Amicus Curiae Brief — Stenberg v. Carhart

tah -]

Supreme Court of the 4

DON STENBERG, Attorney General of the State of Nebraska,

GINA DUNNING, Director of Regulation and Licensure of the

Nebraska Department of Health and Human Services, and

CHARLES ANDREWS, M.D., Chief Medical Officer of the State

of Nebraska,

Petitioners,

v.

LEROY H. CARHART, M.D..,

Respondent.

On Writ oF CERTIORARI TO THE UNITED STATES

Court OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF AMICUS CURIAE OF THE

KNIGHTS OF COLUMBUS

IN SUPPORT OF PETITIONERS

Pat A. CIPOLLONE*

Supreme Advocate

Cari A. ANDERSON

Supreme Secretary

JosePu J. DeSANCTIs

Counsel

KNIGHTS OF COLUMBUS

Attorneys for Amicus Curiae

One Columbus Plaza

New Haven, CT 06510

* Counsel of Record (203) 772-2130

158150 @ Counse! Press LLC

(800) 274-3321 - (800) 369-6859

ie D

TABLE OF CONTENTS

‘

Table of Authorities

Interest of Amicus Curiae

Summary of Argument

Statement of the Case

There Is No Constitutional Right To Kill A

Child During Childbirth. ................

A. Roe and Casey Do Not Establish or

Support a Right to Terminate a Live

RE ae re Pree

Casey Limited, And Did Not Expand,

the “Right To Terminate Pregnancy”

Discovered in Roe, And Affirmed the

State’s Interest In Protecting Human

Even Under a Roe and Casey Analysis,

the Nebraska Act is Constitutional. .. .

Creation Of A New Right To Terminate

Childbirth Could Not Be Constrained And

Would Constitutionalize Infanticide. ......

Conclusion

12

TABLE OF AUTHORITIES

Page

Cases: :

Akron v. Akron Center for Reproductive Health, Inc.,

462 U.S. 416 (IDES). . cc ccccsocsuccctccectss 8

Carhart v. Stenberg, 192 F.3d 142 (8" Cir. 1999) ... 4,20

Doe v. Bolton, 410 U.S. 179 (1973) .........505- 16

Hope Clinic v. Ryan, 195 F.3d 857 (7 Cir. 1999) ...

0 oceecece eect ue bebe ee eee 11, 12,19

Ohio v. Akron Center for Reproductive Health,

497 U.S. S038 (IDI) on cccvcdscvctesvecvaces 2

Pierce v. Society of Sisters, 268 U.S. 510 (1925) .. 2

Planned Parenthood v. Danforth, 482 U.S. 52 (1976)

vocecvecvesccesaces ébuees Sn 6

Planned Parenthood of Southeastern Pennsylvania

v. Casey, 505 U.S. 833 (1992) ........-0-05- passim

Roe v. Wade, 410 U.S. 113 (1972) ............. passim

Rust v. Sullivan, 500 U.S. 173 (1991) ........... 2

Sierra Club v. Morton, 405 U.S. 727 (1972) ...... 16

Thornburgh v. American College of Obstetricians

and Gynecologists, 476 U.S. 747 (1986) ...... 8

iii

Authorities

Page

United States v. 12 200-ft Reels of Super 8mm Film,

413 U.S. 123, 93 S. Ct. 2665 (1973) .......... 13

Washington v. Glucksberg, 512 U.S. 702 (1997) .. 12, 13

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

490 (1989) ....... ed ebadedeuebsedceoses 2

Women's Medical Professional Corporation v.

Voinovich, 130 F.3d 187 (1997) ............. 11

Statute:

Texas Penal Code, Article 1195 ................ 7

United States Constitution:

Fourteenth Amendment ....... | wT TTTITTTTrTy 16

Other Authorities:

Black's Law Dictionary, 1179 (6th ed. 1990) ..... 7

James Bopp, Jr. and Curtis R. Cook, M.D., Partial

Birth Abortion: The Final Frontier of Abortion

Jurisprudence, 14 Issues L. & Med.3 ........ 18

David Cannon, Abortion And Infanticide: Is There

a Difference?, Policy Review, 1985 Spring ...... 15,17

iv

Authorities

Page

40 American Medical News, No. 25 (July 7, 1997)

scceccaccucies sc benedasnssentebuwtsenbases 11

William J. Mitchell, A Modest Proposal, 39 Catholic

LEER, FEU. DERG ccecérococcesveoscces 16

Peter Singer, Practical Ethics, 122-23 (Cambridge

SU DUNE, GHUEED. 6 occecdadaascodéeses 14, 15

Span, “A Professor’s Lively Ideas on Euthanasia,”

The Washington Post, Dec. 9, 1999 ........... 17

Naomi Wolf, “Our Bodies, Our Souls: Rethinking

Pro-Choice Rhetoric,” The New Republic, October

SE, CEU vc cctdcadandesesenddese sbnedsdees 17

NE mm a

.

l

INTEREST OF AMICUS CURIAE

The Knights of Columbus submits this brief amicus

curiae in support of the petitioners.'

