution

“is to be collected chiefly from its words.”

The Palko Court employed “freedom of thought” as its primary

example: “Of that freedom one may say that it is the matrix, the

indispensable condition, of nearly every other form of freedom.”

302 U.S. at 327. In his concurring opinion in Roe v. Wade, Justice

Douglas states that such internal matters as thought or belief are

integral to one’s autonomy and not subject to any infringement

by the State. 410 U.S. at 211. Other interests, like the interest

in one’s health and well-being, are subject to appropriate regu-

lation. Id. at 211-14.

In his famous dissent in Poe v. Ullman, 367 U.S. 497,

542 (1961), Justice Harlan said that the search for

fundamental constitutional values was intended to be a

“rational process” that must reflect the “traditions of the

country, not judges.” He found that personal liberty was

somewhat of a “continuum which, broadly speaking, in-

cludes a freedom from all substantial arbitrary imposi-

tions and purposeless restraints ... . Jd. at 543. In

that language, endorsed by a plurality in Moore v. City

of East Cleveland, Justice Harlan acknowledged that pro-

tection of personal liberty often required a balance of

different interests.“ By protecting liberty against sub-

stantial arbitrary” and “purposeless” restrictions, the

Court invited express consideration of countervailing in-

terests. In the abortion context, however, the invitation

has not, until recently, even been acknowledged, much

less accepted.

A. Abortion Is A Threat To The Preservation Of A

Legitimate Sphere Of Protected Privacy.

Until Webster v. Reproductive Health Services, a ma-

jority had characterized itself as protecting a “promise

that a certain private sphere of individual liberty will be

kept largely beyond the reach of government.” Thorn-

burgh, 476 U.S. at 772. In actuality, that (now former)

majority separated privacy doctrine from its roots. Al-

though it claimed to the contrary, the Court isolated the

pregnant woman in her privacy from all other interests.

The Court originally offered a number of rationales—

legal, medical and social—for so doing. Although these

rationales when first offered in 1973 were debatable, on

further consideration and through actual, lamentable ex-

perience, they have been largely unrealized.’ What is

needed now is thorough reconsideration of that illegiti-

mate foundation upon which constitutional abortion in

America has rested for the last nineteen years.

Moore v. City of East Cleveland, 431 U.S. 494, 501-502 (1977).

7 Chopko, Harris, Alvaré, The Price of Abortion Sixteen Years

Later” 69 National Forum 18 (Fall 1989).

Before Roe, privacy jurisprudence consisted of a num-

ber of discrete cases protecting either certain private

places, private relationships, or private spheres of life

from unwarranted government intrusion.* The shift in

privacy jurisprudence that led to Roe began with Gris-

wold v. Connecticut, when this Court held for the first

time that there exists a specific right of privacy formed

by “emanations from those [constitutional] guarantees

that help give them life and substance.“ Yet Griswold

still dealt with marriage, a protected association, and

thus did not stray as far from the substance of the

Court’s earlier conclusions as it implicitly did from the

Court’s rationale. Where judicial protection of privacy

lost any legitimate link with either this Court’s prece-

dents or with the Constitution itself was Eisenstadt v.

Baird, 405 U.S. 438 (1972). Eisenstadt abandoned the

protectable right of privacy as developed in constitutional

litigation by suggesting that personal interests alone—

not relational interests such as those at the heart of

Griswold—are entitled to special protection. 405 U.S. at

453. Having put marriage asunder in Eisenstadt, the

Court in Roe undermined protection for the fruits of mar-

riage—children.

As the majorities in the abortion cases erected a series

of “substantial arbitrary impositions and purposeless re-

straints” on virtually every competing interest, the Court

turned legitimate privacy doctrine on its head." Poe v.

SE.g. Terry v. Ohio, 392 U.S. 5 (1968); Loving v. Virginia, 388

U.S. 1 (1967); Prince v. Massachusetts, 321 U.S. 158 (1944):

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

* Griswold v. Connecticut, 381 U.S. 478, 483 (1965).

0 J. Noonan, A Private Choice: Abortion in America in the

Seventies 20-22 (1979); see generally M.A. Glendon, Rights Talk:

The Impoverishment of Political Discourse 56-57 (1991).

