Amicus Curiae Brief — Ayotte v. Planned Parenthood

In The :

Supreme Court of hast Unites States —

KELLY AYOTTE, ATTORNEY GENERAL

OF NEW HAMPSHIRE,

IN HER OFFICIAL CAPACITY,

Petitioner,

v.

PLANNED PARENTHOOD OF NORTHERN NEW

ENGLAND, CONCORD FEMINIST HEALTH CENTER,

FEMINIST HEALTH CENTER OF PORTSMOUTH,

AND WAYNE GOLDNER, MD.,

Respondents.

¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The First Circuit

¢

BRIEF OF UNIVERSITY FACULTY FOR LIFE AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

°

RICHARD G. WILKINS

Professor of Law and

Managing Director

THE WORLD FAMILY POLICY CENTER

513 JRCB

Brigham Young University

Provo, Utah 84602

Telephone: (801) 422-2669

Fax: (801) 422-0391

E-Mail: wilkinsr@lawgate.byu.edu

Counsel for Amicus Curiae

August 8, 2005

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

I. The unique and well established policies of the

United States

ii

TABLE OF CONTENTS - Continued

Page

B. Both the United Nations and the Euro-

pean Union have declined to articulate a

position on the issue ...............cccssesseeeeeeeeees 15

III. Under the standards established by the

abortion laws of individual nat.ons, respon-

dents have failed to suffer any injury to their

i cccsenceceteinnintenternnmnnnnmmennennenen 18

A. Foreign law supports the established right

of parents to advise their children regard-

ing an abortion decision................::seeeeeeeees 18

B. Both the United Nations and the Euro-

pean Union have declined to articulate a

EET Gs GD SEBEED cccccvcveccccccervvsccecsevconevece 19

SESE a 23

eee — -<

TABLE OF AUTHORITIES

Page

CASES

Bellotti v. Baird, 443 U.S. 622 (1979) ...........cccccceccceeeeeeeeees 5

Ginsberg v. New York, 390 U.S. 629 (1968)...........00000000000. 18

H.L. v. Matheson, 450 U.S. 398 (1981)..............ccccccee0ee 3, 4, 5

Hodgson v. Minnesota, 497 U.S. 417 (1990) ..............000. 4,5

Lambert v. Wicklund, 520 U.S. 292 (1997) ..........ccccccceeeeeeee 4

Lawrence v. Texas, 539 U.S. 558 (20038).................. 9, 11, 12

Meyer v. Nebraska, 262 U.S. 390 (1923) ...........cccccccscceeeeeees 2

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

TI ieidiiieidieeiehtaatartieen tina eimai eteneatanccmntmareremseainesiaieaes 8

Parham v. J.R., 442 U.S. 584 (1979)..........ccccccccccceeceeseees 3,4

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

Planned Parenthood v. Casey, 505 U.S. 833 (1992)... 4, 12, 13

Planned Parenthood of Northern New England v.

Heed, 390 F.3d 53 (1st Cir. 2004) ...............:.0008. 20, 21, 22

Planned Parenthood of Northern New England v.

Heed, 296 F.Supp. 2d 59 (D.N.H. 20038) ..............:ccccee0es 22

Prince v. Massachusetts, 321 U.S. 158 (1944)..........ccccc0000 2

Quilloin v. Walcott, 434 U.S. 246 (1978) ...........cccccccceeeeeeeees 3

Roper v. Simmons, 125 S.Ct. 1183 (2005).............ccccccceeeeees 9

Societe Nationale Industrielle Aerospatiale et al. v.

U.S. Dist. Ct. for the Southern Dist. of Iowa, 482

EET TENET eR em NT OD 21

Stanley v. Illinois, 405 U.S. 645 (1972)..........ccccccccccceeeeeeeees 3

Troxel v. Granville, 530 U.S. 57 (2000) .............ccccceeeeeeeeeeeee 2

Wisconsin v. Yoder, 406 U.S. 205 (1972) ........ccccccccccceeceeceee 3

iv

TABLE OF AUTHORITIES — Continued

Page

UNITED STATES LEGISLATIVE AND

ADMINISTRATIVE MATERIALS

S. Res. 133, 104th Cong., 1995 WL 356610 (1995)............. 6

140 Cong. Rec. S13927-04, 1994 WL 543936 (1994)........... 7

141 Cong. Rec. S3081-02, 1995 WL 74816 (1995) .............. 6

148 Cong. Rec. S5716-04, 2002 WL 133217 (2002).............. 6

148 Cong. Rec. S5717-01, 2002 WL 1332171 (2002)........... 6

U.S. Department of State, Office of International

Women’s Issues, at http://www.state.gov/g/wi/ (last

Cy Et SUITE) icceteensiesiniieniinincinenieenitnicenaiiinatiiaasiinianines 7

U.S. Department of State, U.S. Explanation of Position

on the Declaration, Mar. 22, 2005, at http:/

www.state.gov/p/io/uncnf/43759.htm (last visited

FOREIGN JUDGMENTS AND STATUTES

Beschluo des Bundersverfassungsgerichts vom. 28

Mai 1993 — 2BvF 2/90 (BGBI. I S 820) (Decision

of the Second Senate, German Constitutional

Court of May 28, 1993), translation available at

http://www.hrcr.org/safrica/life/39bverfge1.htm1 .......... 12

Malta, Criminal Code, §§ 241-43A (2003), at http://

cyber.law.harvard.edu/population/ ...................cc00000000 11

JUDGMENTS OF INTERNATIONAL COURTS

Open Door Counseling Ltd. v. Ireland (14234/88,

14253/88), 15 E.H.R.R. 244, 1992 WL 895454

RIE, Sie Seas PUD achrceiccieseeteieitiseiiceindepainn iene 17

Vv

TABLE OF AUTHORITIES — Continued

Page

Society for the Protection of Unborn Children v.

Grogan, (C-159/90), 3 C.M.L.R. 849, 1991 WL

ee Ca Ss SD cccisisieitisiicenineertniineternataianeniaees 17

Vo v. France, (53924/00), 40 E.H.R.R. 12, 2004 WL

I I, I i 17

TREATIES AND PROTOCOLS

American Convention on Human Rights, Nov. 22,

1969, 1144 U.N.T.S. 123 (1978), reprinted at 9

FO | Re RS Enc eee ne we 13, 14

African Union, Protocol on the Rights of Women in

Africa, July 11, 2003, at http://www.africa-union.

org/Official_documents/Treaties_%20Conventions_

%20Protocols/Protocol%200n%20the%20Rights%20

i cnrcernnsincatitiiptinitnetatndniasiiiipiinitiaaiaapsamsaes 14

Convention on the Elimination of All Forms of

Discrimination Against Women, Jan. 22, 1980,

U.N. Doc. A/52/38, reprinted at 19 LL.M. 33

ee cincicaiecsinaniiehcinasassicipchlaiiahaaaniaa tia tala A i 7

Convention on the Rights of the Child, Nov. 20,

1989, U.N. Doc. A/44/49, reprinted at 28 I.L.M.

I iicsndeediiietinesiaitiesdnatantenliasiniasiadiedethiea la eaaialasns 6, 16

Protocol No. 7 annexed to the Treaty of Accession 2003,

Apr. 16, 2003, E.U. Doc. AA2003/ACT/P1, at http:/

europa.eu.int/comm/enlargement/negotiations/treaty_

of_accession_2003/ treaty_accession_24.htm................. 11

Protocol No. 17 annexed to the Maastricht Treaty

and to the Treaties Establishing the European

Communities, 31 I.L.M. 247 (1992) ............ccccccccccscceeees 1l

vi

TABLE OF AUTHORITIES — Continued

UN Report of the International Conference on

Population and Development, Oct. 18, 1994, U.N.