The Knights of Columbus is a charitable Catholic family

fraternal organization of over 1.6 million members and their

families, totaling approximately six million people. Founded

in New Haven, Connecticut, in 1882 by Father Michael J.

McGivney. the Knights of Columbus has grown into an

international organization with nearly 12,000 local councils

in all 50 states, the District of Columbia, Puerto Rico, Guam,

the U.S. Virgin Islands, Canada, Mexico, the Philippines and

other countries. The Knights of Columbus is the largest lay

organization in the Catholic Church. The law before the Court

in this case is from Nebraska, where there are currently nearly

20,000 Knights of Columbus families.

Since its founding, the Knights of Columbus has been

dedicated to several purposes, including (1) rendering aid

and assistance to its sick, needy and disabled members and

their families; (2) promoting social and intellectual discourse

among its members and their families; (3) promoting and

conducting educational, charitable, religious, social welfare,

war relief and public relief work; and (4) maintaining a life

insurance program for the benefit of its members, their

beneficiaries and their families. Last year alone, the Knights

contributed more than $110 million to charitable causes and

provided roughly 55 million hours of volunteer service.

1. Letters of consent to the filing of this brief have been filed

with the Clerk of the Court. See Sup. Ct. R. 37. Counsel for amicus

curiae Knights of Columbus wrote this entire brief. No person or

entity other than amicus made any monetary contribution to the

preparation of this brief.

2

The Knights of Columbus has a long history of advocacy

in this Court in cases involving religious liberty, church-

state relations, the family, education, parental rights, and

other issues. For example, the Knights underwrote the

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

the landmark case in which this Court safeguarded the

fundamental right of parents to direct the education of their

children.

In addition, the Knights of Columbus has been a

longstanding and consistent advocate of Life before this

Court. We support the Right to Life of all human beings

from the moment of conception until natural death. To this

end, the Knights of Columbus has filed briefs in this Court

in virtually every major case dealing with the issue of

abortion, including Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833 (1992); Rust v. Sullivan,

500 U.S. 173 (1991); Ohio v. Akron Center for Reproductive

Health, 497 U.S. 502 (1990); and Webster v. Reproductive

Health Services, 492 U.S. 490 (1989). The Knights of

Columbus remains committed to the ultimate reversal of Roe

v. Wade.

Today, this Court is facing the issue of whether a state

may outlaw the infanticide known as “partial-birth abortion.”

Our history, our respect for the Constitution, and our

patriotism compel us once again to raise our voices in this

Court in an effort to vindicate the rights of free people

through the democratic process to protect the lives of children

and to outlaw partial-birth abortion.

———_— ——ee a

.

3

SUMMARY OF ARGUMENT

There is no constitutional right to kill a child during a

live birth. During a partial-birth abortion, the abortionist

delivers the baby alive into the birth canal, and then brutally

kills the child. Partial-birth abortion, then, is not the

“termination of pregnancy,” but is the killing of a human

child during an already-occurring live birth. The people of

Nebraska have properly, and constitutionally, outlawed this

barbaric practice.

Roe v. Wade, 410 U.S. 113 (1972), and Planned

Parenthood v. Casey, 505 U.S. 833 (1992), do not drive the

result here because those cases did not establish and do not

support the creation of a right to kill an infant during birth.

Rather, Roe and Casey created the right to terminate

“pregnancy,” not “childbirth.” Casey also vindicated the

state’s interest in protecting the lives of unborn children

throughout pregnancy; in regulating pre-viability abortions

so long as such laws do not create an “undue burden;” and

in proscribing all post-viability abortions except when

necessary to preserve the life or health of the mother. But

neither Roe nor Casey can be read as creating a right to

terminate a live birth, and therefore are not applicable to

Nebraska’s Partial-Birth Abortion Act.

The Court should not create a nontextual constitutional

right to terminate childbirth by expanding the right created

in Roe and Casey to give it effect during birth as well as

pregnancy. By doing so, the Court would be establishing a

new constitutional right that would have no defensible legal

or logical boundaries. Indeed, this would be tantamount to

creating a right to infanticide. The crime of infanticide should

not be enshrined as a fundamental right. But the reasoning

4

employed in striking down Nebraska’s partial-birth abortion

law would immediately or ultimately do just that.

