Amicus Curiae Brief — Stenberg v. Carhart

: Supreme Court, U.S.

3 wo FILED

Feb 2 @

IFEB 2 3 90m

No. 99-0830

SUPREME COURT OF THE UNITED STATES

DONALD STENBERG,

Petitioner,

Vv.

LEROY CARHART,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF

AMICUS CURIAE OF THE RUTHERFORD INSTITUTE IN

SUPPORT OF PETITIONER

John W. Whitehead Thomas W. Strahan

Steven H. Aden (Counsel of Record)

Maria E. Selig 3740 Edmund Blvd.

THE RUTHERFORD INSTITUTE Minneapolis, Minnesota

1445 East Rio Road 55406

Charlottes, ic, Virginia (612) 729-6765

22901

(804) 978-3888

F 23, 2000

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QUESTIONS PRESENTED FOR REVIEW

1. Whether the Eighth Circuit’s adoption of a broad unconstitutional

reading of Nebraska’s ban on partial-birth abortion, which directly

conflicts with the narrower constitutional construction of similar

statutes by the Seventh Circuit Court of Appeals and that of the State

officials charged with enforcement of the statute, violates fundamental

rules of statutory construction and basic principles of federalism in

contradiction of the clear direction of this Court in Webster v.

Reproductive Health Services, 492 U.S. 490 (1989)?

2. Whether the Eighth Circuit misapplied this Court’s instructions

in Planned Parenthood v. Casey, 505 U.S. 83 (1992) by finding that

a law banning cruel and unusual methods of killing a partially-born

child is an “undue burden” on the right to abortion?

t

ss

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

IN SUPPORT OF PETITIONER

The Rutherford Institute hereby respectfully moves the Court for

leave to file the following brief amicus curiae in this case. The

consent of counsel for the parties was requested and refused.

The Rutherford Institute is an international, non-profit civil

liberties organization with offices in Charlottesville, Virginia and

internationally. The Institute, founded in 1982 by its President, John

W. Whitehead, educates and litigates on behalf of constitutional and

civil liberties. Attorneys affiliated with the Institute have filed

petitions for writ of certiorari in the United States Supreme Court in

more than two dozen cases, and certiorari has been accepted in two

seminal First Amendment cases, Frazee v. Dept. of Employment Sec.,

489 U.S. 829 (1989) and Arkansas Educational Television Comm'n.

v. Forbes, 523 U.S. 666 (1998). Institute attorneys have filed over

three dozen amicus curiae briefs in the United States Supreme Court,

including Webster v. Reproductive Health Services, 492 U.S. 490

(1989) and Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833 (1992). The Institute has published educational

materials and taught continuing legal education classes in this area as

well.'

The Rutherford Institute has as one of its purposes fostering

respect for the uniqueness and paramount worth of human life. These

values are deeply rooted in America’s common law constitutional

tradition and its morality and values. Diminishing the value and

John W. Whitehead has published several books, numerous

articles and two amicus briefs on abortion issues. See, e.g.,. Webster

v. Reproductive Health Services, 492 U.S. 490 (1989) and Planned

Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833

(1992). The Institute also publishes informational pamphlets and

briefs addressing abortion.

respect for life, including prenatal life, diminishes, in one form or

another, the lives of all citizens. The Rutherford Institute believes that

this case concerning the power of states to regulate abortion is

important to constitutional jurisprudence and the growth and progress

of the nation.

Beginning in 1985, amicus curiae undertook to extensively

research the available medical and social literature to determine the

extent to which the legalization of abortion had an adverse effect on

the quality of life, the impact on the family, and its effect on health

and social life. The relevant portions of that research are presented

particularly as applied to the issue of partial birth abortion. The

Rutherford Institute believes the expertise of its counsel will be of

assistance to the Court in this case.

The Rutherford Institute is submitting a brief amicus curiae in

support of the Petitioner. In light of the iraportant issues being raised

in this case, the Institute respectfully requests that its arguments be

heard.

Respectfully submitted,

John W. Whitehead Thomas W. Strahan

Steven H. Aden (Counsel of Record)

Maria E. Selig 3740 Edmund Blvd.

THE RUTHERFORD INSTITUTE Minneapolis, Minnesota

1445 East Rio Road 55406

Charlottesville, Virginia 22901 (612) 729-6765

(804) 978-3888

February 23, 2000

-iv-

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW...............00ceceeseesennenenens i

MOTION FOR LEAVE TO FILE BRIEP...................-00eseseeeeesennennnes ii

TABLE OF AUTHORITIEG.............c:ecsssssesseresssnsenensensensnesnenensnsnes vii

STATEMENT OF AMICUS CURIAE INTEREST

AND INTRODUCTION ...........0scsccssssssssesserssnsesensssesssensssssssssssosees l

SUMMARY OF ARGUMENT ...............:cc-esesersesesesennensennnnnnnnenennns 2

ARGUMENT ...00:.0ccsecesessscessecssssccsscesssssssocccsossssessseosssossossossocssoons 3

1. There Is an Important Public and State Interest in the

Moral Status of the Unborn Child Intended by the

Nebraska Law Banning Partial Birth

B. rt me EF

to the “Therapeutic” Considerations of

GI... ceccnsedincsanietesemnesicnapeaneinttinetiiaieninasil 4

C. Animals Are Protected from Cruelty in the

Manner of Their Death......................cccceeeeeeeceeeeee 6

D. The Opinion of the Federal District Court Sets

Forth a Form of Killing Using the Partial Birth

Abortion Method Which Is Within the Power of

E. The Courts below Have Failed to Follow

Established Principals of Decision-making and

Have Failed to Recognize and Defer to

Il. The State Has an Interest in the Moral Status of the

Unborn Child Because Pregnant Women Who Have

Partial Birth Abortions Do Not Protect this

A. Pregnant Women Who Seek Partial Birth

Abortions Are Impaired in Their Decision-making

Emotional State and Lack of Informed

B. Pregnant Women Who Are Likely to Seek Partial

Birth Abortions Are a Special Population with

Significant Disadvantages Which Increase the

Likelihood of a Partial Birth

a cictnsaptnenenieseeicttaenestinntbianianiannarts 12

i. Characteristics of the Special

Pete ciniperisemsenesmnccnnctnatieannemnenpanices 13

ET 14

iii. | Attachment tothe Unborn Child............. 14

iv. Indecision and Ambivalence................... 15

OO 16

eG cencrcesesnsinensssersersenmess 16

vii. Secrecy and Isolation....................0.000++ 16

viii. Low Self Esteem and _ Identity

Si cnctenccsnnstnttmceminecmmmsinntnenre 17

ix. Lack of Resources and an Inability to

Receive Assistance..................c..ces-esesenees 17

x. Non-useofContraceptives...................... 18

xi. Influence by Doctors and Genetic

I ences 18

Ill. The State Has an Interest in the Moral Status of the

Unborn Child Because Neither Abortion Professionals

Using the Partial Birth Abortion Nor Medical Societies

CONCLUSION

Medical Doctors Fail to Protect the Moral Status

of the Unborn Child in the Partial Birth Abortion

ii. | The Medical Profession Fails to Protect the

Moral Status of the Unborn Child in the

Context of Partial Birth

-vii-

TABLE OF AUTHORITIES

Case

Arkansas Educational Television Comm'n. v. Forbes, 523

ESE cv cc cbcncedesicccccesececseess 12, 15, 21

Bowers v. Hardwick, 478 U.S. 186 (1986) .............4.. 17

Carhart v. Stenberg, 972 F.Supp 507 (D.Neb. 1997) ..........

sOUCODENSECCEseNE SS eeRhannaubecossccé cones 6, 7, 11, 13

Connor v. Monkem Co, Inc., 898 S.W.2d 89 (Mo. 1995) ...... 8

Damos v. St. Pierre, 402 So.2d 633 (La. 1981) ...........6. 8

Farley v. Sartin, 466 S.E. 2d 522 (W. Va. 1995) ............ 8

Frazee v. Dept. of Employment Sec., 489 U.S. 829 (1989) ... i, 1

Giardina v. Bennett, 545 A.2d 139 (N.J. 1988) ............. 9

Humes v. Clinton, 792 P.2d 1032 (Kan. 1990) .............. 9

Milner v. Apfel, 148 F3d. $12 (7th Cir. 1998) .............. 9

Planned Parenthood of Southeastern Pennsylvania v. Casey,

PPCM 664400 000600604060 6ecbceeséncees 26

Planned Parenthood of Wisconsin v. Doyle L., 162 F.3d 463

SM sb non oee 6656006 bondee seveseueiedetece 10

Planned Parenthood of Wisconsin v. Doyle II., 44 F Supp.

