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

Supreme Court brief1991

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MOTION OF THE ELLIOT INSTITUTE FOR SOCIAL

SCIENCES RESEARCH FOR LEAVE TO FILE

AMICUS CURIAE BRIEF

The Elliot Institute for Social Sciences

Research (hereinafter "Elliot Institute")

hereby moves pursuant to Supreme Court Rule

37.2 for leave to file an amicus curiae

brief in support of Respondents, Robert P.

Casey, et.al..- Consent for filing this

brief was denied by the Respondent, on

April 2, on the basis of a disagreement

with the analysis of Elliot Institute

justifying regulation of abortion as a

birth control technology. This is a

secondary issue touched upon in this brief

and should not deter the Court from

receiving the facts and analysis contained

herein which relate directly to the issues

of informed consent and waiting periods.

The Elliot Institute seeks to provide

the Court with valuable information

pertaining to the issue of informed consent

for women seeking abortions. The Elliot

Institute is in a unique position to

present first hand evidence of abortion

patients’ dissatisfaction with pre-abortion

counseling at Planned Parenthood clinics,

specifically, and at other abortion

providers, as well.

David C. Reardon, director of research

for the Elliot Institute, is the author of

Aborted Women, Silent No More, a

comprehensive reference book on the

aftereffects of abortion which has been

cited in several briefs filed before this

Court in this case and in several other

previous abortion cases. This work

includes a major study of 253 women who

sought counseling for post-abortion related

problems an average of 10 years after their

abortions. This was the first major study

of the long term aftereffects of abortion

and included patient evaluation of abortion

services and counseling.

Specifically, this study revealed a high

rate of dissatisfaction with pre-abortion

counseling on the part of the post-abortior

women surveyed. Claims by physicians and

counselors that counseling is adequate must

be weighed against the views of patients

who report that in retrospect the

counseling was incomplete, biased, and ever

manipulative.

Elliot Institute research establishing «

statistical link between inadequate pre-

abortion counseling and increased severity

of post-abortion reactions has been

accepted for publication in a leading peer

review journal of family and adolescent

psychology.

Elliot Institute is not aware that these

findings have heretofore been fully

presented, or presented in any respect, to

this Court, or the lower courts, in this

case. A finding that those receiving

counseling are in polar disagreement with

abortion providers as to the quality of

that counseling is Clearly relevant to this

case and should be the basis for granting

of this Motion.

Because the chief investigator for this

research is associated with the Elliot

Institute, the Elliot Institute is the most

authoritative source for interpreting and

explaining to the Court these research

results which have a direct bearing on the

issues of informed consent and waiting

periods.

The research associates of the Elliot

Institute are leaders in the investigation

and documentation of the psychological

aftereffects of abortion on women. The

Elliot Institute has collected over 1500

case studies of women who have suffered

psychological aftereffects of abortion. To

Elliot Institute’s knowledge, this is the

largest case study collection of this type.

The Elliot Institute has also published

major reviews of the literature in this

field, and has published the results of two

major surveys of post-abortion women.

Present research projects include a

controlled, longterm study of the

aftereffects of abortion using a random

population of women. This is the largest

such study ever done, with over 800

randomly selected participants.

The Elliot Institute, having

demonstrated considerable expertise in the

area of post-abortion trauma, and

specifically in the area of informed

consent as it relates to such trauma,

respectfully requests the Court to accept

this amicus curiae brief as an aid in its

deliberations.

Respectfully submitted,

P.O. Box 5131

Illinois Building, su 00

Springfield, Illinois ~ 62705

(217) 544-1144

Attorney for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......... vii

EWEUREOTS OF ANECUS . . we te ttc ew ee

SUMMARY OF ARGUMENT .......... 1

P+. « «6 6 6 & © ¢ ses « - ee

I. BIASES IN THE ABORTION INDUSTRY

MAKE SELF-REGULATION OF INFORMED

CONSENT IMPOSSIBLE. ........ 6

A. PLANNED PARENTHOOD AFFILIATES,

AND OTHERS IN THE ABORTION

INDUSTRY, HAVE A RECORD OF

WITHHOLDING INFORMATION ABOUT

RISKS OF WHICH REASONABLE

PATIENTS WOULD WANT TO BE

Oe ee ee ee ee ee ee ee ee ee 6

B. PLANNED PARENTHOOD, AND OTHER

ABORTION PROVIDERS, HAVE A

PHILOSOPHICAL BIAS TOWARD

page

ENCOURAGING CLIENTS TO CHOOSE

ABORTION OVER CHILDBIRTH. .. . 9

II. ABORTION PATIENTS HAVE A GREATER

NEED FOR A FULL DISCLOSURE OF RISKS

THAN OTHER PATIENTS, AND THEREFORE

"THERAPEUTIC PRIVILEGE," THE RIGHT

TO WITHHOLD DISTURBING FACTS, DOES

we Se ee ee ee ee ee ee

A. SINCE "BASIC RESPONSIBILITY" FOR

THE ABORTION DECISION HAS BEEN

SHIFTED TO PATIENTS, THERE IS NO

RATIONAL GROUNDS FOR WITHHOLDING

ANY INFORMATION, EVEN THE MOST

DISTURBING. ..+-++-e-ee-ee 23

B. LACK OF FULL DISCLOSURE

INCREASES THE INCIDENCE OF POST-

ABORTION TRAUMA AND INCREASES THE

SEVERITY OF THE TRAUMA. .... 25

VI. THE STATE MUST HAVE AN UNLIMITED

RIGHT TO REGULATE ABORTION, AT ANY

STAGE OF PREGNANCY, FOR A BROAD

iii

page

RANGE OF HEALTH REASONS. ....+ + 30

A. ROE DID NOT GRANT WOMEN A

FUNDAMENTAL RIGHT TO ABORTION,

BUT FOUND THIS NEW RIGHT AS

FVOLVING FROM THE DEVELOPMENT OF

NEW TECHNOLOGIES WHICH MAY HAVE

MADE ABORTION “SAFER THAN

CHILDBIRTH.” . . . +++ © «© « » 390

B. ABORTION TECHNOLOGIES INVOLVE

HEALTH RISKS WHICH WERE NOT

KNOWN, WERE NOT UNDERSTOOD, OR

WERE OTHERWISE IGNORED IN ROE V.

WADE. . . . . . > . . . . . . . 34

V. THE STATES HAVE A LEGITIMATE

INTEREST IN REGULATING BIRTH CONTROL

TECHNOLOGIES, SUCH AS ABORTION,

WHICH SHOULD NOT BE RESTRICTED. . . 36

A. THE RIGHT OF THE STATE TO

REGULATE BIRTH CONTROL

TECHNOLOGIES IS ALREADY

ESTABLISHED IN CONSTITUTIONAL

page

B. STATES MUST BE FREE TO ADJUST

REGULATION OF BIRTH CONTROL

TECHNOLOGIES TO MEET CHANGING

CONDEZTEONS. «sce ce eceveeevece 42

C. STATE REGULATION OF BIRTH

CONTROL TECHNOLOGIES IS NECESSARY

BECAUSE PHYSICIANS, FAMILY

PLANNING AGENCIES AND DRUG

MANUFACTURERS ARE SOMETIMES

MOTIVATED TO PROMOTE BIRTH

CONTROL TECHNOLOGIES WHICH MAY

HAVE DETRIMENTAL SIDE-EFFECTS OR

MAY BE LESS THAN FULLY

og a a ae a ee

VI. THREATS TO TRUE REPRODUCTIVE

FREEDOM FROM PRIVATE INTERESTS AND

THE STATE REQUIRE THAT THE

INDIVIDUAL’S NATURAL RIGHT TO

REPRODUCTIVE FREEDOM MUST BE

CLARIFIED AND STRENGTHENED. .... 46

pac

THE VAGUELY DEFINED “RIGHT TO

PRIVACY" MUST BE REPLACED BY A

MORE CAREFULLY DEFINED “NATURAL

REPRODUCTIVE RIGHTS." se«e « 6

THE NATURAL RIGHT OF

REPRODUCTIVE FREEDOM, AS

GUARANTEED IN THE CONSTITUTION-

ALLY RESERVED RIGHTS OF

INDIVIDUALS, IS THAT RIGHT WHICH

ARISES FROM A PERSON’S NATURAL

REPRODUCTIVE BIOLOGY, IN RESPECT

OF WHICH: 1) THE STATE MAY NOT

LIMIT ANY PERSON’S NATURAL

FERTILITY OR PREVENT PERSONS FROM

NATURALLY CONCEIVING OR BEARING

CHILDREN, AND 2) THE STATE MAY

NOT FORCE ANY PERSON TO CONCEIVE

CHILDREN NOR COMPEL ANY PERSON TO

PROVIDE REPRODUCTIVE MATERIAL FOR

THE ARTIFICIAL CONCEPTION OR

GESTATION OF CHILDREN. ..... $

page page

C. THE STATE’S REGULATION OF BIRTH TABLE OF AUTHORITIES

CONTROL TECHNOLOGIES POSES NO

THREAT TO THE INDIVIDUAL’S Cases

NATURAL RIGHT TO MAKE

REPRODUCTIVE DECISIONS. .... 58 Buck v. Bell, 274 U.S. 200 (1927) ... 48

Ee a Cooper v. Roberts, 220 Pa. Super Ct.

