Amicus Curiae Brief — Gonzales v. Carhart

MOTION FILED 47 36

SEP 20 2008 Nos. 05-380, 05-138

.. In the Supreme Court of the United States

ALBERTO R. GONZALES, ATTORNEY GENERAL,

Petitioner,

Vv.

LEROY CARHART, ET AL.,

Respondents.

ALBERTO R. GONZALES, ATTORNEY GENERAL,

Petitioner,

Vv.

PLANNED PARENTHOOD FEDERATION OF AMERICA,

INC., ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURTS OF APPEALS FOR THE EIGHTH AND NINTH

CIRCUITS

MOTION FOR LEAVE TO FILE OUT OF TIME IN

CASE NO. 05-380 BRIEF AMICI CURIAE AND

BRIEF AMICI CURIAE FOR THE NATIONAL

WOMEN’S LAW CENTER AND 31 OTHER

ORGANIZATIONS COMMITTED TO THE SAFEST

HEALTH CARE FOR WOMEN

SUPPORTING RESPONDENT IN CASE NO. 05-1382

MARCIA D. GREENBERGER ELIZABETH B. McCALLUM*

DINA R. LASSOW *Counsel of Record

GRETCHEN BORCHELT ANN MARIE PHILLIPS

NATIONAL WOMEN’S LAW ASHLEY BASS

CENTER HOWREY LLP

11 Dupont Circle, NW, Suite 800 1299 Pennsylvania Avenue, NW

Washington, DC 20036 Washington, DC 20004-2402

(202) 588-5180 (202) 783-0800

Attorneys for Amici Curiae

MOTION FOR LEAVE TO FILE

BRIEF OF AMICI CURIAE OUT-OF-TIME

IN GONZALES V. CARHART, NO. 05-380

On February 21, 2006, this Court granted

certiorari in Gonzales v. Carhart, No. 05-380, to review

the judgment of the Court of Appeals for the Eighth

Circuit striking down the Partial Birth Abortion Ban Act

of 2003, Pub. L. No. 108-102, 117 Stat. 1201 (the “Act”) (to

be codified at 18 U.S.C. § 1531). The Court has granted

certiorari in the instant case, Gonzales v. Planned

Parenthood Federation of America, No. 05-1382, to review

the judgment of the Court of Appeals for the Ninth

Circuit also striking down the Act.

Amici curiae the National Women’s Law Center

and 31 other organizations committed to the safest health

care for women have submitted this brief in Gonzales v.

Planned Parenthood Federation of America with the

consent of Petitioner and Respondents, in order to explain

how the Act limits a woman’s ability to secure the safest

health care option for her — and the option that she may

choose for personal, moral, and religious reasons as well —

and to describe the variety of serious adverse

consequences to women’s health, financial security, and

future well-being that can result from the Act.

Gonzales v. Carhart raises the same constitutional

questions, concerns the same Act of Congress, involves

the same Petitioner, and will be argued on the same day

as Gonzales v. Planned Parenthood Federation of

America. The information and arguments presented in

this brief amici curiae are equally relevant to both cases.

Petitioner Gonzales has consented to the filing of

this brief amici curiae in Gonzales v. Carhart as well as in

Gonzales v. Planned Parenthood Federation of America.

Petitioner will not be prejudiced in any way by the

granting of this Motion, because he will have the

opportunity to respond to this brief in his Reply Brief.

ii

For these reasons, amici request that the Court

grant them leave to file this jointly-captioned brief in

support of Respondents in Gonzales v. Carhart as well as

in support of Respondents in Gonzales v. Planned

Parenthood Federation of America. Amici further

respectfully request that the Court direct the Clerk to

accept this brief out-of-time in Gonzales v. Carhart and to

docket the brief in both cases.

Respectfully submitted,

MARCIA D. GREENBERGER ELIZABETH B. McCALLUM*

DINA R. LASSOW *Counsel of Record

GRETCHEN BORCHELT ANN MARIE PHILLIPS

NATIONAL WOMEN’S LAW ASHLEY BASS

CENTER HOWREY LLP

11 Dupont Circle, NW 1299 Pennsylvania Avenue, NW

Suite 800 Washington, DC 20004-2402

Washington, DC 20036 (202) 783-0800

(202) 588-5180

Attorneys for Amici Curiae

September 20, 2006

TABLE OF CONTENTS

INTEREST OF THE AMICT CURIAE ...........ccccccecsseesseeees 1

SUMMARY OF ARGUMENT .................:c:sscssssessesesesenesseees 1

NITIES ioitelbseih iitisiilnsisichiceindcishaiigsipieceiihnedipieninalienmiaivininti 4