Doc. A/CONF.171/13, at http://www.un.org/popin/

icpd/conference/offeng/poa. html ....................cc000000 15,

United Nations Fourth World Conference on

Women: Declaration and Platform for Action,

A/Conf.177/20 & A/Conf.177/20/Add.1, Sep. 1995,

reprinted at 35 I.L.M. 401 (1996).....................000.. 7, 8,

United Nations, Reservations and Understandings

Regarding the Fourth World Conference on Women,

Sep. 15, 1995, Press Release WOM/BEI/38, at http://

www.un.org/esa/gopher-data/conf/fwcw/conf/pre/

en TEI Dcstetieeterihenacnemiainsinlitumemetiindilintpanacnmiaibiasanteniattin

TREATISES AND LAW REVIEW ARTICLES

Alicia Czerwinski, Sex, Politics, and Religion: The

Clash Between Poland and the European Union

over Abortion, 32 Denv. J. Intl L. & Pol’y 653

Chad M. Gerson, Development, Toward an Interna-

tional Standard of Abortion Rights: Two Obsta-

cles, 5 Chi. J. Int’] L. 753 (2005)......................seceeeee 10,

Abby F. Janoff, Rights of the Pregnant Child vs.

Rights of the Unborn Under the Convention on

the Rights of the Child, 22 B.U. Int'l LJ. 163

IIa all iccenccenepicrenteniennenmniuninsnntnibiedeiiepimintnnienainpiaeisiaiaiinin

Peta-Gaye Miller, Member State Sovereignty and

Women’s Reproductive Rights: The European

Union’s Response, 22 B.C. Int'l & Comp. L. Rev.

Sa TIE cnsrsvansnsunedsipnesidnniansiiemnnahimutasiiannenbasimanaiiteiaanaes

Vii

TABLE OF AUTHORITIES — Continued

Page

Gloria M. Sanchez, A Paradigm Shift in Legal

Education: Preparing Law Students for the

Twenty-First Century: Teaching Foreign Law,

Culture, and Legal Language of the Major U.S.

American Trading Partners, 34 San Diego L. Rev.

ae Ga enccerescitstentncinsnennnseiinintatanuntianniniinteiadnaiaibintiaiaaitinias 21

Contemporary Practice of the United States Relat-

ing to International Law (Sean D. Murphy ed.),

a WU ITD ccdeciionninementtiaiiiunninnniasiineaeesinatanaieess 7

STUDIES AND REPORTS

Center for Reproductive Rights, Abortion and the

Law: Ten Years of Reform (2005), at http://www.

reproductiverights.org/pdf/pub_bp_abortionlaws10.

Center for Reproductive Rights, The World’s Abortion

Laws (2004), at http://www.reproductiverights.org/

pub_fac_abortion_laws. html ....................cccccccccseeees 10, 15

OTHER DOCUMENTS

Four Treaties Pertaining to Human Rights, 1966

SET Se Da a 14

Elizabeth Bryant, Abortion Foes Get More Vocal as EU

Expands, S.F. Chron., Mar. 29, 2005, at 1, at http://

www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/

archive/2005/03/29/MNGSNC03M21.DTL.................... 10

Elizabeth Bryant, Portuguese Parties Split on

Abortion but Little Else, Wash. Times, Feb. 19,

2005, at http://www.washtimes.com/upi-breaking/

20050218-010804-3725r. htim.................ccceseeeseeeeeeeeeneeenes 17

TABLE OF AUTHORITIES -— Continued

European Union, European Union Member States, at

http://europa.eu.int/abc/governments/index_en.htm

(last visited July 13, 2005) ..............cccccccsessssseeseesseereeeees 10

Organization of American States, Member States

and Permanent Missions, at http://www.oas.org/

documents/eng/memberstates.asp (last updated

ei, GE, GRE woceevevcchnsensnscsssennsvsssvsnssmsssesnemeessneee 13

Organization of American States, Signatures and

Current Status of Ratifications, at http://www.

cidh.oas.org/Basicos/basic4.htm (last visited July

, BD censnssecersesscscinnstomneniiiannnieinnmininmnminenens 14

UK Presidency of the EU, Enlargement of the EU, at

http:/Awww.eu2005.gov.uk/serv 'et/Front?pagename

=OpenMarket/Xcelerate/Show Page&c=Page&cid=

Se icsecrssssrcumetsessncteimmenntmememmmne 17

UNICEF, The Convention, at http://www.unicef.

org/cre/crc.htm (last visited July 13, 2005)................0008 6

UNICEF, FAQ, at http://www.unicef.org/cre/cre.htm

(last visited July 13, 2005) .................ccssseceeeeeeeeeeeeeesseeeees 6

United Nations, List of Member States, at http://www.

un.org/Overview/unmember.html (Feb. 24, 2005)........ 10

1

STATEMENT OF INTEREST

OF AMICUS CURIAE'

University Faculty for Life is an international group

of faculty in various disciplines who respect the value of

human life from its inception to natural death. Since its

founding in 1989, the organization has promoted multi-

disciplinary dialogue and collaboration among university

faculty on abortion, infanticide, and euthanasia. Amicus

provides this brief in hopes of assisting the Court in

understanding the international law regarding parental

involvement in a minor’s decision to obtain an abortion.

¢

SUMMARY OF ARGUMENT

American law has consistently recognized the rela-

tionship between strong families and the formation of civic

virtues necessary to maintain a democratic republic. The

present case presents the issue of parental involvement in

circumstances raising some of the most profound questions

both the individual and the community encounter. Unlike

other questions, for which a strong consensus exists, resort

to international law regarding abortion provides little

guidance for this Court. To the extent such guidance does

exist, it supports the right of parents to be involved in the

care and treatment of their daughters, and thus supports

the petitioner in this case.

¢

' No counsel for any party authored any portion of this brief. No

persons other than amicus curiae, their members, or their counsel have

made a monetary contribution to the preparation and submission of

this brief. The written consents of the parties will be filed with the

Clerk of the Court pursuant to Supreme Court Rule 37.3.

2

ARGUMENT

I. THE UNIQUE AND WELL ESTABLISHED

POLICIES OF THE UNITED STATES PER-

TAINING TO BOTH THE FAMILY AND ABOR-

TION DISCOURAGE THE APPLICATION OF

INTERNATIONAL LAW IN THIS CASE.

A. The United States has a longstanding tradi-

tion of promoting and protecting the rights

and obligations of parents to direct the

care, nurture, and upbringing of their chil-

dren, even within the context of abortion.

The United States has consistently taken the position

that parents are primarily responsible to guide, support,

and direct their minor children. The Fourteenth Amend-

ment “protects the fundamental right of parents to make

decisions concerning the care, custody, and control of their

children.” Troxel v. Granville, 530 U.S. 57, 66 (2000). This

fundamental liberty interest is one of the oldest interests

protected by American law,’ and this Court’s repeated affirma-

tions have firmly established it as having constitutional

* See, e.g., Meyer v. Nebraska, 262 U.S. 390 (1923) (holding that a

State law prohibiting the teaching of foreign languages in public schools

unconstitutionally infringes upon the liberty interests of parents and

teachers); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) (finding

the State may not abrogate parents’ rights to direct their children’s

education) (“[Parents] have the right, coupled with the high duty, to

recognize and prepare [their children) for additional obligations.”);

Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“It is cardinal with

us that the custody, care and nurture of the child reside first in the

parents, whose primary function and freedom include preparation for

obligations the state can neither supply nor hinder.”).

3

magnitude.’ Within this right is the right of a parent to

direct the medical care of a minor child:

Our jurisprudence historically has reflected

Western civilization concepts of the family as a

unit with broad parental authority over minor

children. Our cases have consistently followed

that course; our constitutional system long ago

rejected any notion that a child is “the mere crea-

ture of the State” and, on the contrary, asserted

that parents generally “have the right, coupled

with the high duty, to recognize and prepare

[their children] for additional obligations.”