260,267,286 A.2d 647, 650 (1971)... .

APPENDIX

Description of Amicus ....... la Eisenstadt v Baird, 405 U.S. 438

0) a ars te

Griswold v. Connecticut 381 U.S. 479

a ee

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

Roe v Wade, 410 U.S. 113 (1973) ... 4,

30-32, 34,

Wells v Ortho Pharmaceutical Co., 615

viii

page

F.Supp. 262 (N.D. Ga. 1985) ...... 41

Wilkinson v. Vesey, 110 R.I. 606,624,295

A.2d 676,687 (1972) . . «© «© «© «© «© «© «© « 2a

>t) nuthoriti

"Doctor’s Abortion Business Is Lucrative",

San Diego Union, Oct. 12,, 1980 Bl:1. . 13

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

Memes BOGS, FOe «© os es sw ee se eee ee oe 8

Annas, The Rights of Hospital Patients: The

Basic ACLU Guide to Hospital Patient’s

Rights (New York: Discus Books, 1975) 21

Barnard, “The Long-Term Psychological

Effects of Abortion," (Portsmouth, N.H.:

Institute for Abortion Recovery and

Research, 1990). oe eeoeeeeeeee me

Bond, “Mother Files $1 Million Lawsuit

Against Planned Parenthood, Alleges

Officials Helped Daughter Obtain Life-

Threatening Abortion," National Right to

Life News, October 23, 1986, p6. ... 12

Chase, The Legacy of Malthus: The Social

Costs of the New Scientific Racism (New

York: Alfred A. Knopf, 1977). . 13, 19, 47

Craven, “Abortion, Poverty and Black

Genocide: Gifts to the Poor?", Abortion and

Social Justice, eds. Hilgers and Horan,

Sheed & Ward, New York, 1972. ... 14, 47

Drogin, Margaret Sanger (Coarsegold, CA:

CUL Publications, 1980). ....... 49

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

page

Mother Jones, November 1979. ..... 18

Family Planning Perspectives, Special

supplement-U.S. Population Growth and

Family Planning: A Review of the

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

£f.p.24. «© © eo ee eseeevesese sees ts oe

FDA Consumer 25 (April 1976) ..... 43

Francke, The Ambivalence of Abortion, (New

York, Random House, 1978). o © 6 eos Bae

Franz and Reardon, "Different Effects of

Elective Termination of Pregnancy On

Adolescents and Adults," 1990 Annual

Report, West Virginia University,

40-43.2, 8, 26, 35

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

Process and the Outcome of Therapeutic

page

Abortion", American Journal of Psychiatry

(December 12, 1974), vol.131, 1332. .. .27

Greer, Sex and Destiny: The Politics of

Human Fertility (New York:Harper & Row,

~~~ EME cS £5 6 6 gc cee 830

Hardin, “The Tragedy of the Commons,"

Science December, 1968, 1243-1248. .. 19

Jick, “Vaginal Spermicides and Congenital

Disorders" 245 J.A.M.A. 1329-32 (1981). 41

Kasun, The War Against Population: The

Economics and Ideology of Population

Control, (San Francisco: Ignatius Press,

1988) ... ++ +e. + 13, 19, 47, 48, 60

Kippley, The Art of Natural Family

Planning, (Cincinnati: Couple To Couple

League International, 1984.) ..... 61

xii

page

Kupelian and Gasper, “Abortion, Inc." New

Dimensions, (October 1991) v5,n9-10, 12-

— re

Lader, Abortion II: Making the Revolution

(Boston: Beacon Press, 1973)... +. + +« 16

Lazarus, “Psychiatric Sequelae of Legalized

Elective First Trimester Abortion", Journal

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

ppil4i-150. ..++-+«-+-s+*e+2+22s 2 «© SF, 35

Ludmerer, Genetics and American Society: A

Historical Appraisal (Boston: John Hopkins

University Press, 1972) .....+.+. +. 49

Mendelsohn, Male Practice: How Doctors

Manipulate Women (Chicago: Contemporary

Books, 1981). .++-e-eeesee eevee

Miller, “Native American Peoples on Trail

xiii

page

of Tears Once More," America, 9 December

1978, 423 . . . o . al . . * . . . . . . 47

Pare and Raven,"Follow-up of Patients

Referred for Termination of Pregnancy", The

Lancet (1970) vol.1,pp635-638. .. 27, 35

Reardon, Aborted Women - Silent No More,

(Chicago, Loyola University Press,

1987). . 2, 10-12, 20, 22, 27-29, 34-36, 47

Rue, Institute for Abortion Recovery and

Research, “Pro-Abortion Counseling for

Post-Aborted Women: The Implications" 1991

paper session of the Association for

Interdisciplinary Research ...... 26

Saltenberger, Every Woman Has the Right to

Know the Dangers of Legal Abortion,

(Glassboro, NJ, Air-Plus Enterprises,

1983) . . . . . . . . . . . . . . . 28, 35

xiv

page

Schneyer, Informed Consent and the Danger

of Bias in the Formation of Medical

Disclosure Practices, 1976 Wis. L. Rev. 20

Schwartz, “Bringing the Sexual Revolution

Home: Planned Parenthood’s ‘Five-Year

Plan’", America 138:6, 18 February 1978,

214-116. .+.+2«#+-sesee 2c © © © © © © © 2

Senay, “Therapeutic Abortion: Clinical

Aspects", Archives of General Psychiatry

(1970) ,vol.23,pp408-415 . ....... 27

Simon, The Ultimate Resource (Princeton:

Princeton University Press, 1981).....

coe eee eee eve eo eo © © © SB, 39, 319, 60

Strahan, Major Articles and Books

Concerning the Detrimental Effects of

Abortion: An Annotated Bibliography,

(Charlottesville, VA, The Rutherford

a i

Zeckman and Warrick, “Abortion Profiteers,"

Special Reprint, Chicago Sun-Times,

0 Se

Zimmerman, Passage Through Abortion (New

York: Praeger Publishers, 1977) .. 2, 11,

22, 27, 28

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

No. 91-744 and 91-902

Planned Parenthood of Southeastern

Pennsylvania, Reproductive Health and

Counseling Center, Women’s khualth Services,

Inc. Women’s Suburban Clinic, Allentown

Women’s Center, and Thomas Allen, M.D., on

behalf of himself and others similarly

situated,

Petitioners and Cross Respondents,

Vv.

Robert P. Casey, Allan S. Noonan, and

Ernest D. Preate, Jr., personally and in

their official capacities,

Respondents and Cross-Petitioners.

On Appeal from the United States Court

of Appeals for the Eighth Circuit

BRIEF AMICUS CURIAE OF THE ELLIOT

INSTITUTE FOR SOCIAL SCIENCES RESEARCH

INTERESTS OF AMICUS

The Elliot Institute for Social Sciences

Research favors holding the 1988 and 1989

amendments to the Pennsylvania Abortion

Control Act of 1982, statute, 18 Pa. Cons.

Stat. Ann. §§3201-3220 constitutional in

their entirety. Having performed and

published extensive sociological research

which demonstrates that women seeking

abortion are often denied information which

they would desire concerning the risks of

abortion, Amicus believes that the State

has a compelling interest to regulate

abortion providers who often exploit women

and minors who are at high-risk of suffer-

ing abortion related complications. Amicus

Curiae supports State regulations which

protect women from unwanted abortions and

which preserves their natural rights to

reproductive freedom.

SUMMARY OF ARGUMENT

Recent studies by Elliot Institute

researchers have found that nearly 85% of

women who suffer post-abortion problems

report that they were denied relevant

information or were misinformed during pre-

abortion counseling.’ Statistical

analysis of these women demonstrates a

strong link between inadequate pre-abortion

counseling and increased severity of

Subsequent psychological problems.?

Even research conducted by abortion

advocates has also found that the majority

of women seeking abortion have little or no

prior knowledge about the abortion proce-

dure, its risks, or fetal development.

For most women, the counseling they receive

at the clinic, is the only information they

‘Reardon Aborted Women - Silent No More, (1987),

22. (Hereinafter Reardon). A copy is lodged with

this brief.

*rranz and Reardon, “Different Effects of Elective

Termination of Pregnancy On Adolescents and Adults,”

1990 Annual Report, West Virginia University, 40-43.

32 immerman, Passage Through Abortion,139 (1977)

(hereinafter Zimmerman).

will receive about abortion and alterna-

tives. If a counselor introduces bias, the

results can be tragic.

Amicus will show that accurate counsel-

ing about the risks of post-abortion

trauma, which may have a delayed onset of

ten years or more, is not normally provided

to abortion patients. Yet it is an

undeniable fact that abortion involves both

physical and psychological health risks.

When abortion providers withhold

potentially "stressful" information about

abortion and its risks, they are

paternalistically denying women the right

to knowledgeably evaluate the risks of

abortion against its perceived benefits.

Pre-abortion counseling is biased by many

factors and is clearly inadequate.

In an elective abortion, where the

woman, not the physician, is held

responsible for the wisdom of her decision,

the practice of withholding potentially

_——————_———————— — = — —

stressful information cannot be justified.

The State has a right to judge the

"significance" of health risks associated

with any product or service and to regulate

or prohibit trades or practices according-

ly. This right includes the right to

regulate reproductive technologies such as

abortion.

Abortion, itself, is not a fundamental

right, but rather an "evolved" right. In

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

right was described as evolving from advan-

ces in medical technology by which the

mortality rate of abortion may now be less

than the maternal deathrate of childbirth.

By extension of this reasoning, as

technological changes reveal new dangers

associated with abortion, the State’s

“compelling” interests in regulating

abortion may increase or decrease

proportionately. Thus, even within the

framework of Roe, and with respect to stare

decisis, the statute in question stands.

Recent medical research has shown that

there are far more health risks associated

with abortion than were known at the time

of Roe. Therefore, since abortion involves

Significant risks even in the first

trimester, the State has a compelling

interest in regulating abortion throughout

pregnancy.

The fundamental issue before this Court

is to identify the proper balance between

the rights of individuals and the State.

Amicus will argue that the State has a

compelling right to regulate all birth

control technologies, including abortion.

At the same time, Amicus will argue that

the State’s right to regulate these tech-

nologies, is properly limited by the

inherent and natural right of individuals

to conceive and bear children.

Such a balance of natural reproductive

rights versus regulation of technology can

and should be enunciated, especially now

when individual rights are being threatened

as never before. In the place of the

present confusion surrounding "privacy"

rights, Amicus offers the Court a clear

rationale and timeless standard for

protecting both the "natural reproductive

rights" of individuals and the right of

State to regulate technologies and

commerce.

ARGUMENT

I. BIASES IN THE ABORTION INDUSTRY MAKE

SELF-REGULATION OF INFORMED CONSENT

IMPOSSIBLE.

A. PLANNED PARENTHOOD AFFILIATES, AND

OTHERS IN THE ABORTION INDUSTRY, HAVE A

RECORD OF WITHHOLDING INFORMATION ABOUT

RISKS OF WHICH REASONABLE PATIENTS WOULD

WANT TO BE INFORMED.

The Reardon Study found that 95% of

post-aborted women who received counseling

or abortions at a Planned Parenthood

facility report that they received little

or no information about fetal development;

over 80% said they received little or no

information about the potential risks of

abortion; and 64% report that when they

asked questions, their questions were not

thoroughly answered, or their concerns were

trivialized. Nearly 85% of the women

surveyed believe that they were misinformed

or denied relevant information or during

their counseling. Only 13% felt adequately

prepared for the abortion and forewarned of

risks after receiving counseling at a

Planned Parenthood facility. Those who

received counseling at facilities other

than Planned Parenthood report even lower

levels of satisfaction. [{Reardon, 19) In

retrospect, over 90 percent of women who

suffer post-abortion trauma complain that

they did not receive enough information at

the clinics on which to base an informed

choice. (Reardon, 16-18)

Statistical analysis demonstrates that

patient dissatisfaction with abortion

counseling is a highly significant

predictor (p<.0001) of severe psychological

reactions after an abortion.‘

The scope of this problem is just now

being understood. In 1990, psychologist

Catherine Barnard found that at three to

five years post-abortion, 18.8% of aborted

women had developed "“diagnosable post-

traumatic stress disorder (PTSD)" a

psychological dysfunction which can severe-

ly limit a person’s ability to engage in

normal relationships and work. Approxi-

mately half had many, but not all, symptoms

of PTSD.°

‘pranz and Reardon, 43.

Sparnard, “The Long-Term Psychological Effects of

Abortion,” (Portsmouth, N.H.: Institute for Abortion

Recovery and Research, 1990).

B. PLANNED PARENTHOOD, AND OTHER ABORTION

PROVIDERS, HAVE A PHILOSOPHICAL BIAS TOWARD

ENCOURAGING CLIENTS TO CHOOSE ABORTION OVER

CHILDBIRTH.