Because there is no right to terminate a live birth, this

Court should reverse the Eighth Circuit’s holding in Carhart

v. Stenberg, 192 F.3d 142 (8* Cir. 1999), and give effect to

Nebraska’s law banning partial-birth abortion.

STATEMENT OF THE CASE

The Knights of Columbus adopts the Statement of the

Case set forth in the brief of Petitioners, Don Stenberg,

Attorney General of the State of Nebraska, et al. However,

the basic facts concerning the partial-birth abortion procedure

are undisputed. In fact, the grim business of partial-birth

abortion is almost defiantly described in all of its frightening

detail in the brief submitted on behalf of respondent Carhart:

“In such a procedure, he draws the fetus out of the uterus up

to the head and then-compresses the fetal head either by

crushing it or by removing the cranial contents using

suction.” (See Respondent’s Brief in Opposition to the Writ

of Certiorari at 4.) Respondent unabashedly admits that he

“deliberately and intentionally deliver[s] into the vagina a

living unborn child, or substantial portion thereof,” and does

so “ ‘for the purpose of performing a procedure’ he

‘knows will kill the unborn child and does kill the unborn

child.’ ” Jd.

One experienced registered nurse describes the

procedure, absent euphemisms, as follows:

I stood at the doctor’s side and watched him

perform a partial-birth abortion on a woman who

was six months pregnant. The baby’s heartbeat

5

was Clearly visible on the ultrasound screen. The

doctor delivered the baby’s body and arms,

everything but his little head. The baby’s body

was moving. His little fingers were clasping

together. He was kicking his feet. The doctor took

a pair of scissors and inserted them into the back

of the baby’s head, and the baby’s arms jerked

out in a flinch, a startle reaction, like a baby does

when he thinks that he might fall. Then the doctor

opened the scissors up. Then he stuck the high-

powered suction tube into the hole and sucked

the baby’s brains out. Now the baby was

completely limp. Next [the doctor] delivered the

baby’s head. He cut the umbilical cord and

delivered the placenta. He threw the baby in a pan,

along with the placenta and the instruments he

had just used. I saw the baby move in the pan. . . .

I never went back to the clinic. But I am still

haunted by the face of that little boy. It was the

most perfect, angelic face I have ever seen.”

Nebraska, along with numerous other states, has outlawed

partial-birth abortion.

2. Statement of Brenda Pratt Shafer before the Subcommittee

on the Constitution, Committee on the Judiciary, U.S. House of

Representatives, March 21, 1996, concerning a partial-birth abortion

she witnessed after being assigned to an abortion clinic by her

nursing agency.

6

ARGUMENT

I. THERE IS NO CONSTITUTIONAL RIGHT TO

KILL A CHILD DURING CHILDBIRTH.

There is no constitutional right to kill a child in the

process of birth, whether or not that child has emerged fully

from the birth canal. Because no right to terminate birth

exists, Nebraska’s clearly drafted statute proscribing a

procedure that results in the killing of a child in the process

of being born alive is fully consistent with the U.S.

Constitution. As set forth below, neither Roe nor Casey can

be said to include, or provide the basis for creating, a “right

to terminate birth.” Those cases concerned only the right to

“terminate pregnancy.” Indeed, Casey limited and sought

to define the boundaries of the right created in Roe, and

cannot provide the basis for an unprecedented metamorphosis

of that “right” into a license to kill children during childbirth.

3. See, e.g., Roe v. Wade, 410 U.S. 113, 153 (“This right to

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

whether or not to terminate pregnancy.”); Planned Parenthood v.

Danforth, 482 U.S. 52, 60 (1976) (Roe v. Wade established a

constitutional right to “terminate pregnancy.”); Planned Parenthood

v. Casey, 505 U.S. 833 (“[I]}t is a Constitutional liberty of the woman

to have some freedom to terminate her pregnancy.”; and “The

woman’s right to terminate her pregnancy before viability is the

most central principle of Roe v. Wade.”). Further, Roe and Casey

both affirm that, after viability, “the State’s interest in fetal life is

constitutionally adequate to justify a legislative ban on

nontherapeutic abortions.” Casey, 505 U.S. at 835-36; see also Roe

v. Wade, 410 U.S. 113, 163-64 (“State regulation protective of fetal

life after viability thus has both logical and biological justifications.

If the state is interested in protecting fetal life after viability, it may

go so far as to proscribe abortions during that period, except when

it is necessary to preserve the life or health of the mother.”).