For example, it is widely recognized that parents have a gen-

eral right to protect their children from potential adverse conse-

quences of medical decisions. Parham v. J. R., 442 U.S. 584, 604

(1979) (analyzing and rejecting Planned Parenthood v. Danforth,

428 U.S. 52 (1976)). Yet, in the abortion area, parents do not

Ullman, 367 U.S. at 542. By stretching privacy doctrine

until it was broad enough to cover abortion, the Court

introduced a flaw into its jurisprudence that, in subse-

quent opinions culminating in Thornburgh, became a

threat to the very constitutional values and legitimate

societal interests the right of privacy was originally

meant to protect. When a bare majority of this Court

used “autonomy” to describe a woman’s decision to abort

her child," the very principle of liberty under the four-

teenth amendment was infected with an amorphous con-

cept that threatens the right to privacy itself. “Privacy

reduced to its extreme is isolation, one of the conditions

conducive to the success of totalitarian movements. It is

the intention of free states to recognize and protect an

area of privacy for the citizen but not to reduce that

privacy to isolation.“ A completely autonomous person

becomes a law unto herself; privacy is “reduced to its

extreme” and the shared commitment to values necessary

to the preservation of a free state is impaired. The re-

sults are rifts in the jurisprudence and in the fabric of

society.

B. Abortion Is A Threat To The Community Values

Necessary To A Free Society.

In perhaps its most candid observation about the nature

of the “right” being established in Roe v. Wade, the ma-

jority specifically recognized that the decisionmaking

process it was about to protect differed, in its basic char-

have the ability to exercise the same fundamental freedom. Thus

has Justice O’Connor observed that, in the area of abortion, differ-

ent rules come into play and nothing is safe from “ad hoc nullifi-

cation” at the hands of a majority. Thornburgh v. American Col-

lege of Obstetricians and Gynecologists, 476 U.S. at 814 (O'Connor,

J., dissenting). As shown in Argument III, even traditional prin-

ciples of informed consent have been abrogated in the abortion

context. See id. at 798-804 (White, J., dissenting).

2 Thornburgh, 476 U.S. at 772.

1 8. Jordan, Decision Making for Incompetent Persons 132-33

(1985).

acter, from those decisions protected in the line of cases

from Meyer to Griswold. Roe v. Wade, 410 U.S. at 159.

Even while stating that obvious fact, the Court nonethe-

less framed the discussion in language that would enable

subsequent majorities to run roughshod over other indi-

vidual, familial and community interests deserving pro-

tection, not derision. E.g., Thornburgh, 476 U.S. at 772;

Colautti v. Franklin, 439 U.S. 379 (1979). The Roe

Court’s promise that maternal health, medical standards

and “potential life“ would be considered alongside abor-

tion proved empty. 410 U.S. at 154. Indeed, that Court’s

statement that the abortion right was not to be absolute

has itself been termed disingenuous because, from the

beginning, no rights could be asserted on behalf of the

unborn child.“

Individuals do have truly private choices—decisions

that are entirely personal—that do not affect the interests

of others or of the state. In other instances, individuals

have their choices protected from interference by the

state, whether they concern religious preferences,“ the

education of children,“ the choice of a spouse, or similar

interests. It makes sense that the state should have a

heavy burden of proof to engage in restriction of indi-

vidual choices where there are no third-party or societal

interests at stake. This may also be true when the exer-

cise of individual choice falls completely within the con-

text of a protected relationship, like marriage or the

family.“ Yet even in these relationships, the state has

regulatory authority, severely circumscribed, but suffi-

cient to ensure that individual choices are worked out in

™ M.A. Glendon, Rights Talk, supra note 10, at 61.

'S West Virginia State Board v. Barnette, 319 U.S. 624 (1948).

„Meyer v. Nebraska, 262 U.S. at 396-403; Pierce v. Society of

Sisters, 268 U.S. at 529-36.

17 Loving v. Virginia, 388 U.S. at 2-13.

18 Griswold v. Connecticut, 382 U.S. at 486; Prince v. Massachu-

setts, 321 U.S. at 166.

a balance respectful of all members of the protected rela-

tionship.“

In considering abortion, however, the calculation is

never simply one of individual interests competing with

interests of the state. The abortion decision is complex

and certainly affects the life interests of others: the un-

born child, the father, other members of the family, and

society itself. The decision implicates the procreative

interests of both partners, affects the integrity of the

marriage relationship, and ends a life.“ When a minor

becomes pregnant, abortion has other detrimental impacts

on family relations, alienating the child from her parents

and separating those parents from their unborn grand-

child. A constitutional right to abortion subjugates lib-

erties that in other contexts are found to be fundamental,

but in this context are considered less worthy of pro-

tection.“

In Webster u Reproductive Health Services, a plurality

of the Court suggested that it is not always wise to dis-

tinguish between abortion as a “fundamental right” or as

a “limited fundamental constitutional right” or as a “lib-

erty interest protected by the Due Process Clause

492 U.S. at 520. The plurality made this assertion while

discussing “the State’s interest in protecting potential

human life,” where that interest is “compelling” and

exists “throughout pregnancy.” Jd. at 519. In that con-

text, where the state’s compelling interest would prevail

no matter how the right is denominated, such distinctions

may be unnecessary to the Court’s conclusion. However,

it seems unlikely that this Court still seriously seeks to

defend its unrestricted abortion decisions. Therefore,

using the historical line of privacy cases, this Court must

19 Prince v. Massachusetts, 321 U.S. at 166-67.

20 Ours has always been a society that “strongly affirms the sanc-

tity of life.“ Furman v. Georgia, 408 U.S. 238, 286 (1972) (Bren-

nan, J., concurring).

