Amicus Curiae Brief — Gonzales v. Carhart

: MAY 2 2 2006

Ne. GS-50 OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

¢

ALBERTO R. GONZALES, Attorney General,

Petitioner,

V.

LEROY CARHART, et al.,

Respondents.

¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

*

BRIEF OF GIANNA JESSEN, ZACHARY

KLOPFENSTEIN (BY AND THROUGH HIS

PARENTS, TERRY AND JILL KLOPFENSTEIN),

AND THE CENTER FOR MORAL CLARITY AS

AMICI CURIAE IN SUPPORT OF PETITIONER

S

KELLY SHACKELFORD

Counsel of Record

HIRAM S. SASSER III

JONATHAN M. SAENZ

LIBERTY LEGAL INSTITUTE

903 East 18th Street, Suite 230 -

Plano, Texas 75074

(972) 423-3131

(972) 423-6570 (FAX)

Counsel for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

Re Ce BAF EE ssccsicctvtencccsccscevinccsnsssincsiessee iii

INTEREST OF AMICI CURIAE...............ccccscssssessessenees 1

SUMMARY OF ARGUMENT ...0000.00.......:ccccccecesssseeeeeees

PITT cletieniicieciiatteapiiacinaaiietebiinisitninitienasinasiacatintiaptaialimavictuibion 5

I. Congress deserves deference when it makes

II.

public policy decisions, especially when such

decisions are at the margins of constitutional

RD i iciticcicniitiscitceanisvnitniadainindnilathitima situs

A. Partial-Birth Abortion lies beyond the

IO iccewiicchtes diitericiatntsinbciandiiniiniguinittinateiniiaiit

B. This Court defers to Congress in its policy

I CUD sicctcséninctsieedntipiniiesieintinimbenviaideiniiiin

C. From the foundation of this Nation, it has

been clear that the Court should show

great deference to the public policy deci-

ee nce tetdiistintinncsinesebaninnatanbeiees

Congress should be free to consider a broad

array of evidence when acting as a policy-

maker, including the experiences of those in-

timately familiar with late-term and partial-

EN a ctniciiisiseitaseivichiminsptateinctigeininteitiiiniisese

A. Congress may consider evidence that psy-

chological harm to women occurs as a re-

a A i iicatiitechsiihiisibeiatentcecitlerisiaitenniiins

B. Congressional consideration may include

such factors as Post Traumatic Stress Dis-

order, the diffusion of responsibility and

how partial-birth abortion is merely a ve-

neer to provide moral distance for the doc-

SF I and chticasicendsiccitnbaannsetinshidstnsniiin

11

15

16

ii

TABLE OF CONTENTS - “~ ontinued

Page

C. It is within the legislative ken of Congress

to consider the survival of children of late-

term or partial-birth abortions in deter-

mining their life claim outweighs the lib-

erty interest of the mother at the outer

most fringes of that interest...................:06 20

CAI ctrstencccsrecserserepsecesenepininnsnnenonvnenentensnoneneens 25

ili

TABLE OF AUTHORITIES

Page

CASES

Akron v. Akron Cir. for Reprod. Health, 462 U.S.

I ctaise talib ctrsntsisnctinchstcpctstdedpebcnibsobiinibeidiintiiatiiidinieiticineisaiioes 6

Alexander v. Whitman, 114 F.3d 1392 (3rd Cir.

Scie eit thai etched ncgtinnapetitcndigidiiiele 15

Civil Rights Cases, 109 U.S. 3 (1883) .0.........cccccceeeeeeeeeeees 15

Dred Scott v. Sandford, 60 U.S. 393 (1857)................ 13, 14

FCC v. National Citizens Comm. for Broadcasting,

Se Fe ED abetted pastopecitcninscnticietibnnbcntndiencidarsonsite 10

Jones v. United States, 463 U.S. 354 (1983) ...............000. 10

Kansas v. Hendricks, 521 U.S. 346 (1997)............0.....0000 10

McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004)................. 16

Planned Parenthood v. Casey, 510 U.S. 1309 (1994).... 5, 20

Planned Parenthood v. Casey, 947 F.2d 682 (3rd

FRR IRR SE RAY I ROR anreA MALE EME AD! RAPES WEN 15

Roe v. Wade, 410 U.S. 113 (1973) ............ccceceeceeeeeees 5, 16, 20

Stenberg v. Carhart, 520 U.S. 914 (2000)...........0....... 6, 7,9

Turner Broad. Sys. v. FCC, 520 U.S. 180 (1997)

a eeiniaie 10, 11, 16

United States v. Carolene Products, 304 U.S. 144

CD sinianeaninnen RET HO RSS OF TEESE DEE aw SPIRE ERO 24

United States v. Midwest Video Corp., 406 U.S. 649

a ccthccecechuasliihtediet had dice titliakaeiieileic ten baenieadhninthiin balchiaiiclocsnd 10

lv

TABLE OF AUTHORITIES — Continued

HISTORICAL SOURCES

THE FEDERALIST (Benjamin Warner ed., 1818)............

THOMAS JEFFERSON, 15 WRITINGS OF THOMAS

JEFFERSON (Albert Ellery Bergh ed., Thomas

Jefferson Memorial Association 1904) .....................