According to the Reardon Study, only 25%

of the post-aborted women surveyed who were

counseled at Planned Parenthood affiliates

described themselves as already firm in

their decision to have an abortion at the

time they went in for counseling. Over 60%

were still looking for another option to

abortion. Fully 93% said it was possible

that they would have chosen differently if

they had not been so strongly encouraged to

abort by others, including their abortion

counselor. When asked "Did the clinic,

doctor, or counselor help you to explore

your decision?" fully 85% of Planned

Parenthood clients replied "not at all,"

and an additional 13% answered "very

little." In retrospect, 72% percent said

their counselors advice was very “biased”

— =

toward choosing abortion. (Reardon, 18-19]

When a woman is experiencing such

ambivalence, counselors have an inordinate

influence over their decisions. When faced

with clients who express a desire to keep

their child, abortion counselor Betty Orr

says: “I ask them who is going to take care

of the baby while they’re in school. Where

are they going to get money for clothes?"®

Other counselors bluntly tell the woman to

forget the motherhood fantasy and "get

realistic." Raising a child, they are

told, costs hundreds of thousands of

dollars. Faced with such antagonism, from

parents, boyfriends, and their “health-

care” advisors, is it any wonder that young

women cave in to the unrelenting pressures

to abort even when 60% or more would

actually prefer to keep their babies?’

6 Francke, The Ambivalence of Abortion, 179

’ Zimmerman, 139, also Reardon, 16-18.

Pressured into "choosing" abortion by

Planned Parenthood counselors at the age of

13, Kathy Walker charges: "I felt like my

family had no control over anything. My

parents felt as deceived as I was; we never

really made an informed decision. Planned

Parenthood railroaded us...But nobody ever

really asked me what I wanted to do."®

In another case, an Indiana Planned

Parenthood affiliate ignored the warnings

of Kathleen Kitchen’s own physician who

believed an abortion could be fatal because

she suffered from certain birth defects.

Evading two court orders blocking the

abortion, counselors procured a dangerous

out-of-state abortion for the girl which

resulted in hospitalization for abortion

related complications.” These events

®xupelian, “Abortion, Inc.” New Dimensions, (October

1991) 14.

%gond, “Mother Files $1 Million Lawsuit,” National

Right to Life News, October 23, 1986, p6.

demonstrate that a pro-abortion bias may

overcome even the most basic evaluation of

abortion’s dangers for high risk patients.

Part of abortion counselors’ bias is

financially motivated. Some see themselves

in the "business" of selling abortions."

Some act paternalistically, honestly

believing that abortion is the best

solution to every problem pregnancy."'

Others have openly expressed misogynist and

racist attitudes, defending abortion as a

means of eliminating the poor. These

persons provide abortions as a means to

prevent these “unfit” persons from raising

"unfit" children."

10 Zeckman and Warrick, “Abortion Profiteers,”

Special Reprint, Chicago Sun-Times, 1978

"1 Reardon, 251-243.

12 Dr. Edward Allred, owner of the largest chain of

abortion clinics in California is a staunch advocate

of abortion as a method of controlling the population

of minority groups: “Population control is too

important to be stopped by some right-wing pro-life

ee. Take the new influx of Hispanic immigrants.

ir lack of respect of democracy and social order

is frightening. I hope I can do something to stem

Perhaps the widest spread bias is an

ideological commitment to population con-

trol. The primary purpose of the Planned

Parenthood Federation of America, for

example, is to serve as a population con-

trol advocate. Any health care services it

provides are subservient to that goal.”

According to the PPFA’s organizational

documents, population control, “is a most

essential step, if not the most essential

step ... to solve the most critical

problems of hunger, deprivation and the

hopelessness of poverty, as well as

that tide; I’d set up a clinic in Mexico for free if

I could.... When a sullen black woman can decide to

have a baby and get welfare and food stamps and

become a burden to all of us it’s time to stop.”

"“Doctor’s Abortion Business Is Lucrative", San Diego

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

13 Ample documentation of this can be found in the

following: J. Kasun, The War Against Population: The

Economics and Ideology of Population Control, (1988)

(hereinafter Kasun); A. Chase, The Legacy of Malthus:

The Social Costs of the New Scientific Racism (1977)

(hereinafter Chase), J. Simon, The Ultimate Resource

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

(1984) (hereinafter Greer).

deterioration of our water, land and

air."'* Other PPFA documents declare that

population control is also crucial for

bringing about world peace.

In their view, population control is a

virtual panacea. It is so important that

the PPFA officials have frequently

supported the right of governments to force

abortion on women who become pregnant

without government consent." Even though

” Schwartz, “Bringing the Sexual Revolution Home:

Planned Parenthood’s ‘Five-Year Plan’", America

138:6, 18 February 1978, 114-116.

3 Planned Parenthood has frequently supported

coercive population control. For example, at the

White House Conference on Hunger in 1969, Dr. Alan

Guttmacher of Planned Parenthood supported a national

plan of (1) mandatory abortion for any unmarried girl

found pregnant within the first three months of

pregnancy, and (2) mandatory sterilization of any

such girl giving birth out of wedlock for a second

time. (E. Craven, “Abortion, Poverty and Black

Genocide: Gifts to the Poor?", Abortion and Social

Justice, eds. Hilgers, 235 (1972).)

Similarly, Frederick Jaffe, Vice President of the

Planned Parenthood/World Population and head of

research for Alan Guttmacher, has argued for

government population programs which would require

“permits for children", “compulsory sterilization of

all who have two children", “compulsory abortion",

“encourage homosexuality”, and “fertility control

agents in water supply.” (Family Planning

Perspectives, Special supplement-U.S. Population

Growth and Family Planning: A Review of the Liter-

they have lost U.S. funding because of this

stance, PPFA’s international affiliates

continue to provide assistance to the

Chinese government’s program in which

unlawfully pregnant women are “handcuffed,

tied with ropes, or placed in pig’s

baskets" while awaiting their forced

abortions. {Kasun, 91]

Other examples of abortion proponents

who support coercive population control,

including forced abortion, are numerous.

For example, Lawrence Lader, founder of the

National Abortion Rights Coalition, and

author of the pro-abortion tract Abortion

(1966) which was cited as an authority

eight times in Roe v. Wade, is also a

radical proponent of coercive population

control, arguing that forced population

ature, vol. 2, no. 4, October 1970, ff.p.24.)

Planned Parenthood president Faye Whattleton has

likewise promoted an us-against-them, rich-versus-

poor mentality as motivation for population control

at any price. (Simon, 327)

control is “imperative," both at home and

abroad, since “We must accept the principle

that having a child is no longer a matter

of private will, but of public welfare.""

In a review of the Chinese program of

forced population control which includes

forced abortion, forced sterilization,

forced contraceptive implants, and infan-

ticide of handicapped newborns, and

infanticide of undesirable female

offspring, Lader has only the highest

praise."

Similarly, former N.O.W. president Molly

Yard has defended the Chinese anti-choice

policy, saying: "I consider the Chinese

governments policy among the most

intelligent in the world."

6 Lader, Abortion II: Making the Revolution,

(1973) 218-222.

Lawrence Lader, “The China Solution," Science

Digest, 91:4, April 1983, 78.

a Transcript of “Oprah Winfrey Show," July 6,

Persons or organizations who advocate

coercion, privately or publicly, would

certainly not hesitate to conceal or under-

state the risks of abortion. Indeed, such

population control zealots have frequently

defended the use of dangerous or

insufficiently tested birth control

technologies on the grounds that injured

women are a “secondary" concern compared to

"overpopulation. "'%

1989.

9 In 1970, Planned Parenthood President, Dr. Alan

Guttmacher testified before a Senate subcommittee

that the health dangers of the Pill are secondary to

the social “dangers” of pregnancy and overpopulation.

("Expert Decries ‘Alarm’ on Birth Control Pill,” New

York Times, Feb. 26, 1970, 50:3)

As another example, at a 1962 conference sponsored

by the Population Council, the IUD was being promoted

as the panacea for controlling the world’s

“overpopulation.” Arguing that the risks of IUD use

were acceptable, Dr. J. Robert Willson, of the

University of Michigan School of Medicine defended

its wide-spread promotion saying: "If we look at this

from an overall, long-range view, perhaps the

individual patient is expendable in the general

scheme of things, particularly if the infection she

acquires is sterilizing but not lethal.”

(Mendelsohn, Male Practice: How Doctors Manipulate

Women, 120)

Similarly, Dr. Ravenholt, head of AID’s population

control programs, defended the widespread promotion

of Depo-Provera, despite initial negative results, on

grounds that the ill-effects could not be fully

Since PPFA’s organizational mandate is

to reduce birth rates, here and abroad,

especially among the poor, its "family

planning" services are merely a means to

that "all-important" end. Their counseling

services are therefore biased by this

perspective.

If a few women, or even 80%, suffer

minor to severe post-abortion trauma,

population controllers may deem this a

small price to pay for world peace,

prosperity, and environmental purity.

Abortion is an essential tool for

population control, and they will continue

to promote it even if it means hiding the

risks from pregnant women.

ascertained until tested on tens of millions of

women. (Ehrenreich, et.al., "The Charge: Genocide,”

Mother Jones, November 1979, 30)

20 While the sincerity of population controllers

beliefs is not questioned here, it is noteworthy that

the myth of overpopulation has been thoroughly

debunked. Indeed, the overwhelming benefits of

population growth are only now becoming fully

appreciated. (See the exhaustive works of Simon,

19 .

II. ABORTION PATIENTS HAVE A GREATER NEED

FOR A FULL DISCLOSURE OF RISKS THAN OTHER

PATIENTS, AND THEREFORE “THERAPEUTIC

PRIVILEGE," THE RIGHT TO WITHHOLD

DISTURBING FACTS, DOES NOT APPLY.

As described above, the abortion

industry is plagued with a widespread

population control fanaticism,

paternalistic and racist attitudes, and

simple greed. These attitudes produce a

manipulative brand of counseling which

promotes abortion and denigrates the option

of childbirth.*'

Kasun, Chase.) Notably, even population controllers

admit that the evidence against their theories of

overpopulation problems is impossible to refute, but