Surely, this includes a “high duty” to recognize

symptoms of illness and to seek and follow medi-

cal advice. The law’s concept of the family rests

on a presumption that parents possess what a

child lacks in maturity, experience, and capacity

for judgment required for making life’s difficult

decisions. More important, historically it has

* See, e.g., H.L. v. Matheson, 450 U.S. 398, 410 (1981) (“[Clonsti-

tutional interpretation has consistently recognized that the parents’

claim to authority ... to direct the rearing of their children is basic in

the structure of society.”); Parham v. J.R., 442 U.S. 584, 602 (1979)

(“Our jurisprudence historically has reflected ... broad parental

authority over minor children. Our cases have consistently followed

that course.”); Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (“We have

recognized on numerous occasions that the relationship between parent

and child is constitutionally protected.”); Wisconsin v. Yoder, 406 U.S.

205, 232 (1972) (“The history and culture of Western civilization reflect

a strong tradition of parental con-ern for the nurture and upbringing of

their children. This primary role of the parents ... is now established

beyond debate as an enduring American tradition.”); Stanley v. Illinois,

405 U.S. 645, 651 (1972) (“It is plain that the interest of a parent in the

companionship, care, custody, and management of his or her children

comes to this Court with a momentum for respect . . . ”).

4

recognized that natural bonds of affection lead

parents to act in the best interests of their chil-

dren.

Parham v. J.R., 442 U.S. 584, 602 (1979).

The mere fact that a small number of parents may act

against the best interests of their children “is hardly a

reason to discard wholesale those pages of human experi-

ence that teach that parents generally do act in the child’s

best interests. The statist notion that governmental power

should supersede parental authority in all cases because

some parents abuse and neglect children is repugnant to

American tradition.” Jd. at 602-03 (1979) (citations and

quotations omitted). Although “immature minors often

lack the ability to make fully informed choices,” their

“parents possess what [they] lack in maturity, experience,

and capacity for judgment.” H.L. v. Matheson, 450 U.S.

398, 409 (1981); Parham v. J.R., 442 U.S. 584, 602 (1979).

In short, it is presumed that parents act in the best

interests of their children and with superior discernment.

Consequently, American law has always recognized par-

ents’ primary authority over their children’s medical care.

Laws requiring parental involvement prior to the

performance of an abortion on a minor are merely a

limited application of this general rule to a specific proce-

dure. This Court has upheld both parental notification and

consent (“parental involvement”) requirements for minors

seeking abortions. See, e.g., Lambert v. Wicklund, 520 U.S.

292 (1997) (upholding a Montana law requiring parental

notification for minors seeking abortions); Planned Par-

enthood v. Casey, 505 U.S. 833, 899 (1992) (“Our cases

establish, and we reaffirm today, that a State may require

a minor seeking an abortion to obtain the consent of a

parent or guardian,”); Hodgson v. Minnesota, 497 U.S. 417

5

(1990) (upholding a Minnesota law requiring parental

notification and a forty-eight hour waiting period for

minors seeking abortions); H.L. v. Matheson, 450 U.S. 398,

413 (1981) (noting that the mere requirement of parental

notification for minors seeking abortions is constitutional,

even though it may impose a burden on some minors).

“Although children generally are protected by the same

constitutional guarantees against governmental depriva-

tions as are adults, the State is entitled to adjust its legal

system to account for children’s vulnerabilitv and their

needs for ‘concern, ... sympathy, and ... paternal atten-

tion.’” Bellotti v. Baird, 443 U.S. 622, 635 (1979) (quoting

McKeiver v. Pennsylvania, 403 U.S. 528, 550 (1971)). As

applied to minors, parental involvement laws further “the

important considerations of family integrity and protect-

ing adolescents . . . identified in Bellotti II.” H.L. v. Mathe-

son, 450 U.S. 398, 411 (1981).

As Justice Stevens has observed, this Court “has

never challenged a State’s reasonable judgment that [a

minor’s abortion] decision should be made after notifica-

tion to and consultation with a parent.” Hodgson v. Minne-

sota, 497 U.S. 417, 445 (1990) (Stevens, J. concurring). The

lower courts erroneously held the New Hampshire paren-

tal notification law unconstitutional, which is identical in

pertinent part to the Minnesota law upheld by this Court

in Hodgson v. Minnesota.

B. The United States has repeatedly rebuffed

international attempts to interfere with its

unique approach to the abortion issue.

The United States has always preserved its sover-

eignty over family law, specifically concerning regulation

6

of reproductive rights. For example, the United States has

never ratified the United Nations Convention on the

Rights of the Child (“CRC”),* largely due to the credible

belief that it would subvert the authority of parents to

exercise important responsibilities towards their children

by conferring upon children freedom from parental re-

straint in all areas of their lives.° The United States has

ratified two of the CRC’s optional protocols, expressly

stating in each instance that ratification of the protocol did

not in any way imply ratification of the CRC itself.°

* U.N. Doc. A/44/49, reprinted at 28 I.L.M. 1448 (1989) [hereinafter

CRC].

* The CRC attempted to create a legally-binding international

standard of children’s rights. See UNICEF, The Convention, at

http://www.unicef.org/cre/crc.htm (last visited July 13, 2005). The UN

General Assembly unanimously approved the CRC on November 20,

1989. See CRC, 28 I.L.M. at 1448. The CRC has never been forwarded

to the Senate for ratification due to intense objection from the American

people over its interference with parents’ rights. See 141 Cong. Rec.

S3081-02, 1995 WL 74816 (1995) (statement of Sen. Dole) (“I have

received thousands of calls from all over the country in opposition to

[the CRC]. My office has not received one call for it. . . . Could [the CRC]

be interpreted to limit the ability of parents to decide for themselves

how best to raise their children?”); S. Res. 133, 104th Cong., 1995 WL

356610 (1995) (“Resolved, That it is the sense of the Senate that — (1)

the [CRC] is incompatible with the God-given right and responsibility of

parents to raise their children . . . 4) the President should not sign and

transmit to the Senate that fundamentally flawed Convention.”). To

date, the United States has not ratified the CRC. See UNICEF, FAQ, at

http://www. unicef.org/cre/crc.htm.

* See 148 Cong. Rec. S5716-04, 2002 WL 1332170 (2002) (“The

United States understands that the United States assumes no obliga-

tions under the [CRC] by becoming a party to the Protocol [on Involve-

ment of Children in Armed Conflict].”); 148 Cong. Rec. S5717-01, 2002

WL 1332171 (2002) (“The United States understands that the United

States assumes no obligations under the [CRC] by becoming a party to

the Protocol [on the Sale of Children, Child Prostitution and Child

Pornography).”).

7

Notwithstanding the fact that the United States is an

international leader in efforts to eliminate gender bias,’

the United States has never ratified the Convention on the

Elimination of All Forms of Discrimination Against

Women (“CEDAW?”),’ clearly indicating intent to retain

national control over family planning and reproductive

services.” In September 1995, the UN unanimously

adopted the Beijing Declaration and Platform for Action

(“Beijing Declaration”), which establishes an interna-

tional standard of women’s rights, including reproductive

" See U.S. Department of State, Office of International Women’s

Issues, at http://www.state.gov/g/wi/ (last visited July 29, 2005) (“The

United States is in the forefront of advancing women’s causes around

the world, helping them become full participants in their societies

through various initiatives and programs that help increase women’s

political participation and economic opportunities and support women

and girls’ access to education and health care.”).

* U.N. Doc. A/52/38, reprinted at 19 1.L.M. 33 (1980) (hereinafter

CEDAW]. CEDAW requires broad regulation of private conduct,

especially within the family. See id. at 36-37 (articles 2-3, 5). In 1994,

the Senate Foreign Relations Committee recommended ratification of

the treaty subject to certain reservations, including that the United

States would retain national sovereignty over regulation of private

conduct. See 140 Cong. Rec. S13927-04, 1994 WL 543936 (1994). The

Senate never took action on that recommendation. See Contemporary

Practice of the United States Relating to International Law (Sean D.