7

A. Roe and Casey Do Not Establish or Support a

Right to Terminate a Live Birth.

Here, respondent seeks a constitutional right to terminate

a live birth. But he can find no solace in Roe or Casey.

Whatever those cases mean, nothing in them suggests that

the Constitution contains a nontextual right to terminate birth

once it has begun. Such a new “right” was never

contemplated by Roe or Casey and, in fact, would directly

contradict the language and reasoning in those cases. By their

express terms, Roe, Casey, and every other abortion case

decided by this Court concerned the “right to terminate

pregnancy.” “Pregnancy” is “the condition resulting from the

fertilized ovum. The existing of the condition beginning at

the moment of conception and terminating with the delivery

of the child.”* In stark contrast, “partial-birth abortion”

involves inducing childbirth and then killing the living child

during the birth process, in the birth canal. Logic establishes

what medicine confirms: once birth begins, pregnancy is

over.

That the Roe Court never contemplated extending a

woman’s “right to terminate pregnancy” out of the womb

and into the birth canal is clearly evident in the opinion itself.

The Roe majority noted that the Texas law criminalizing the

killing of a child in the birth canal during the process of

childbirth was not even being challenged in the case.

Specifically, the Court recognized that Article 1195 of the

Texas Penal Code provided and still provides that

“Whosoever shall during parturition of the mother destroy

the vitality or life in a child in a state of being born and

before actual birth, which child would otherwise have been

4. Black's Law Dictionary, 1179 (6th ed. 1990).

born alive, shall be confined to the penitentiary for life or for

not less than five years.” Roe, 410 U.S. 113, 118, n.1 (emphasis

-added). Surely the Roe Court could not have let stand a law

punishing with life imprisonment an act which the Court thought

to be a fundamental right protected by the Constitution. Nor

_ would the Court have noted-the existence of the law without

any adverse comment if it felt the law contravened the newly-

born privacy right discovered in Roe itself.

B. Casey Limited, And Did Not Expand, the “Right To

Terminate Pregnancy” Discovered in Roe, And

Affirmed the State’s Interest In Protecting Human Life.

In Casey, this Court, if anything, sought to place limits on

— and not expand — Roe’s reasoning. In fact, Casey expressly

overruled such post-Roe cases as Thornburgh’ and Akron

that read Roe too broadly, thereby unreasonably limiting a

State’s ability to protect unborn children through legitimate laws

restricting abortion.’ Casey further held that the state has a

“profound interest” in protecting the lives of unborn children

“throughout pregnancy.” Casey, 505 U.S. at 878.°

5. Thornburgh v. American College of Obstetricians and

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

6. Akror v. Akron Center for Reproductive Health, Inc., 462 U.S.

416 (1983).

7. See Casey 505 U.S. at 870 (“[W]e must overrule those parts of

Thornburgh and Akron I which, in our view, are inconsistent with Roe’s

statement that the State has a legitimate interest in promoting the life or

potential life of the unborn.”).

8. Casey, 505 U.S. at 871 (“Yet it must be remembered that Roe v.

Wade speaks with clarity in establishing not only the woman’s liberty but

also the State’s ‘important and legitimate interest in potential life.’ . . .

That portion of the decision in Roe has been given too little acknowledgment

and implementation by the Court in its subsequent cases.”).

9

Rather than expand Roe, Casey redefined its holding to

ensure that the State’s interest in protecting human life was

respected. Casey rejected Roe’s rigid trimester system

precisely because of this “basic flaw in the trimester

framework: even in Roe’s terms, in practice it undervalues

the State’s interest in the potential life within the woman.”

Casey, 505 U.S. at 875. Ultimately, Casey held that, prior to

viability, abortion may be regulated as long as state laws do

not pose an “undue burden” to a woman seeking to terminate

pregnancy.° After viability, the “undue burden” standard no

longer applies, and a state may proscribe all abortion, except

where it is necessary for the preservation of the life or health

of the mother. Casey, 505 U.S. at 878. The Court stated in

Casey that

viability, as we noted in Roe, is the time at which

there is a realistic possibility of maintaining and

nourishing a life outside the womb, so that

independent existence of the second life can in

reason and all fairness be the object of state

protection that now overrides the rights of the

woman.

Casey, 505 U.S. at 870.

Therefore, even the right “to terminate pregnancy”

announced in Roe and redefined in Casey is not absolute,

and is subject to significant restriction by the people acting

9. Further, the Court noted that “[t]he very notion that the state

has a substantial interest in potential life leads to the conclusion

that not all regulations must be deemed unwarranted. Not all burdens

on the right to decide whether to terminate a pregnancy will be

undue.” Casey, 505 U.S. at 876.