DP CED ccnageeseusccesecsveséooeeses 9

Planned Parenthood of Wisconsin v. Doyle, 44 F Supp.2d

FUSCA We GOCED cccwcdcvensecevdebstectcadeeecus 26

Planned Parenthood v. Casey, 505 U.S. 83 (1992) ... ii, iv, 1, 5

Planned Parenthood v. Danforth, 428 U.S. 52 (1976) ....... 12

Porter v. Lassiter, 87 S.E.2nd 100, (Ga. App. 1955) ......... 8

Seef v.Sutkus, 583 N.E.2d 510 (Ill. 1991)... 00... eee eee, 8

Thilbert v. Milka, 646 N.E.2d 1025 (Mass. 1995) ........... 9

Webster v. Reproductive Health Services, 492 U.S. 490

SEE 6e6addbnkcvndacdseeebeebbeubatodacakécel i, iv, 1

Wiesrma v. Maple Leaf Farms, 543 N.W.2d 787 (S.D. 1996) .. 8

Statutes and Constitutional Provisions

Section 28-325, Rev. Stat. Neb., Reissue of 1995 ............ 8

Section 28-1008 through §28-1016, Rev. Stat. Neb.,

PGT UNE vc vcecsencdadoues tuceetscedin 6, 7, 11, 13

Section 28-1008 (3), Rev. Stat. Neb., Reissue of 1995 ...... i, 1

Section 28-1008 (5), Rev. Stat. Neb., Reissue of 1995 ........ 9

Section 28-1009, Rev. Stat. Neb., Reissue of T995 ........... 8

Other Authorities

Abbott, The Abortionist as Craftsman, 22 Human Life Review

SOs 0 0c hbndcicccs césmdecssenekbieelidenthe .. 24

ACOG Statement of Policy, Approved by the executive board

SOM Ty CEN hvac chose odncdsadended aves iceescaee 8

-ix-

AMA Policy: Women Physicians and Women’s Health

Issues. “LateTerm Pregnancy Termination Techniques”

| PRPPPPPPTITITITIT TTI Titre i, |

Binkin and Associates, Women Refused Second-Trimester

Abortion: Correlates of Pregnancy Outcome, 145 Am. J.

Obstet. Gynecol. 279 (1983) 2.2... cece ccc cece eee eee 9

Blumberg, Gofbus & Hanson, The Psychological

Sequelae of Abortion Performed for a Genetic Indication,

122 Am. J. Obstet. Gynecol. 799 (1975) ........05eceeees 20

Bracken and Kasl, Delay in Seeking Induced Abortion:

A Review and Theoretical Analysis, 121 Am. J. Obstet.

Gynecol. 1008 (1975) 20... cece cece cece ee eee ee eeees 9

Burr and Schulz, Delayed Abortion in an Area of Easy

Accessibility, 244 JAMA 44 (1980) ....... 6c cece eee eens 26

Callahan, The Tyranny of Survival (1973) .......-6.000005 10

Cancelmo and Associates, Psychodynamic Aspects of

Delayed Abortion Decisions, 65 Br. J. Medical Psychology

RR Rath aa ire Ret Wied ER eaar 9

Connecticut Mutual Life Report on American Values

in the 80s: The Impact of Belief: Connecticut

Mutual Life Insurance Co: Hartford, Conn.,92 (1981) ..... 14

Ellul, The Technological Society, 142 (1964) ...........45. 26

Ethical Decision-Making in Obstetrics and Gynecology,

ACOG Technical Bulletin No. 136, November, 1989 .. ii, iv, 1, 5

Furlong and Black, Pregnancy Termination for Genetic

Indications: The Impact on Families, 10 Social Work in

Health Care 17 (1964) 00... 0c cece cece eee eee eeene 19

-X-

Gianelli, Shock-tactic Ads Target Lat?-term Abortion

Procedure, American Medical News, p. 21, July 5, 1993 ..... 12

Hamburger, The Power and the Frailty: The Future of

Medicine and the Future of Man, 83 (1973) .............44. 8

Haskel, Easterling & Lichtenberg, Surgical Abortion After

the First Trimester in A Clinicians Guide to Medical and

Surgical Abortion, Paul, Maureen, 135-137 (1999) .......... 9

Hern, What about us? Staff Reactions to D& E, ISA .... 21,24

Henshaw and Kost, Abortion Patients in 194-1995:

Characteristics and Contraceptive Use, 28 Family

Planning Perspectives 140 (1996). ..............00005: i, iv, 1

Hunt, Technological Themes in the Abortion Debate in

When Life and Choice Collide, Ed David Mall, 255-258

er ere er rer ee ae ee eee 8

Judges, Hard Choices, Lost Voices. How the Abortion

Conflict Has Divided America, Distorted Constitutional

Rights, and Damaged the Courts, 287 (1993) .............. 4

Kaltreider, Emotional Patterns Related to Delay in Decision

to Seek Legal Abortion, 118 Calif Med 23 (1973) .......... 15

Kittrie, The Right to Be Different, Characteristics of the

ee TEE 6 cad cescatensveliciesedkedex 5

Kolker and Burke, Grieving the Wanted Child:

Ramifications of Abortion After Prenatal Diagnosis

of Abnormality, 14 Health Care for Women Int’!. 513 (1993) .. 19

Koonin and Associates, Abortion Surveillance-United States,

1996, 48 MMWR No. SS-4, July 30, 1999 ............... 13

-xi-

Lasch, The Culture of Narcissism (1979) .. 2.2.0... 66. eee 5

Morley, Theory of Crisis Intervention, 21 Pastoral Psychology

SOEs svar cbudicS Gk Gebanbbeudns ban de seeder 18

National Center for Health Statistics, 39 (12) Monthly Vital

Statistics Report, Supplement April 30, 1991, Table 10,11 ... 13

Osofsky and Associates, Psychosocial Aspects of Abortion

in the United States, 42 Mt. Sinai Medical Journal 456

SE pudevens + 4ndsuhed baebaaee Oh EW SEO6es ed0bdes 15

Rayburn and Laferla, Mid-Gestational Abortion for

Medical or Genetic Indications, 13 Clinics in

Obstetrics and Gynecology 71 (1986)... ...........00000- 19

Rice and Doherty, Reflections on Prenatal Diagnosis:

The Consumers Views, 8 Social Work in Health Care 47

ED he bn rds check eaenbaseedeeeGes Cenebtes ue enna 18

Shafer, R.N., Brenda Pratt, Testimony before Subcommittee

on the Constitution, House Judiciary Committee, March 21,

1996, reprinted in 14 Issues in Law and Medicine 99-100

P47 Rhys pb nSeksde bd ae SMPKRRdh eee Cad ew ube 9

Shepard and Bracken, Contraception and Repeat Abortion,

11 Journal of Social Science 289 (1979)... ..........0005- 20

Standards For Abortion Care, National Abortion Federation

GE chcced Gen Wh ances 6m dene nawaenncéee weds 12

Starr, The Social Transformation of American Medicine,

SA bk nes caSsbcontncdndescbecebecdbsaceesns 6

Suslak, Scherer & Rodriguez, A Support Group for Couples

Who Have Terminated a Pregnancy After Prenatal

Diagnosis, 4 Journal of Genetic Counseling 169 (1995) ...... 19

-Xii-

Torres and Forrest, Why Do Women Have Abortions?,

20 Family Planning Perspectives 169 (1988) ..............

Vought, Post-Abortion Trauma, 61 (1991)

TO THE HONORABLE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE

UNITED STATES:

STATEMENT OF AMICUS CURIAE

INTEREST AND INTRODUCTION’

The Rutherford Institute is an international, non-profit civil

liberties organization with offices in Charlottesville, Virginia and

internationally. The Institute, founded in 1982 by its President, John

W. Whitehead, educates and litigates on behalf of constitutional and

civil liberties. Attorneys affiliated with the Institute have filed

petitions for writ of certiorari in the United States Supreme Court in

more than two dozen cases, and certiorari has been accepted in two

seminal First Amendment cases, Frazee v. Dept. of Employment Sec.,

489 U.S. 829 (1989) and Arkansas Educational Television Comm'n.

v. Forbes, 523 U.S. 666 (1998). Institute attorneys have filed over

three dozen amicus curiae briefs in the United States Supreme Court,

including Webster v. Reproductive Health Services, 492 U.S. 490

(1989) and Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833 (1992). The Institute has published educational

materials and taught continuing legal education classes in this area as

well.

One of the purposes of The Rutherford Institute is to foster

respect for the uniqueness and paramount worth of human life. These

values are deeply rooted in America’s common law constitutional

tradition and its morality and values. Diminishing the value and

respect for life, including prenatal life, diminishes, in one form or

another, the lives of all citizens. The Rutherford Institute believes that

this case concerning the power of states tc regulate abortion is

2 Amicus curiae The Rutherford Institute files this brief on

Motion to the Court for leave to do so. Consent of counsel for the

parties was sought and refused. Counsel for The Rutherford Institute

authored this brief in its entirety. No person or entity, other than the

Institute, its supporters, or its counsel, made a monetary contribution

to the preparation or submission of this brief.

2.

important to constitutional jurisprudence and the growth and progress

of the nation.

Beginning in 1985, amicus curiae undertook to extensively

research the available medical and social literature to determine the

extent to which the legalization of abortion had an adverse effect on

the quality of life, the impact on the family, and its effect on health

and social life. The relevant portions of that research are presented

particularly as applied to the issue of partial birth abortion. The

Rutherford Institute believes the expertise of its counsel will be of

assistance to the Court in this case.

SUMMARY OF ARGUMENTS

There is a public interest as well as a state interest in

legislating against immoral acts and recognizing the moral status of

the unborn child. Recognition of moral status does not require that

legal personhood be established. It is sufficient if the existence of a

living entity is recognized and that unjust or immoral acts may be

committed against this entity. To a significant degree, the moral

status or the social standing of the unborn becomes obvious when

viewed in light of the moral outrage exhibited when Nebraskans

learned of the cruel manner of the destruction by partial birth

abortion. Moral status requires that the existence of actual life be

acknowledged, not simply “potential life.” Nor can the perceived

therapeutic needs of others relegate the unborn child to a non-entity.

In the state of Nebraska, animals are protected from cruelty.

The manner of the death of an animal is also regulated by the state.

No one claims that an animal is a person or a human being. In

addition to the enactment prohibiting partial birth abortion, the state

legislature of Nebraska, by specific legislative findings and declared

legislative purpose, has deplored the destruction of unborn human

lives. However, the courts below have failed to take into account

these legislatively mandated and constitutionally acceptable purposes.

Nebraska also has an interest in the moral status of the unborn

x”

child because pregnant women who seek partial birth abortions do not

protect this interest. These women are impaired in their decision-

making because of a manipulation of their thought process prior to

undergoing partial birth abortion. Most importantly, women are not

given accurate information about the specific nature of the partial

birth abortion prior to undergoing the procedure. Women who are

likely to undergo a partial birth abortion are a special population who

have been shown to have tendencies which increase the likelihood of

undergoing this type of procedure. These tendencies include denial,

low self-esteem and identity conflicts, immaturity, lack of social and

economic resources as well as an inability to receive offers of

assistance.

Most medical doctors and medical societies do not recognize

the moral status of the unborn child. This occurs despite the fact that

workers in abortion facilities frequently find that abortions at the late

stage of pregnancy required for partial birth abortions are repugnant.

In addition, doctors who perform partial birth abortions are well

compensated for their services and may act as no more than a

technician without consideration of the moral status of the unborn

child. Similarly, medical societies, although recognizing the fetus as

a patient for some purposes, abandon the unborn child to the claims

of the pregnant woman.

ARGUMENT

I. There Is an Important Public and State Interest in

the Moral Status of the Unborn Child as Intended by

the Nebraska Law Banning Partial Birth Abortions.

A. The Unborn Child Is Entitled to a Recognized

Moral Status.

Recognizing the moral status of the unborn child in the context

of partial birth abortion does not require that legal personhood be

established. What constitutes moral status is:

-4-

(1) the recognition that there is the existence of a living entity,

and ‘

(2) immoral or unjust acts may be committed against this

living entity.

Status refers to a condition or social standing. To a significant degree,

moral status or social standing has been bestowed upon unborn

children by those who were morally outraged when they learned of the

cruel manner of their destruction by the partial birth abortion

procedure. Public officials used a variety of words or phrases to

describe their feelings about partial birth abortion including

“barbaric”, “shocks the conscience” or “unfit for a civil society.”

Public opinion polls have found that a substantial majority of those

polled were opposed to partial birth abortion, and 30 states have

passed legislation to ban the practice, frequently by large margins.

Yet many of the laws were enjoined by the courts, including the

Nebraska ban on partial birth abortion.

B. Unborn Children Are Not “Potential Life”

Subject to the “Therapeutic” Considerations of

3 Repugnance for abortion has been advanced as a possible

intuitive response to resolution of the polarization over abortion. The

reason is because it was observed that abortion protesters frequently

carried signs showing abortions in later stages of pregnancy. Also,

repugnance for abortion at later stages is frequently found among

abortion facility personnel. See, e.g. Kaltreider, Goldsmith & _

Margolis, The Impact of Mid Trimester Abortion Techniques on

Patients and Staff, 135 Am. J. Obstet. Gynecol. 235 (1979), Hern,

What about us? Staff Reactions to D & E, 15 Adv. Planned

Parenthood 3 (1980). Repugnance may be rooted in an empathic

kinship with one another that is the source of what is precious and

caring in human relationships when it is present - and all that is

horrible and brutal when it is absent. Judges, Hard Choices, Lost

Voices. How the Abortion Conflict Has Divided America, Distorted

Constitutional Rights, and Damaged the Courts, 287 (1993).

Others.