I. THE ACT’S UNCONSTITUTIONAL DENIAL

OF WOMEN’S ACCESS TO THE BEST AND

SAFEST HEALTH CARE CAN HAVE

SERIOUS ADVERSE CONSEQUENCEG.................. 4

A. Substantial Evidence Demonstrates That

an Intact D&E Can Be The Safest and Best

Option for Women’s Health................:cscsseseseeeeenes 7

B. Denying Women Access to the Safest

Medical Procedures Can Cause Permanent

Damage to their Health and Harm Their

Ability to Work, Care for Their Families

and Secure Their Economic Future ..................... 13

II. THE ACT IMPERMISSIBLY IMPOSES ONE

MORAL VIEWPOINT ON WOMEN,

DENYING THEM PERSONAL DIGNITY AND

Il. THE ACT UNCONSTITUTIONALLY

VIOLATES WOMEN’S BODILY INTEGRITY ......... 27

ee eiciinitiisdblicninnciiiiinisidalisndidhetiindisindbacsaniatea 28

TABLE OF AUTHORITIES

CASES

Ayotte v. Planned Parenthood of Northern New

England,

Be es Ge Ga I wiht nce censiicctiseilisevtsnnenssnciaandintn 4

Carhart v. Ashcroft,

331 F. Supp. 2d 805 (D. Neb. 2004), affd sub

nom. Carhart v. Gonzales, 413 F.3d 791 (8th

Cir. 2005), cert. granted, 126 S. Ct. 1314 (2006).......... 8

Carhart v. Gonzales,

413 F.3d 791 (8th Cir. 2005), cert. granted,

Se Ge Ge I bviccrtticercieeninninbiatittinawssn 8

Cruzan v. Director, Missouri Department of

Health,

Pe Ea Te CD ticrescecknictncsisavbbibensictiiaaiins eae 28

Frontiero v. Richardson,

Po ROS ff. RERERRRE RRR IESE RE et ameter 18

J.E.B. v. Alabama ex rel. T.B.,

Be WR BI Ce vvesicscccutubinovedstnninisvesctanateiaiieamalinaid 18

Lawrence v. Texas,

a, Ce ND cccusienedesidesnsabbsbntiincciia 2, 3, 22, 24, 25

National Abortion Federation v. Gonzales,

" £e § t, te h ayer 7

Nevada v. Hibbs,

SSB U.S. 721 (BOOS) ...............0...cccccrocssesscorcsccceosersoesess 18

ill

Planned Parenthood Federation v. Ashcroft, 320 F.

Supp. 2d 957 (N.D. Cal. 2004), affd sub nom.

Planned Parenthood Federation v. Gonzales,

435 F.3d 1163 (9th Cir.), cert. granted,

RE cee 6, 10

Planned Parenthood Federation v. Gonzales,

435 F.3d 1163 (9th Cir.), cert. granted,

I citsedoonniosons 5, 6,8

Planned Parenthood of Southeastern

Pennsylvania v. Casey,

505 U.S. 833 (1992)...............csereeeesees 2, 3, 23, 24, 25, 27

Rochin v. California,

Ns ae 3, 28

Stenberg v. Carhart,

EE BUN GID ccecncsccsecssosantesoccconscooenesie 1, 4, 5, 7, 26

United States v. Virginia,

cnc ciieriiaantaeitndnsescenmibiaentons 18

Washington v. Harper,

i asa sca ccstcncnsinicnniia 3, 28

STATUTES

EE 4

Partial Birth Abortion Ban Act of 2003, Pub. L.

No. 108-102, 117 Stat. 1201 (to be codified at

SE a a eee ee passim

IV

OTHER AUTHORITIES

David Cantor, et al., “Balancing the Needs of

Families and Employers: Family and Medical

Leave Surveys,” Report submitted to the U'S.

Department of Labor. Washington, DC: Westat

rea crssenniescpeicteiniinntnapeenmcebevatlitinliaveneteoennanntanses

Stephen T. Chasen, et al., Dilation and

Evacuation at>20 Weeks; Comparison of

Operative Techniques, 190 Am. J. Obstet. &

I, BD ecvicicececttecentesnesctitincamnemneginnes

F. Gary Cunningham, M_D., et al., Williams

one Gaim GIR. BIG Pccccccesectccccsccsscccscesercosesees

Gary A. Dildy, III, M.D. et al., Critical Care

CRE CEE GE, TIED ccccecccscccectccsesscsoccescsstesceses

Effects of Anesthesia During a Partial Birth

Abortion: Hearing Before the Subcomm. on

the Constitution of the H. Comm. on the

Judiciary, 104th Cong., 2d Sess.

i henkcddecinitesstniiecilncacnditinpesatavetiamibinseseintaen 11, 12,

Molly M. Ginty, Late-Term Abortion Saved these

Women’s Lives, Women’s eNews, Oct. 28, 2004,

available at http//womensenews.org/article.