21 J. Noonan, A Private Choice, supra note 10, at 90-95, 190.

reflect accurately that one person’s “liberty” is not li-

cense“ to control even one’s own body where another’s

interest could suffer or the common good be diminished.”

Jacobson v. Massachusetts, 197 U.S. at 26-27. Because the

other vital interests, the unborn child, will suffer death as

a result of an exercise of “liberty,” the Court must re-

examine its basis for making abortion a matter of due

process at all.”

While debating how to denominate abortion, it is well

to remember that the right to life has been recognized as

the first right protected by government.“ The order is

not accidental. The right to life is the logical and chrono-

logical starting point in any discussion of the fundamental

rights of persons. All other rights, interests, and values

protected by the state on behalf of its citizens are mean-

*2 Nor is liberty to be equated with autonomy; the illegitimate

concept of bodily autonomy must be left out from under the um-

brella of the fourteenth amendment in order to preserve those

rights that are properly within the sphere of constitutional liberty

interests. See Argument II. A., supra.

As Professor John Hart Ely noted almost twenty years ago:

What is frightening about Roe is that this super-protected

right is not inferable from the language of the Constitution,

the framers’ thinking respecting the specific problem in issue,

any general value derivable from the provisions they included,

or the nation’s governmental structure. At times the in-

ferences the Court has drawn from the values the Constitution

marks for special protection have been controversial, even

shaky, but never before has its sense of an obligation to draw

one been so obviously lacking.

Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade”

82 Yale L.J. 920, 935-37 (Apr. 1973).

The Declaration of Independence places the right to life first

in the list of inalienable rights. The fourteenth amendment lists

the right to life first among those rights of which the states cannot

deprive a person, without due process. And Thomas Jefferson's

March 31, 1809, letter to the Republican Citizens of Washington

County, Maryland, stated that: “The care of human life and happi-

ness, and not their destruction, is the first and only legitimate ob-

ject of good government.” 8 The Writings of Thomas Jefferson 165

(H.A. Washington, ed.) (1871).

ingless if one does not first possess the right simply to

exist. The fourteenth amendment guarantees this founda-

tional value by denying to the states the power to “de-

prive any person of life, liberty, or property, without due

process of law.“ Since the addition of those thirteen words

to the Constitution, this Court has struggled with the

scope and meaning of the word “liberty.” Compare, e.g.,

Dunean v. Louisiana, 391 U.S. 145 (1968), with id. at

162 (Black, J., concurring), and id. at 215 (Harlan, J.,

dissenting). Yet it is plain that “life” is the necessary

prerequisite to the exercise of “liberty” and it is through

pregnancy that each of us begins to live.

III. THE MEDICAL REGULATION ISSUES IN THIS

CASE EXEMPLIFY THE JURISPRUDENTIAL

PROBLEMS ENGENDERED BY ROE v. WADE.

This Court has developed an abortion jurisprudence

which minimizes one salient fact about abortion: regard-

less of when it is performed, abortion is a surgical pro-

cedure that has consequent medical risks and complica-

tions. Under Roe v. Wade, it was supposedly within a

state’s authority to regulate abortion because such regula-

tion served legitimate interests in health and safety and

in maintaining medical standards. 410 U.S. at 155. That

supposition has been largely ignored in the face of con-

sistent efforts by states to assert those interests.

In part, the state’s interest in ensuring high standards

for the medical profession also advances the protection of

maternal health. See, e. g., Akron v. Akron Center for

Reproductive Health, 462 U.S. at 428-29 (assuming with-

out discussion some relation of the two interests); Roe v.

Wade, 410 U.S. at 163. The maintenance of medical

standards is also related to the state’s interest in protect-

ing the unborn child. See Planned Parenthood Ass’n v.