In Planned Parenthood v. Casey, 505 U.S. 833, 876 (1992)

the plurality opinion stated that the “state has a substantial interest in

potential life.” It is clear that actual life is being destroyed when arms

are moving and feet are kicking as the unborn child is being killed in

the partial birth abortion process. If one has only a potential life, it

becomes virtually impossible to determine what obligations there

might be to this potential life because these obligations only exist in

the future. How can one be cruel, kind, just or unjust, protective or

nner ive to someone or some thing with such a vague, amorphous

Status

The paramount emphasis on “therapeutic” abortion for the

perceived benefit of the pregnant woman also plays an important role

in denying the moral status of the unborn child. Sociologist

Christopher Lasch has noted, “The contemporary climate is

therapeutic, not religious. People today hunger not for personal

salvation... but for the feeling, the momentary illusion of personal

well-being, health,‘ and psychic security.” Lasch, The Culture of

Narcissism (1979). Terms such «s free will, guilt, good and evil have

no place in the therapeutic mode! Kittrie, The Right to Be Different,

Characteristics of the Therapeutic State, 39 (1971). In the

therapeutic model, people are diseased, ill, or socially maladjusted, or

perhaps immature, unbalanced or stressed. In the therapeutic model

it is the doctor or scientist or therapist who is presumed to know what

is best. One author calls it “therapeutic relentlessness.” Hamburger,

4 An editorial in the American Journal of Public Health, although

acknowledging that morality and other values may come into play to

a limited degree, said that health professionals are obligated to put

health first, to do so by respecting the best available scientific

evidence, and to be frank when putting aside evidence of other

considerations, be they moral, religious, economic, or simple

expedience. Susser, Induced Abortion and Health as a Value, 82

American Journal of Public Health 1323 (1992).

4

The Power and the Frailty: The Future of Medicine and the Future

of Man, 83 (1973).

Another refers to this therapeutic model as a “modern form of

torture, combining benevolence, indifference, and technological

wizardry.” Starr, The Social Transfor™ation of American Medicine,

390 (1982). There is no place in the therapeutic model for any entity

with moral status - least of all an unborn child.

C. Animals Are Protected from Cruelty in the

Manner of Their Death.

In Nebraska, animals have more status than unborn children.

No one claims these animals are persons or human beings. Animals

are protected from cruel and inhumane treatment under existing

Nebraska law prohibiting cruelty to animals. See Section 28-1008

through §28-1016, Rev. Stat. Neb., Reissue of 1995. Under the

definition of terms section of that statute, cruelly mistreating means

to knowingly and intentionally kill, maim, disfigure, torture, beat,

mutilate, burn, scald, or otherwise inflict harm upon any animal.

(Section 28-1008 (3)). Violations of the law are criminal acts.

(Section 28-1009). Further, the law prohibiting cruelty to animals

also regulates the manner of death of an animal. (Section 28-1008

(5)). If the state of Nebraska has the power to prevent cruelty to

animals, including the manner of death, it certainly has the power to

enact a law regulating the manner of death of unborn children,

especially where the prohibited technique involves a particularly

gruesome method of abortion.

D. The Opinion of the Federal District Court Sets

Forth a Form of Killing Using the Partial Birth

Abortion Method Which Is Within the Power

of the State to Prohibit.

The partial birth abortion procedure or intact D & E or D &

X described in the Federal District Court opinion in Carhart v.

Stenberg, 972 F.Supp 507 (D.Neb 1997) sets forth a form of killing

Fe

performed in a clinical setting. According to the opinion, these

killings are attempted or completed after the 1 Sth week of gestation

and not later than the 20th week of gestation. The procedure includes

draining the amniotic fluid before beginning the evacuation procedure.

The Respondent then attempts to grasp and divide the umbilical cord

of the fetus, which transports arterial and venous blood between the

fetus and the placenta. If he divides the cord, the fetus will usually die

within 6 to 10 minutes. If he succeeds in dividing the umbilical cord,

he does not wait for fetal death to occur before continuing the

procedure.

When the fetus is presented feet first, the Respondent uses

forceps to pull the feet of the living fetus from the uterus into the

vaginal canal. He then pulls the remainder of the fetus, except the

head, into the vaginal cavity to a point where the base of the fetal skull

is lodged in the uterine side of the cervical canal. At that point, the

size of the head will not permit him to pull it through the cervical

canal into the vaginal cavity. To decompress the fetal skull and

evacuate the contents in order to pull it through the cervical canal, the

Respondent uses an instrument to either tear or perforate the skull to

allow insertion of a cannula and removal of the brain and cranial fluid

and tissue. If more convenient, he will crush the skull rather than

pierce it in order to reduce the size of the skull. Brain death occurs

sometime during this two to three second “reduction” procedure, but

fetal heart function may continue for several minutes after the fetus’s

skull is decompressed. /d. at 514. Respondent testified that, in 1996,

he removed approximately 20 fetuses completely intact and alive. The

to cause the death of the fetus. This behavior is within the power of

the state to regulate.

E. The Courts below Have Failed to Follow

Established Principals of Decision-making and

Recognize and Defer to Legislatively Mandated

Purposes When They Relate to Abortion.

The state legislature of Nebraska has deplored the destruction

-8-

‘

of unborn human lives by specific legislative findings and legislative

declaration of purpose. Section 28-325. These legislative purposes

specifically recognize and protect life in the womb and have been

recognized by the state courts. In Damos v. St. Pierre, 402 So.2d 633

(La. 1981), parents were allowed to recover damages for a pre-natal

injury to a fetus subsequently born dead. The court relied upon

language in a statement of legislative purpose which stated that a

person includes a human being from the moment of conception. In

Connor v. Monkem Co, Inc., 898 S.W.2d 89 (Mo. 1995), the

Missouri Supreme Court held that non-viable unborn children may

have wrongful death claims based on a legislative purpose which

stated that legally protectable rights, privileges and immunities exist

at the time of conception.

In other cases, state courts have recognized a cause of action

for the wrongful death of unborn children based upon specific

language in a wrongful death statute. In Wiesrma v. Maple Leaf

Farms, 543 N.W.2d 787 (S.D. 1996), a non-viable fetus died after the

mother contracted salmonella from the defendants. In interpreting a

wrongful death statute that authorized a cause of action for the “death

or injury of a person, including an unborn child,” the South Dakota

Supreme Court held that this applied to non-viable fetuses. In Seef v.

Sutkus, 583 N.E. 2d 510 (Ill. 1991), an Illinois court recognized a

fetus as a person under the state’s wrongful death statute, which

stated that the state of gestation of a human being shall not foreclose

a cause of action. In Georgia, the crime of feticide was defined as the

willful killing of a “quick” (or living) unborn child. A suit by the

mother against the defendant for the homicide of an unborn child who

was “quick” was allowed. Porter v. Lassiter, 87 S.E.2nd 100, (Ga.

App. 1955). And in Farley v. Sartin, 466 S.E. 2d 522 (W. Va.

1995), a fetus of 18-22 weeks gestation had died in an automobile

accident. The court held that the viability of a fetus was no longer a

requirement for the wrongful death of a fetus. The court concluded

there was no rational reason not to include non-viable fetuses,

especially in light of statutory language that the wrongful death statute

should be liberally construed.

-9-

In contrast, where there has been no legislative language

specifically recognizing liability for the wrongful death of an unborn

child, courts have refused to do so without such inclusive language.

In Humes v. Clinton, 792 P.2d 1032 (Kan. 1990), a suit was brought

by the parents for the wrongful death of a fetus after the mother

underwent a therapeutic abortion after complications due to the use of

an IUD. The court dismissed the wrongful death suit stating that if

such a cause of action was to be created, it must be done by the

legislature. Again, Giardina v. Bennett, 545 A.2d 139 (N.J. 1988),

the court narrowly interpreted the word “person” as not to include an

unborn child. They held that the cause of action for wrongful death

was the creature of statute, and since the legislature had not adopted

specific language to include unborn children, there was no cause of

action. In Thilbert v. Milka, 646 N.E.2d 1025 (Mass. 1995), a

Massachusetts court refused to extend wrongful death protection to a

16 week old fetus where the fetus was stillborn and held that any

extension of liability was properly left to the legislature.