Murphy ed.), 96 A.J.I.L. 956, 972 (2002). Since then, the United States

has not ratified CEDAW.

* See 140 Cong. Rec. $13927-04, 1994 WL 543936 (1994) (“The

Senate's advice and consent is subject to the following understandings:

... that Article 12 permits State Parties to determine which health care

— are appropriate in connection with family planning, pregnancy

* United Nations Fourth World Conference on Women: Declaration

and Platform for Action, A/Conf.177/20 (1995) & A/Conf.177/20/Add.1,

reprinted at 35 I.L.M. 401 (1996) [hereinafter Beijing Declaration].

8

rights." Again, the United States reserved national sover-

eignty over abortion law, and in March 2005, the United

States reaffirmed its previous qualified support, provided

the Declaration is not construed to create international

abortion rights.”

In sum, the United States has successfully resisted

international efforts seeking to replace America’s long-

standing recognition of family and parental authority with

the present-day experiment in some foreign nations with

radical individualism. Cf. Moore v. City of East Cleveland,

431 U.S. 494, 503-04 (1977) (plurality) (“It is through the

family that we inculcate and pass down many of our most

cherished values, moral and cultural.”). In light of the

consistent rejection of attempts to globalize the issues of

family law by the legislative and executive branch, and the

divisive history of contemporary abortion jurisprudence in

this country, international law is ill-suited to assist this

Court in addressing the issues presented by this case.

" See Beijing Declaration, A/Conf.177/20 (1995) & A/Conf.177/

20/Add.1, ch. IV, § C, 1. 94-97, 106, reprinted in 35 1.L.M. at 423-26.

"* See U.S. Department of State, U.S. Explanation of Position on

the Declaration (Mar. 22, 2005), at http://www.state.gov/p/io/uncnf/

43759.htm (“We have stated clearly and on many occasions . . . that we

do not recognize abortion as a method of family planning, nor do we

support abortion in our reproductive health assistance. The United

States understands that there is international consensus that the terms

“reproductive health services” and “reproductive rights” do not include

abortion or constitute support, endorsement, or promotion of abortion

or the use of abortifacients.”). When the United States originally signed

the Beijing Declaration, it submitted a written statement interpreting

the Declaration as creating a general obligation to implement “the

Platform’s recommendations overall, rather than a specific commitment

to implement each element of the Platform.” Beijing Declaration,

A/Conf.177/20 (1995) & A/Conf.177/20/Add.135, ch. V, 4. 30, 35 I.L.M. at

480.

9

C. Past instances justifying reliance on inter-

national law by this Court materially differ

from the present case.

This Court’s past decisions in Roper v. Simmons, 125

S.Ct. 1183 (2005), and Lawrence v. Texas, 539 U.S. 558

(2003), have both relied upon international law. However,

neither case is sufficiently analogous to justify the applica-

tion of international law in the present case.

This case materially differs from Roper in that it lacks

the benefit of an international consensus on the issue of

abortion rights.” In fact, the abortion issue as a whole

remains unsettled and controversial in the international

" Roper repeatedly recognized the clear and overwhelming

international consensus against the juvenile death penalty.

Our determination that the death penalty is disproportion-

ate punishment for offenders under 18 finds confirmation in

the stark reality that the United States is the only country in

the world that continues to give official sanction to the juve-

nile death penalty. . . . Article 37 of the United Nations Con-

vention on the Rights of the Child, which every country in

the world has ratified save for the United States and Soma-

lia, contains an express prohibition on capital punishment

for crimes committed by juveniles under 18. . . . No ratifying

country has entered a reservation to the provision prohibit-

ing the execution of juvenile offenders. Parallel prohibitions

are contained in other significant international cove-

nants. ... In the 56 years that have passed since the United

Kingdom abolished the juvenile death penalty, the weight of

authority against it there, and in the international commu-

nity, has become well established.

See id., 125 S.Ct. at 1198-1200 (citations omitted and emphasis added).

10

community.“ The wide range of abortion restrictions

among various countries has prevented international

institutions from taking a position on the issue.” For

example, neither the United Nations nor the European

Union has enacted any legislation directly governing the

abortion practices of member nations.“ This phenomenon

is largely attributable to the need to accommodate mem-

bers — for example, Ireland, Malta, and Poland — that

vehemently oppose the more permissive abortion laws of

some of their neighbors.” This issue is so divisive that the

“ See Elizabeth Bryant, Abortion Foes Get More Vocal as EU

Expands, S.F. Chron., Mar. 29, 2005, at 1, at http://www.sfgate.com/

cgi-bin/article. cgifile=/chronicle/archive/2005/03/29/MNGSNC03M21. DTL

(noting the abortion controversy in the EU); Center for Reproductive

Rights, Abortion and the Law: Ten Years of Reform (Feb. 2005), at

http//www.reproductiverights.org/pdf/pub_bp_abortionlaws10.pdf (compar-

ing liberalization of abortion laws in some countries with increasing

restrictions in others). The United States is one of only fifty-four

countries permitting abortion without restriction as to reason, while

seventy-two countries either prohibit abortion completely or allow it

only to save the mother’s life. See Center for Reproductive Rights, The

World’s Abortion Laws (June 2004), at http//www.reproductiverights.org/

pub_fac_abortion_laws.html.

“ See Chad M. Gerson, Toward an International Standard of

Abortion Rights: Two Obstacles, 5 Chi. J. Intl L. 753, 753 (“For a

variety of reasons, many international organizations have carefully

avoided taking positions on positive abortion rights.”).

* See Alicia Czerwinski, Sex, Politics, and Religion: The Clash

Between Poland and the European Union over Abortion, 32 Denv. J.

Intl L. & Pol'y 653, 660 (2004) (noting that the EU lacks direct

legislation legalizing abortion and instead defers to the legislation of its

member states).

" Ireland, Malta, and Poland are all members of both the UN and

the EU. See United Nations, List of Member States, at http://

www.un.org/Overview/unmember.html (Feb. 24, 2005); European

Union, European Union Member States, at http://europa.eu.int/abe/

governments/index_en.htm (last visited July 13, 2005). Ireland permits

abortion only to save the life of the mother. See Center for Reproductive

(Continued on following page)

11

European Parliament did not approve its own Annual

Report 2003 on Fundamental Rights in the European

Union because of a dispute over certain paragraphs

encouraging the member nations to liberalize their abor-

tion laws.”

Lawrence's rationale likewise fails to support the use

of international law in this case. While Lawrence involved

government interference in the private sexual conduct of

two consenting adults,” the present case focuses on the

right of a minor to make a secret decision to obtain an

Rights, The World’s Abortion Laws (June 2004), at http://www.

reproductiverights.org/pub_fac_abortion_laws.html. The country has

acted to ensure that its abortion laws will never be affected by EU

legislation. See Protocol No. 17 annexed to the Maastricht Treaty and to

the Treaties Establishing the European Communities, 31 I1.L.M. 247,

362 (1992); see also Peta-Gaye Miller, 22 B.C. Int'l & Comp. L. Rev. 195,

206-07 (discussing Ireland’s abortion laws in the context of the EU). In

Malta, abortion is illegal. See Malta, Criminal Code, §§ 241-43A (2003),

at http://cyber.law.harvard.edu/population/,/ When Malta became a

member of the EU in 2004, it annexed a protocol to its accession treaty

that allows it to maintain its current abortion law free from EU

interference. See Protocol No. 7 annexed to the Treaty of Accession 2003

(Apr. 16, 2003), at http://europa.eu.int/comm/enlargement/negotiations/

treaty_of_accession_2003/treaty_accession_24.htm. Article 38 of Poland’s

constitution prohibits abortion, although Poland has not yet sought a

pretecel insulating ite abortion law from EU regulation. Ser Alicie

Czerwinski, Sex, Politics, and Religion: The Clash Between Poland and

the European Union over Abortion, 32 Denv. J. Int'l L. & Pol’y 653, 665

(2004).