Jack Hadley, Sicker and Poorer - The

Consequences of Being Uninsured: A Review of

the Research on the Relationship between

Health Insurance, Medical Care Use, Health,

Work, and Income, Medical Care Research and

I CD cetecie sdencccnesesinnninisicnccesteteieinsetigtiniiadstatinsiagan

somes 16

13, 21

David U. Himmelstein, Elizabeth Warren,

Deborah Thorne, & Steffie Woolhandler,

MarketWatch: Illness And Injury As

Contributors To Bankruptcy, Health Affairs,

Feb. 2, 2005, available at http://content.

healthaffairs.org/cgi/content/full/hlthaff.w5.63/

ioral elnncicticrhianitciennniipasedubiintbdechiiddipntendbbentetiinitnnnatiats

Kaiser Family Foundation, Women and Health

Care: A National Profile (July 2005), available

at _——http://www.kff.org/womenshealth/upload

Kaiser Family Foundation, Employer Health

Benefits: 2005 Annual Survey (2005), available

at http://www.kff org/insurance/7315/upload/

Pamela Karlan, Colloquium: The Boundaries of

Liberty After Lawrence v. Texas,

102 Mich. L. Rev. 1447 (2004)..............cc cece eee eee ee

Vicki Lovell, Institute for Women’s Policy

Research, No Time to be Sick: Why Everyone

Suffers When Workers Don’t Have Paid Sick

ES IR Eee re ne wee TON,

Losing Ground: An Overview of Poverty, Income

and Health Insurance Trends Among Women,

2000-2005 (National Women’s Law Center,

Washington, D.C.), Sept. 2006, available at

//www .nwilc.or mePov 3.pdf. .... 14, 15

vi

Office on Women’s Health, Women’s Health Issues:

An Overview (May 2000), available at

/ wom /ow Ith%

Partial-Birth Abortion: Hearing Before the

Subcomm. on the Constitution of the H. Comm.

on the Judiciary, 104th Cong., 1st Sess.

init tcitarinaiceitaainil tl ata itdiierntaiiildianitinles 12, 13, 19, 20

The Partial Birth Abortion Ban Act of 1995:

Hearing Before the Senate Comm. on the

Judiciary, 104th Cong., lst Sess. (1995)...10, 11, 12, 21

Partial-Birth Abortion: The Truth: Joint Hearing

Before the Comm. on the Judiciary and

Subcomm. On the Constitution of the H.

Comm. on the Judiciary, 105th Cong., 1st Sess.

Remarks by the President on House Resolution

1833, available at http://www.pbs.org

/newshour/bb/white house/abortion veto 4-

TET sncnccnsciasitbapinisiniiimesinitduoinmbabnnihdibicatdnnindtnanened 12

Cathy Schoen, Lisa Duchon, & Elisabeth

Simantov, The Link Between Health and

Economic Security for Working-Age Women

(The Commonwealth Fund, New York, N.Y.),

May 1999, available at http://www.cmwf.org/

U.S. Bureau of Labor Statistics, U.S. Dep’t of

Labor, National Compensation Survey:

Employee Benefits in Private Industry, March

2005, at 22 tbl. 18 (Aug. 2005), available at

http://www _bls.gov/ncs/ebs/sp/ebsm0003. pdf........ 15, 16

Vil

U.S. Bureau of Labor Statistics, U.S. Dep’t of

Labor, Women in the Labor Force: A Databook

2 (May 2005), available at http:/

v/ ] ‘ERE:

U.S. Census Bureau, Table F-22, “Married-

Couple Families with Wives' Earnings

Greater Than Husbands' Earnings:

1981 to 2004 (selected years),” Historical

Income Tables - Families, available at

http://www.census.gov/hhes/

www/income/histi 2 RSE RSS ees

U.S. Department of Labor, Bureau of Labor

Statistics, Table 25, “Wives Who Earn More

Than Their Husbands, 1987-2003,” Women in

the Labor Force: A Databook, available at

www .bls.gov/cps/wlf-table25-2005.pdf § (May

IIIT switensticininngpenenseniiaelimsisiintgnasniosaiiiiaiatiedigieniitdindinen

Elizabeth Warren, What Is a Women’s Issue?

Bankruptcy, Commercial Law, and Other

Gender-Neutral Topics,

25 Harvard Women’s Law Journal 19 (2002) ......

yones 15

INTEREST OF THE AMICI CURIAE

Amici curiae are organizations committed to

obtaining full legal and social equality for women,

including access to the full range of the safest, medically-

approved health care. Amici write to highlight the ways

in which the Partial Birth Abortion Ban Act of 2003, Pub.

L. No. 108-102, 117 Stat. 1201 (the “Act”) (to be codified at

18 U.S.C. § 1531), limits a woman’s ability to secure the

safest health care option for her — the option that she may

choose for personal, moral, and religious reasons as well.

Amici also write to describe the variety of serious adverse

consequences to women’s health, financial security, and

future well-being that can result from the Act, which limit

women’s ability to participate fully and equally in society.

The names and individual statements of interest of amici

are contained in the appendix to this brief.!