they insist that their approach of forced population

control is still a safer bet. (Hardin, “The Tragedy

of the Commons," Science, December, 1968, 1243-1248)

Hardin, incidentally, claims to have been the first

to develop the rhetoric of a “woman‘s right to

control her own body,” yet in practice he too

supports coercive population control programs, espe-

cially of "“feeble-minded” groups, because “Injustice

is preferable to total ruin.” Ibid.

21 the record of abortion providers withholding

information about the risks of abortion for fear of

discouraging their client from “the right choice” has

been well documented by numerous sources. For a

Whenever any bias, about any medical

procedure, exists, it tends to produce a

bias in favor of underdisclosure of risks,

thereby making a "community medical

standard" for disclosure inadequate.”

"As the patient must bear the expense, pain

and suffering of any injury from medical

treatment, his right to know all material

facts pertaining to the proposed treatment

cannot be dependent upon the self-imposed

standards of the medical profession."=

Even when a treatment is life-saving,

the option of withholding potentially

upsetting information from patients,

"therapeutic privilege," is very narrow.

This option is narrowed even further in the

review of the literature see Reardon, 232-271.

22 Schneyer, Informed Consent and the Danger of

Bias in the Formation of Medical Disclosure

Practices, 1976 Wis. L. Rev. 124.

ad Cooper v. Roberts, 220 Pa. Super Ct.

260,267,286 A.2d 647, 650 (1971). See also Wilkinson

v. Vesey, 110 R.I. 606,624,295 A.2d 676,687 (1972);

case of an elective procedure such as

abortion.*

Since a decision against an elective

abortion is, by definition, never life-

threatening, the withholding of "upsetting"

information is never justified. A decision

to forego a previously desired elective

abortion because of possible risks, even

remote ones, is always reasonable. When

physicians or counselors withhold informa-

tion because they fear the information will

lead to an "unreasonable" choice for child-

birth, they are reflecting their own bias

into the decision making process, a bias

that has no medical basis.

This is especially true since the

majority of abortion patients are ambiva-

lent about their choice in the first place,

and 84% say they have kept the pregnancy

2annas, The Rights of Hospital Patients: The Basic

ACLU Guide to a Hospital Patient’s Rights, 68.

2 Because

under better circumstances.

this decision to abort is often tentative,

or even resisted, “upsetting” information

may be exactly what a woman is looking for

as an excuse to keep her child when

everyone else is pressing her into an

unwanted abortion.

It is often far easier for a reluctant

woman to tell her pressuring boyfriend, or

parents, that "The doctor says abortion is

dangerous," than "I want this baby, even if

you don’t." When everyone around her is

insisting that abortion “is the best sol-

ution” and will be "safe and easy," it is

hard to resist this pressure without

appearing “irrational." Displaying fear

about even modest risks, may be her only

lifeline for escaping an unwanted abortion.

A. SINCE “BASIC RESPONSIBILITY" FOR THE

23 Reardon, 11-20. Zimmerman, 110-112,143.

ABORTION DECISION HAS BEEN SHIFTED TO

PATIENTS, THERE IS NO RATIONAL GROUNDS FOR

WITHHOLDING ANY INFORMATION, EVEN THE MOST

DISTURBING.

In Roe, the Court held that “basic

responsibility for it [the abortion

decision] must rest with the physician."

(at 166) In practice, however, the mere

fact that a woman wants an abortion is

viewed by abortionists as sufficient reason

to provide one; it is the woman is who is

expected to bear responsibility for the

wisdom of her decision, not the physician.

When abortion providers shift “basic

responsibility" for the abortion decision

to the patient, it becomes even more

important that the patient receive all

available information about the risks of

the procedure, options, and fetal develop-

ment. Amicus would argue that in the

absence of a close physician-patient

relationship, the option of withholding

potentially upsetting information for an

elective abortion disappears completely.

If the burden of evaluating her health

needs is to be shifted entirely to the

patient, than all available information

should be given to the patient. Since the

patient’s initial decision to have an

abortion is often made out of desperation,

or even coercion from her family and

friends, a thorough education about risks,

options, and fetal development is clearly

necessary in order to rationally and

reasonably evaluate that decision in light

of its possible negative effects on her

future reproductive, psychological, and

social health.

B. LACK OF FULL DISCLOSURE INCREASES THE

INCIDENCE OF POST-ABORTION TRAUMA AND

INCREASES THE SEVERITY OF THE TRAUMA.

Post~-abortion women who suffer physical

or psychological complications about which

they were not warned, or who later learn of

fetal development from another source,

suffer delayed trauma and have increased

feelings of having been exploited.

Increased levels of psychological trauma

have been measured among women who perceive

that they received poor or inadequate

counseling, among women who feel they

rushed through their decision, and among

those who claim their decision was not

“well thought out."*’ Additional

information, and waiting periods, provide

an essential safeguard for many women.

Coercion and moral ambivalence are 2 of

the 14 identified criteria which determine

whether or not a woman is at high risk of

26 Reardon, 115-142. Dr. Vincent Rue, a clinical

psychologist with an extensive practice in post-

abortion counseling reports: "I have seen hundreds of

patients in my office who have had abortion who were

just lied to by the abortion counselor. Namely:

‘This is less painful than having a tooth removed.

It is not a baby.’ Afterwards, the woman-sees Life

magazine [cover of a developing fetus) and she breaks

down and goes into a major depression.” Kupelian, 16.

2?Pranz and Reardon, 43.

suffering long-term mental health Probleas

as a result of her abortion.” Over half

of post-aborted women report feeling

"forced" to have abortion by others.”

28 These 13 high risk characteristics are: })

ambivalence about the decision; 2) pressure in the

decision; 3) a prior abortion; 4) prior children; $,

adolescence; 6) religious or conservative values; 7)

a desire to keep the abortion secret; 8) lack of

partner’s support; 9) lack of parents’ support; 10)

prior emotional or psychiatric problems; 1l) prior

low self-image; 12) abortion of Planned child due to

fetal abnormalities; 13) second or third trimester

abortion; 14) a history of sexual assault, especially

if the pregnancy is the result of sexual assault.

Rue, Institute for Abortion Recovery and Research.

"Pro-Abortion Counseling for Post-Aborted Women: The

Implications” 1991 paper session of the Association

for Interdisciplinary Research; Senay, “Therapeutic

Abortion: Clinical Aspects", 23 Archives of Gen.

Psych., 408-415; Friedman,et.al.,"The Decision-Making

Process and the Outcome of Therapeutic Abortion", Ae.

J. Psychiatry, v.131, 1332-1337 (1974); (1970);

Lazarus, “Psychiatric Sequelae of Legalized Elective

First Trimester Abortion", 4 J. of Psychosomatic

Ob&éGyn, 141-150 (1985); Pare and Raven, "Follow-up of

Patients Referred for Termination of Pregnancy”, The

Lancet, v.1, 635-638 (1970); Reardon, 131-38.

ad Between 30 and 60 percent of women having

abortions have a positive desire to carry the

pregnancy to term and keep their babies.

{Zimmerman,110-12,120; Reardon, 12,51} This desire

to keep the child is overcome only by external

pressures. In a study of over 250 women who had

suffered physical or psychological aftereffects froe

abortion, 54 percent felt “forced” into an unwanted

abortion by others and 64 percent felt “forced” by

their circumstances. Only 33 percent felt free to

make their own decision, and 61 percent felt their

lives and decisions at that time were very such

“controlled by others." (Reardon, 10-11} Pro-choice

researchers have similarly found that over two-thirds

of the women made statements suggesting they had “no

wearly 70 percent of women seeking

abortions have a negative moral view of

abortion.*° Clearly, the majority of

yomen having abortion have one or more

characteristics of high risk patients.

For high risk patients the resulting

post-abortion trauma can literally destroy

a woman’s self-image, resulting in: drug

and alcohol abuse, suicidal behavior, emo-

tional numbness, emotional breakdown, radi-

cal personality changes, memory loss, sleep

disorders, sexual dysfunction, increased

tendency toward violence, child abuse, dif-

ficulty bonding with later children, psych-

io 2 31

osomatic illnesses, and more.

choice” or were “forced” to have an abortion. [2Zi-

amerman, 193)

%0 Zimmerman, 69; Reardon, 13

Strahan, Major Articles and Books Concerning the

Detrimental Effects of Abortion: An Annotated

Sibliography, contains the most extensive collection

of findings published in the journals of medicine and

psychology. See also, Saltenberger, Every Woman Has

the Right to Know the Dangers of Legal Abortion, and

Reardon, 115-142. A summary of a detailed survey of

——————— ee = — — ee

Sixty to eighty percent of all women

having Zilegal abortions can be classified

as high-risk aborters who choose abortion

only to please others, or because they feel

at a loss for other options.* For these

women, abortion is at best a marginal

choice. At worst, it is a choice which is

literally forced upon then.

Very few of these women would freely

choose abortion in the presence of

emotional, social, or financial support.

Many would have chosen differently, if

given adequate information about the risks

of abortion, fetal development, or

alternatives. Provision of this

information to significant others,

including family, husbands, and boyfriends,

100 high-risk abortion patients, entitled “Post-

Abortion Reactions of High Risk Abortion Patients,”

undertaken by Reardon for the Elliot Institute has

also been lodged with this brief.

32 Reardon, 131-134,297-300.

would also reduce the pressure on these

women to undergo unwanted, and potentially

dangerous abortions.

VI. THE STATE MUST HAVE AN UNLIMITED RIGHT

TO REGULATE ABORTION, AT ANY STAGE OF

PREGNANCY, FOR A BROAD RANGE OF HEALTH

REASONS.

A. ROE DID NOT GRANT WOMEN A FUNDAMENTAL

RIGHT TO ABORTION, BUT FOUND THIS NEW RIGHT

AS EVOLVING FROM THE DEVELOPMENT OF NEW

TECHNOLOGIES WHICH MAY HAVE MADE ABORTION

"SAFER THAN CHILDBIRTH."

The abortion right enumerated in Roe

rests entirely on the much disputed "fact"

that advances in medical technology make

“abortion in early pregnancy...relatively

safe"(at 149) and that today "mortality in

abortion may be less than mortality in

normal childbirth." (at 163).

But how can a "fundamental" human right

2x .}

come into existence only when abortion

appears to be safer than childbirth? If it

is a fundamental right, then it is a right

which exists regardless of its dangers. By

what power can any fundamental right be

expanded or contracted merely by changes in

medical technology?

The answer is that abortion is not a

fundamental right. Rather, it is an

evolved right which rests upon advances in