Since the Nebraska legislature has recognized unborn children

as alive and human, recognition of the moral status of the unborn

child and the granting of protection from being killed by means of

partial birth abortion will, at least to a limited degree, carry out the

legislatively mandated enactments of the state.

F. States May Legislate Against Immoral Acts.

The practice of partial birth abortion is immoral, and states

have a legitimate interest in prohibiting conduct deemed immoral.

Bowers v. Hardwick, 478 U.S. 186, 196 (1986) (upholding a Georgia

sodomy law in part because it was rationally related to “the presumed

belief of a majority of the electorate in Georgia that homosexual

sodomy is immoral and unacceptable.“). States can also make

immoral conduct a crime. Milner v. Apfel, 148 F3d. 812, 814 (7th

Cir 1998) (stating that a traditional purpose of criminal punishment

is to express moral condemnation of the criminal’s acts.)

The federal district court in Planned Parenthood of Wisconsin

-10-

v. Doyle IL, 44 F.Supp.2d 975, 983 (W.D. Wis. 1999) specifically

held that the state of Wisconsin had a legitimate state interest in

morality as applied to the D & X procedure. It stated:

at the point that the child is just inches from being born the

state has sufficient interest to regulate the manner of the

child’s death, regardless of whether the state is able to keep the

child alive. Wisconsin has declared that such children are not

to endure - and Wisconsin physicians are not to inflict - the

gruesome death imposed in the D & X procedure ... because it

is apparently beyond Wisconsin’s power to eliminate ... other

methods of abortion Wisconsin can eliminate this one method.

In Planned Parenthood of Wisconsin v. Doyle I., 162 F.3d 463,477-

479 (7th Cir 1998), Manion, J., dissenting, stated that “there is a

legitimate moral interest in banning the D & X procedure, and that the

state’s interests in potential life, in regulating the practice of medicine,

and in the moral underpinnings of state law are legitimate.” All these

state interests form a solid basis for the state enacting a law to ban D

& X abortions. Although Judge Manion acknowledged that the law

may not save any lives, he noted that, “these laws have certainly

elevated the public’s concern over the fate of the potential human lives

that are exposed to abortion.” /d. at 479.

Il. The State Has an Interest in the Moral Status of the

Unborn Child Because Pregnant Women Who Have

Partial Birth Abortions Do Not Protect this Interest.

A. Pregnant Women Who Seek Partial Birth

Abortions Are Impaired in Their Decision-

making Because of the Manipulation of Their

Mental and Emotional State and Their Lack of

Informed Consent.

Late term, mechanically induced abortion procedures such as

dilatation and extraction (D & E) or partial birth abortion depend on

a state of denial by the woman at the time the abortion is performed.

wa, a as

-11-

This is accomplished by administration of general anesthesia or

sedation’ to the woman to insure that she does not know or see exactly

what is occurring. According to the AMA report, D & E procedures

in the mid to late second trimester usually are performed with local

anesthesia, using sedation and a paracervical block. Carhart v. -

Stenberg, 972 F. Supp. 507 at 512. The sedation, in particular,

alters the thought processes of the woman to the point where she

would cannot accurately perceive what is occurring’ and cannot

scream out in protest or come to the aid of the unborn child whose life

is about to be destroyed if she wished to do so. Once her

consciousness is altered, it is the medical doctor who is in control.

Since she does not see what is occurring, she will, of necessity, have

$ The partial birth abortion procedure developed by Martin

Haskell utilized nitrous-oxide/oxygen administered nasaily as an

adjunt to local anesthesia. Haskell, Dilation and Extraction for Late

Second Trimester Abortion. Presented at the National Abortion

Federation F&k Management Seminar: Dallas, Texas, September 13,

1992; see also Coreen Costello, Giving Up My Baby, New York

Times Op-Ed, November 23, 1995. A24 where woman was under

anesthesia at the time of her partial birth abortion.

6 Examples of the altering of consciousness include using light

anesthesia for the actual D & E procedure so the woman has little

sense of what is going on as the fetus is dismembered inside her and

pulled out with the forceps. Or as another woman put it, ” Fifteen

minutes or so of Demerol-induced oblivion and that’s it.” Abbott, The

Abortionist as Crafisman, 22 Human Life Review 23 (1996).

Although denial may occur at the time of the abortion and last for a

period of time, it eventually breaks down and women may express a

high level of stress from the experience. Among the long term stresses

women experienced from D & E abortions, were anxiety regarding

that a second or third trimester fetus had been dismembered.

Speckhard, Psycho-Social Stress Following Abortion, 79-80 (1987).

x, %

to rely on the representations of the doctor.

A study of 250 women at the University of California, San

Francisco during the 1970's is a case in point. In this study, women

who had undergone mid-second trimester abortions by dilation and

extraction under genera! anesthesia were interviewed three weeks

post-abortion. D & E was seen as helpful in getting through an

ambivalent situation and as tending to reinforce preexisting denial.

The use of general anesthesia led to an experience which was

described by the women as “like a dream” and “out of my hands.”

The researchers found that the D & E patient was consciously aware

of avoiding the implications of the procedure and rarely asked any

questions. Kaltreider, Goldsmith & Margolis, The Impact of Mid

Trimester Abortion Techniques on Patients and Staff, 135 Am. J.

Obstet. Gynecol. 235 (1979).

This approach violates the standards of the National Abortion

Federation. These standards include “Objectives of Decision

Counseling” which require that “accurate information” be provided so

that “she retains her autonomy and control.” These standards further

provide, under “Objectives of Informed Consent,” that the woman be

provided with “accurate information, directly applicable to her

procedure, about the risks of surgery, and the benefits of that

surgery.” In addition, the standards require that the abortion

procedure be described “to the patient in terms she can readily

understand.” Standards For Abortion Care, National Abortion

Federation 4 (1986). The standards do not provide for any

“therapeutic” exceptions. The U.S. Supreme Court in upholding a

state statute requiring informed consent prior to abortion stated, “The

decision to abort is important and often a stressful one, and it is

desirable and imperative that it be made with full knowledge of its

nature and consequences.” Planned Parenthood v. Danforth, 428

U.S. 52 (1976).

B. Pregnant Women Who Are Likely to Seek

Partial Birth Abortions Are a Special

Population with Significant Disadvantages

-13-

Which Increase the Likelihood of Partial Birth

Abortion.

i. | Characteristics of the Special Population.

The gestational age that the Respondent testified that he intends

and prefers to use the intact D & E procedure on is “over 15 weeks.”

Carhart v. Stenberg, 972 F. Supp. 507 at 523. This gestational age

for abortion represents a very small percentage of the total number of

induced abortions performed in the United States each year.

According to the Centers for Disease Control, only 5.8% of the

1,221,585 induced abortions reported in 1996 were performed at 16

weeks of gestation or more. Koonin and Associates, Abortion

Surveillance-United States, 1996, 48 MMWR No. SS-4, July 30,

1999.