“ See Chad M. Gerson, Toward an International Standard of

Abortion Rights: Two Obstacles, 5 Chi. J. Int] L. 753, 759 (2005).

” Lawrence v. Texas, 539 U.S. 558, 578 (2003) (“The case does

involve two adults who, with full and mutual consent from each other,

engaged in sexual practices common to a homosexual lifestyle. The

petitioners are entitled to respect for their private lives.”).

12

abortion.” Furthermore, Lawrence relied upon decisions

by the European Court of Human Rights to support its

conclusion that precedent in the United States was “at

odds” with Western civilization.” Here however, neither

the European Court of Human Rights nor the European

Court of Justice has authored opinions establishing a

fundamental right to abortion or determining the validity

of parental involvement laws. Thus, these significant

discrepancies between the legal contexts of Lawrence and

the present case render Lawrence inapplicable here.

In contrast to the conflicting state of abortion regula-

tion in the international community, domestic law is settled.

The United States has a valuable tradition of promoting the

family and the primary authority of parents. Furthermore,

* Cf. Beschluo des Bundersverfassungsgerichts vom. 28 Mai 1993

— 2BvF 2/90 (BGBI. I S 820) (Decision of the Second Senate, German

Constitutional Court of May 28, 1993), translation available at http://

www.hrcr.org/safrica/life/39bverfgel.html (see pt. II, §2) (“(Tlhe

termination of a pregnancy always means the destruction of unborn

life... . [T]he decision must favor the protection of the fetus’ life over

the right of self-determination of the women. [The women] may be

limited in some potential personal developments by pregnancy, birth,

and childrearing {and her right to self-determination may thus be

impaired]. The unborn life, however, gets destroyed by the termination

of a pregnancy. Pursuant to the principle of the most careful balancing

of competing constitutionally protected positions . . the protection of

the nasciterus’s life must be granted priority. This prierity principally

lasts for the entire duration of the pregnancy ... ”); Planned Parent-

hood v. Casey, 505 U.S. 833, 846 (1992) (reaffirming Roe’s essential

holding that the state has a legitimate interest in protecting potential

human life); Lawrence v. Texas, 539 U.S. 558, 578 (2003) (“The present

case does not involve minors.... The Texas statute furthers no

legitimate state interest which can justify its intrusion into the

personal and private life of the individual.”).

* See Lawrence v. Texas, 539 U.S. 558, 573, 576 (2003) (citing

Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (1981), and subsequent

decisions of the European Court of Human Rights).

13

the United States has resisted international efforts to

alter American policies at the expense of the family.

Reference to international law, which itself contains

widely divergent regulatory regimes, would needlessly

disrupt established American abortion law.”

Il. EVEN IF INTERNATIONAL ABORTION LAW IS

APPLIED, APPLICABLE STANDARDS ESTAB-

LISH THAT RESPONDENTS HAVE NOT SUF-

FERED ANY INFRINGEMENT OF THEIR

RIGHTS.

A. The only international organizations to

have directly addressed abortion rights fa-

vor much greater restrictions than those

contained in the New Hampshire statute.

Only two international organizations have promul-

gated substantive abortion policies. On November 22, 1969,

the Organization of American States (“OAS”), which includes

the United States,” adopted the American Convention on

Human Rights (“ACHR”).” Article 4 of the ACHR establishes

legal protection for the right to life of the unborn child from

the moment of conception, effectively discouraging abortion

™ See Planned Parenthood v. Casey, 505 U.S. 833, 843 (1992)

(“Liberty finds no refuge in a jurisprudence of doubt.”).

* See Organization of American States, Member States and

Permanent Missions (Feb. 25, 2005), at http:/Awww.oas.org/documents/

eng/memberstates.asp (“All 35 independent countries of the Americas

have ratified the OAS Charter and belong to the Organization. Cuba

remains a member, but its government has been excluded from

participation in the OAS since 1962.”).

“ O.AS. Treaty Series No. 36 (Nov. 22, 1969), reprinted at 9 I.L.M.

673 (1970) [hereinafter ACHR).

14

at all stages of pregnancy.” To date, the United States and

twenty-seven other member states, have signed the

ACHR.” Also, the African Union (“AU”) has established

abortion rights in its Protocol on the Rights of Women in

Africa.” However, the Protocol is quite limited in that it

does not permit elective abortions nor does it create a

minor’s right to an abortion with or without parental

involvement.”

The New Hampshire statute not only permits minors

to obtain abortions but also allows them to do so without

notifying their parents in certain circumstances. Also, the

New Hampshire law is part of a broader regulatory

scheme that is far more permissive than its international

counterparts. Based on international standards, this

* See ACHR, O.A.S. Treaty Series No. 36, ch. II, art. 4, § 1 (Nov.

22, 1969), reprinted at 9 I.L.M. at 675.

* See Organization of American States, Signatures and Current

Status of Ratifications, at http://www.cidh.oas.org/Basicos/basic4.htm

(last visited July 28, 2005). President Carter transmitted the ACHR to

the Senate on February 23, 1978. See Four Treaties Pertaining to

Human Rights, 1966 U.S.T. LEXIS 521, *1-2 (containing President

Carter’s letter of transmittal to the Senate). For a summary of the

ACHR 's legislative history, see Treaty Number 95-21 available from the

treaties database of the Thomas online legislative information website

at http://thomas.loc.gov/home/treaties/treaties.htm (last visited July 29,

2005).

” See African Union, Protocol on the Rights of Women in Africa, art.

14, § 2 (July 11, 2003), at http//www.africa-union.org/Official_documents/

Treaties_%20Conventions_%20Protocols/Protocol%200n%20the%20Rights

% 200f% 20Women. pdf.

* See African Union, Protocol on the Rights of Women in Africa,

art. 14, § 2, at http//www.africa-union.org/Official_documents/Treaties_%20

Conventions_%20Protocols/Protocol%200n%20the%20Rights%200f%20

Women.pdf.

15

statute does not infringe upon a minor’s right to obtain an

abortion.

B. Both the United Nations and the European

Union have declined to articulate a posi-

tion on the issue.

The United Nations’ individual member states have

always enjoyed sovereignty to promulgate abortion laws

free from the interference or input of other members. In

fact, no United Nations treaty has ever purported to

institute international abortion regulations, nor has the

United Nations taken an explicit position on the abortion

rights of minors. Instead, in an attempt to effect a com-

promise among the wide range of abortion policies of the

ratifying states,” international treaties contain only

general references to health and reproductive rights and

are rife with statements from signatories reserving na-

tional authority over abortion law.” As a result, the United

” Of the UN’s one hundred ninety-two member states, seventy-two

ban abortion completely or allow it only to save the mother’s life. See

Center for Reproductive Rights, The World’s Abortion Laws (June

2004), at http//www.reproductiverights.org/pub_fac_abortion_laws.html.

Fifty-five add some sort of health exception, and fourteen also permit

abortion on socioeconomic grounds. See id. Fifty-four countries permit

Sorin at some stage of pregnancy without restriction as to reason.

” In 1994, the UN addressed the topic of reproductive rights at the

International Conference on Population and Development in Cairo,

Egypt. See United Nations Report of the International Conference on

Population and Development, U.N. Doc. A/CONF.171/13, tit. I, ch. VII,

§ B, ¥. 7.16 (Oct. 18, 1994), at http://www.un.org/popin/icpd/conference/

offeng/poa.htm! [hereinafter Cairo Conference] (“All countries should

take steps to meet the family-planning needs of their populations .. .

and should ... seek to provide universal access to a full range of safe

and reliable family-planning methods and to related reproductive

(Continued on following page)

16

Nations provides no instructive guidance on abortion in

general, and absolutely no pronouncements on parental

involvement laws.