medical science.

Because it was dealing with an evolved

right, the Roe majority erred in thinking

that the medical "facts" which it found to

be compelling in 1973 would not change with

the acquisition of new knowledge and new

technologies. If at one moment in history

the State’s “legitimate interests in

protecting both the pregnant woman’s health

and the potentiality of human life" (Roe at

115, 149) can contract, then at another

point in history they can expand.

If, for example, new technologies make

unsuspected risks more apparent, the

State’s rights may expand. Similarly,

knowledge of fetal development, new

theories of "meaningful life," and advances

in fetal medicine and artificial wombs may

also change the States "compelling"

interests over time.»

Recognition of this fact that abortion

is at best an “evolved right," would allow

States great latitude in regulating

abortion in accordance to new findings of

fact, while at the same time respecting the

doctrine of stare decisis.

Additional evidence that access to

abortion technology is not a fundamental

right is seen in the fact that Roe assigns

3 In its eagerness to grant physicians the right

to perform “safe” abortions, which many States were

already recognizing, the Roe majority’s fundamental

error was in granting itself the authority to

restrict and define those interests which the State

could find to be “compelling.” If the State is not

free to be guided by its own judgment of what is

compelling, then the State is not free at all.

—

responsibility and control over abortion

primarily to the attending physician. (at

163 and 166) But if the consultation and

consent of a single physician can be

required in the making of this health

decision, why not the consultation and

consent of parents, or a panel of

physicians, or a State agency? Parents,

husbands, physicians, and the State all

have legitimate and compelling interests in

safeguarding the health of women.

A husband, for example, deserves, at the

very least, notification of an abortion not

only to enable him to safeguard his child,

but also his wife. If physical or psycho-

logical aftereffects occur, the husband

must be in a knowledgeable position to help

his wife in seeking treatment. Ironically,

while petitioners maintain that husbands

may brutalize their wives if notified of a

pending abortion, the evidence suggests

that abusing husbands are more likely to

brutalize wives who refuse to abort a

pregnancy which he does not want.™

This interest of outside parties is

especially valid when the stress of an

unplanned pregnancy may cause a young woman

to make a rash and ill-informed decision

which may have severe negative effects on

her life. This interest is further

increased when a woman is vulnerable to

being pressured into an unwanted abortion.

B. ABORTION TECHNOLOGIES INVOLVE HEALTH

RISKS WHICH WERE NOT KNOWN, WERE NOT UNDER-

STOOD, OR WERE OTHERWISE IGNORED IN ROE V.

WADE.

While Roe considered only the mortality

rate of abortion in its determination that

abortion is “safe," new evidence suggests

that there are unforeseen psychological and

“ Reardon, 31,78,210. Over 50% of women who

suffer post-abortion trauma report being pressured

into the abortion by boyfriends or husbands. Reardon,

ll.

reproductive complications resulting from

abortion.*®

Abortion’s defenders do not deny its

risks so much as downplay them, arguing

that this or that risk is “negligible.”

But such evaluations are clearly value

judgments. If the State can be concerned

about unintended deaths from abortion, why

not subsequent miscarriages or ectopic

pregnancies? Who is to decide what the

“acceptable” limits of abortion induced

depression, guilt, suicide, or child abuse

are to be?

Given the uncertainty surrounding the

impact of all technologies, the State’s

compelling interests may change with time.

The State must be free to regulate any

technology, including abortion, in

accordance with such new information.

35 See Strahan for approximately 750 citations

relevant to aftereffects of abortion which have been

studied since 1973. See also Reardon, Franz,

Zimmerman, Pare, Lazarus, and Saltenberger.

Since abortion has health risks, even

during the first trimester, the State may

find in these risks a compelling interest

to protect women from these risks

throughout pregnancy.* Given the

State’s two-fold interest in protecting the

health of women, and protecting the life of

human embryos, there is can be no absolute

right to use abortion technologies.

V. THE STATES HAVE A LEGITIMATE INTEREST

IN REGULATING BIRTH CONTROL TECHNOLOGIES,

SUCH AS ABORTION, WHICH SHOULD NOT BE

RESTRICTED.

Abortion should not be any more exempt

from State regulation than any other birth

3 The State’s right to regulate this technology is

especially important since there is no guarantee that

women considering abortions will be adequately and

accurately informed of the health risks or will be in

the proper emotional state to rationally weigh these

risks. The record of abortion providers withholding

information about the risks of abortion for fear of

discouraging their client from “the right choice” has

been well documented by numerous sources. See

Zeckman. For a review of the literature see Reardon,

232-271.

control technology. If anything, it should

be subject to even greater regulation,

given the State’s legitimate interest in

the inter-uterine human life, or “potential

person." But even if this secondary

interest is ignored, the State should be

free to regulate abortion for reasons of

health and morals, just as it is allowed to

regulate other birth control technologies.

A. THE RIGHT OF THE STATE TO REGULATE BIRTH

CONTROL TECHNOLOGIES IS ALREADY ESTABLISHED

IN CONSTITUTIONAL LAW.

In Griswold v. Connecticut 381 U.S. 479

(1964), at 485 and 507, the Court

recognized that the State could regulate

the manufacture, sale, and distribution of

contraceptives in the same way that it is

empowered to regulate any other trade or

commerce. >’

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

(1960), which anticipated his majority opinion in

As emphasized in Griswold, the failure

of the Connecticut law was not that its

goals, or even that its means were

illegitimate, but rather that its means

were incongruous with other laws. To allow

the manufacture and distribution of

contraceptives, but to ban their “use" is

unreasonable. Such means “sweep

unnecessarily broadly" in the absence of

less intrusive controls over manufacture

and sale. (at 485)

Similarly, in Eisenstadt v Baird, 405

U.S. 438 (1971) (White concurring, at 463),

the plurality continued to recognize that

contraceptives may be regulated for the

purposes of protecting health, or even

Griswold, Justice Douglas recognizes that States

would have a right to ban completely the sale of con-

traceptives through drug stores, or even ban the

manufacture of contraceptives because: “Where either

the sale or the manufacture is put under regulation,

the strictures are on business and commercial deal-

ings that have had a long history with the police

power of the States. The present law, however, deals

not with sale, not with manufacture, but with use.”

(at 519).

promoting morals. (at 448, 450, and White

concurring at 463) But the Court struck

down the Massachusetts law because it was

"so riddled with exception" (at 449) that

the legislature’s true intent was

apparently not the protection of health or

morals, but rather the limitation of

“contraception in and of itself." (at 443)

Specifically, the Court questioned the

sincerity of the claim that the regulations

were based on moral grounds because the

State allowed for the "exception" of

unregulated distribution of condoms. (at

448,449) But this “exception” existed

because the State chose to classify condoms

as being primarily a prophylactic with a

secondary effect as a contraceptive. For

logical reasons the State therefore chose

to regulate prophylactics differently than

other contraceptives, even though the

prophylactic could also be used for a

contraceptive purpose.

Given the present AIDS crisis, the

State’s preferential treatment of condoms

now appears entirely reasonable. In

hindsight, the Eisenstadt decision

dismantled an important public health

policy by which the State limited access of

non-prophylactic birth control technologies

to a group at high risk of transmitting

venereal disease (unmarried persons) so as

to compel this group to either abstain from

sexual intercourse or use prophylactic

birth control devices.

In addition, the Eisenstadt majority

concluded that the contraceptives regulated

by the State had no health risks, and so

could not be regulated for health reasons.

(at 451, White concurring, 464) But

spermicidal agents, the contraceptive at

issue in Eisenstadt, are now known to carry

the risk of causing serious fetal malform-

ation, miscarriage, genital irritation, and

infection. Since the health effects of

any technology can remain undetected for

many years, it is clearly imprudent for the

Court to ever classify any technology as

"safe" merely on the evidence available at

one point in time. Determination of when a

contraceptive has been sufficiently proven

to be "risk-free" is properly left to the

State.

Furthermore, spermicides, like many

other contraceptive devices, have a high

failure rate in preventing conception.

Therefore, State regulation of those who

distribute and counsel others in the use of

birth control technologies is clearly

reasonable when the State’s "health"

interests are broadly construed to include

concern for unplanned pregnancies. And

38 Jick, “Vaginal Spermicides and Congenital

Disorders” 245 J.A.M.A. 1329-32 (1981). In Wells v

Ortho Pharmaceutical Co., 615 F.Supp. 262 (N.D. Ga.

1985), plaintiffs were awarded $5.6 million in

compensatory damages for birth defects resulting from

spermicide use.

since pregnancies resulting from

contraceptive failures pose a greater

"potential danger" for unmarried persons,

because they are less prepared to raise a

child in a stable home, the State should be

able to regulate the distribution of

potentially faulty birth control devices to

this group for which contraceptive failures

pose the greatest health risk.

If one takes a broad view of the State’s

health concerns, it is clear that the State

should enjoy latitude in regulating birth

control technologies, including abortion.

B. STATES MUST BE FREE TO ADJUST

REGULATION OF BIRTH CONTROL TECHNOLOGIES TO

MEET CHANGING CONDITIONS.

Birth control technologies have a great

number of health, moral, and public policy

implications. These costs and benefits

must be weighed and adjusted with the needs

of the time. For example, during a time of

a great venereal disease threat such as

AIDS, it is conceivable that the State may

seek to promote prophylactic contraceptives

and discourage other methods. At other

times, the State may wish to ban contracep-

tives which are less effective and result

in a higher incidence of unplanned

pregnancies. At still other times, the

State may ban technologies for which there

are safer alternatives.”

At most times, the State is likely to

attempt to balance these competing concerns

of health, morals, and effectiveness. Such