Women who obtain these later abortions are a special

population. According to a 1987 survey by the Alan Guttmacher

Institute of 420 women seeking abortions at 16 gestational weeks or

more at various abortion facilities throughout the United States, they

are significantly more likely to be teenagers under the age of 18,’

black women,* unemployed women, women covered by Medicaid,

? The National Center for Health Statistics reported detailed

abortions statistics for a 14 state area in 1988. Among women under

14 years of age, 14.6% had abortions at 16 gestational weeks or more

compared to 13.3% of women age 14, 10.1% of women age 15, 9.2%

of women age 16, 7.5% of women age 17, 4.9% of women age 20-24

years, and 3.9% of women age 25-29 years. National Center for

Health Statistics, 39 (12) Monthly Vital Statistics Report, Supplement

April 30, 1991, Table 10, 11.

8 The National Center for Health Statistics in a 14 state area in

1988, reported that 7.2% of black women had abortions at 16

gestational weeks or later compared to 3.9% of white women.

National Center for Health Statistics, 39 (12) Monthly Vital Statistics

-14-

women fearing possible fetal health problems, women whose parents

wanted them to have an abortion, or women whose pregnancy resulted

from rape or incest. Women were significantly less likely to have a

later abortion if they were age 30 or older, if they had no religious

affiliation, if they were having health problems, or if their husband or

partner wanted them to have an abortion. Torres and Forrest, Why

Do Women Have Abortions?, 20 Family Planning Perspectives 169

(1988) (hereafter called the AGI Survey).

ii. Moral Conflicts.

A substantial number of the women who obtain abortions at 16

gestational weeks or later would be opposed to abortion on moral

grounds. This would include religious women, black women and

women of low income. A 1981 nationwide poll commissioned by the

Connecticut Mutual Life Insurance Company asked, “Do you believe

abortion is morally wrong, or is it not a moral issue?” Overall, 67%

of females compared to 64% of males believed it was morally wrong.

Among those with the lowest religious commitment, only 43% thought

it was morally wrong compared to 75% with moderate religious

commitment or 85% among those with the highest religious

commitment. Blacks were more likely than whites to believe abortion

is morally wrong (73% v. 64%). Among those with incomes under

$12,000, 74% believed abortion was morally wrong compared to only —

56% among those with incomes above $25,000. The Connecticut

Mutual Life Report on American Values in the 80s: The Impact of

Belief, 92 (1981). Some women with moral objections to abortion

will still have an induced abortion but it will more likely be a late

abortion compared to an early abortion. These moral conflicts include

opposition of the woman to abortion and conflicted decisions. Burr

and Schulz, Delayed Abortion in an Area of Easy Accessibility, 244

JAMA 44 (1980).

iii. Attachment to the Unborn Child.

Report, Supplement, April 30, 1991, Table 10,11.

-15-

Women who have abortions in the second trimester are also

more likely to use the word “baby ” in describing what is in her womb

compared to women who have abortions in the first trimester, who are

more likely to use words such as “this pregnancy” or “this condition.”

Kaltreider, Emotional Patterns Related to Delay in Decision to Seek

Legal Abortion, 118 Calif. Med. 23 (1973). Another study found that

pregnant women at more than 16 weeks gestation were much more

likely to carry to term if they requested and were denied an abortion

compared to women who were 16 weeks gestation or less. Binkin and

Associates, Women Refused Second-Trimester Abortion: Correlates

of Pregnancy Outcome, 145 Am. J. Obstet. Gynecol. 279 (1983).

iv. Indecision and Ambivalence.

Various studies have found that women who obtain abortions

in the second trimester have significantly different behavior patterns

compared to women obtaining abortions in the first trimester. High

levels of indecision and ambivalence have been found in women

undergoing mid trimester abortions compared to women having first

trimester abortions. Osofsky and Associates, Psychosocial Aspects

of Abortion in the United States, 42 Mt. Sinai Medical Journal 456

(1975). Researchers at the University of California concluded that

“women who delay the decision to abort have a background of greater

psychopathology and have difficulty in decision making. They often

lack social supports and have difficulty with contraception.”

Kaltreider, Goldsmith and Margolis, The Impact of Mid Trimester

Abortions of Patients and Staff, 135 Am. J. Obstet. Gynecol. 235

(1979). Researchers at the Yale University School of Medicine found

that those who delayed seeking abortion until the second trimester

frequently kept news of the pregnancy from partner and parents, and

did not obtain financial help or refused it when offered. They also

found that those who waited until the second trimester were often

ambivalent about seeking the abortion and, to a lesser degree, were

unwilling to accept the possibility of pregnancy. Bracken and Kasl,

Delay in Seeking Induced Abortion: A Review and Theoretical

Analysis, 121 Am. J. Obstet. Gynecol. 1008 (1975).

-16-

v. immaturity.

Psychological immaturity was identified as one of the

important factors resulting in delayed abortion in a Washington, D.C.

study of 1066 women using multiple regression analysis. Burr and

Schulz, (1980). The 1987 Alan Guttmacher Institute survey also

found that women under the age of 18 are significantly more likely to

obtain abortions at 16 gestational weeks or later compared to women

who obtained abortions in the first trimester.’

vi. Biological Factors.

A history of irregular periods was found to be the strongest

single predictor for women seeking a late abortion in a multiple

regression study of Washington, D.C. women, although much of the

variation in gestational age was not explained by the analysis.'® Not

knowing soon enough the gestational age of their pregnancy has also

been found to be an important factor among women obtaining

abortions at 16 weeks gestation or more."

vii. Secrecy and Isolation.

According to a 1987 Alan Guttmacher Institute survey, almost

two-thirds (63%) of U.S. women who have abortions as teenagers at

16 weeks gestation or more (and one-third of the overall sample)

attributed the delay to being afraid to tell their partner or parent that

they were pregnant.’? Another study of post-abortion women, where

women had frequently had second trimester abortions at a young age,

9 Torres and Forrest (1988)

10 Burr and Schulz (1980)

1 Torres and Forrest (1988,

12 Torres and Forrest (1988)

ey gy —_

fF

reported that a great portion of the women did not admit pregnancy

until a pregnancy test could no longer be avoided without also

jeopardizing their chances to obtain an abortion. Abortion was

utilized as a strategy for coping with the pregnancy without ever fully

admitting that the pregnancy existed. Speckhard, Psycho-Social

Stress Following Abortion, 97-98 (1987).

viii. Low Self Esteem and Identity Conflicts.

Poor ego strength and low self-esteem were found among

women undergoing second trimester abortions at a Planned

Parenthood of San Francisco facility.'? Another study of New York

City women found that abortion at later gestational ages was

significantly associated with a greater disturbance of the basic sense

of self due to gender/sexual conflict and lower levels of internalized

striving or ambition. Cancelmo and Associates, Psychodynamic

Aspects of Delayed Abortion Decisions, 65 Br. J. Medical

Psychology 333 ( 1992).

ix. Lack of Resources and an Inability to

Receive or Accept Assistance.

The Alan Guttmacher 1987 survey of women who obtained

abortions at 16 weeks gestation or later found that unemployed

women and women receiving Medicaid were more likely to have later

abortions compared to women who had first trimester abortions."

Researchers at the Yale University School of Medicine found that it

was characteristic of women who delay abortions not to obtain

financial help or to refuse it when offered.’ CKaltreider and

Colleagues found that women who obtained second trimester

13 Kaltreider (1973)

14 Torres and Forrest (1988)

1s Bracken and Kasi (1975)

-18-

abortions often lacked social supports and spoke more often of

assessing the resources available to help them keep a child compared

to women with first trimester abortions.'®

x. Non-Use of Contraceptives.

Researchers have found that women who obtain second

trimester abortions do not use contraceptives or use contraceptives to

a lesser degree compared to women obtaining first trimester abortions.

Researchers at the Yale University School of Medicine concluded that

“available studies suggest that unprotected coitus correlates with

delay in seeking an abortion.”'’ The Washington, D.C. study which

used multiple regression analysis to determine what factors are related

to the gestational stage at which women seek an abortion found that

contraceptive use predisposed women to earlier abortions.'*

xi. Influence by Doctors or Genetic

Counselors.