THOMAS JEFFERSON, LETTER TO ABIGAIL ADAMS

(September 11, 1804), reprinted in 4 MEMOIR,

CORRESPONDENCE, AND MISCELLANIES, FROM THE

PAPERS OF THOMAS JEFFERSON (Thomas Jefferson

Randolph ed., Gray and Bowen 1830).................:00-

RUuFuS KING, RUFUS KING’S RECORD OF THE CONSTI-

TUTIONAL CONVENTION (June 4, 1787), reprinted

in THE RECORDS OF THE FEDERAL CONVENTION OF

1787 (Max Farrand ed., Yale University Press

BIPEDD sccoccvceseseynnecccesenasssuscnuvcotoveesdutecebienbaisteobbanianniepets

ABRAHAM LINCOLN, INAUGURAL ADDRESS (March 4,

1861), reprinted in 4 A COMPILATION OF THE MEs-

SAGES AND PAPERS OF THE PRESIDENTS, 1789-1897

(James D. Richardson ed., Published by Author-

ity Of Congress 1899)............cccccessccrscscccssssessssesseeees

JAMES MADISON, 2 THE PAPERS OF JAMES MADISON

(Henry D. Gilpin ed., Langtree & O’Sullivan

BED ccsececesnizsnsanistndnmmiviactnndpaniifanveyionngiciaipaiieeniaee

JAMES WILSON, JAMES WILSON AT THE PENNSYL

VANIA RATIFICATION DEBATES (December 1, 1787),

reprinted in, 2 DEBATES IN THE SEVERAL STATE

CONVENTIONS ON THE ADOPTION OF THE FEDERAL

CONSTITUTION (Jonathan Elliot ed., Printed for

TN TI occ necicscnstiidociibiarldchedtateacandinaiietieloskonss

v

TABLE OF AUTHORITIES — Continued

THE DEBATES ANID PROCEEDINGS OF THE SECOND

SESSION OF THE THIRTY-SEVENTH CONGRESS (John

C. Rives ed., Congressional Globe Office 1862) .......

STUDIES

C. A. Barnard, The Long-Term Psychosocial Effects

of Abortion (Institute for Pregnancy Loss, 1990).....

W. Franz & D. Reardon, Differential Impact of

Abortion on Adolescents and Adults, 27(105) Ado-

EE ee ean

M. Gissler, et al., Suicides After Pregnancy in

Finland: 1987-94: Register Linkage Study 313

(British Medical J.) 1431 (1996)............cccccccccceeeeeeee 7

B. Lask, J. Lydon, et al., Pregnancy Decision

Making as a Significant Life Event: A Commit-

ment Approach, 71(1) J. Personality and Soc.

Psychology 141 (1996) .................::ccccceees Ea

B. Major & C. Cozzarelli, Psychosocial Predictors of

Adjustment to Abortion, 48(3) J. Soc. Issues, 121-

42 (1992)............ Nini saeheebdishicnapehnddnepinensnntanateense

W. B. Miller, An Empirical Study of the Psychologi-

cal Antecedents and Consequences of Induced

Abortion, 48(3) J. Soc. Issues 67 (1992) .............00.

W. B. Miller, Testing a Model of the Psychological

Consequences of Abortion, The New Civil War: The

Psychology, Culture, and Politics of Abortion,

(Linda J. Beckman & S. Maria Harvey eds., 1998)...

— 17

TABLE OF AUTHORITIES — Continued

Page

Planned Parenthood Federation of America, The

Emotional Effects of Induced Abortion, available

at http://www.plannedparenthood.com/pp2/portal/

files/portal/medicalinfo/abortion/fact-010600-emoteff.

xml#1097838269784::2874363106508449296............... 17

H. Sderberg, et al., Emotional Distress Following

Induced Abortion: A Study of Incidence and De-

terminants Among Abortees in Malm Sweden, 79

Eur. J. Obstet. Gynecol. Reprod. Biol. 173 (1998) ........ 17

H. P. Vaughan, Canonical Variates of Post-Abortion

Syndrome (Institute for Pregnancy Loss, 1990)........... 17

PUBLICATIONS

Dexter Duggan, California Abortionist Testifies in

His Own Defense, LIFE ADVOCATE, May/June

Sree ciciescltchieneeihitis crip ceilenanlaiataidatideda nisin aiiiatintetiaiitaa ted 22

Susan Fraker and Janet Huck, The Trial of Dr.

Waddill, NEWSWEEK, April 3, 1978........................:cc000 22

Neal Hall, Jury Will Hear Malpractice Lawsuit

Over Girl Born After Failed Abortion: A Judge

Has Ruled That The Case of a Baby Born Brain-

Damaged And Left to Die Is Not Too Complex For

Jurors, VANCOUVER SUN, April 29, 1998 ..................0 23

David Kocieniewski, Ana’s Plight; Mom Says She'll

Be Honest With Baby Maimed In Abortion, NEws-

, ND Tis Bi ivictcicteiteinencensegsinintinascetnecscesnanion 23

Jeffrey Perlman, Waddill Trial Has Heavy Impact,

Los ANGELES TIMES, May 15, 1978 .......................cc00000 22

The Ordeal of a Divided Jury, TIME, May 22, 1978.......... 22

Vii

TABLE OF AUTHORITIES -— Continued

OTHER SOURCES

Robin Charlow, Judicial Review, Equal Protection

and the Problem with Plebiscites, 79 CORNELL L.

ls Se Gee aeitntcceapibncianiitunnningninisnisisnaiaatiniciinacsen

Davip A. GROSSMAN, LT. COL., ON KILLING: THE

PSYCHOLOGICAL COST OF LEARNING TO KILL IN

WAR AND Society, (Bay Back Books 1995)..............

LEARNED HAND, THE SPIRIT OF LIBERTY, (Irving

Dillard ed., 3d ed. 1960) (“The Spirit of Liberty,”

speech at an “I Am an American Day” ceremony,

Central Park, New York City, May 21, 1944)...........

The Partial-Birth Abortion Ban Act of 1995: Hear-

ing on H.R. 1833 Before the Senate Comm. on the

Judiciary, 104th Cong. 18 (Nov. 17, 1995)...............

Page

1

INTEREST OF AMICI CURIAE’

On April 5, 1977, a pregnant 17 year old young woman

sought a saline abortion at seven months pregnant. The

saline abortion procedure involves injecting saline solution

into the amniotic fluid. During this abortion procedure,

the saline solution burns the fetus and causes it to be

delivered dead. This young woman, Tina, was informed by

the staff at the abortion clinic that it was in her best

interest to obtain an abortion because her mom was

already on welfare. Tina and the doctor who injected her

abdomen with saline never looked each other in the eye

and the doctor only said one word during the entire

procedure: “saline.” It was a command to the nurse to

hand him the saline solution he injected into Tina.

Tina and the other women injected with the solution

were required to drink heavy amounts of water and walk

around, waiting for their baby to die so that their bodies

could discharge it. Tina waited in the clinic overnight.

However, something “abnormal” happened. In the early

hours of April 6, Tina went into labor. Tina was sur-

rounded by a room full of women who had delivered limp,

lifeless babies. Tina, unassisted by any nurse or other

worker at the abortion clinic, gave birth to a living baby

girl, amicus Gianna. Other women were crying, the nurses

were shocked.