SUMMARY OF ARGUMENT

1. The evidence presented by a host of respected

physicians in the cases challenging the Act demonstrates

that women may be virtually unable to obtain any safe

abortion at all during and after the fourth month of

pregnancy because of the Act’s broad reach, and, even if

narrowly construed, the Act can deny women access to the

safest available procedure. In addition to being

unconstitutional under Stenberg v. Carhart, 530 U.S. 914

(2000), and a long line of other decisions of this Court,

1 Letters of consent have been filed with the Clerk reflecting

consent for both Gonzales v. Planned Parenthood Fed’n of Am.,

No. 05-1382, and Gonzales v. Carhart, No. 05-380. No counsel

for a party authored this brief in whole or in part, and no

person or entity other than amici, their members, or their

counsel made a monetary contribution to the preparation or

submission of this brief.

this threat to women’s health has serious potential

adverse consequences that can continue throughout a

woman’s life and that perpetuate the historically unequal

status and economic condition of women in our society.

Adverse health consequences can include debilitating

condit requiring invasive and expensive medical

proce... -8, problems with future pregnancies, permanent

infertility, and other serious health impairments, and

even death. These health consequences can lead to

women’s loss of jobs and wages, their inability to secure

health insurance and adequate health care in the future,

and can impair their ability to care for their families and

themselves.

2. The Act violates due process because it

represents an unwarranted intrusion into a woman’s most

personal choices for impermissible reasons. It not only

denies women access to safe health care, but also

improperly substitutes the government’s view of morality

for the strongly held personal, moral and religious beliefs

of the woman. The Act bars a woman who may be facing

grave risks to her own health and a tragic medical

condition of her fetus from access to a procedure that she

believes is the most humane, and which allows her to hold

and grieve over her fetus in accord with her deepest

personal desires and the moral and religious dictates of

her conscience. Her beliefs, along with her determination

to preserve her ability to bear children in the future and

avoid other serious adverse health consequences, require

respect under the Constitution.

As this Court recently affirmed in Lawrence v.

Texas, 539 U.S. 558 (2003), the government may not

intrude into individuals’ most private choices based solely

on its own moral judgment. “Our obligation is to define

the liberty of all, not to mandate our own moral code.”

Id. at 571 (quoting Planned Parenthood of Se. Pa. v.

Casey, 505 U.S. 833, 850 (1992)). Accord at 577 (fact that

State views a practice as “immoral” is “not a sufficient

reason for upholding a law prohibiting the practice”)

(quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986)

(Stevens, J., dissenting)). The prohibition against

government intrusion is especially strong when the

government’s imposition of its own moral code not only

ignores the moral code of the woman involved, but also

has serious adverse consequences for the well-being of the

woman and her family.

The State’s interference on “moral” grounds with

women’s most personal health care decisions and the

implications that interference raises for women’s equal

participation in society echo the “personal dignity” and

“equality” concerrs that led the Court to find that the

Texas sodomy law at issue in Lawrence was

unconstitutional — the right of individuals to participate

fully and fairly in society and their right to make personal

choices “and still retain their dignity as free persons.” Jd.

at 567, 575.

3. Denying women access to a medical procedure

that represents the safest medical option, and one they

might also choose for deeply personal, moral or religious

reasons, further violates women’s right to due process

because it interferes with their basic bodily integrity. See,

e.g., Casey, 505 U.S. at 849 (“It is settled now, as it was

when the Court heard arguments in Roe v. Wade, that the

Constitution places limits on a State’s right to interfere

with a person’s most basic decisions about family and

parenthood as well as bodily integrity.”) (citations

omitted); id. at 884 (abortion right “justified” by “the right

to physical autonomy”). Just as the government may not

force anti-psychotic drugs on a non-dangerous inmate,

Washington v. Harper, 494 U.S. 210, 221-222, 227 (1990),

or pump a suspect’s stomach for evidence, Rochin v.

California, 342 U.S. 165, 173-74 (1952), the government

here may not force a woman to endure a more invasive

and more dangerous procedure in order to obtain an

abortion after the first trimester, or, because of the

breadth of the Act, to bar her access to virtually any

procedure at all.

ARGUMENT

I. THE ACT’S UNCONSTITUTIONAL DENIAL

OF WOMEN’S ACCESS TO THE BEST AND

SAFEST HEALTH CARE CAN HAVE

SERIOUS ADVERSE CONSEQUENCES

In Stenberg, 530 U.S. 914, this Court invalidated

Nebraska’s “partial birth abortion” ban because it lacked

the constitutionally-required exception permitting the

procedure when necessary to preserve a woman’s health.