10

through their legislatures to enact laws protecting the lives

of unborn children.'® Roe and Casey, then, directly contradict

any attempt to create a new privacy right to “terminate

childbirth” by reference to or reliance on the “right to

terminate pregnancy” created in Roe.

. C. Even Under a Roe and Casey Analysis, the

Nebraska Act is Constitutional.

As stated, Roe and Casey do not apply here by their own

terms. But the Nebraska Partial-Birth Abortion Act, properly

read, is constitutional even under a Roe-Casey analysis. The

law plainly does not contravene either the “undue burden”

test, which applies only to pre-viable fetuses,'' or Casey’s post-

viability “health” exception.

Central to this legal conclusion is the fact,

accepted by the American Medical Association,

that “[partial-birth abortion] is not the best or

safest option in any articulable category of

10. See, e.g., Casey, 505 U.S. at 887 (“Even the broadest

reading of Roe, however, has not suggested that there is a

constitutional right to abortion on demand.”); Roe, 410 U.S. 113,

153 (“[A]ppellant and some amici argue that the woman’s right is

absolute and that she is entitled to terminate her pregnancy at

whatever time, in whatever way, and for whatever reason she alone

chooses. With this we do not agree.”).

11. Neither should any expansive reading of the “undue

burden” test of Casey be accepted to strike down Nebraska’s law.

Under the “undue burden” test, states have significant room to

regulate abortions, and “[t}he fact that a law which serves a valid

purpose .. . has the incidental effect of making it more difficult or

more expensive to procure an abortion cannot be enough to invalidate

- it.” Casey, 505 U.S. at 874.

11

situations.” The AMA’s Policy H-5.982 concludes,

among other things, that “there does not appear to

be any identified situation in which [partial-birth

abortion] is the only appropriate procedure.”

Hope Clinic v. Ryan, 195 F.3d 857, 872 (7® Cir. 1999). The

AMA Board of Trustees also stated, with the endorsement of

the entire AMA House of Delegates, that partial-birth abortion

“is a procedure which is never the only appropriate procedure

and has no history in peer reviewed medical literature or in

accepted medical practice development.” Women’s Medical

Professional Corporation v. Voinovich, 130 F.3d 187, 214

(1997) (Boggs, J., dissenting), citing 40 American Medical

News, No. 25 (July 7, 1997).!?

A contrary interpretation of the Roe-Casey “health”

exception would swallow the rule. The problem, as everyone

knows, arises over the meaning of the word “health.” Can it

mean that after viability a state can proscribe abortions except

for those that an abortionist is willing to deem “medically

necessary?’ Some have argued that every abortion is “medically

necessary,” because the woman seeking it can claim to be

harmed in some way, at least emotionally or psychologically,

if she is denied.

Yet if “health” can mean anything, then Casey means

nothing. “A constitutionally based health exception for every

procedure, coupled with a prohibition against review of

physicians’ beliefs about which procedures are safest, would

12. See also American Medical Association letter to

U.S. Senator Rick Santorum, May 19, 1997, supporting the federal

Partial-Birth Abortion Ban Act of 1997 (“Thank you for the

opportunity to work with you towards restricting a procedure we all

agree is not good medicine.”).

12

amount to a rule that anything goes.” Hope Clinic v. Ryan,

F.3d at 874. But this would mean that there is no right as

vigorous as a nontextual one, expanding as needed and

constituting only a “verbal shell game” used to “conceal raw

judicial policy choices concerning what is ‘appropriate’ abortion

legislation.” Casey, 505 U.S. at 833 (Scalia, J., dissenting).

Il. CREATION OF A NEW RIGHT TO TERMINATE

CHILDBIRTH COULD NOT BE CONSTRAINED AND

WOULD CONSTITUTIONALIZE INFANTICIDE.

This Court has repeatedly reaffirmed that states have an

“unqualified interest in the preservation of human life.”

See Washington v. Glucksberg, 512 U.S. 702, 728 (1997).

In Glucksberg the Court refused to recognize a privacy right to

commit suicide with the help of a doctor, and also held that the

“viability” of life has no bearing on the state’s interest in

protecting it. Jd. at 728. The Constitution simply does not create

an unenumerated right to terminate non-viable human life.

Proponents of a constitutional right to assisted suicide had

argued that a state’s interest in preserving life extends only to

“those who can still contribute to society and enjoy life.”

Id. at 729. The Court rejected this disturbing reasoning, and

vindicated the right of the citizens to enact a law that “insists

that all persons’ lives, from beginning to end, regardless of

physical or mental condition, are under the full protection of

the law.” Jd. at 729."