Asheroft, 462 U.S. 476, 486 (1983) (upholding second

physician requirement). But beyond these aspects, the

interest in regulation of the medical profession by itself

justifies reasonable supervision of the physician-patient

relationship throughout pregnancy under the state’s wel-

fare authority.** See, e.g., Connecticut v. Menillo, 423

U.S. 9. 11 (1975) (per curiam) (upholding physician li-

censing requirements); Planned Parenthood v. Danforth,

428 U.S. at 67 (upholding informed consent require-

ment); see also Akron, 462 U.S. at 460 and nn. 6 & 7

(O'Connor, J., dissenting).

A. The Abortion Industry Has Been Arbitrarily Ex-

empted From Effective State Regulation.

had thought it clear,” Justice White wrote in Thorn-

burgh, “that regulation of the practice of medicine, like

regulation of other professions .. . , Was a matter pe-

culiarly within the competence of legislatures ....” 476

U.S. at 802 (White, J., dissenting) ; see also id. at 783

(Burger, C.J., dissenting). And indeed, before the Court

in Roe v. Wade threw into doubt constitutional principles

it had previously espoused, id. at 814 ( O'Connor, J., dis-

senting), regulation of the medical profession in the in-

terest of public welfare was not only a legislative prerog-

ative but a public duty. See generally Semler v. Board of

Dental Examiners, 294 U.S. 608, 612 (1935). Viewed in

this light, Pennsylvania’s informed consent, waiting pe-

riod, and parental and spousal notification requirements

are valid exercises of state authority to regulate abor-

tion.

20 The authority of a state to license and regulate the practice of

medicine is a “vital part of a state’s police power.” Barsky v.

Board of Regents, 347 U.S. at 449. See Bigelow v. Virginia, 421

U.S. 809, 827 (1975). A licensed physician has no right to practice

medicine according to his or her own unfettered judgment but

rather is subject to reasonably exercised but extensive authority.

Whalen v. Roe, 429 U.S. 589, 604 (1977) ; see Friedman v. Rogers,

440 U.S. 1, 9-10 (1979) ( Powell, J.) (first amendment interest in

medical service name). See also Brophy v. New England Sinai

Hospital, 398 Mass. 417, 497 N.E.2d 626 (1986) ; In re Guardian-

ship of Grant, 109 Wash.2d 545, 747 P.2d 445 (1987), and cases

— therein (states’ interest in the integrity of the medical pro-

ession).

20 Pennsylvania Abortion Control Act, 18 Pa. Cons. Stat. Ann.

§§ 3205-3206, 3209 (West 1983 & Supp. 1991).

I. Informed Consent.

One classic application of the state’s regulatory au-

thority over the medical profession has always been the

protection of a citizen’s right to be informed before con-

senting to any surgical procedure. In Dent v. West Vir-

ginia, 129 U.S. 114, 122 (1889), this Court observed:

The power of the state to provide for the general

welfare of its people authorizes it to prescribe all

such regulations as, in its judgment, will secure or

tend to secure them against the consequences of ignor-

ance and incapacity as well as deception and fraud.

Accord Meffert v. Packer, 66 Kan. 710, 714 (1903), aff'd

mem., 195 U.S. 625 (1904). Consistent with this Court’s

decision in Virginia Board of Pharmacy v. Virginia Citi-

zens Consumer Council, state legislatures have not hesi-

tated to act when they find that the medical community

is not providing minimally adequate information to

patients."

New York, for example, requires that information be

provided to pregnant women about the potential adverse

impact of medication used during pregnancy and deliv-

ery, and to parents about metabolic disorders in their

newborns.” Florida has enacted legislation designed to

guard against too frequent use of electroconvulsive

(Shock) therapy by adding new consent requirements.*°

Several states have enacted laws requiring that physi-

27 Virginia Board of Pharmacy v. Virginia Citizens Consumer

Council, 425 U.S. 748, 750-51, 765 (1976).

28N.Y. Public Health Law Ann. § 2503 (McKinney 1985). This

gives the woman the right to be informed, in advance of delivery,

of the drugs that the physician expects to use during pregnancy

and at birth.

20 Jd. § 2500-a (McKinney 1985 & Supp. 1992).

0 Fl. Stat. Ann. § 458.325 (West 1991).

cians provide vicims of breast cancer oral or written sum-

maries of the various alternative treatments prior to as-

sent to any particular procedure. More recently, a num-

ber of jurisdictions have enacted legislation requiring that

patients be adequately informed before undergoing test-

ing for the human immunodeficiency virus (HIV).

These are examples of measures that directly affect the

physician-patient relationship by shaping the content of

their dialogue.

It follows that Pennsylvania acted well within the au-

thority traditionally accorded to states in this area when

it enacted the informed consent statute.** In Akron v.

