# Amicus Curiae Brief — Ayotte v. Planned Parenthood > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0074%3A25 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2006 - **Citation:** 546 U.S. 320 ## Text 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