13. Glucksberg also recognized two other valid state interests that

are directly implicated here: (1) the “interest in protecting vulnerable

groups;” and (2) the interest in preventing acts that “undermine the trust

that is essential to the doctor-patient relationship by blurring the time-

honored line between healing and harming.” Glucksberg, 521 U.S. at 731.

13

Glucksberg also forcefully made the point that there

could be no constitutional right to physician assisted suicide

precisely because such a right could not be contained. The

Court held that a constitutional purpose for outlawing

physician assisted suicide was that “the State may fear that

permitting assisted suicide will start it down the path to

voluntary and perhaps even involuntary euthanasia.”

Glucksberg at 732. States, therefore, have a legitimate

interest in preventing the slippery slope into euthanasia by

recognizing that physician assisted suicide can swiftly

become physician assisted homicide. Put another way, one

reason a new constitutional right to suicide could not be

recognized was precisely because such a discovered, non-

textual right would have no obvious, defensible limits. /d.

at 733 (“Thus, it turns out that what is couched as a limited

right to ‘physician assisted suicide’ is likely, in effect, a much

broader license, which could prove extremely difficult to

police and constrain.”).'* This holding applies here a fortiori.

If the Court concludes in this case, explicitly or

implicitly, that the Constitution creates a right to kill a living

child during birth, there will be no way to define or control

that so-called right, because there is no way to distinguish

that act from infanticide. In fact, the reasoning used to

establish such a right would support legal infanticide even

after birth. This certainly cannot be said to have been

intended by Roe and Casey. But this is precisely what will

result. See Glucksberg, 521 U.S. 702, 735, quoting, United

States v. 12 200-ft Reels of Super 8mm Film, 413 U.S. 123,

127, 93 S. Ct. 2665, 2668 (1973) (“Each step, when taken,

14. “The case for the slippery slope is fairly made out here . . .

because there is a plausible case that the right claimed would not be

readily containable. .. .” Glucksberg, 521 U.S. at 785 (Souter, J.,

concurring).

14

appears a reasonable step in relation to that which preceded

it, although the aggregate or end result is one that would

never have been seriously considered in the first instance.”).

While “[l]}iberty must not be extinguished for want of a

line that is clear,” Casey, 505 U.S. at 869, neither must

innocent human life. Here, the child has been removed from

the womb alive, and it is literally only a few inches from

being out of the birth canal entirely. How can it be said that

the Constitution forbids the citizens of a state from enacting

laws which prohibit the killing of this child? Today, the Court

must draw the line, at the very least, at the beginning of

childbirth. That is a province where Roe and Casey must not

have any effect. There is simply no right to remove a child

alive, or begin removing a child alive, and then kill her.

If the Court has any doubt that creating this new right

would be tantamount to constitutionalizing infanticide, then

it need only survey some of the most recent literature. For

example:

* Princeton University Professor Peter Singer argues

explicitly that birth is no barrier to killing infants.

According to Dr. Singer, “[I]f the fetus does not have

the same claim to life as a person, it appears that

the newborn baby does not either, and the life of the

newborn baby is of less value than the life of a pig,

a dog, or a chimpanzee.” Peter Singer, Practical

Ethics, 122-23 (Cambridge University Press, 1979).

Singer concludes that there should be some period

after live birth for parents to decide whether to kill

their infant children.

15

* Singer warns that “in thinking about [infanticide]

we should put aside feelings based on the small,

helpless and — sometimes — cute appearance of

human infants. . . . Nor can the helplessness or

innocence of the infant homo sapiens be a ground

for preferring it to the equally helpless and innocent

fetal homo sapiens, or, for that matter, to laboratory

rats who are ‘innocent’ in exactly the same sense as

the human infant.” /d. at 123-24.

* Singer concludes: “[I]f we can put aside these

emotionally moving but strictly irrelevant aspects

of the killing of a baby we can see that grounds for

not killing persons do not apply to newborn infants.”

Id. at 124.

And Singer is by no means alone:

* Nobel laureates James Watson and Francis Crick,

the discoverers of the structure of DNA, have

supported a general right to infanticide. Watson has

stated that children should not be “declared alive

until three days after birth” so that parents may

choose to kill their newborn child. See David

Cannon, Abortion And Infanticide: Is There a

Difference?, Policy Review, 1985 Spring, 12 (listing

numerous examples of advocates of a right to

infanticide). For his part, Crick has argued that “no

newborn infant should be declared human until it has

passed tests regarding its genetic endowment and .. .

if it fails these tests, it forfeits the right to life.” Jd.