51 See, e.9., Fl. Stat. Ann. § 458.324(2) (West 1991); see also

N.Y. Public Health Law Ann. § 2505 (McKinney 1985) (requiring

information about infant nutrition and breast-feeding) ; Mass. Gen-

eral Laws Ann. c. 123, § 23 (West Supp. 1991) (regarding informed

consent by mental patients to shock treatment or lobotomy).

Ala. Code § 22-11A-51 (Michie Supp. 1991); Ariz. Rev. Stat.

Ann. § 20-448.01 (West Supp. 1991); Colo. Rev. Stat. § 10-3-1104.5

(Supp. 1991); Fl. Stat. Ann. § 381.004 (West Supp. 1992); Hawaii

Rev. Stat. Ann. § 325-16 (Michie 1991) ; Ind. Stat. Ann. §§ 16-8-7-6,

16-8-7.5-14 (Burns 1990) ; Ky. Rev. Stat. Ann. 88 214.181, 214.625

(Michie 1991) ; Md. Health Gen. Code Ann. § 18-336 (Michie 1990);

N.H. Rev. Stat. Ann. § 141-F:5 (1990) ; N. Mu. Stat. Ann. § 24-2B-2

(1991); N.D. Cent. Code Ann. §§ 23-07.5-02, 23-07.5-03 (Michie

1991) ; Or. Rev. Stat. § 433.045 (1991) ; Va. Code Ann. § 32.1-87.2

(Michie Supp. 1991); Wis. Stat. Ann. § 146.025 (West 1989 &

Supp. 1991).

The parental consent and spousal notification ui

similarly within the State’s authority. Our legal ——

endorses and preserves the mutual support and interdependence of

family members goals served by the Pennsylvania statutes. Society

owes much of its stability to the strength of the family and has a

vital interest in preserving family integrity. “The intangible fibers

that connect parent and child have infinite value. They are woven

throughout the fabric of our society, providing it with strength

beauty, and flexibility. It is self-evident that they are sufficiently

vital to merit constitutional protection in appropriate cases.” Lehr

v. Robertson, 463 U.S. 248, 256 (1983). Indeed, “the Constitution

protects the sanctity of the family precisely because the institution

Akron Center for Reproductive Health, this Court found

unobjectionable certain information relevant to an in-

formed choice, i.e., the status of one’s pregnancy, the

availability of community and other resources, the exist-

ence and efficacy of alternatives to abortion and public as-

sistance, and the particular risks and benefits of options

available to the woman. 462 U.S. 416, 445-46 & n.37

(1983). The kind of information — egg ð

uire be provided to pregnant women see ng an abor-

tien, like — information described in Akron, is “the kind

of balanced information . . all could agree is relevant

to a woman’s informed choice.” Thornburgh v. American

College of Obstetricians & Gynecologists, 476 U.S. at 830

(O'Connor, J., dissenting) .

2. 24-Hour Waiting Period.

The information which Pennsylvania law requires be

provided to a pregnant woman seeking an abortion,

standing alone, does not ensure that her consent will be

truly informed. For this to occur, a woman must have a

meaningful opportunity to consider all the information

she has been given and make a decision based on it. The

Pennsylvania statute preserves that opportunity by re-

quiring that 24 hours lapse from the time information is

provided until the abortion is performed. The 24-hour

waiting period is an attempt to ensure that the provision

of information will not be a merely pro forma require-

ment, but will allow for genuine ne — 5 the women's

E t perhaps in cases of medical emergency,

— — a life- affecting medical procedure

of the family is deeply rooted in this Nation's history and tradition.

It is through the family that we inculeate and pass down many of

our most cherished values, moral and cultural.” Moore v. City of

East Cleveland, 431 U.S. at 503.

The 24-hour waiting period does not apply in cases of medical

emergency. Pennsylvania Abortion Control Act, 18 Pa. Cons. Stat.

Ann. § 3205.

wisely take some period of time to consider their op-

tions.“ Physicians often insist on as much.“

Even possible “delay[s] of a week or more” * did not

lead this Court to invalidate a parental notification and

judicial bypass statute. Hodgson v. Minnesota, 110 8. Ct.

2926 (1990). The 24-hour waiting period should not be

troublesome to this Court in light of its holding that

greater delays do not result in a de facto violation of the

Constitution. The waiting period furthers a legitimate

state interest; it protects patients who otherwise would

not be provided, or would not avail themselves of, the op-

portunity of taking even a brief period of time to weigh

information before making a deeision.“ To the extent

that some women, after contemplating their options, de-

cide against aborting their children, the waiting period

also furthers the state’s compelling interest in protecting

unborn life.

*° Requiring a brief waiting period for major life-affecting medi-

cal procedures is not unique to the abortion context. For example,

Medicaid regulations for women having sterilization procedures

require that “at least 30 days... . have passed between the date of

informed consent and the date of sterilization... . 42 C.F.R.