* The parties have consented to the filing of this brief. Their letters

of consent have been filed with the Clerk of this Court. Pursuant to this

Court’s Rule 37.6, none of the counsel for the parties have authored this

brief in whole or in part and no one other than amici or its counsel

contributed money or services to the preparation and submission of this

brief.

2

Gianna was born that morning before the abortionist’s

scheduled shift. Since the abortionist was not available,

Gianna was sent to a hospital, escaping an almost sure

death at the hands of the abortionist. She did not com-

pletely escape injury from the saline abortion attempt and

remained in the hospital for three months. She was later

placed with a foster family who specialized in high-risk

children.

Due to lack of oxygen supply to her during the abor-

tion, Gianna has been forced to live with cerebral palsy.

Although doctors never believed she would be able to sit

up or walk, she has exceeded all probabilities. She can now

walk and run. In April of 2006, she ran in the London

marathon. In 1996 and 2000, Gianna testified before

Congress concerning her survival of a late-term abortion.

Amicus Zachary, represented by and through his

adoptive parents, Terry and Jill Klopfenstein, is also a

miracle baby grown up. Zachary is nine-years-old. Zach-

ary’s biological mother was addicted to and was using

crack cocaine during her pregnancy. When Zachary was in

his biological mother’s womb, he was diagnosed with

hydrocephalus and minimal cortex. Zachary had an

abnormal amount of fluid in his head and little chance of

survival. He was a baby of severe abnormalities — one that

would easily fall within a “health exception.” Zachary was

born on the evening of February 28, 1997 at 39 weeks

gestation. With Zachary’s head likely visible, his skull was

punctured and the fluid was drained.’ The doctor assumed

* The procedure Zachary endured is called cephalocentesis. It is not

a partial-birth abortion. It is a medical procedure that is done to shrink

the oversized head of a baby with hydrocephalus and is usually fatal.

Zachary, however, is in a unique position to demonstrate that life, even

(Continued on following page)

3

Zachary would die as a result. Zachary’ heart rate was

around 100, but he had little respiration and was ashy in

color.

The doctors placed “comfort care only” orders for

Zachary, which means no one was to assist in reviving

him, no oxygen, no respiratory assistance, just allow him

to die. The doctors did not even aspirate him after delivery,

which is a standard practice for all newborns. Zachary

refused to die. He survived that Friday night. He survived

Saturday. He survived Sunday. Zachary refused to die and

was given no help to live. Finally, on Monday, a neurosur-

geon was called. Zachary needed surgery right away, but

first a blood clot caused by the procedure needed to be

drained.’ Zachary was finally cared for and lives today

with mental and physical handicaps caused by his mis-

treatment, yet he has overcome many of the significant

handicaps that plagued him since birth.

Amicus Center for Moral Clarity, Inc. (“CMC”) is a

501(cX3) tax-exempt non-profit corporation dedicated to

advancing the non-partisan causes of racial and gender

equality, the eradication of poverty, and raising the stan-

dard of moral excellence for this nation. It is a Christ-

centered organization founded by Senior Pastor Rod

Parsley of World Harvest Church that is dedicated to

giving a voice to the values central to the faith.

life determined unworthy by some medical professionals, is precious

and worthy of a chance.

* If Zachary had been deemed worthy of salvation, a caesarean

section would have been an easy alternative that would not have put

Zachary’s life at risk.

4

This is the first time CMC has appeared as amicus

before any court. The reason for CMC’s appearance is its

concern regarding post-abortion counseling services and

the significant impact partial-birth abortion is having on

the psychological well being of women that terminate their

pregnancies in such a manner. The emotional scarring

associated with such a terrible procedure leaves life-long

wounds. With partial-birth abortion on the fringes of the

wide spectrum of legal abortions, CMC feels it must

participate on behalf of women everywhere.

Amici share a common objective: to bring to the

Court’s attention the survivor’s perspective of a late-term

or partial-birth abortion and the valid reasons why delib-

erative bodies, not courts, should set this difficult public

policy. With so much argument on both sides regarding

this critical issue, it is easy for the Court to lose sight of

the true life interests at stake in a partial-birth abortion.

With partial-birth abortion lying on the outer markers, it

is perfectly within the purview of Congress to make the

tough public policy decision to choose to favor the life of

the almost born, such as the lives of amici Gianna and

Zachary, over the low water mark of the liberty interest of

a woman to end the young life she carries.

¢

SUMMARY OF ARGUMENT

The American system of government is dependent

upon the proper role of its branches. The Legislative body

is the policy-making body, making difficult policy decisions

for the country after extensive deliberation, debate, and

analysis in representing the people. As the Founders of

this country and centuries of American jurisprudence

5

attest, the Legislature is in a much better position to serve

this role than the Courts. In fact, when a court oversteps

into policymaking, it directly restricts the liberty and

freedom of The People, substituting its moral and policy

beliefs for those of The People and their representative

body — Congress.

Partial-birth abortion is a deep public policy issue

involving many complex issues of life and death, medicine,

psychology, societal impacts, and increased callousness,

among many other concerns. Congress can properly and .

fully consider such concerns, in public and through the

exchange of ideas. It is their role.

The lives of people like amici are exactly the kinds of

evidence Congress can and should be able to consider.

+

ARGUMENT

I. Congress deserves deference when it makes

public policy decisions, especially when such

decisions are at the margins of constitutional

jurisprudence.

This case does not present an issue that challenges

Roe or Casey.* Instead, this is a case regarding a public

policy decision bevond the margins of the judicially crafted

right to an abortion that involves a substantial number of

factors and competing interests and extensive public

debate. The very purpose of Congress is to make such

* Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. Casey,

510 U.S. 1309 (1994).

6

public policy decisions, and Congress is best equipped to

do so.

“The members of the Legislative department ...

are numerous. They are distributed and dwell

among the people at large. Their connections of

blood, of friendship, and of acquaintance embrace

a great proportion of the most influential part of

the society . . . they are more immediately the con-

fidential guardians of their rights and liberties.”

THE FEDERALIST No. 49, at 275 (Alexander Hamilton)

(Benjamin Warner ed., 1818). Congress investigates,

debates, and deliberates on public policy issues and is in a

far superior position to formulate public policy decisions.