laws, while a sincere attempt to protect

and serve the people, will be imperfect

because the technology is imperfect.

Judicial intervention in the regulation

of birth control technologies threatens the

39 such was the case when the FDA forced the

removal of “sequential pills" from the market

because, according to current data, combination pills

are more effective and have fewer risks. FDA Consumer

25 (April 1976).

ability of the States to respond to chang-

ing moral and public health needs. In the

cases of Eisenstadt and Roe, the Court

forced changes upon the States which the

legislatures were already freely consider-

ing in the light of individual and public

health needs. Let the State legislate, and

eventually it may get it right on its own.

C. STATE REGULATION OF BIRTH CONTROL

TECHNOLOGIES IS NECESSARY BECAUSE

PHYSICIANS, FAMILY PLANNING AGENCIES AND

DRUG MANUFACTURERS ARE SOMETIMES MOTIVATED

TO PROMOTE BIRTH CONTROL TECHNOLOGIES WHICH

MAY HAVE DETRIMENTAL SIDE-EFFECTS OR MAY BE

LESS THAN FULLY EFFECTIVE.

The birth control and abortion indus-

tries in America enceupacs a multi-billion

dollar market. Drug manufacturers,

physicians, and family planning agencies

all enjoy a share in these profits, and ail

of these parties have a financial interest

—————

in these technologies.

Part of this promotion includes

defending their technologies from charges

of being unsafe. The controversies sur-

rounding the health risks of abortion, the

IUD, and the Piil, for example, have gone

on for decades and are still unresolved.

Thus, while evidence exists to defend or

condemn any birth control method, those who

sell these products will tend to believe

and promote the evidence which supports

their interests. It is the proper role of

the State to consider evidence both for and

against a birth control method, and to

regulate these methods according to its own

assessment of effectiveness, risks, and

social costs. At times the State’s

decision maybe manipulated by the "facts"

of one party or another, but this risk is

no greater than the risk that the judiciary

will be deceived.

State regulation of birth control

technologies is also justified because many

physicians, family planning agencies and

drug manufacturers are ideologically bound

to reducing births among some classes of

women regardless of the detrimental side-

effects which their technologies will

impose on women. Evidence of this

population control bias was offered earlier

in this brief.

VI. THREATS TO TRUE REPRODUCTIVE FREEDOM

FROM PRIVATE INTERESTS AND THE STATE RE-

QUIRE THAT THE INDIVIDUAL’S NATURAL RIGHT

TO REPRODUCTIVE FREEDOM MUST BE CLARIFIED

AND STRENGTHENED.

While Amicus asks the Court to

explicitly affirm the State’s right to

regulate birth control technologies, such

as abortion, Amicus also recognizes a need

to clarify and strengthen the legitimate

and inherent reproductive rights of all

persons.

As noted above, population controllers

pose a real threat to reproductive freedon.

The State in turn may also pose such a

threat. Federally funded family planning

programs have periodically come under

attack from recipients who felt coerced

into "voluntary" sterilizations or

®° American policy

"elective" abortions.‘

has similarly encouraged coercive popula-

tion control programs in numerous other

Third World nations as a precondition to

foreign aid.*'

“ "(T)here is uncontroverted evidence in the

record that...poor people have been improperly

coerced into accepting sterilization..." U.S.

District Court of D.C., Judge Gesell, Relf V.

Weinberger, civil actions Nos. 73-1557,74-243, March

1974.) See also Craven, 263; Reardon 272-278; and

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

Service hospitals between 1973 and 1976, the GAO

found that 3406 sterilizations were performed without

the patient’s informed consent as a result of a

general policy to restrict population growth of

Indians. Miller, “Native American Peoples on Trail of

Tears Once More,” America, 9 December 1978, 423.

“'kasun, 79-94. For example, in 1976 the U.S.

government pressured India into forcibly sterilizing

three million people in mobile tent-camps. ([Kasun,

85-86] At approximately the same time, Dr. Raven-

holt, director of AID’s Office of Population insisted

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

the Court explicitly allowed the State to

force sterilization on any person con-

sidered a "potential parent of socially

inadequate offspring" because it is "better

for all the world, if instead of waiting to

execute degenerate offspring for crime, or

let them starve for their imbecility,

society can prevent those who are manifest-

ly unfit from continuing their kind."

that one-quarter of the fertile women of the world

must be sterilized to meet U.S. goals of population

control and to maintain “the normal operation of U.S.

commercial interests around the world.” (ibid, 81}

2 two years prior to Buck v. Bell, an unknown

European foreshadowed Holmes’ decision claiming that

the unfit were sapping the strength of the State, and

in order regulate their births, “the State will have

to avail itself of modern medical discoveries. It

must proclaim as unfit for procreation all those who

are afflicted...and practical measures must be

adopted to have such people rendered sterile." The

book calling for control of reproduction as a

cornerstone of social policy was Mein Kampf, by Adolf

Hitler. [(Chase,135)

By 1932, American sterilization programs had

forcibly sterilized 15,000 persons. German health

officials, in turn, structured German eugenic

programs on the American model. Ludmerer, Genetics

and American Society 118 (1972); Drogin, Margaret

Sanger, 24 (1980). When the Germans surpassed

America’s population control efforts, Paul Popenoce of

the American Birth Control League (later renamed

Planned Parenthood), praised the Germans for

True reproductive freedom does not exist

under the present interpretation of Consti-

tutional rights. If under Bell the State

has the right to prevent the reproduction

of undesirable persons, then surely this

would encompass the right to implement

forced abortions, or forced contraceptive

implants.

A. THE VAGUELY DEFINED “RIGHT TO PRIVACY"

MUST BE REPLACED BY A MORE CAREFULLY

DEFINED "NATURAL REPRODUCTIVE RIGHTS."

Amicus argues that the first step which

must be taken toward restoring reproductive

freedom is the abandonment of the umbrella

“right of privacy." It must be recognized

that when the Court first began to

articulate this "right," it burdened itself

“proceeding toward a policy that will accord with the

best thought of eugenicists in all civilized

countries.” Ludmerer, 117.

with vague terminology which by its very

nature can be either totally meaningless or

irresistibly powerful.”

Envisioned as arising from the shadowy

penumbra of the Constitution, this "right"

lacks clear guiding principles or even a

common understanding which can serve to

protect the people, guide the judiciary, or

justly restrict the legislatures. Thus, if

only for the sake of clarity, this catch-

all “right of privacy" must be replaced

with a more precisely defined tern.

Amicus argues that in the place of the

“right of privacy" the Court should recog-

nize the “natural reproductive right" of

individuals. This more narrowly defined

right addresses the issues raised by the

‘3 the right of privacy presently guiding judicial

decision is an undefinable enigma; it “cannot be said

to be absolute” (Roe, 154) yet it is a "fundamental"

right which repeatedly prevails over State interests.

Does the “right of privacy" include only sexual

' behavior? Birth control access? Reproductive free-

dom? All private behaviors? Semi-private behaviors?

contraception and abortion cases, and draws

a clear line between the rights of individ-

uals and the privileges of the State.

With seventy years of legal confusion

surrounding issues related to reproductive

freedom, such a clarification of the law is

urgently and immediately needed from the

Court. A logical and timeless framework

for defining the “natural reproductive

rights" of persons is described in the

remainder of this brief.

B. THE NATURAL RIGHT OF REPRODUCTIVE

FREEDOM, AS GUARANTEED IN THE CONSTITUTION-

ALLY RESERVED RIGHTS OF INDIVIDUALS, IS

THAT RIGHT WHICH ARISES FROM A PERSON’S

NATURAL REPRODUCTIVE BIOLOGY, IN RESPECT OF

WHICH: 1) THE STATE MAY NOT LIMIT ANY

PERSON’S NATURAL FERTILITY OR PREVENT

PERSONS FROM NATURALLY CONCEIVING OR BEAR-

ING CHILDREN, AND 2) THE STATE MAY NOT

FORCE ANY PERSON TO CONCEIVE CHILDREN NOR

COMPEL ANY PERSON TO PROVIDE REPRODUCTIVE

MATERIAL FOR THE ARTIFICIAL CONCEPTION OR

GESTATION OF CHILDREN.

Whether or not one believes the

Declaration of Independence’s claim that

the inalienable rights of all persons are

endowed upon them by their Creator, the

natural reproductive rights of all people

are clearly central to our biological

humanity. Any law which transgresses these

inherent rights for the sake of any social

goal, whether to eliminate the “unfit" or

to “create a race of thoroughbreds" through

eugenic manipulations, violates all human

dignity and freedon.

History demonstrates that the more

totalitarian a State becomes, the more

likely it is to seek to control every

aspect of life, even human reproduction, so

as to control both the “quality” and

quantity of its population. Accordingly,

no just government has the right to coerce

or force sterilization, contraception, or

abortion upon any person or group of

persons. Recognition of this right must

begin with a rejection of Buck v. Bell.

Amicus would further argue that the

right to natural fertility includes the

right to enter into a heterosexual marriage

for the purpose of establishing a family.

But while the right to intercourse with-

in marriage is an inalienable corollary to

the natural right of reproduction, sexual

activity outside of the marital covenant is

not similarly included. The distinction

lies in the fact that extramarital inter-

course is rarely intended as an exercise of

reproductive freedom, but instead is an

exercise of sexual self-gratification.

Furthermore, the State has had a long

standing, and well recognized interest in

safeguarding and promoting the special na-

ture of marital relations and protecting

the stability of the family unit. Sexual

activity outside of marriage such as

fornication, adultery, homosexuality,

incest, statutory rape, and bestiality have

never been recognized as natural rights,

and the State should retain the power to

legislate against such activities. Such

non-reproductive, extra-marital activities

are contrary to nature, destructive of the

family, exploitive of persons, diminish

human dignity, and risk begetting children

into unstable families.

On the other hand, the State’s right to

discourage sexual activity outside of mar-

riage must still be limited to the extent

that it may not forcibly limit the natural

fertility of persons engaged in extra-mari-

tal activities. Furthermore, the children

of illicit unions should be accorded the

same rights and status of all other persons

since by their conception, their parents

entered into a de facto marriage covenant,

though perhaps a bigamous one, which in-

vokes mutual responsibilities and duties

