# Amicus Curiae Brief — Stenberg v. Carhart

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0347%3A20

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 914

## Text

: Supreme Court, U.S.

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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 —_——

-25-

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0347%3A20. Public record. Not legal advice.