See Stenberg v. Carhart, 530 U.S. 914, 968 (2000) (“Irre-

spective of the difficulty of the task, legislatures, with

their superior fact finding capabilities, are certainly better

able to make the necessary judgments than are courts.”)

(Kennedy, J., dissenting) (quoting Akron v. Akron Ctr. for

Reprod. Health, 462 U.S. 416, 456 n. 4 (1983) (O’Connor,

J., dissenting)). It would be improper to presume other-

wise. As Luther Martin, one of the delegates to the Consti-

tutional Convention attested: “[a] knowledge of mankind

and of legislative affairs cannot be presumed to belong in a

higher degree to the Judges than to the Legislature.”

A. Partial-Birth Abortion lies beyond the mar-

gins.

Partial-birth abortion is a “gruesome procedure.”

Carhart, 530 U.S. at 946 (Stevens, J., concurring). It is a

* JAMES MADISON, 2 THE Papers OF JAMES MADISON 1166 (Henry

D. Gilpin, ed., Langtree & O’Sullivan 1840) (Luther Martin, during the

debates of Saturday, July 21, 1787).

7

procedure that “millions find hard to distinguish from

infanticide and that the Court hesitates even to describe.”

Id. at 982 (Thomas, J., dissenting). It is a procedure that

“many decent and civilized people find so abhorrent as to

be among the most serious crimes against human life...”

Id. at 979 (Kennedy, J., dissenting). It is a procedure that

“is so horrible that the most clinical description of it

evokes a shudder of revulsion.” Jd. at 953 (Scalia, J.,

dissenting). It is a procedure that is “subject to the most

severe moral condemnation, condemnation reserved for

the most repulsive human conduct.” Jd. at 963 (Kennedy,

J., dissenting).

As described in Carhart:

“la]t this point, the right-handed surgeon slides

the fingers of the left hand along the back of the

fetus and hooks the shoulders of the fetus with

the index and ring fingers (palm down). The sur-

geon takes a pair of blunt curved Metzenbaum

scissors in the right hand. He carefully advances

the tip, curved down, along the spine and under

his middle finger until he feels it contact the base

of the skull under the tip of his middle finger.

The surgeon then forces the scissors into the base

of the skull or into the foramen magnum. Having

safely entered the skull, he spreads the scissors

to enlarge the opening. The surgeon removes the

scissors and introduces a catheter into this hole

and evacuates the skull contents ... In cases in

which the physician inadvertently dilates the

woman to too great a degree, the physician will

have to hold the fetus inside the woman so that

he can perform the procedure.”

Id. at 988-89 (Thomas, J., dissenting) (internal citations

omitted). Evidence presented to Congress at a hearing on

8

partial-birth abortion also described the scene. As Con-

gress heard from an eyewitness to partial-birth abortion:

“(t]he baby’s little fingers were clasping and un-

clasping, and his little feet were kicking. Then

the doctor stuck the scissors in the back of his

head, and the baby’s arms jerked out, like a star-

tle reaction, like a flinch, like a baby does when

he thinks he is going to fall. The doctor opened

up the scissors, stuck a high-powered suction

tube into the opening, and sucked the baby’s

brains out. Now the baby went completely limp

... Dr. Haskell delivered the baby’s head. He cut

the umbilical cord and delivered the placenta. He

threw that baby in a pan, along with the pla-

centa and the instruments he’d used. I saw the

baby move in the pan. I asked another nurse and

she said it was just ‘reflexes.’™

Of course, amicus Gianna Jessen had first-hand

experience with a late-term abortion. To this day, Ms.

Jessen bears the scar of that struggle in the form of her

cerebral palsy, but she lives ... beautifully. Baby Zachary

too was condemned to die. His medical condition was

severe; he would surely die or live a miserable life accord-

ing to the medical experts. Yet, both amici are alive today

to tell their stories and testify by their lives that this is not

a matter for courts but rather involves a deep public policy

debate that requires open deliberation and exchange of

ideas that is better suited for the legislature.

* Id. at 1007; The Partial-Birth Abortion Ban Act of 1995: Hearing

on H.R. 1833 Before the Senate Comm. on the Judiciary, 104th Cong. 18

(Nov. 17, 1995) (statement of Brenda Pratt Shafer).

9

If a doctor’s hand slips accidentally, a baby doomed to

die through a puncture in the back of the skull is born

alive. What does the doctor legally do in this situation?

What does society expect of the doctor when he makes a

mistake and allows a little girl to slip through his fingers

and be accidentally delivered? Who in the room has the

power to save that child who is accidentally born? Will a

nurse step forward? Is the mother strapped to a table

responsible for saving the baby once it is born? Why

cannot the doctor go ahead with the procedure even if this

occurs? What is the difference between the head being

held by a doctor in the birth canal and a head that is fully

exposed? It is appropriate for Congress to address these

policy questions through its deliberative process, including

the exchange of ideas, in the open, and the analysis of the

moral and social implications, finding the best conclusion

and policy for this country.

B. This Court defers to Congress in its policy

making role.

It is proper for Congress to “take into account the

grave moral issues presented by a new abortion method.”

Carhart, 530 U.S. at 967 (Kennedy, J., dissenting). Justice

Kennedy went on to cite several cases for the proposition

that the Court should give wide deference to legislative

bodies when they decide close issues involving medical

disagreement and uncertainty. Jd. at 970-72 (Kennedy, J.,

dissenting) (collecting cases). Justice Kennedy’s point is

well taken. It is not proper for the Court to “tie the State’s

hands.” Congress should be “afforded the widest latitude”

and the Court “should be cautious not to rewrite legisla-

tion.” Jd. On the fringe of a constitutional right lies an

area where public policy interests are of substantially

10

increasing importance and the right at issue is accorded

less deference. There is no clearer example of such a public

policy threshold than partial-birth abortion.

Viewed in the light most favorable to Plaintiffs, the

best that can be said is that there is some medical ambigu-

ity or uncertainty surrounding partial-birth abortion. It is

within this “play in the joints” that Congress is accorded

the most deference. The proposition that Congress or a

legislative body is in a better position to make these close

calls than the Court is well-established American juris-

prudence. See, e.g., Kansas v. Hendricks, 521 U.S. 346, 360

n. 3 (1997) (“it is precisely where such [public policy]

disagreement exists that legislatures have been afforded

the widest latitude”); Jones v. United States, 463 U.S. 354,

370 (1983) (“legislative options must be especially broad

and courts should be cautious not to rewrite legislation”).