See Ayotte v. Planned Parenthood of N. New England, 126

S. Ct. 961, 967 (2006) (“[Ojur precedents hold{] that a

State may not restrict access to abortions that are

‘necessary, in appropriate medical judgment, for

preservation of the life or health of the mother.”) (citing

numerous authorities). This Court held, based on the

“highly plausible” evidence before the trial court, that a

health exception was necessary because “siynificant

medical authority supports the proposition that in some

circumstances, D&X [or intact D&E} would be the safest

procedure.” Stenberg, 530 U.S. at 932. In the six years

since the Court decided Stenberg, an even stronger

medical consensus has developed on the safety

advantages of intact D&E. Brief of the American College

of Obstetricians and Gynecologists as Amicus Curiae

Supporting Respondent (hereinafter “ACOG Amicus Br.)

at 2, 27-28.2

2 The only other context found in which Congress has

criminalized a specific medical procedure is the statutory ban

on female genital mutilation. See 18 U.S.C. § 116 (1996). But,

even in the case of female genita] mutilation, that statute —

unlike the Act - has a health exception. See id. § 116(b).

The Court in Stenberg also struck down the statute

because the definition of the banned procedure was so

broad that it applied to what the Court found to be the

most common procedure performed in the second

trimester. 530 U.S. at 924, 938-946. The vague and

broad definition at issue in Stenberg is similar in the key

respects to the definition in the Act,3 and the Act

therefore creates an undue burden to women seeking

abortion in the second trimester under Stenberg. See

ACOG Amicus Br. at 21-26. Evidence below

demonstrated that doctors fearing criminal liability will

be reluctant to perform any D&E under the Act’s broad

language. Indeed, even a Government expert conceded

3 Although the government attempted to defend the Act by

arguing that there were meaningful differences between the

Nebraska law at issue in Stenberg and the Act, the Ninth

Circuit found that the Act is similar to the state statute in its

vague and broad definition. Planned Parenthood Fed’n v.

Gonzales, 435 F.3d 1163, 1178, 1179 (9th Cir.), cert. granted,

126 S. Ct. 2901 (2006) (“despite containing some provisions that

are different in form from those in the Nebraska statute, the

Act is sufficiently broad to cause those who perform non-intact

D&E procedures to ‘fear prosecution, conviction, and

imprisonment,” thus unduly burdening women’s constitutional

rights).

4 Joint Appendix, Gonzales v. Planned Parenthood Fed'n of Am.

(hereinafter “PPFA J. App.”) 235-36 (“{alt this point I am currently

going to stop doing D&Es”), PPFA J App. 78-79 (“if I continue to practice

... Second trimester abortion, in the way I believe is safest for women, ...

I could be in prison”); PPFA J.App. 161-62 (“any D&E that we do

could end up falling under that definition [in the Act]”); see also

PPFA JApp. 137-38, 139-40, 256, 307-08, 445, 451, 525-26); Joint

Appendix, Carhart v. Gonzales (hereinafter “Carhart J-App.”) 201-02,

611-12, 643-47, 733-34, 851-58.

that, in light of its ambiguities, the Act could well be construed to

“outlaw all D&Es.” Carhart Eighth Circuit PLApp. 489.5

Adverse health and other consequences to women

that may result from the Act are described below. These

consequences are premised on the government’s incorrect

argument that the Act’s ban is limited to the intact D&E

procedure. However, the risks are magnified many times

over when the true reach of the Act to virtually all second

trimester abortions is considered.®

5 Moreover, in practice a physician may not be able to

determine before the abortion begins whether an intact or non-

intact D&E procedure will actually be performed. PPFAJ-.App.

143, 220, 281, 306, 438, 440, 413. Accord ACOG Amicus Br. at 4-7, 23-24.

6 Planned Parenthood Fed’n, 435 F.3d at 1166 (D&E “accounts

for 85 to 95 percent of” post-first trimester abortions). If all

D&E procedures are banned, the alternative procedure for most

women would be an “induction abortion” — essentially a

simulated labor. But the Act could cover inductions as well. If

complications or health issues develop during the course of an

induction, the doctor would be required to complete the

procedure with instruments, violating the Act for the same

reasons as a D&E. Similarly, if the fetus’ head lodges in the

vaginal canal, the doctor would typically reduce the size of the

skull, also violating the Act. See Planned Parenthood Fed’n of

Am. v. Ashcroft, 320 F. Supp. 2d 957, 977 (N.D. Cal. 2004) (Act

“may be interpreted to comprise many acts performed ... in the

course of ... an induction.”). Accord ACOG Amicus Br. at 25-26;

PPFA J.App. 526-27. Even if the woman is able to obtain the

induction procedure, induction abortions typically require a

hospital stay, take many hours, present increased risk in some

circumstances and are medically inappropriate in others.

PPFA J.App. 85-86, 131, 224, 266-68, 375-76, 389-92, 514-15,

571-72, 721-22; ACOG Amicus Br. at 7.

A. Substantial Evidence Demonstrates

That an Intact D&E Can Be The Safest

and Best Option for Women’s Health

Substantial record evidence shows the intact D&E

procedure that the Act forbids is essential if women and

their doctors are to have access to the safest means of

terminating a pregnancy after the first trimester.