§ 441.253(d) (1991). See also 42 C. F. R. 58 441.257 (a), 441.258

(1991) ; 42 C. F. R. Part 441, Subpt. F, App. (1991) (requisite con-

sent form and physician’s statement showing that sterilization was

performed 30 days or more after the date of consent).

% Indeed, petitioners themselves routinely allow some time be-

tween a woman’s first contact with their clinics and the abortion.

See, e.g., 744 F. Supp. at 1335 (options counseling consists of sev-

eral hours of group sessions); id. at 1336 (abortions usually sched-

uled within one week) ; id. at 1337 ( options counseling only available

on Tuesdays and Thursdays) ; id. at 1340 (often a one to two week

wait to obtain an appointment for an abort ion).

* Hodgson v. Minnesota, 648 F. Supp. 756, 763 (D. Minn. 1986).

58 Chopko, “Webster „. Reproductive Health Services: A Path to

Constitutional Equilibrium” 12 Campbell L.R. 181, 216 (Spring

1990).

B. States’ Interests In Health And Medical Standards

Are Especially Important To The Unborn Child.

Although Roe v. Wade held out the prospect of a com-

pelling state interest in the life of the unborn child,“ it

was the Webster case that finally offered realistic support

for that concern. 492 U.S. at 499-522. Throughout other

decisions of this and other courts, this compelling interest

has been acknowledged, though not always protected, in

varying degree and in differing language.” In recent

years, however, there has been a new term applied to the

unborn child—a term that comes from outside the abor-

tion debate and with which none of the advocates can

legitimately disagree. That term is patient. Williams

Obstetrics vii (J. Pritchard & P. MacDonald 16th ed.

1980). é

In the 1980's, both the scientific literature“ and the

popular press“ have heralded the latest medical advances

% Roe v. Wade, 410 U.S. at 163.

The use of different terminology by judges and advocates on all

sides of the abortion debate is itself a juridical phenomenon. All

engaged in these cases have, consciously or unconsciously, adopted

the theory that control of the language determines the outcome of

the matter. One of the most misleading labels found in the cases is

the adjective “potential” as applied after conception. See, e.g., Web-

ster, 492 U.S. at 515-16, 519; Roe, 410 U.S. at 150-64. Prior to

conception, the phrase potential human life“ might have some logi-

cal relevance when referring to the ovum and the sperm. At con-

ception, however, that potential has been realized. Life exists, and

it can only be human. The debate may rage over whether to call

this life a fetus or a baby, but actual human life, fully capable of

further development, clearly exists. No human being exactly like

this one has existed before, and none like it will be conceived ever

again.

*! See, e.g., Daffos, et al., Prenatal Management of 746 Pregnan-

cies At Risk for Congenital Taxoplasmosis,” 318 New Eng. J. Med.

271 (Feb. 4, 1988); Neonatal-Perinatal Medicine: Diseases of the

Fetus and Infant (A. Fanaroff & R. Martin 4th ed.) (1987); B.

Spirt, L. Gordon & M. Oliphant, Prenatal Ultrasound: A Color Atlas

With Anatomic and Pathologic Correlation (1987).

See, e.g., Henig, Savings Babies Before Birth,” The New York

Times (Feb. 26, 1982) at 18 (Magazine).

— — —

in the field of in utero diagnosis and treatment. The tech-

nology that has led the way to many of these advances

is ultrasonography. Using ultrasound signals, physicians

are able to sean the womb, producing a sonogram or

television-like live image of the child in the womb.” With

ever-increasing refinements in technique and equipment,

they can visually diagnose the baby’s condition and, if

necessary, perform highly delicate surgical and other pro-

cedures. Not only are the infant’s external features dis-

cernible, but internal organs, heartbeat and blood flow can

be examined, and gestational age may be determined.“

Innovative treatments now mean that conditions which

previously could have proved crippling or fatal to the

newborn infant are being treated before birth.“ Babies

delivered prematurely, with extremely low birthweight,

are being saved by new high-technology therapy.“ Ma-

ternal behavior and enyironmental conditions that can

affect the development of the unborn child are being

studied and treated.“ Fetal surgery is not only increas-

* Chervenak, et al., “Current Concepts: Advances in the Diagno-

sis of Fetal Defects,” 315 New Eng. J. Med. 305-306 (July 31, 1986).