Like the United Nations, the European Union has

failed to elicit any sort of consensus on abortion rights.

Abortion legislation is not within its competency, but rather

falls solely within the province of individual member

health services which are not against the law.”) (emphasis added).

However, the Conference failed to reach any consensus regarding

international abortion rights. See id., tit. III, ch. V (listing the written

reservations of sixteen countries, preserving national sovereignty over

reproductive rights, and in some cases, asserting the right to life of

unborn children from the moment of conception). One year later,

the Beijing Declaration built upon the foundation provided by the

Cairo Conference. See Beijing Declaration, A/Conf.177/20 (1995) &

A/Conf.177/20/Add.1, reprinted in 35 1.L.M. 401 (1996). Again, various

countries entered reservations similar to those at the Cairo Conference,

and no consensus on abortion rights was reached. See id. at 472

(containing chapter V of the Beijing Declaration). Furthermore, the

United States has since reiterated its understanding that the Beijing

Declaration does not create abortion rights. See U.S. Department of

State, U.S. Explanation of Position on the Declaration (Mar. 22, 2005),

at http://www.state.gov/p/io/uncnf/43759.htm. Finally, the preamble to

the CRC, which deals with children’s rights, states that “the child ...

needs special safeguards and care, including appropriate legal protec-

tion, before as well as after birth.” CRC, Preamble, 28 I.L.M. 1448, 1448

(1989) (emphasis added). This language has fueled the abortion

controversy in the UN because some nations construed it as creating a

right to life for the unborn while others expressly reserved the right to

retain their liberal abortion laws. See Abby F. Janoff, Rights of the

Pregnant Child vs. Rights of the Unborn Under the Convention on the

Rights of the Child, 22 B.U. Int L.J. 163, 174-76 (2004) (discussing

ratification of the CRC and reservations of various states concerning

abortion laws); Office of the United Nations High Commission for

Human Rights, M<clarations and Reservations to the Convention on the

Rights of the Child, at http://Awww.ohchr.org/english/countries/ratification/

11. htm#reservations (last visited July 29, 2005) (listing the reserva-

tions and objections of CRC signatories).

17

states.” Currently, nine of the European Union’s twenty-

five members place some restrictions on abortion, includ-

ing the recently admitted nations of Malta, Poland, and

Cyprus.” With no direction on the issue from the Euro-

pean Parliament, the European Union’s courts have done

little to reconcile the conflicting views represented in the

European Union’s membership. In one anticipated deci-

sion, the European Court of Human Rights ruled in June

of 2004 that Article 2 of the European Convention on

Human Rights does not confer a right to life upon the

fetus.” The court has also upheld the rights of health

clinics in Ireland to encourage and assist pregnant women

in traveling abroad for abortions, leaving intact the Irish

prohibition of abortion in almost all cases.” For its part,

the European Court of Justice has held that abortion is a

service within the meaning of Article 60 of the Treaty

Establishing the European Economic Community, thereby

creating a right to disseminate information pertaining to

abortion services.” Most significantly, all of these cases

” Elizabeth Bryant, Portuguese Parties Split on Abortion but Little

Else, Wash. Times, Feb. 19, 2005, at http/www.washtimes.com/upi-breaking/

20050218-010804-3725r.htm.

* See UK Presidency of the EU, Enlargement of the EU at http:/

www.eu2005.gov.uk/serviet/Front?pagename=OpenMarket/Xcelerate/Show

Page&c=Page&cid=1109176230949 (listing the accession dates of the

EU member states); Elizabeth Bryant, Abortion Foes Get More Vocal as

EU Expands, S.F. Chron., Mar. 29, 2005, p. 1, at http://www.sfgate.com/

cgi-bin/article.cgi?file=/chronicle/archive/2005/03/29/MNGSNC03M21.DTL

(last updated July 4, 2005) (discussing the abortion controversy in the EU).

* See Vo v. France (53924/00), 4¢ E.H.R.R. 12, 2004 WL 1808739

(Eur. Ct. H.R. 2004).

* See Open Door Counseling Ltd. v. Ireland (14234/88, 14253/88),

15 E.H.R.R. 244, 1992 WL 895454 (Eur. Ct. H.R. 1992).

* See Society for the Protection of Unborn Children v. Grogan, (C-

159/90), 3 C.M.L.R. 849, 1991 WL 839064 (Eur. Ct. Just. 1991).

18

declined the invitation to issue a broad ruling on abortion

rights in the European Union, and collectively, they

demonstrate the European Union’s unwillingness and

inability to overrule the individual states’ policies in the

area.

The New Hampshire statute does not curtail any

abortion rights guaranteed under current international

standards. Furthermore, the United Nations and the

European Union have declined to promulgate universal or

regional abortion laws. Instead, both organizations have

adopted a laissez faire approach to abortion regulation,

recognizing member states’ right to promulgate their own

policies.

Ill. UNDER THE STANDARDS ESTABLISHED BY

THE ABORTION LAWS OF INDIVIDUAL NA-

TIONS, RESPONDENTS HAVE FAILED TO

SUFFER ANY INJURY TO THEIR RIGHTS.

A. Foreign law supports the established right

of parents to advise their children regard-

ing an abortion decision.

As this Court has stated, “[Plarents and others ...

who have [the] primary responsibility for children’s well-

being are entitled to the support of laws designed to aid

discharge of that responsibility.” Ginsberg v. New York, 390

U.S. 629, 639 (1968) (emphasis added). Counsel for amicus

curtae surveyed abortion policies in one hundred ninety-

three foreign countries in an attempt to identify a stan-

dard that may provide guidance on the propriety of such

laws within the context of abortion regulation. Only fifteen

countries worldwide — a scant eight percent — allow minors

to access abortion services free from any safeguards

19

designed to ensure that the procedure is in the child’s best

interests.” By comparison, twenty-five require some form

of parental involvement for minors seeking abortions,”

and another twenty-two impose comparable restrictions on

all abortion procedures.” The remaining one hundred

thirty-one countries have enacted more restrictive abor-

tion laws than those of the United States.”

As this Court has repeatedly recognized, the United

States has always entrusted the care and nurture of

children primarily to their parents, who are the people

most able and likely to pursue the child’s best interests.

Pregnant minors need their parents’ loving support and

mature guidance to help them cope with the stress and

difficulties of pregnancy.

B. Under foreign abortion laws, respondents

have not alleged any cognizable injuries to

their rights.

Ninety-two percent of countries surveyed have en-

acted abortion regulation that is similar to, or more

restrictive than, the New Hampshire statute.” This fact

* See Appendix A — Parental Involvement Laws in Permissive

Countries, Comparison by Numbers.

” See Appendix A — Parental Involvement Laws in Permissive

Countries, Countries with Involvement Laws.

* See Appendix B - Comparable Restrictions in Permissive

Countries.

* See Appendix A — Parental Involvement Laws in Permissive

Countries, Comparison by Numbers. A restrictive country is any

country that does not permit abortion on demand or for socioeconomic

reasons.

“ See Appendix A — Parental Involvement Laws in Permissive

Countries, Comparison by Numbers. Sixty-eight percent of countries

(Continued on following page)

20

alone suggests the statute generally comports with foreign

standards. Analysis proves that under foreign abortion

law, respondents have not suffered any injuries to their

legal rights.

First and foremost, the absence of an explicit health

exception and a broad death exception does not constitute

a violation of rights.“ In fact, the majority of countries

with parental involvement laws have not expressly incor-

porated any emergency health or death exception and

instead, must rely on other legal provisions to protect

minors seeking abortions.” Of the eleven countries that

have incorporated an explicit emergency exception, four of

them use language comparable to that of the New Hamp-

shire statute.“ Only seven countries — a mere four percent

of foreign nations — require a more lenient emergency

exception than that contained in the New Hampshire

prohibit all women, including minors, from obtaining abortions for

socioeconomic reasons or on demand. Another twenty-four percent have

parental involvement laws or other comparable restrictions that affect

minors in a manner similar to, or more restrictive than, the New

Hampshire statute.