Thus, the Court’s deference to Congress’ role as the

national policymaker is in some measure due to the

acknowledgement that Congress “is far better equipped

than the judiciary to amass and evaluate the vast amounts

of data bearing upon legislative questions.” Turner II, 520

U.S. at 195 (internal quotations omitted).’

” “Though different in degree, the deference to Congress is in one

respect akin to deference owed to administrative agencies because of

their expertise. See FCC v. National Citizens Comm. for Broadcasting,

436 U.S. 775, 814 (1978) (“Complete factual support in the record for

the [FCC’s] judgment or prediction is not possible or required; ‘a

forecast of the direction in which future public interest lies necessarily

involves deductions based on the expert knowledge of the agency’”);

United States v. Midwest Video Corp., 406 U.S. 649, 674 (1972) (it was

“beyond the competence of the Court of Appeals itself to assess the

relative risk and benefits” of FCC policy, so long as that policy was

based on findings supported by evidence). This is not the sum of the

(Continued on following page)

11

A common justification for judicial deference to

the legislature is the latter’s unique expertise in

performing the factfinding function essential to

determinations of policy. To the extent that fact-

finding and fact evaluation informs a constitu-

tional inquiry as well, legislatures are often

considered superior to courts in educating them-

selves on and calculating the relative weight of

the necessary background data. Legislatures,

unlike courts, have substantial staff, funds, time

and procedures to devote to effective information

gathering and sorting. Additionally, deference

with regard to some legislative matters reduces

what would otherwise be an unmanageable bur-

den on limited judicial resources.

Robin Charlow, Judicial Review, Equal Protection and the

Problem with Plebiscites, 79 CORNELL L. REV. 527, 578-79

(1994) (footnotes omitted).

C. From the foundation of this Nation, it has

been clear that the Court should show great

deference to the public policy decisions of

Congress.

During the drafting and ratification of the Constitu-

tion, it is clear that this Nation’s Founders understood

matter, however. We owe Congress’ findings an additional measure of

deference out of respect for its authority to exercise the legislative

power. Even in the realm of First Amendment questions where Con-

gress must base its conclusions upon substantial evidence, deference

must be accorded to its findings as to the harm to be avoided and to the

remedial measures adopted for that end, lest we infringe on traditional

legislative authority to make predictive judgments when enacting

nationwide regulatory policy.” Turner Broad. Sys. v. FCC, 520 U.S. 180,

196 (1997) (Turner IT).

12

that Congress is the supreme branch governing public

policy decisions, if for no other reason than Congress is

directly accountable to the people. As Thomas Jefferson

expounded in a letter to Judge Spencer Roane:

“our Constitution . . . intending to establish three

departments, co-ordinate and independent that

they might check and balance one another, it

has given — according to this opinion — to one of

them alone the right to prescribe rules for the

government of the others; and to that one, too,

which is unelected by and independent of the na-

tion .. . The Constitution, on this hypothesis, is a

mere thing of wax in the hands of the Judiciary

which they may twist and shape into any form

they please.”

Rufus King, signer of the Constitution, warned during the

Constitutional Convention, “the judges must interpret the

laws; they ought not be legislators.” Rurus KING, RUFUS

KING’s RECORD OF THE CONSTITUTIONAL CONVENTION (June

4, 1787), reprinted in THE RECORDS OF THE FEDERAL

CONVENTION OF 1787 at 108 (Max Farrand ed., Yale Uni-

versity Press, 1911).° It is improper for the Court to in-

trude upon Congress’ sphere as a policymaker.

Thomas Jefferson earlier warned that “the opinion

which gives to the judges the right to decide what laws are

* THOMAS JEFFERSON, 15 WRITINGS Or THOMAS JEFFERSON 215

(Albert Ellery Bergh ed., Thomas Jefferson Memorial Association 1904)

(Letter from Thomas Jefferson to Judge Spencer Roane, Sept. 6, 1819).

* Alexander Hamilton explained in FEDERALIST NO. 81, “there is

not a syllable in the plan [Constitution] which directly empowers the

national courts to construe the laws according to the spirit of the

Constitution.” THE FEDERALIST No. 81, at 436 (Alexander Hamilton)

(Benjamin Warner ed., 1818).

13

and are not constitutional and what not, not only for

themselves in their own sphere of action, but for the

Legislature and Executive also in their spheres, would

make the Judiciary a despotic branch.” THOMAS JEFFER-

SON, LETTER TO ABIGAIL ADAMS (September 11, 1804),

reprinted in 4 MEMOIR, CORRESPONDENCE, AND MISCELLA-

NIES, FROM THE PAPERS OF THOMAS JEFFERSON at 27

(Thomas Jefferson Randolph ed., Gray and Bowen, 1830).

President Lincoln, two score and seventeen years later,

stated in his Inaugural Address in response to the Court’s

decision in Dred Scott v. Sandford, 60 U.S. 393 (1857),

“if the policy of the government upon vital ques-

tions affecting the whole people is to be irrevoca-

bly fixed by decisions of the Supreme Court, the

instant they are made ... the people will have

ceased to be their own rulers, having ... re-

signed their government into the hands of that

eminent tribunal.”

ABRAHAM LINCOLN, INAUGURAL ADDRESS (March 4, 1861),

reprinted in 4 A COMPILATION OF THE MESSAGES AND

PAPERS OF THE PRESIDENTS, 1789-1897 at 9 (James D.

Richardson ed., Published by Authority of Congress 1899).