One unexpected but welcome byproduct of the sonogram is its

tendency to promote parental bonding with the prenatal child, even

in the earliest stages of pregnancy. Fletcher & Evans, “Sounding

Boards: Maternal Bonding in Early Fetal Ultrasound Examina-

tions,” 308 New Eng. J. Med. 392 (Feb. 17, 1983). Once they have

seen the living human being inside themselves, some mothers im-

mediately forego thoughts of abortion. Id. For this very reason,

some abortion supporters openly advise against allowing the mother

to see the baby’s image for fear she will be discouraged from hav-

ing an abortion. “Warns of Negative Psychological Impact of

* Kolata, “Fetuses Treated Through Umbilical Cords,” ,

York Times (Mar. 29, 1988) at C3. a

Callahan. “How Technology is Reframing the Abortion Debate.”

Hastings Center Report 33-34 (Feb. 1986). -

Id. at 36.

ing, but can even be accomplished by removing the baby

from the womb, operating, and then returning the child

until the pregnancy comes full term.“ Such medical

achievements have caused at least one defender of Roe

to admit that “the same skills that can be used to rescue

extremely premature newborns can be brought to bear

in these cases [saving aborted fetuses).” * Thus medical

science has reached a point where the fetus is a patient

for all purposes, not only in utero but post-abortion as

well. This medical realization should be reflected in

proper legal recognition of the unborn child’s unique

Status.

In one oft-quoted passage from Harris v. McRae, this

Court noted that abortion is “inherently different from

other medical procedures” precisely because it terminates

a life.“ And in Asheroft, Missouri’s requirement that a

second physician be present to try to save the infant vic-

tim of a third-trimester abortion was upheld as a legiti-

mate exercise of state regulation. 462 U.S. at 485. In

the Webster case, the Chief Justice, in abandoning Roe’s

trimester approach, said:

That framework sought to deal with areas of medical

practice traditionally subject to state regulation, and

** Longaker, et al., “Maternal Outcome After Open Fetal Sur-

gery.” 265 J. A. M. A. 737 (Feb. 13, 1991); Harrison, et al., “Suc-

cessful Repair in Utero of a Fetal Diaphragmatic Hernia,” 322

New Eng. J. Med. 1582 (May 31, 1990) ; “Occasional Notes: Fetal

Treatment 1982,” 307 New Eng. J. Med. 1651 (Dec. 23, 1982

“Medical Progress: Pediatric Surgery,” 319 New Eng. J. Med. 94

(July 14, 1988). See also Blakeslee, “Fetus Returned To Womb

Following Surgery,” The New York Times (Oct. 7, 1986) at C1.

Callahan, supra note 46, at 35. The author then raises the

question of whether a woman who chooses to abort is entitled only

to the end of pregnancy or to a dead fetus. See Wynn v. Scott, 449

F. Supp. 1302, 1321 (N.D. Til. 1978) (“It never could be argued

that she has a constitutionally protected right to kill the fetus.”),

appeal dismissed, Carey v. Wynn, 439 U.S. 8 (1978), aff'd, 599

F.2d 193 (7th Cir. 1979).

% Harris v. McRae, 448 U.S. 297, 325 (1980).

it sought to balance once and for all by reference

only to the calendar the claims of the State to protect

the fetus as a form of human life against the claims

of a woman to decide for herself whether or not to

abort a fetus she was carrying.

492 U.S. at 520. Because Pennsylvania’s statute falls

within the traditional regulation of medica! practice, the

claim of a right to abort, if any, must be balanced against

the unique status of the unborn child as a patient, not

against the calendar.

Viewed as a patient, the unborn child is entitled to

consideration “of all attendant eireumstances psycho-

logical and emotional as well as physical—that might be

relevant to the well-being of the patient.” Colautti v.

Franklin, 439 U.S. at 394. The ramifications are obvious

and compelling. Prenatal patients cannot protect them-

selves; cannot be informed or give consent: cannot be

made to understand their condition, nor can they choose

treatments. Considered from this perspective, the state

should be afforded more, not less, latitude to regulate or

prevent the surgery known as abortion.

C. States Must Be Allowed To Protect Patients From

The Adverse Effects Of Abortion.

Another reason that greater state regulation of abor-

tion is called for is to minimize its other known adverse

effects. Two of the many tragic ironies of the jurispru-

dence begun with Roe v. Wade are: (1) it predicted great

benefits would flow from abortion, yet never tly

faced the many resulting detriments; and (2) it held that

a woman’s health was only of interest to the state after

she had been pregnant for at least three months. 410

U.S. at 163. The flaw in this latter point was illustrated

By Justice O'Connor in Akron:

The fallacy inherent in the Roe framework is ap-

parent: just because the State has a compelling inter-

est in ensuring maternal safety once an abortion may

be more dangerous than childbi rth, it simply does not

follow that the State has no interest before that point

that justifies state regulation to ensure that first-

trimester abortions are performed as safely as pos-

sible.