“ The First Circuit determined the statute’s lack of an explicit

health exception renders it unconstitutional and also that the statute’s

death exception contains too narrow of a time requirement and

impermissibly fails to safeguard a physician’s good-faith medical

judgments. See Planned Parenthood of Northern New England v. Heed,

390 F.3d 53, 62, 64 (1st Cir. 2004).

“ See Appendix A — Parental Involvement Laws in Permissive

Countries, Countries with Involvement Laws.

“ See Appendix A — Parental Involvement Laws in Permissive

Countries, Countries with Involvement Laws (listing countries with

“Strict” emergency exception standards). Also, see Appendix C for the

statutory language of the emergency exceptions contained in the

parental involvement laws of the eleven countries that have provided

explicit emergency exceptions to their invelvement laws.

21

statute.“ Furthermore, only two percent of foreign nations

have incorporated both judicial bypass and emergency

exceptions in their parental involvement laws.“ The

absence of emergency exceptions and bypasses within

foreign involvement laws is the norm. By foreign stan-

dards, respondents cannot attribute any injury to the New

Hampshire statute because it provides both an emergency

exception and a bypass.

Nor can respondents sustain a valid complaint con-

cerning the substance of the statute’s death exception.

Although the Court of Appeals for the First Circuit found

the exception to be inadequate,” if this Court were to

apply it, foreign law would result in the reversal of the

judgments of the lower courts. While language and other

cultural barriers make word-for-word comparisons diffi-

cult,” the death exception’s language falls generally within

“ See Appendix A — Parental Involvement Laws in Permissive

Countries, Countries with Involvement Laws (listing countries with

“Intermed.” or “Low” emergency excepticn standards).

“ See Appendix A — Parental Involvement Laws in Permissive

Countries, Comparison by Numbers.

“ See Planned Parenthood of Northern New England v. Heed, 390

F.3d 53, 64 (1st Cir. 2004).

“ See Societe Nationale Industrielle Aerospatiale et al. v. U.S. Dist.

Ct. for the Southern Dist. of lowc, 482 U.S. 522, 538 n.23 (1987) (“The

great object of an international agreement is to define the common

ground between sovereign nations. G’ven the gulfs of language, culture,

and values that separate nations, it is essential in international

agreements for the parties to make explicit their common ground on the

most rudimentary of matters.” (citations and quotations omitted);

Sanchez, Gloria M., A Paradigm Shift in Legal Education: Preparing

Law Students for the Twenty-First Century: Teaching Foreign Law,

Culture, and Legal Language of the Major U.S. American Trading

Partners, 34 San Diego L. Rev. 635, 645, 652 (1997) (“Culture and

language are difficult to study.... [T]he nature and properties of

culture and language, and their important role within the context of the

(Continued on following page)

22

the range of wording used in foreign countries’ emergency

exceptions.”

More importantly, like the New Hampshire death

exception, none of these other exceptions safeguards a

physician’s good faith medical judgments.” These similari-

ties confirm that the New Hampshire statute contains an

adequate death exception, which under foreign standards,

does not violate any of respondents’ legal rights.

Finally, confidential judicial bypasses find no parallel

in foreign law. Of the few countries that permit bypasses

of parental involvement laws, none has enacted any sort of

corresponding confidentiality requirement.” Of course,

both the district court and the appeals court declined to

determine the validity of the statute’s confidentiality

requirement.” This Court need not reach this issue either

because respondents lack standing in this case.

Foreign law provides an additional basis for respect-

ing the established rights of parents in the United States

study of law, are difficult to conceptualize. The individual may unwit-

tingly superimpose her cultural interpretation on the foreign legal

system which will create problems because she failed to examine her

cultural assumptions.”).

“ To read the statutory language of the foreign laws referred to in

this paragraph, see Appendix C — Statutory Language of Emergency

Exceptions.

“ To read the statutory language of the foreign laws referred to in

this paragraph, see Appendix C — Statutory Language of Emergency

Exceptions.

” See Appendix A — Parental Involvement Laws in Permissive

Countries, Countries with Involvement Laws.

* See Planned Parenthood of Northern New England v. Heed, 390

F.3d 53, 64 (1st Cir. 2004); Planned Parenthood of Northern New

England v. Heed, 296 F.Supp. 2d 59, 67 (D.N.H. 2003).

23

to advise their children regarding the abortion decision.

The New Hampshire statute seeks to protect this right by

creating safeguards for minors seeking abortions. These

safeguards are comparable to, or less restrictive than,

those of ninety-two percent of foreign nations. In countries

that have implemented parental involvement laws, the

majority have not incorporated any bypass or emergency

exception. Under the standards of foreign nations, respon-

dents have suffered no judicially cognizable injury to their

abortion rights.

¢

CONCLUSION

For all of the foregoing reasons, a: *-cus respectfully

urges the Court to vacate the judgments of the lower

courts and remand to the district court with instructions

to dismiss the case for want of standing, or in the alterna-

tive to reverse the judgments of the lower courts.

Respectfully submitted,

RICHARD G. WILKINS

Professor of Law and

Managing Director

THE WORLD FAMILY POLiIcy CENTER

513 JRCB

Brigham Young University

Provo, Utah 84602

Telephone: (801) 422-2669

Fax: (801) 422-0391

E-Mail: wilkinsr@lawgate.byu.edu

Counsel for Amicus Curiae

APPENDIX A

PARENTAL INVOLVEMENT LAWS IN PERMISSIVE COUNTRIES*

Summary of All Countries

Albania Cuba N. Korea South Afri

Armenia Czech Republic S. Korea St. Vincent-Grenadines

Australia Denmark K Sweden

Austria Estonia Latvia Switzerland

Azerbaijan Fiji Lithuania Taiwan

Bahrain Finland Luxembourg Tajikistan

Barbados France Macedonia Tunisia

Belarus Georgia Mongolia Turkey

Belgium Greece Nepal Turkmenistan

Belize Guinea-Bissau Netherlands Ukraine

Bosnia Herzegovina Hungary Norway U.K. fencer! X. Deter

Bulgaria Iceland Romania Uzbekistan

Cambodia India Russian Federation Vietnam

Cape Verde Italy Slovakia Yugoslavia

China Japan Slovenia Zambia

Croatia Kazakhstan

* For purposes of this brief, a permissive country is a country that permits abortion on socioeconomic

or on demand at some point during pregnancy.

- The twenty-five countries in bold have parental involvement laws.

- The twenty-two italicized countries place comparable restrictions on all abortions. (See Appendix B).

- The remaining fifteen countries have no safeguards for minors seeking abortions.

Countries with Involvement Laws

Country Bypass’ | Confidential’ | Emergency’ | Standard’ | Sources”

l Estonia No No 1,2

2 __| Georgia No No 2

3 =| Greece No No 2

4 | India No No 2

5 Kazakhstan No No 3

6 | Latvia No No 1,2

7 | Lithuania No No 1,2

8 | Macedonia No No 1

9 | Mongolia No No 1,2

10 | Taiwan No No l

11 | Barbados No Yes Strict 2

12 _| Bosnia Herzegovina No Yes Strict ]

13 | Croatia No Yes Intermed 2

14 | Cuba No Yes Intermed 1,2

15 | Czech Republic No Yes Strict 2

16 | Guinea-Bissau No Yes Low l

17 | Slovakia No Yes Intermed 2

18 | Turkey No Yes Intermed 2

19 | Denmark Yes No No 2

1 ‘ddy

20 _| Luxembourg | Yes No No 1,2

21 | Slovenia Yes No No l

22 | Yugoslavia Yes No No l

23 | Iceland Yes No Yes Low 2

24 | Italy — Yes No Yes Strict 2

25 | Norway Yes No Yes Low l

© For this brief, an emergency exception to a parental involvement law must be i) for the purpose of

preserving the life or health (physical or mental) of the mother and ii) stated within, or incorporated by, the

involvement provision itself. Countries that provide such an exception will be noted by a “yes” in the

column.