Doctors and other professionals may encourage abortions if

there is a possibility that the baby would be born with a handicap, and

may reinforce the parent’s fear that they may not be equal to the task

if a handicapped child were born, and that a special needs child

would be too great a financial burden. Vought, Post-Abortion

Trauma, 61 (1991) (citing other authorities). Prenatal diagnosis can

be very stressful. Moral, religious or philosophical concerns may

predominate. Rice and Doherty, Reflections on Prenatal Diagnosis:

The Consumers Views, 8 Social Work in Health Care 47 (1982). If

there is a crisis, a minimal amount of effort by a counselor or doctor

may be able to exert a maximum amount of leverage on the stressed

16 Kaltreider (1973); Kaltreider, Goldsmith & Margolis (1979)

17 Bracken and Kas! (1975)

18 Burr and Schulz (1980)

|

-19-

individuals. Morley, Theory of Crisis Intervention, 21 Pastoral

Psychology 203 (1970).

A 1987 Alan Guttmacher Institute survey of U.S. women who

obtained abortions at 16 weeks gestation or more found that 2% did

so because a fetal problem was diagnosed late in pregnancy.'? There

is evidence that the incidence of partial birth abortions for reason of

fetal defects is much higher, at least for one doctor. In 1995, James

McMahon reported on a series of 1362 intact D & E abortions done

over a 13 year period of which approximately one-third were reported

to have been done on the basis of serious indication of fetal defect.

Haskel, Easterling & Lichtenberg, Surgical Abortion After the First

Trimester in A Clinicians Guide to Medical and Surgical Abortion,

Paul, Maureen, 135-137 (1999). Induced abortions for genetic

reasons have a high incidence of severe adverse psychological

reactions.”

19 Torres and Forrest (1988)

20 See e.g. Furlong and Black, Pregnancy Termination for

Genetic Indications: The Impact on Families, 10 Social Work in

Health Care 17 (1964) (even very young children may show reactions

from parents’ distress and maternal absence); Kolker and Burke,

Grieving the Wanted Child: Ramifications of Abortion Afier

Prenatal Diagnosis of Abnormality, 14 Health Care for Women Int’I.

513 (1993) (there is little understanding and societal support for those

who experience abortion because of fetal defect); Suslak, Scherer and

Rodriguez, A Support Group for Couples Who Have Terminated a

Pregnancy After Prenatal Diagnosis, 4 Journal of Genetic

Counseling 169 (1995) (severe reactions to termination of pregnancy

included loss of self-esteem, hindrance of socialization, guilt from

having killed their baby, difficulty in returning to church, grief

reactions. Couples referred to the loss of their “baby” rather than the

loss of their “fetus”); Rayburn and Laferla, Mid-Gestational Abortion

for Medical or Genetic Indications, 13 Clinics in Obstetrics and

Gynecology 71 (1986) (the psychological difference between elective

-20-

Ill. The State Has an Interest in the Moral Status of the

Unborn Child Because Neither Abortion

Professionals Using the Partial Birth Abortion

Method Nor Medical Societies Protect this Interest.

A. Moral Dilemmas of Abortion Facility Workers.

Although the woman does not witness the dismemberment of

the unborn child or see the unborn child stabbed in the back of its

head and the contents of its brains removed, the medical doctor sees

exactly what occurs because he or she is performing the act. For this

reason, some medical doctors will not perform such a procedure. In

the University of California, San Francisco study , one doctor who did

abortions by the intra-amnoitic injection of prostaglandin but would

not perform D & E’s said, “Killing a baby is not a way I want to think

about myself.” It was reported that two doctors who did all of the D

& E’s in the study supported each other and relied upon a strong sense

of social conscience’' founded upon the health and desires of the

and medically indicated abortions is extreme. Women going through

elective abortion will primarily feel relieved while in those for genetic

or maternal abnormality, a grief response is to be expected). Mothers

who have an abortion for a genetic abnormality are at higher risk of

requiring prolonged psychiatric hospitalization in the next 12 months);

Blumberg, Gofbus & Hanson, The Psychological Sequelae of

Abortion Performed for a Genetic Indication, 122 Am. J. Obstet.

Gynecol. 799 (1975) (a high incidence of depression and other severe

reactions was found among both men and women as well as a threat

to family integrity, where women had undergone abortions for a

prenatal detection of a genetic defect in the fetus.)

21 Whether or not induced abortion advances the social and

economic status of women is problematical. A study by researchers

at Yale University School of Medicine found that women with repeat

abortions were more likely to be divorced and more likely to be

welfare recipients compared to women with a single abortion.

-21-

woman. They felt technically competent but had strong emotional

reactions during or following the procedures and occasional

disquieting dreams. Kaltreider, Goldsmith and Margolis, The Impact

of Mid Trimester Abortion Techniques on Patients and Staff, 135

Am. J. Obstet. Gyneco. 1235 (1979). A small study examined the

emotional reactions of abortion facility staff to D & E abortions up to

23 weeks. Reactions to the fetus ranged from purposely not looking

at it, to shock, dismay, amazement, disgust, fear, and sadness.

Attitudes toward the doctor included sympathy, wonder at how he

could perform the D & E at all, and a desire to protect him from the

to handle the traumatic impact of the destructive part of the operation

and the procedure was viewed as destructive and violent. Many

symptoms, like sleep disturbances, effects on interpersonal

relationships, and moral anguish. Hern, What About Us? Staff

Reactions to D & E, 15 Advances in Planned Parenthood 3 (1980).

The partial birth abortion (or intact D & E) is similarly very

troublesome and distressing. It was graphically described by Brenda

Pratt Shafer, a nurse who worked for Martin Haskell in Dayton, Ohio

(in September, 1993) in testimony before the House Judiciary

Committee on March 21, 1996. She said, in relevant part:

Shepard and Bracken, Contraception and Repeat Abortion, \1

Journal of Social Science 289 (1979). Overall, 60% of U.S. women

who have an abortion will repeat abortion by age of 30. Henshaw and

Kost, Abortion Patients in 194-1995: Characteristics and

Contraceptive Use, 28 Family Planning Perspectives 140 (1996). A

long term study also found that women with an abortion history were

more likely to exhibit multiple problem behavior, have lower

occupational prestige, be similar in educational attainment and have

only slightly higher personal income compared to women with no

abortion history. Costa and Associates, Psychosocial Correlates and

Antecedents of Abortion: An Exploratory Study, 9 Population and

Environment 3 (1987).

-22-

The mother was 6 months pregnant, 26 I/2 weeks. A

doctor told her that her baby had Down Syndrome, and she

decided to have an abortion. She came in the first two days to

whole time. On the third day she came in to receive the partial

birth abortion (called D & X by Martin Haskell). Dr. Haskell

brought in ultrasound in and hooked it up, so that he could see

the baby. I could clearly see the baby’s heartbeat on the

ultrasound screen. Dr. Haskell went in with forceps and

grabbed the baby’s legs and pulled them down into the birth

canal. Then he delivered the baby’s body and arms-everything

but the head. The doctor kept the baby’s head just inside the

uterus. The baby’s little fingers were clasping and unclasping,

and his feet were kicking. Then the doctor stuck the scissors

through the back of his head, and the baby’s arms jerked out

in a flinch, a startle reaction, like a baby does when you throw

him up in the air and he thinks he might fall. The doctor

opened up the scissors, stuck a high-powered suction tube into

the opening, and sucked the baby’s brains out. Now the baby

went completely limp. I was really completely unprepared for

what I was seeing. | almost threw up as I watched the doctor

do these things. Dr. Haskell delivered the baby’s head. He cut

baby in a pan along with the placenta and the instruments he

used. I saw the baby move in the pan and | asked another

nurse and she said it was just “reflexes.”