All of this is not to say the Court is deprived of

judicial review. It quite certainly is not. It is undisputed,

as James Wilson, signer of the Constitution and early

Supreme Court justice, pointed out during the Pennsyl-

vania Constitution ratification debate, “when they [the

judges] consider its [a law’s] principles and find it to be

incompatible with the superior power of the Constitution,

it is their duty to pronounce it void.” JAMES WILSON,

JAMES WILSON AT THE PENNSYLVANIA RATIFICATION DE-

BATES (December 1, 1787), reprinted in, 2 DEBATES IN THE

SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE

14

FEDERAL CONSTITUTION at 446 (Jonathan Elliot ed.,

Printed for the Editor 1836).”°

Some may argue that for the Court to defer to Con-

gress in its policy making role subjects the minority to the

will or tyranny of the majority. Setting aside for a moment

that Congress, by its very design, has built in safeguards

against such a majority, not the least of which is the

pocket veto whereby one person may defeat legislation

supported by a majority, there is one major flaw with this

argument. The Fourteenth Amendment, which serves as

the constit:tional basis or reason for the abortion right,

was passed by the majority. It was the majority, as ex-

pressed through an act of Congress, who ignored the Dred

Scott decision and banned slavery in the territories. THE

DEBATES AND PROCEEDINGS OF THE SECOND SESSION OF THE

THIRTY-SEVENTH CONGRESS 2618 (John C. Rives, ed.,

Congressional Globe Office 1862) (June 9, 1862). The

majority freed the slaves, the majority (of males) extended

voting rights to women, the majority passed the Civil

* Of course, James Wilson also “moved as an amendment ‘that the

Supreme National Judiciary should be associated with the Executive in

the revisionary power.’. .. The Judiciary ought to have an opportunity

of remonstrating against projected encroachments on the people ...

counteracting by the weight of their opinions the improper views of the

Legislature.” JAMES MADISON, 2 THE PAPERS OF JAMES MADISON 1161-

62 (Henry D. Gilpin, ed., Langtree & O’Sullivan 1840) (James Wilson

during the debates of Saturday, July 21, 1787). This proposal was voted

down on four separate occasions. Jd. at 791, 812, 1171, VOL. III at 1331

(debates of Monday, June 4, 1787; debates of Wednesday, June 6, 1787;

debates of Saturday, July 21, 1787; debates of Wednesday, August 15,

1787, respectively).

15

Rights Act, the majority has, for the sake of the minority,

secured the rights and privileges we all now enjoy.”

Congress, not the Court, answers to the citizens of

this country. Congress painstakingly gathers information,

conducts hearings, investigates, debates, and deliberates.

There are committee votes, pocket vetoes and negotiations.

There are a whole host of obstacles to the enactment of

new legislation, bicameralism chief among these. All of

this process, the factual record developed through this

process, and the ever present public pressure associated

with elective office serve to craft public policy decisions .

that are entitled to great deference. In sum, “[wle should

not forget that legislatures are ultimate guardians of the

liberty and welfare of the people.” Planned Parenthood v.

Casey, 947 F.2d 682, 726 (3rd Cir. 1991) (Alito, J., concur-

ring in part and dissenting in part).

II. Congress should be free to consider a broad

array of evidence when acting as a policymaker,

including the experiences of those intimately

familiar with late-term and partial-birth abor-

tions.

Some would argue that amici Gianna Jessen and

Zachary were “constitutional non-persons” or “‘human

beings’ who are not ‘constitutional persons.’” Alexander v.

Whitman, 114 F.3d 1392, 1409 (3rd Cir. 1997) (Alito, J.,

concurring). That “is unfortunate.” Jd. Partial-birth

abortion extends beyond an even broad interpretation of

" It was Congress who passed the 1875 Civil Rights Act (various

sections of 18 and 28 U.S.C.) to protect African-Americans against

racial discrimination in places of public accommodation. It was the

Court who struck it down. See Civil Rights Cases, 109 U.S. 3 (1883).

16

the right created in Roe v. Wade. The difference, of course,

is that the baby is not an unseen, unborn creature. It is a

baby fully capable of life outside of her mother’s womb

whose life is ended in the process of delivery, with her body

completely exposed to the outside world, save her face.

That the people of this country should be concerned and

Congress should be allowed to properly legislate in this

fringe area is obvious.” Any civilized society would.

A. Congress may consider evidence that psy-

chological harm to women occurs as a re-

sult of abortion.

Amici do not stake a claim that it is scientific fact

women suffer Post Traumatic Stress Disorder (PTSD) as a

result of having late-term or partial-birth abortions. It is

not necessary for post-abortion PTSD to be proven beyond

reasonable scientific doubt before Congress may rely upon

the evidence that does exist to conclude that at least

partial-birth abortion is so fringe and naturally repulsive

as to be a trigger of PTSD.

There are about a “thousand affidavits of women who

have had abortions and claim to have suffered long-term

emotional damage and impaired relationships from their

decision ... [and] [s]tudies by scientists ... suggest that

women may be affected emotionally and physically for

years afterward and may be more prone to engage in high-

risk, self-destructive conduct as a result of having had

abortions.” See McCorvey v. Hill, 385 F.3d 846, 850-51 (5th

“ Congress serves at the pleasure of the voting populous. Our form

of government is predicated upon an enduring principle that all power,

all authority, is drawn from the well of the people at large.

17

Cir. 2004) (Jones, J., concurring) (citing affidavits and

several scientific studies). There are numerous studies

that demonstrate a link between abortion and psychologi-

cal trauma.” These studies and affidavits provide compel-

ling evidence that there is indeed a problem, the

magnitude of which is only beginning to unfold.“

" See C. A. Barnard, The Long-Term Psychosocial Effects of

Abortion (Institute for Pregnancy Loss, 1990); W. Franz & D. Reardon,

Differential Impact of Abortion on Adolescents and Adults, 27(105)

Adolescence 161-72 (1992); M. Gissler, et al., Suicides After Pregnancy

in Finland: 1987-94: Register Linkage Study, 313 British Medical J.

1431-34 (1996); B. Lask; J. Lydon, et al., Pregnancy Decision Making as

a Significant Life Event: A Commitment Approach, 71(1) J. Personality

and Soc. Psychology, 141-51 (1996); B. Major & C. Cozzarelli, Psychoso-

cial Predictors of Adjustment to Abortion, 48(3) J. Soc. Issues, 121-42

(1992); W. B. Miller, An Empirical Study of the Psychological Antece-

dents and Consequences of Induced Abortion, 48(3) J. Soc. Issues 67-93

(1992); W. B. Miller, Testing a Model of the Psychological Consequences

of Abortion, The New Civil War: The Psychology, Culture, and Politics of

Abortion, (Linda J. Beckman & S. Maria Harvey, eds., 1998); H.