For countries that have emergency exceptions, the “Standard” column denotes the stringency of the criteria

necessary to satisfy the exception. A designation of “Strict” indicates that the exception only applies when

abortion is necessary to preserve the life of the mother or to prevent serious bodily injury. “Intermed”

indicates abortion is allowed to alleviate any threat to the mother’s life or health. “Low” indicates there

i must be some reason to perform the abortion without complying with the involvement requirement.

o Three sources provided the information used to create this table. They are listed below. The sources

consulted for each country are noted by listing the corresponding footnote numbers in the “Sources” column.

' United Nations, Abortion Policies: A Global Review (2002), at

http://www.un.org/esa/population/publications/abortion/profiles. htm

? Harvard Law School, Abortion Laws of the World (2004), at

http://www.law.harvard.edu/programs/annual_review/

* Center for Reproductive Rights, Abortion and the Law: Ten Years of Reform (Feb. 2005), at

http://www.reproductiverights.org/pdf/pub_bp_abortionlaws10.pdf

Comparison by Numbers

Category Sub-category 1 Sub-category 2 No. Percent**

Total Countries

9

5 , 193 100%

Restrictive Countries 131 68%

Permissive Countries 62 32%

With involvement

boom 25 13%

and no bypasses or 10 5%

emergency exceptions

and bypasses 7 4%

and exceptions ll 6%

and both bypasses and 3 2%

emergency exceptions

With comparable

restrictions 22 11%

With no safeguards

for minors aS o%

** Percents are calculated to the nearest whole number.

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APPENDIX B

COMPARABLE RESTRICTIO"™'S I! PERMISSIVE COUNTRIES*

danger of grave permanent injury.

Country Restrictions’ = Sources”

1 | Albania Abortion for life or health reasons requires the approval of three 1,2

nysicl

2 ‘| Armenia Any abortion after | st trimester must be authorized by a commission 1

of local physicians

3 Australia Requirements vary by jurisdiction 1,2

4 | Austria Abortion after Ist trimester only permitted to avert a serious risk to life 2

or health

5 | Azerbaijan Any abortion after the 1st trimester must be authorized by commission l

of local physicians

6 | Bahrain A physician must consult with a panel of physicians before performing 1,2

an abortion

7 | Belgium Abortion after Ist trimester only allowed if two physicians agree there 2

is a grave danger to mother’s life or health. Also, requires a one week

waiting period with no explicit health or death exception and no

bypass.

8 | Belize Abortion for health reasons must be authorized by two registered 2

physicians

9 | Bulgaria Abortion after 1st trimester only permitted if medical commission 1,2

determines woman's life is in

10 | Cambodia Abortion after the Ist trimester is prohibited unless approved by a l

11 | Cape Verde Abortion after 1st trimester only permitted to avert a serious risk to life l

or health

12 | Finland Any abortion for health reasons must be independently certified by 2

two physicians

13 | France Abortion after 10th week only permitted where grave danger to 2

woman's health is certified by two physicians

14 | Kyrgyzstan Abortion after 1st trimester must be authorized by commission of local l

hvsici

15 _| Netherlands Six day waiting period only waived where life is in danger 2

16 | South Africa Abortion requires approval of three independent physicians. No health 2

exception after 20th week.

17 | St. Vincent- Abortion must be approved by two medical practitioners l

Grenadines

18 | Switzerland Abortion requires written approval of second physician except in l

emergencies.

19 | Tajikistan Abortion must be approved by two medical practitioners l

20 | Tunisia Abortion after Ist trimester only permitted where two physicians agree l

there is danger to the mother’s health

21 | United The minor must be mature enough to understand all the issues 4

Kingdom involved and be unwilling to inform her parents

22 | Zambia All abortions require consent of three physicians. Exception only for 2

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* For purposes of this brief, a permissive country is a country that permits abortion on socioeconomic

or on demand at some point during

pregnancy.

+ This column is not a comprehensive list of each country’s restrictions on abortions. It only lists restrictions

that are comparable to parental involvement laws in the burden they place on all women, including minors,

who wish to have an abortion.

o Four sources provided the information used to create this table. They are listed below. The sources

consulted for each country are indicated by listing the corresponding footnote number in the “Sources”

column.

' United Nations, Abortion Policies: A Global Review (2002), at

http://www. un.org/esa/population/publications/abortion/profiles.htm

? Harvard Law School, Abortion Laws of the World (2004), at

http://www.law.harvard.edu/programs/annual_review/

* Center for Reproductive Rights, Abortion and the Law: Ten Years of Reform (Feb. 2005), at

http://www.reproductiverights.org/pdf/pub_bp_abortionlaws10.pdf

“See the House of Lords ruling in Gillick v. West Norfolk & Wisbech Area Health Authority, [1985]

3 W.L.R. 830, 1985 WL 311014 (H.L. 1985).

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APPENDIX C

STATUTORY LANGUAGE OF EMERGENCY EXCEPTIONS

Country

Language

The abortion must be “immediately necessary to save the life of the

pregnant woman or to prevent grave permanent injury to her physical or

mental health.” Medical Termination of Pregnancy Act (Act No. 4 of 1983),

§ 8(4).

Herzegovina

A medical commission may consent to an abortion when it is medically

established that it would otherwise be impossible to save the woman’s life or

prevent damage to her health.

“[T]he abortion will be performed or completed . . . where immediate danger

is present to the life or health of the pregnant woman.” Law No. 1252-1978,

Act Concerning the Medical Measures for Materialization of the Right to

Freely Decide on the Birth of Children (Apr. 21, 1978), art. 25.

The language of the Cuba health regulations pertaining to abortion is not

available.

“[T]he consent of the legal representative is also necessary if an abortion on

health grounds is performed on [a minor].” Notification of the Ministry of

Health of the Czech Socialist Republic on the implementation of Law No.

66/1986 on abortion (Nov. 7, 1986), § 5.

Guinea-Bissau

In special circumstances, it is possible for the pregnant woman to receive an

abortion without the necessary consent.

Iceland

The minor’s “parents or a guardian shall participate in an [abortion]

' spplication with her unless special reasons oppose it. Law No. 25 of 1975

(May 27, 1975), ch. IL, art. 13, § 3.

Italy

“Where the physician finds that termination is urgently required in view of a

serious threat to the health of a woman under 18 years of age, he shal! make

out a certificate indicating the conditions justifying the termination of

pregnancy, without requesting the consent of the persons exercising parental

authority or the guardian and without applying to the magistrate.” Law No.

194 on the social protection of motherhood and the voluntary termination of

(May 22, 1978), § 12.

For minors, “the person exercising parental authority or the guardian shall be

given an opportunity to express his views, unless there are particular reasons

to the contrary.” Law No. 50 on the termination of pregnancy (June 13,

1975), as amended through Law No. 86 (June 16, 1989), § 4.

Slovakia

The parental consent requirement is waived “if [the minor’s] life or health or

the healthy development of the fetus are endangered . . . .” Law on abortion

(Oct. 23, 1986), as amended through Law No. 419/1991, § 5.

Turkey

The parental consent requirement “may be waived if there could be danger

to life or to a vital organ unless urgent action is taken.” Law No. 2827 (May

24, 1983), Population Planning Law, § 6.

1 United Nations, Abortion Policies: A Global Review (2002), at

http://www.un.org/esa/population/publications/abortion/profiles.htm

2 Harvard Law School, Abortion Laws of the World (2004), at

http://www.law.harvard.edu/programs/annual_review/

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