The woman wanted to see her baby, so they cleaned the

baby up and put it in a blanket and handed the baby to her.

She cried the whole time. Looking down into the baby’s face,

she said, “Please forgive me. I am so sorry. I love you.” I

was crying, too. I couldn’t take it. That baby boy had the

most perfect angelic face you’ve ever seen. I was present in

the room for two more such procedures that day, but I think I

was really in shock. I tried to pretend that | was somewhere

else, to not think about what was happening. | just couldn’t

wait to get out of there. And after I left that day, I never went

-23-

back. These last two procedures involved healthy mothers

with healthy babies. I was very much affected by what I had

seen.

Brenda Pratt Shafer, R.N., Testimony before Subcommittee on the

Constitution, House Judiciary Committee, March 21, 1996, reprinted

in 14 Issues in Law and Medicine 99-100 (1998).

James McMahon, one of the doctors who utilized the partial

birth abortion procedure which he called intact D & E, expressed

moral reservations about the procedure. He was quoted in the press a:

saying,

I have two positions that may be internally inconsistent, and

that’s probably why I fight this all the time. I do have moral

compunctions. And if I see a case that’s later, like after 20

weeks where it frankly is a child to me. I really agonize over it

because the potential is so imminently there. I think, ‘Gee, it’s

too bad that this child couldn’t be adopted.’ On the other

hand, I have another position, which I think is superior in the

hierarchy of questions, and that is: ‘Who owns the child?’

It’s got to be the mother.

Gianelli, Shock-tactic Ads Target Late-term Abortion Procedure,

American Medical News, p. 21, July 5, 1993.

B. Medical Doctors Fail to Protect the Moral

Status of the Unborn Child in the Partial Birth

Abortion Context.

Medical doctors and other abortion facility personnel either

refuse to perform late stage abortions by quitting, or they may attempt

to seek out social support in order to permit themselves to do so, or

repress their emotions in some manner in order to involve themselves

in the procedure.

i. The Doctor as a Technician.

-24-

Despite his moral reservations, James McMahon appeared to

have concentrated on the technical aspects of intact D & E abortions.

In an interview in 1990 he was quoted as saying regarding abortion,

“That’s my specialty ... that’s my expertise. That’s my passion ...

Frankly, I don’t think I was any good at all until I had done 3000 or

4000.” Abbott, The Abortionist as Craftsman, 22 Human Life

Review 23 (1996). Adopting new technical approaches to solve

problems may increase confidence, and relieve stress. Hern, What

About Us? Staff Reactions to D & E, 15 Advances in Planned

Parenthood 3 (1980), but the doctor who does so is likely to become

no more than a technician.

If one concentrates their energies and passion to improving the

technique of abortion as in the case of James McMahon, becoming

technically proficient is done at the expense of human values. One of

the values lost is the respect for the dignity of human life in the womb.

The loss of important values is often overlooked because the implicit

and largely unchallenged argument scems to be that if the procedure

is carried out by a technological specialist (a physician) in accordance

with recognized medical practice, there is no need to be concerned

about the purpose of the operation. However, dominant themes of the

technological world are in conflict with the moral world. Hunt,

Technological Themes in the Abortion Debate in When Life and

Choice Collide, Ed David Mall, 255-258 (1994). French philosopher

and theologian, Jacques Ellul, has identified modern technique as a

form of idolatry noting that “Technique worships nothing (and)

respects nothing.” Ellul, The Technological Society, 142 (1964).

Thus, barbaric practices can enter a society and may go unchallenged.

ii, ©The Medical Profession Fails to Protect

the Moral Status of the Unborn Child in

the Context of Partial Birth Abortion.

The American College of Obstetricians and Gynecologists

(ACOG) guidelines on ethical decision-making states,

eee —_——

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In the care of the obstetric patient, the traditional physician-

patient relationship expands to include the fetus. The

physician retains an obligation to respect the autonomy of the

pregnant woman while promoting her medical well-being. In

addition, the physician must assume an obligation of

beneficence (promoting the well-being of others) toward a

second patient, the fetus. The weight that this obligation is

given in comparison with previously established obligations to

the woman is central to many ethical dilemmas in the practice

of obstetrics.

Ethical Decision-Making in Obstetrics and Gynecology, ACOG

Technical Bulletin No. 136, November, 1989. However, in the

situation where the woman undergoes an abortion, the obligation of

the physician toward the fetus breaks down as the autonomy of the

woman is considered paramount.

Therefore, neither the American Medical Association (AMA)

nor the American College of Oostewicians and Gynecologists

(ACOG) recognizes the fetus as a patient or recognizes the moral

status of the fetus or child within the contey.t of partial birth abortions

(intact D & E). There is no condemnation of nor limitation on

inhumane or cruel procedures which take place in intact D & E partial

birth abortions. In 1996, ACOG convened a special panel to review

the intact D & X procedure which resulted in an ACOG policy

statement which declared that the select panel “could identify no

circumstances under which this procedure would be the only option to

save the life or preserve the health of the woman” and that “an intact

D & X however, may be the best or most appropriate procedure in a

particular circumstance to save the life or preserve the health of a

woman, and only the doctor, in consultation with the patient, based

upon the woman’s particular circumstances can make this decision.”

ACOG Statement of Policy, approved by the executive board January

12, 1997. No specific examples of circumstances were given when an

intact D & X would be the most appropriate procedure.

Similarly, the American Medical Society has concluded that:

according to the scientific literature, there does not appear to

be any identified situation in which an intact D & X is the only

appropriate procedure to induce abortion, and ethical concerns

have been raised about intact D & X. The AMA recommends

that the procedure not be used unless alternative procedures

pose materially greater risk to the woman. The physician

must, however, retain the discretion to make that judgment,

acting within standards of good medical practice and in the

best interest of the patient.

AMA Policy: Women Physicians and Women’s Health Issues, “Late-

Term Pregnancy Termination Techniques” (H-5.982) 1998.

The state can regulate the practice of medicine in the context

of abortion. Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833 (1992) (upholding state statute requiring doctor

to offer woman materials on fetal development) or in the interest of

prohibiting immoral conduct. Planned Parenthood of Wisconsin v.

Doyle, 44 F. Supp. 2d 975 (W.D. Wis. 1999).

CONCLUSION

Daniel Callahan has observed that courts and legislatures are

increasingly forced to play the mediator for blocks of interests with

nothing in common and forced to do what in great part should be

done by ingrained cultural values: provide a framework of morals and

a common ethical core to govern humane societal relationships. He

states “contemporary individualism not only dissolves all culture - and

thus all limits to human behavior - but also mixed with radical

technology, sets the stage for unprecedented barbarism.” Callahan,

The Tyranny of Survival (1973). Partial birth abortion is barbaric

and the state of Nebraska has an interest in banning its practice on the

basis that it is immoral and that Nebraska recognizes the moral status

of the unborn child in this limited context.

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For all of the compelling reasons set forth above, the judgment

of the Court of Appeals should be reversed and the law permitted to

go into effect.

Respectfully Submitted,

John W. Whitehead Thomas W. Strahan

Steven H. Aden (Counsel of Record)

Maria E. Selig 3740 Edmund Blvd.

THE RUTHERFORD INSTITUTE Minneapolis, Minnesota

1445 East Rio Road 55406

Charlottesville, Virginia (612) 729-6765

22906

(804) 978-3888