Testimony from a variety of respected physicians shows

that the intact D&E procedure is part of accepted medical

practice, and as such is taught at leading teaching

hospitals across the country,’ that it presents important

safety advantages for all women,® and that it is medically

necessary for some.9 This evidence is recounted in full in

the Respondents’ Briefs in these cases, in the ACOG

amicus brief, and in the amicus brief submitted by the

National Abortion Federation in Carhart recounting the

evidence in the New York district court proceeding. It is

evidence that builds on, updates, and reinforces the

“highly plausible” evidence that this Court recognized in

Stenberg when it held that a health exception was

necessary because “significant medical authority supports

the proposition that in some circumstances D&X for

intact D&E] would be the safest procedure.” 530 U.S. at

932. And, it is evidence that has been found convincing

by the two district courts whose decisions were affirmed

7 PPFA J App. 450-51 (intact D&E taught at Columbia University, New

York University, Cornell, Aibert Einstein College of Medicine,

Northwestern University, and others); App. to Petit. For Cert, Carhart v.

Gonzales (hereinafter “Carhart P_App.”) 217a, 219a (government witness

conceding he planned to permit intact procedures at Yale University

School of Medicine); Carhart J. App. 137, 402, 459-60, 570, 728-29, 743-

44, 788-89, 872.

8 See infra notes 11, 12, 15.

9 See infra notes 13, 14.

in the Eighth and Ninth Circuit decisions before the

Court. 10

For all women, the intact D&E procedure provides

certain health and safety benefits. Among other

advantages, it minimizes the risk of perforation of the

uterus, laceration of the cervix, infection, and

hemorrhage.!! As detailed in Respondents’ briefs, a peer-

reviewed study supports the conclusion that intact

procedures offer lower risk of complications and other

safety advantages.12 When a woman has certain

underlying medical conditions, the medical benefits of the

10 Planned Parenthood Fed’n, 435 F.3d at 1167-68 (district

court found that “intact D&E is in fact the safest medical option

for some women in some circumstances” and that “intact D&E

may be significantly safer than other D&E procedures”);

Carhart v. Ashcroft, 331 F. Supp. 2d 805, 1016 (D. Neb. 2004)

(“the trial evidence establishes that a large and eminent body of

miedical opinion believes that partial-birth abortions provide

women with significant health benefits in certain

circumstances”); Carhart v. Gonzales, 413 F.3d 791, 801-02 (8th

Cir. 2005), cert. granted, 126 S. Ct. 1314 (2006). Accord

National Abortion Fed’n v. Gonzales, 437 F.3d 278, 281-82 (2d

Cir. 2006) (“substantial medical authority indisputably exists”

that “banning [the intact D&E procedure] could endanger

women’s health”).

11 PpFA J.App. 74-76, 116-19, 127-29, 131, 214, 220-21, 277-79, 371,

374, 423-27, 430, 438, 483-84, 497-98, 499-501; Carhart P_App. 47a, 69a,

78a, 83a-85a, 88a, 90a, 99a-100a, 107a, 118a-20a; 123a, 132a, 145a,

149a-50a, 155a-60a, 166a, 169a-72a, 174a, 179a, 182a, 189a, 193a, 195a-

265a-66a, 279a-88a, 358a-59a, 400-0la, 473a-74a, 434a-35a; App. in

Opp. to Cert., Carhart v. Gonzales (hereinafter “Carhart R.App.”) 81-87;

Carhart J.App. 45-46, 137-39, 225-27, 532-35, 604, 634-35, 695, 696, 757-

60, 848-51, 892. Accord ACOG Amicus Br. at 2, 11-12.

12 PPFA J.App. 497-98, 1055 (Stephen T. Chasen, et al., Dilation and

Evacuation at >20 Weeks; Comparison of Operative Techniques, 190 Am.

J. Obstet. & Gynecol. 1180 (2004)).

intact D&E are even more significant. Among these

conditions are placenta previa or accreta, liver disease,

and certain infections, including chorioamnionitis (an

infection of the fetal membranes that spreads to the fetus,

placenta, and uterine lining), and sepsis (a severe

systemic infection). Each of these conditions can increase

the possibility of hemorrhage, meaning that a procedure

with less risk of perforation or laceration and a shorter

duration is indicated.1° Other women for whom the

intact D&E can be medically indicated are women with

toxemia, heart problems, cancer of the placenta,

pulmonary hypertension, and vascular disease.!4

Indeed, even the Government’s witnesses conceded that

the intact D&E procedure could minimize risk and be the

safest alternative in some circumstances. !5

13 PPFA J.App. 289, 291, 299-300, 375, 506-07, 509-10; Carhart P-App.

288a-91a; Carhart J.App. 711-13, 770-71. Accord ACOG Amicus Br. at

2, 13-16.

14 PPFA J.App. 294, 503, 506-07; Carhart P-App. 99a-100a, 110a-13a,

290a-91a, 434a-35a, 448a, 481a; Carhart J_App. 768-74; Carhart PX 120,

537-38, 540-42: Carhart PX 121, 1600-01.