462 U.S. at -460. The fallacy identified by Justice

O’Connor is remedied by protection of the interest in life

throughout pregnancy. Webster, 492 U.S. at 520. Indeed,

as should have been obvious to the Roe majority, protec-

tion of women’s health is of vital concern at all times.

Pregnancy should only heighten, not weaken, this concern.

And, as has been demonstrated in the past nineteen years,

abortion should raise the level of legitimate state concern

even higher.“

Despite knowledge of abortion’s adverse consequences,

persons supporting an “abortion privacy right” often mis-

characterize the issue as though it involved only a woman's

right to “keep the government out of the bedroom

Some further contend that women’s childbearing capacities

have been improperly used as a justification for diserim-

ination against them, and that the only effective remedy

for this sexism is women’s assumption of sole control over

every aspect of their reproductive capabilities, including

unfettered access to abortion.“ These assertions are not

5! There is little doubt that the abortion decision is life-affecting.

This Court has noted that the “emotional and psychological effects

of the pregnancy and abortion experience are markedly more severe

in girls under 18 than in adults.” H.L. „ Matheson, 450 U.S. 398,

411 n.20 (1981). The American Psychological Association reported

in 1986 that compared with adults, adolescents appear to have

- somewhat more negative responses on average following abortion.”

Adolescent Abortion: Psychological and Legal Issues, Report of the

Interdivisional Committee on Adolescent Abortion, American Psy-

chological Association (Univ. of Nebraska Press 1986).

= Clift, King, Gonzalez, “Taking Issue With NOW.“ Newsweek

21-22 (Aug. 14, 1989). In the same article a Planned Parenthood

consultant comments: “Framed that way, it becomes the all-Ameri-

can Message.” —

See, ¢.g., Steinem, A Basic Human Right,” Ms. 39 (Aug. 1989) ;

B. Harrison, Our Right to Choose 199 (1983).

ee —

only misleading, they are detrimental to women’s dignity,

health and well-being.“ What should be a paramount con-

cern for the health and welfare of the patients—both

mother and child—is lost.

The widespread practice of abortion since Roe, premised

on a popular misconception that constitutional privacy

equals personal autonomy, has increased pressure upon

women to abort for a variety of discretionary reasons.

Laboring against these pressures are those who willingly

explore numerous alternative means for handling difficult

pregnancies.” The answer to the problems caused by

abortion does not lie in making abortion more available

but in efforts to ensure that no woman need ever resort

to abortion. The process of change will not be easy.

Worthwhile solutions never are. This Court can help

begin the turn from a society that condones abortion

while ignoring its insidious consequences, to one that pro-

tects the health of its citizens and respects the lives of

their offspring. Restoring the traditional authority of

Pennsylvania and other states to regulate the medical pro-

fession in order to achieve these goals is an important

first step.

% See note 7 and accompanying text, supra.

These efforts include, inter alia, eliciting additional emotional

and financial support from the father, family, and friends, additional

social welfare support for families, better employer child care poli-

cies, and greater adoption services. National Conference of Catho-

lie Bishops, Pastoral Plan for Pro-Life Activities: A Reaffir mation

(Nov. 1985).

CONCLUSION

This Court should reconsider its essential constitutional

and jurisdictional holdings concerning abortion. The

judgment of the court of appeals finding the Pennsylvania

Abortion Control Act, Sections 3203 (definition of medi-

cal emergency), 3205 (informed consent), 3206 (parental

consent), 3214(a) (reporting requirements) and 3207 (b

and 3214(f) (public disclosure of clinics’ reports) consti-

tutional should be affirmed. The judgment of the court of

appeals finding Section 3209 (spousal notice) unconstitu-

tional should be reversed.

Respectfully submitted,

MARK E. CHorxo *

ö General Counsel

PHILLIP H. HARRIS

Solicitor

Of Counsel: UNITED STATES CATHOLIC

MICHAEL F. Moses CONFERENCE

3211 Fourth Street, N.E.

Washington, D.C. 20017

(202) 541-3300

MICHAEL K. WHITEHEAD

Genera! Counsel

CHRISTIAN LIFE COMMISSION

SOUTHERN BAPTIST CONVENTION

400 N. Capitol Street, N.W.

Washington, D.C. 20001

(202) 638-3223

Forest D. MONTGOMERY

Counsel

NATIONAL ASSOCIATION OF

EVANGELICALS

Office of Public Affairs

1023 15th Street, N.W.

Washington, D.C. 20005

(202) 789-1011

Attorneys for Amici

April 6, 1992 * Counsel of Record

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