16

Examples are plentiful, but the point is made: Many prominent

doctors, lawyers, philosophers, and so-called “ethicists” are

openly arguing for a right to kill children.

Those who argue for a right to infanticide take two basic

approaches, both of which are founded on the concepts of

“personhood” or “viability,” which are discussed in Roe and

Casey.'* Proponents of infanticide claim that because the Roe

Court held that the unborn child is not a legal “person”

worthy of protection under the Fourteenth Amendment, and

because a born child does not differ in any meaningful way

15. In Roe, the Court decided that unborn children are not

“persons” worthy of protection under our laws. Roe, 410 U.S. 113,

158 (“[T]}he word ‘person,’ as used in the Fourteenth Amendment,

does not include the unborn.”). And the Court recognized that the

entire case hinged on this issue: “If this suggestion of personhood

is established, the appellant’s case, of course, collapses, for the fetus’

right to life would be guaranteed specifically by the Amendment.”

Id. at 156-57. But the Court also held: “We need not resolve the

difficult question of when life begins.” /d. at 159. By this reasoning,

the Court rested Roe’s foundation on a flawed distinction between

human life and legal persons. The current debate over infanticide

is, at least in part, the fruit of this distinction. The Court itself noted

that unborn children had any number of legal rights, including in

tort, property, criminal law, inheritance and other areas. They still

do. So, it seems, one can be a plaintiff without being a person. Some

legal scholars have noted ironically that one member of the Roe

Court, shortly before Roe, wrote: “The ordinary corporation is a

‘person’ for purposes of the adjudicatory processes. . . . So it should

be as respects valleys, alpine meadows, rivers, lakes, estuaries .. .

swampland, or even air. . . .” Sierra Club v. Morton, 405 U.S. 727,

742-43, 749 (1972) (Douglas J., dissenting), as quoted in William

J. Mitchell, A Modest Proposal, 39 Catholic Lawyer, Nos. 2-3, 233,

n.18. Justice Douglas soon after voted to reject “the unborn child’s

rights as an entity or person.” Jd., citing Doe v. Bolton, 410 U.S.

179, 203 (1973) (Douglas J., concurring).

17

from an unborn child except for its physical location, born

children are not legal “persons” either. Nearly all of these

commentators admit that the fetus is a “human being,” but argue

that a child’s status as a human being is not enough to vest that

child, born or unborn, with the right to life. That is only available

to “persons,” narrowly and subjectively defined.

_ Professor Singer puts it this way:

The pro-life groups were right about one thing: the

location of the body inside or outside the womb

cannot make such a moral difference. We cannot

coherently hold that it is all right to kill a fetus a

week before birth, but as soon as the baby is born

everything must be done to keep it alive. The

solution, however, is not to accept the pro-life view

that the fetus is a human being with the same moral

Status as yours or mine. The solution is the very

opposite: to abandon the idea that all human life is

of equal worth.'*

By and large, then, proponents of the right to kill both born and

unborn children do not deny the humanity of these children,'’

but cleave a distinction between “human beings” and “persons.”

16. David Cannon, Abortion and Infanticide, Is There A

Difference?, Policy Review, 1985 Spring, quoting Peter Singer. It should

be noted with interest that, although Professor Singer believes certain

children can and should be killed, he has demonstrated against the

mistreatment of chickens. See Span, “A Professor’s Lively Ideas on

Euthanasia,” The Washington Post, Dec. 9, 1999, C1.

17. Feminist author Naomi Wolf discussed her response to a

question concerning her own unborn child as follows: “Had I not been

so nauseated and cranky . . . I might not have told what is the truth for

me: “Of course it’s a baby.’ ” See Naomi Wolf, “Our Bodies, Our Souls:

Rethinking Pro-Choice Rhetoric,” The New Republic, October 16, 1995.

18

Under this bizarre logic, only a “person” has a right to life,

but human beings who have not achieved this exalted and

subjectively defined status may be killed.

The unborn child and now, the born infant, are by this

reasoning relegated to the unprecedented status of human beings

without basic human rights, the most basic of which is, of course,

the right to life. Under this argument, human life has no intrinsic

value, and we have no objective reason to protect it. If the parents

want the child, then she is a “person” and they implicitly

grant her “personhood,” one presumes, by failing to kill her.

If the parents decide they do not want the child, then they

may determine subjectively that she is not a “person,” has no

rights and, although human, may be killed.

This philosophy was chillingly described in the July 5,

1993 edition of American Medical News by the late Dr.