15 E.g., PPFA J.App. 720 (testimony of Dr. Shadigan agreeing

that “there is always a risk of damage to the uterus” when

instruments are passed into it, and that “removal of the fetus

intact during a surgical procedure” would “reduce” the risk of

“fetal bones puncturing or lacerating the uterus”); PPFA J.App.

727 (testimony of Dr. Shadigan agreeing that “intact D&E may

minimize trauma to the woman’s uterus, cervix and other vital

organs”); PPFA J.App. 780-82 (testimony of Dr. Cook that “at

comparable gestational ages ... it would make sense that

anything that involves less instrumentation would reduce the

risk of laceration or perforation”); PPFA J.App. 570-71

(testimony of Dr. Bowes agreeing that a “technique that reduces

the number of insertions into the uterus might offer some safety

advantages”); Respondent's Eighth Circuit Ct. of Appeals App.,

Carhart v. Gonzales, 403 (Testimony of Dr. Cook that intact

D&E “may be preferable procedure at the same gestational age

10

Evidence before Congress as it considered the Act

demonstrates that many women undergo the intact D&E

procedure, based on the advice of their doctors, because

they believe it is the best procedure to address their

particular health needs. For example:

Vikki Stella, a diabetic, discovered during her 32°¢

week of pregnancy that the fetus she was carrying

suffered from “at least nine major anomalies, including a

fluid-filled cranium with no brain tissue at all” and that

consequently it “would never have survived outside [her]

womb.” See The Partial Birth Abortion Ban Act of 1995:

Hearing Before the Senate Comm. on the Judiciary, 104th

Cong., Ist Sess. 280 (1995) (hereinafter, the “1995 Senate

Hearing”). Because of potential complications related to

her diabetes, Ms. Stella’s doctor determined an intact

D&E was the safest procedure for her. See id. at 281

That procedure not only protected her from immediate

medical risks, but also ensured that she would be able to

have more children. See id. The procedure was effective

and safe, and Ms. Stella was nearly eight months into a

new pregnancy when she testified. See id. at 280.

Claudia Crown Ades discovered in her second

trimester that her fetus had a genetic disorder known as

trisomy 13, which caused the fetus to have “a fluid filled

non-functional brain” and a “malformed heart with a

large hole between the chambers that was preventing

normal blood flow.” Jd. at 283. As Ms. Ades reported, her

doctor and two specialists (a perinatologist and a

geneticist) advised her and her husband Richard that an

than a D&E, if you are able to have less need for

instrumentation inside the uterus”); Carhart J.App. 474, 424-

25, 433 (testimony of Dr. Lockwood agreeing that for women

with chorioamnionitis or placenta previa who also had viral

infection, intact D&E may be best alternative and safe

alternatives are not always available); see also Carhart J.App.

280-81, 418-19, 466, 545-47; Carhart P.App. 325a-88a, 394a,

470a, 502a-03a.

11

intact D&E “would be the safest [course of action] for me,

my baby, and for my future children.” Jd. at 284. Mr.

Ades further explained to Congress: “I don’t know what I

would have done without this medical option.... I knew,

after all the discussions, deliberations and questioning

that both Claudia and I did, that an Intact D&E was the

safest, most humane procedure available to our family.

For that, I am grateful.” Jd. at 286.

Coreen Costello, a self-identified conservative,

testified that during the seventh month of her third

pregnancy she began having premature contractions.

Her doctors determined that her fetus was suffering from

a lethal neurological disorder. See Effects of Anesthesia

During a Partial Birth Abortion: Hearing Before the

Subcomm. on the Constitution of the H. Comm. on the

Judiciary, 104th Cong., 2d Sess. 320 (1996) (hereinafter,

the “1996 House Hearing”). Because of their deeply-held

religious beliefs, the Costellos wanted to deliver their

baby naturally, but during the weeks waiting for a

natural birth, Ms. Costello’s health worsened. See id. at

320-22. After much anguish, Ms. Costello accepted her

physician’s recommendation that she have an intact D& E

abortion as the most appropriate option for her. See id.

Ms. Costello concluded her testimony: “If you outlaw this

procedure, other women like me ... may lose their ability

to have more children. They may lose their health. They

may lose their lives.” Id. at 323.

Viki Wilson, a registered nurse, learned that two-

thirds of the brain of her fetus “had formed on the outside

of her skull” and she and her husband faced the

possibility of a birthing process in which Ms. Wilson’s

cervix likely would be ruptured. See 1995 Senate Hearing

at 160-61. Her doctor also determined that “a C section in

(Ms. Wilson’s] condition [was] too dangerous,” and that he

could not “justify those risks.” Jd.at 161. As she

recounted, after much prayer and deliberation, Ms.

Wilson and her husband reached the conclusion that the

intact D&E procedure was the safest solution for her and

12

a humane solution for the fetus. See id. In her words,

the procedure now criminalized by the Act was their

“salvation.” Jd. at 161-62.