toward their children and each other.

Natural reproductive freedom was alluded

to by the Court in Eisenstadt v. Baird, at

453, in its statement regarding the right

to self determination with regard to an

individual’s “decision whether to bear or

beget a child."

While Amicus agrees with the core

principle of individual reproductive rights

which underlies this statement, the conclu-

sions reached in Eisenstadt are overly

broad. For while every individual has the

right to control his or her natural

reproductive powers, this right does not

include the right to use any means or

technology a person wants to control the

bearing and begetting of children.

While the State must be prohibited from

infringing on natural reproductive rights,

the State does have a legitimate right to

regulate and even proscribe birth control

technologies which can be used to limit

fertility, enhance fertility, or artifici-

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

Since all technologies have social and eco-

nomic consequences, health consequences,

moral consequences, and very frequently,

unforeseen consequences, and are subject to

abuse, nearly all technologies have at one

time or another been subject to liability

Claims in the courts and regulation by duly

empowered governments.“

With regard to birth control technolog-

ies, a term which includes artificial con-

ception and gestation technologies as well

as contraceptive and abortifacient technol-

ogies, the consequences of these technolo-

gies are becoming increasingly complex.

“4 The only types of technology which might have

some claim to Constitutional protection are

technologies related to the cight to bear arms. But

even this technology cannot be given an absolute

status. Individuals are not entitled to own any

conceivable weapon, but rather are entitled to

“reasonable” access t» firearms.

For example, the issues of surrogate

mothers, custody of frozen human embryos,

in vitro fertilization, and visitation

rights of sperm donors, are even now per-

plexing both the judiciary and the legisla-

ture. In the future, such issues as gen-

etic engineering, artificial wombs, animal

wombs, cloning for replacement organs, and

a whole host of other technologies will

arise which will dwarf the present

quagmire. Surely the State has a legiti-

mate interest in regulating present as well

as future birth control technologies.

There is no Constitutional basis for

distinguishing between birth control tech-

nologies and any other technology. There-

fore, the Court cannot and should not treat

birth control technologies as a “favored

technology" and impose restraints on the

right of States to regulate this class of

technologies.

To limit the right of States to regulate

technology on the basis of a shadowy “right

of privacy” which is dimly perceived within

the Constitution and hazily-defined within

this Court’s rulings, is a short-sighted

course which will surely lead to ever more

confusion in the decades ahead. Perhaps

worse, such a limitation on the States will

serve as an invitation to technocrats to

exploit men and women with ill-conceived

and dangerous technologies which will wreak

havoc on individuals and society.

C. THE STATE’S REGULATION OF BIRTH CONTROL

TECHNOLOGIES POSES NO THREAT TO THE

INDIVIDUAL’S NATURAL RIGHT TO MAKE

REPRODUCTIVE DECISIONS.

While the State has a right to regulate

birth control technologies, it is obvious

that the State has no interest or desire to

enact a general prohibition of birth

control technologies. Indeed, quite to the

contrary, federal, state, and local govern-

ments have been spending hundreds of

millions of dollars promoting contraceptive

use. Given the overwhelming public and

government support for increasing contra-

ceptive use, there is no realistic basis in

the allegations of abortion proponents that

allowing the States to regulate reproduc-

tive technologies would lead to a ban

against all birth control. Even if some

States were to choose to regulate some

birth control technologies for reasons of

health or morals, it is evident that such

regulation would be accompanied by the

promotion of better, substitute methods.

| Furthermore, even the abstract possibil-

ity that the State might one day seek to

"force" population growth by a ban on

contraceptives poses no threat to reproduc-

tive freedom. The history of population

growth, around the world, shows that even

without access to contraceptive technology

or abortion, peoples of all eras and

nationalities have limited their births

according to their needs through the

employment of delayed marriage, withdrawal,

periodic or total abstinence, or even with

the unreliable rhythm method.”

These natural methods of fertility

regulation have been surpassed in the last

twenty years by the discovery of at least

six new methods of natural family planning,

each with many variations, which employ

from one to seven body symptoms for iden-

tifying the exact time of female fertility.

The most commonly recommended methods have

method effectiveness ratings for avoiding

pregnancy of from 97-99 percent, rates

which are at least comparable to the Pill,

and easily exceed the effectiveness rates

of IUDs, condoms, jellies and the rest.“

45 See authorities Greer, Kasun and Simon

‘6 The final report of a 1978 federal study of

NFP, found a 100 percent method effectiveness rate

for a Sympto-Thermal variation of NFP and a 94%

effectiveness rate for the Ovulation Method. The

These natural methods of fertility

control, both the old and the new, employ

no technology, only self-knowledge. The

dissemination of such knowledge would be

protected by First Amendment rights.

Therefore, it is unreasonable to believe

that even an oppressive government’s ban

against all birth control technologies

could ever “force” people into conceiving

"unwanted" children.

The existence of natural methods of

birth control demonstrates that individuals

will always have reasonable alternatives to

birth control technologies and a reasonable

opportunity to exercise their reproductive

freedom. The State is not obligated to

guarantee any more than these natural

opportunities, though in its sovereignty it

highest tested effectiveness rate ever reported

belongs to a variation of the Temperature-Only method

which has been demonstrated to have only 7 unplanned

pregnancies per 10,000 fertile woman-years, a rate

which is less than half the failure rate for vasec-

tomy. J. Kippley, The Art of Natural Family

Planning, 14-17 (1984).

is certainly free to provide technological

aids if it so chooses.

In some ways, natural reproductive

rights are similar to the right of free

speech. Ultimately, the inalienable right

to free speech is guaranteed by the natural

abilities of humans to communicate. But

while the right of free speech is enhanced

by mass communication technologies, not all

persons have equal access to these techno-

logies, nor is the State required to

provide access to these technologies.

Clearly, while speech is a natural right

which the State may not infringe upon, tec-

hnological enhancements of this right are

open to regulation.

The Court’s only constitutional

obligation, in this matter, is to protect

the natural right of reproduction which is

inherent in every person’s biology. Beyond

that, the people, acting through their

elected representatives, must be free to

regulate the technologies they desire to

enhance their natural rights. Left alone,

the laws passed by properly elected legisl-

atures will eventually come to reflect the

"compelling" interests of the people.

Such laws regulating birth control

technologies cannot, by definition, oppress

the inherent rights of individuals. All

inherent rights are natural to and arise

from the God-given dignity of every human

person. The right to free speech, the

right to assembly, the right to travel, the

right to defend oneself from aggression,

these are inherent, natural rights obvious

from the nature of social persons with

hands, feet, mouths, and minds. Technol-

ogies, on the other hand, have no rights.

CONCLUSION

In summary of the above arguments,

Amicus respectfully petitions the Court to:

(1) reject the “right of privacy” as

unconstitutionally vague; (2) recognize the

"natural right of reproductive freedom" as

a fundamental and inalienable right of all

human beings; (3) recognize the State’s

right to regulate birth control technolo-

gies, including abortion, for any broadly

defined health reasons considered signifi-

cant by the State; and (4) hold that the

amended 18 Pa. Cons. Stat. Ann. §§3201-3220

is a constitutional regulation of a birth

control technology which does not infringe

on the “natural rights of reproductive

freedom."

It is clear that the confusion created

by the poorly defined “right to privacy"

has led to the conflict at hand. The

natural right of reproductive freedom

suggested here is in keeping with the

historical and moral values of both the

Western and Eastern heritages, and is in

accord with the natural law, right reason,

and a fundamental respect for individual

human dignity. Such a timeless principle

would certainly have received the unanimous

consent of America’s Founding Fathers.

Sixty years of judicial activism in the

area of reproductive control must be

reversed swiftly and completely. Amicus

urges the Court to recognize the right of

States to completely regulate reproductive

technologies for broadly defined reasons of

health, including physical, psychological,

moral, and social health. At the same,

Amicus urges the Court to restore immutable

protection in the law for every

individual’s natural right to reproductive

freedon.

Respectfully submitted,

Stephen R. Kaufmann

P.O. Box 5131

Illinois Building, Suite 800

Springfield, Illinois 62705

(217) 544-1144

Attorney for Amicus Curiae

APPENDIX

DESCRIPTION OF AMICUS

The Elliot Institute for Social Sciences

Research is an independent, not-for-profit

research group committed to a program of

original research in the areas of abortion,

birth controi, and population control.

The research associates of the Elliot

Institute are leaders in the investigation

and documentation of the psychological

aftereffects of abortion on women. The

Elliot Institute has collected over 1500

case studies of women who have suffered

psychological aftereffects of abortion. It

has also published major reviews of the

literature in this field, and has published

the results of two major surveys of post-

abortion women.

Present research projects include a

controlled, longterm study of the

aftereffects of abortion using a random

population of women. This is the largest

such study ever done, with over 800

randomly selected participants. In

addition, the Elliot Institute is

undertaking a case study of approximately

80 women who suffered post-abortion trauma

after aborting children conceived by sexual

assault and a comparable sample of women

who carried sexual assault pregnancies to

tern.

Elliot Institute research establishing a

statistical link between inadequate pre-

abortion counseling and increased severity

of post-abortion reactions has been

accepted for publication in a leading peer

review journal of family and adolescent

psychology.

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