James McMahon, who performed thousands of partial-b.rth

abortions: “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 this child? It’s got to be

the mother.” James Bopp, Jr. and Curtis R. Cook, wi.D.,

Partial Birth Abortion: The Final Frontier of Abortion

Jurisprudence, 14 Issues L. & Med. 3. This subjective

determination of the “personhood” of human beings serves

as a primary basis to argue for a right to infanticide.

These beliefs — which would have given Herod pause

— are now being encouraged in the academy. If the Court

holds that the Constitution grants the right to kill children

during birth, outside the uterus, then on what basis will

19

infanticide be opposed? Ironically, Judge Posner’s dissent

in Hope Clinic v. Ryan, 195 F.3d 857 (1999), provides some

support for this point. Said Judge Posner: “From the standpoint

of the fetus, and, I should think, of any rational person, it makes

no difference whether, when the skull is crushed, the fetus is

entirely within the uterus or its feet are outside the uterus. . . .

[T]here is no meaningful difference between the forbidden and

the privileged practice.” Jd. at 879. He concludes simply that

“{c]ircumstances conspired, as it were, to produce a set of laws

that can fairly be described as irrational.” Jd. at 880.

Bui this proves too much. If the location of the child cannot

logically affect its status or its rights, if the child may be killed

either in the womb during pregnancy or in the birth canal during

birth, then what prevents the same child from being killed once

it is outside the birth canal? Judge Posner declares, ipse dixit:

“Line drawing is inescapable but the line between feticide and

infanticide is birth. Once the baby emerges from the mother’s

body, no possible concern for the mother’s life or health justifies

killing the baby.” /d. at 882. But why? Such a conclusion does

not follow from Judge Posner’s reasoning. If location of the

child during this procedure is irrelevant, and making any

distinction based on physical location is “irrational,” then why

does birth necessarily cut off any supposed parental rights to

kill the very same child?

What, for that matter, is meant by the term “birth” in this

analysis? When does the child officially qualify as worthy of

protection from being killed? When the head emerges from the

birth canal? When the torso emerges? When the entire body

emerges? When the umbilical cord is cut? Can the child be

killed if any part of her body, however small, is still remaining

in the birth canal? For that matter, is birth a reversible condition?

Can a child who slips from the birth canal be put back in and

20

killed? Or can a doctor actively prevent “birth,” however

defined, and hold the child in the birth canal long enough to

kill her?

These questions are not academic. They must be considered

and answered in this case. And the answers are critical. The

most important question is this: If unborn children are not

distinguishable from born infants based on their intrinsic

characteristics, and if distinctions based on physical location

are irrational, then why isn’t greater and not /ess legal

protection for unborn children warranted, or at least for

children in the process of being born alive? More to the point,

why would the Constitution prevent the people from deciding

this issue for themselves?

This Court held in Casey that “[c]onsistent with other

constitutional norms, legislatures may draw lines which

appear arbitrary without the necessity of offering a

justification. But courts may not. We must justify the lines

we draw.” Casey, 505 U.S. at 870. The Court should not

recognize a constitutional right to kill a child during birth,

because such a right cannot be logically distinguished from

constitutionalized infanticide. The right created in Roe to

“terminate pregnancy” must by its very terms end when birth

begins. Extending this “right” into the birth process would

effectively create a new nontextual right to terminate

childbirth. Just as Roe and Casey would not be confined to

pregnancy, neither could such a new right be limited to the

birth. process. The reasoning used to label as arbitrary any

line confining Roe to the womb would be precisely the same

logic used to argue that confining Carhart only to the birth

canal is likewise arbitrary. The Court should draw a line in

this case confining Roe and Casey to their established limits,

protecting against infanticide, and preserving the rights of

citizens to enact laws banning partial-birth abortion.

21

The Court must establish in this case that the monstrous

arguments now being raised in favor of the killing of infants

will never have legal effect. These arguments offend our

Constitution, and the Court should clearly reject them. The

Constitution must not be turned into a death warrant for

millions of helpless, innocent children.

While some refer to the victims of partial-birth abortion in

this country as the “products of conception,” we know they are

Americans. Can it be that under our laws a matter of inches

separates a fundamental constitutional right from a capital

crime? Of course not.

CONCLUSION

There is no constitutional right to terminate live childbirth.

The Court should reverse the Eighth Circuit’s decision in this

case. Nebraska’s Partial-Birth Abortion Act is constitutional.

Respectfully submitted,

Pat A. CIPOLLONE*

Supreme Advocate

CarL A. ANDERSON

Supreme Secretary

JosePH J. DESANCTIS

Counsel

KNIGHTS OF COLUMBUS

Attorneys for Amicus Curiae

One Columbus Plaza

New Haven, CT 06510

(203) 772-2130

* Counsel of Record