Sderberg, et al., Emotional Distress Following Induced Abortion: A

Study of Incidence and Determinants Among Abortees in Malm Sweden,

79 Eur. J. Obstet. Gynecol. Reprod. Biol. 173-78 (1998); H. P. Vaughan,

Canonical Variates of Post-Abortion Syndrome (Institute for Pregnancy

Loss, 1990).

* There is evidence to the contrary, Planned Parenthood published

a report on its website that indicates there is a positive relationship

between abortion and the psychological well-being of women that have

abortions. According to Planned Parenthood, a woman is psychologi-

cally better off having had an abortion. See Planned Parenthood Federa-

tion of America, The Emotional Effects of Induced Abortion, available

at http//www.plannedparenthood.com/pp2/portal/files/portal/medicalinfo/

abortion/fact-0 10600-emoteff.xml# 1097838269784 ::2874363 106508449295

(last visited May 19, 2006). However, “t]he Constitution gives to

Congress the role of weighing conflicting evidence in the legislative

process.” Turner 1], 520 U.S. at 199.

18

B. Congressional consideration may include

such factors as Post Traumatic Stress Dis-

order, the diffusion of responsibility and

how partial-birth abortion is merely a ve-

neer to provide moral distance for the doc-

tor and mother.

The book, ON KILLING: THE PSYCHOLOGICAL COST OF

LEARNING TO KILL IN WAR AND SOCIETY,” is a leading study

on how advanced militaries have learned to train their

soldiers to kill the enemy as it collects historical studies

regarding the ability of soldiers to kill fellow human

beings. According to Lt. Col. Grossman, the author and

former psychology professor at the United States Military

Academy at West Point, there are a few factors that enable

a human being to overcome her psychological protective

mechanism that causes a revolting shudder at the very

_ thought of killing another human being. Two of the factors

are emotional and physical distance between the killer and

victim.

Physical distance is understood easily. According to

Grossman, it is far easier to kill when one cannot see what

one is killing. That is why bomber pilots are much less

predicated toward PTSD than infantrymen who must on

occasion look into the whites of the enemy’s eyes. In the

aboriion context, it is easy to see why partial-birth abor-

tion is beyond the margins. A baby entirely in the womb is

physically removed from the realities of existence. Sure,

their images are available on ultrasound and technology

continues to close the physical distance that separates the

* Davip A. GROSSMAN, LT. CoL., ON KILLING: THE PSYCHOLOGICAL

Cost OF LEARNING To KILL IN WaR AND Society (Bay Back Books

1995).

19

unborn from the visible world. However, the unborn

remain largely unseen, and completely so with the naked

eye. In partial-birth abortion, the baby’s body is visible to

all witnesses. The witnesses see the hands clasping, the

legs kicking, the intimate struggle for life. Physical dis-

tance is closed, and the taking of life becomes more appar-

ent. This is a natural psychological condition of a civilized

society. It is within the purview of Congress to make policy

decisions to restrict a procedure that is so utterly outside

the bounds of natural human behavior and which causes

damage to those nearby, including an increased callous-

ness toward life.

Emotional distance has cultural and moral compo-

nents. According to Grossman, part of the training of a

soldier involves dehumanizing the enemy to make killing

the enemy easier. As Grossman states, the goal of cultural

distance is to make the enemy “inferior forms of life.” Jd.

at 160. Cultural distance in the abortion context comes

when a baby is referred to as a “fetus” or “tissue” that does

not experience pain. The “fetus” becomes an inferior form

of life. It cannot talk or sustain its own life detached from

its mother. This cultural distance is greatly shortened

when the baby is capable of sustaining its own life.

Moral distance involves seeing a larger picture or

higher reason for the carnage. In the case of abortion in

general, the right of a woman to attain autonomy and self-

determination serve to create that moral justification. But

for partial-birth abortion, that moral distance is greatly

shortened because, as the lives of amici demonstrate, the

children have a self-determination claim as well. They are

capable of sustaining their own lives at the time of their

late-term abortions, as amici so aptly proved. Therefore,

Congress is in the best position to understand the will of

20

the people, balance considerations, and respond with hard

policy decisions when physical and emotional distance is

shortened by the aberration of partial-birth abortion.

This explains why the head must not come out of the

birthing canal, why our society will not tolerate the mur-

der of a baby that is delivered. We can see her face, she

makes noises and we can look into her eyes. Even if the

doctor must artificially hide the head in the canal because

it may easily slip out, he dare not allow that to happen.

Then our culture will not stand for the killing of the baby.

The psychological veneer of hiding the baby’s face is the

only difference between a partial-birth abortion and killing

the baby. Such a close and artificial distinction takes

partial-birth abortion outside of the normal abortion

framework envisioned in Roe and Casey where physical

and emotional distances are much greater. Congress is in

the superior position to identify this distinction, balance

the equities and medical evidence, and treat partial-birth

abortion as something completely different than pre-

viability abortion.

C. It is within the legislative ken of Congress

to consider the survival of children of late-

term or partial-birth abortions in deter-

mining their life claim outweighs the lib-

erty interest of the mother at the outer

most fringes of that interest.

As amici Gianna and Zachary can directly attest, the

baby who suffers during a partial-birth abortion is a living,

breathing citizen. Zachary, no doubt who presents an

extreme situation in which he was declared certain to die

anyway or else live a worthless life. Zachary did not get a

voice in this decision. Indeed, Zachary’s voice could not be

21

heard. Certainly Congress and the American people have

the ability to speak for Zachary. Certainly Congress may

speak for his unspoken desire to live. And it is indeed

obvious from the medical records that Zachary spoke of his

desire to live upon delivery. He spoke not through words,

but through his actions. He refused to die. He refused to

die even though the neurosurgeon stated in the record

that Zachary’s outlook was “devastating.” Now nine years

old, Zachary smiles in a picture wearing an Air Force

uniform, a testimony to his triumph over physical chal-

lenge. Certainly Congress may look to evidence such as

this and draw the line on the outer fringes of abortion and

declare the taking of human life that is almost born to be

beyond the pale of civil endurance.

Gianna just completed the London Marathon in

April 2006. While she endures cerebral palsy and other

afflictions that remain as a result of the botched abor-

tion, Gianna continues to live her life as a living testa-

ment to those that did not survive their own demise.

Her accomplishments are their accomplishments. Her

strides are for them. Cannot a legislative body look to this

woman and say it is an atrocity to end a life such as this?

Cannot Congress declare that it must draw the line here

for the living?

Congress may also consider the dark side of late-term

or partial-birth abortion procedures gone wrong. Abortion-

ist Benjamin Waddill, a member of the Association of

Planned Parenthood Physicians, performed a saline abortion

on 19 year-old Mary Weaver on March 2, 1977, at Califor-

nia’s Westminster Community Hospital. Mary Weaver was

estimated at 28 weeks pregnant. Dr. Waddill administered a

saline abortion. Ms. Weaver, however, gave birth to a live

baby. Dr. Waddill returned to the hospital’s newborn

22

nursery, where the baby was located. According to Dr.

Ronald Cornelsen, a witness, Dr. Waddill choked the baby

girl four separate times.”

“When the hospital’s chief pediatrician, Dr.

Ronald Cornelsen, arrived in the nursery, he said

Waddill put his hand around the baby’s throat

and complained, “This baby won’t quit breathing.’

Cornelsen says he checked the infant’s heart and

found it beating 60 to 70 times a minute. But

then, Cornelsen said, Waddill pressed down on

her throat and discussed other metnods of ‘dis-

posing’ of her, including drowning her in the

nursery sink. As Cornelsen tells it, Waddill said:

‘This baby can’t live. It will be a big mess. . . Can

you think of something else?’ Sick to his stomach,

Cornelsen retreated to another part of the nurs-

ery. Waddill joined him moments later. ‘I think

the baby is dead,’ he said.”

Susan Fraker & Janet Huck, The Trial of Dr. Waddiil,

NEWSWEEK, April 3, 1978, at 35. Cannot Congress consider

the callousness created by allowing such a procedure and

the damage that it causes?

At least Zachary was given comfort care. Ximena

Renaerts of Canada is the product of a botched late-term

abortion. After being born at the abortion clinic in a bed

pan on December 16, 1985, she was taken to Vancouver

General Hospital where, while alive, she was stored in a

room on a cold steel counter that was used to store “dead

* Jeffrey Perlman, Waddill Trial Has Heavy Impact, LOS ANGELES

TIMES, May 15, 1978, at Part I-3; Dexter Duggan, California Abortionist

Testifies in His Own Defense, LIFE ADVOCATE, May/June 1979, at 14-16;

Susan Fraker & Janet Huck, The Trial of Dr. Waddill, NEWSWEEK, April

3, 1978, at 35; The Ordeal of a Divided Jury, TIME, May 22, 1978, at 24.

23

fetuses.” A nurse found her alive forty minutes later, and

now Ximena, still alive, is confined to a wheelchair and

suffers from cerebral palsy.” Congress surely has the

power to look to this type of evidence and begin to draw

boundaries at the outer markers.

It is impossible to forget the picture of the little girl

missing an arm as the result of a botched late-term

abortion. In October of 1991, Rosa Rodriguez, twenty

years-old at the time, sought a late-term abortion on New

York’s Lower East Side from abortionist Abu Hayat. Ms.

Rodriguez, eight months pregnant, changed her mind and

did not want to go through with the abortion. Hayat

responded that it was impossible to stop, and that he had

to continue. Hayat’s assistants held Ms. Rodriguez down

while Hayat sedated her. When she became conscious,

she was told the abortion was incomplete and she needed

to return. After experiencing increasing pain and bleeding,

her mother took her to Jamaica Hospital by taxi. Five

hours later, baby Ana Rosa was born.” Although Hayat

tore off Ana Rosa’s right arm, she grew up as a healthy

little girl. This healthy baby girl, a teenager by now, will

forever be reminded that her arm was pulled from her

body due to a late-term abortion.

When beyond the margins of abortion, it is perfectly

appropriate for Congress to consider the horrors of the

partial-birth abortion procedure and draw a line that

" Neal Hall, Jury Will Hear Malpractice Lawsuit Over Girl Born

After Failed Abortion: A Judge Has Ruled That The Case of a Baby

Born Brain-damaged And Left to Die Is Not Too Complex For Jurors;

VANCOUVER SUN, April 29, 1998, at B3.

* David Kocieniewski, Ana’s Plight; Mom Says She'll Be Honest

With Baby Maimed In Abortion; NEwspDAyY, February 24, 1993, at 3.

24

distinguishes barbarism from civility. Nowhere is it more

clear that Congress has the right, the duty to protect those

children who are killed in the process of their birth. The

people through their elected representatives may make

this public policy decision if for no other reason than there

is no one else to speak for those that find only their head

caught in the great chasm between life and death, sus-

pended in the purgatory of the vestibule of life, the birth

canal. Perhaps it may be said that such children are

probably the most “discrete and insular” class of persons

ever described. United States v. Carolene Products, 304

U.S. 144, 153 (1938).

Liberty lies in the hearts of men and women;

when it dies there, no constitution, no law, no

court can save it; no constitution, no law, no

court can even do much to help it ... .the spirit

of liberty remembers that not even a sparrow

falls to earth unheeded.”

One of the reasons for this country’s greatness is that

it protects the vulnerable and the weak. That is the

American way. Partial-birth abortion involves deep public

policy considerations including brutality, life and death,

the coarsening of our society, and the danger of the degra-

dation of and callousness toward human life.

The People of this country have a right to make this

call. Judicially stripping it from the hands of the People

would be a mistake and a great loss of liberty.

o

* LEARNED HAND, THE Spirit OF LIBERTY 190 (Irving Dillard ed.,

3d ed. 1960) (“The Spirit of Liberty,” speech at an “I Am an American

Day” ceremony, Central Park, New York City, May 21, 1944).

25

CONCLUSION

The People, through their elected representatives in

Congress, are the rightful vessels of power to determine

public policy decisions. History and prudence continuously

caution against the Court traversing into the murky realm

of public policy determinations. The Court should reverse

the judgment of the court of appeals and let the People of

this country speak for themselves.

Respectfully submitted,

KELLY SHACKELFORD

Counsel of Record

HIRAM S. SASSER III

JONATHAN M. SAENZ

LIBERTY LEGAL INSTITUTE

903 East 18th Street, Suite 230

Plano, Texas 75074

(972) 423-3131

(972) 423-6570 (FAX)

Counsel for Amicus Curiae