Mary-Dorothy Line and her husband learned that

their fetus had advanced hydrocephaly and an

undeveloped stomach. See 1996 House Hearing at 328.

Her doctors told her that an intact D&E was “the best and

safest procedure” to “preserve fher| body for future

pregnancies.” Jd. She testified that the procedure “gave

us hope” for future pregnancies and asked Congress,

“Please don’t take that away from the families who will

need it after us.” Jd. at 329. Ms. Line was expecting

another baby when she testified. Jd.

Tammy Watts testified before the House

concerning her experience with the devastating trisomy-

13 syndrome. See Partial-Birth Abortion: Hearing

Before the Subcomm. on the Constitution of the Ki.

Comn:. on the Judiciary, 104th Cong., 1st Sess. 71 (1995)

(hereinafter, the “1995 House Hearing”). After her doctor

and an additional specialist confirmed that the fetus

had “no eyes,” “enlarged kidneys [that were] already

failing,” and a “mass on the outside of her stomach

involv{ing] her bowel and bladder,” Ms. Watts and her

husband recognized that their much-wanted child would

never survive. See id. at 72. In addition, the

continuation of Ms. Watts’ pregnancy posed grave risks

to her health, including stroke, paralysis, infertility or

even death.!© In consultation with a genetic counselor,

she and her husband opted to terminate the pregnancy:

I had a choice. I could have carried this

pregnancy to term, knowing that everything

16 See gorge by ns yeesiGent on House Resolution a

abortion veto 4-10 html: Molly M. Ginty, Late-Term Abortion

Saved these Women's Lives, Womens ettows, Oct. 28, 2004,

13

was wrong. I could have gone on for 2 more

months doing everything that an expectant

mother does, but knowing my baby was going

to die, and would probably suffer a great deal

before dying. My husband and I would have to

endure that knowledge and watch that

suffering. We could never have survived that,

and so we made the choice together, my

husband and I, to terminate this pregnancy.

Id. at 72. Concluding her testimony, Ms. Watts implored

Congress not to ban the procedure that had spared her,

her fetus, and her family so much pain: “[YJou can’t take

this away from women and families. You can’t. It is so

important that we be able to make these decisions,

because we are the only ones who can.” Jd. at 73.

B. Denying Women Access to the Safest

Medical Procedures Can Cause

Permanent Damage to their Health and

Harm Their Ability to Work, Care for

Their Families, and Secure Their

Economic Future

Precluding women from obtaining intact D&E’s

endangers their health and intrudes on their most

personal family decisions, with life-long adverse

consequences.!7 For example, a woman who suffers from

hemorrhage or infection from a perforated uterus or

lacerated cervix — because the intact procedure most

likely to avoid those complications was outlawed - could

face hospitalization and surgery, including a possible

hysterectomy.18 Additional severe adverse health

17 Those consequences are even more widespread and

devastating given the true reach of the Act.

18 See F. Gary Cunningham, M_D. et al., Williams Obstetrics,

598, 769-70 (20th ed. 1997); see also Gary A. Dildy, III, M.D. et

14

consequences that could arise from hemorrhage or

infection include stroke, renal failure, organ failure, and

even death. !9

These potentially serious health consequences, and

even the less severe complications that could result from

a less safe procedure, can have a devastating impact on a

woman’s life. Maintaining one’s health is often critically

important to maintaining employment.29 National

studies show that non-elderly adults in poor health are

“less than half as likely to work [compared to someone in

excellent health], and if they did work, their hourly wage

was about 23% lower.”21 A woman’s inability to work, or

a serious reduction in her wages, can be catastrophic to

her and her family’s economic security. Nearly one-fourth

of women live in female-headed households and are the

sole breadwinner.22. In married-couple households,

al., Critical Care Obstetrics 307 (4th ed. 2004). Accord ACOG

Amicus Br. at 10-13; PPFA J. App. 265; Carhart P App. 48la, 497a;

Carhart Resp. App. in Opp. to Cert. 81-87 (uterine perforation can result

in “catastrophic hemorrhage” requiring hysterectomy).

19 See Cunningham, supra note 18, at 547, 558-60, 745-46, 763,

794, 1069-70 and 1140; see also Critical Care Obstetrics, supra

note 18, at 298, 329-30, and 555. Accord ACOG Amicus Br. at 10-

12.

20 Cathy Schoen, Lisa Duchon, & Elisabeth Simantov, The

Link Between Health and Economic Security for Working-Age

Women (The Commonwealth Fund, New York, N.Y.), May 1999,

available at http//www.cmwf.org/usr doc/healtheconomic_

brief. pdf.

21 Hadley, Jack, Sicker and Poorer - The Consequences of Being

Uninsured: A Review of the Research on the Relationship

between Health Insurance, Medical Care Use, Health, Work, and

Income, Medical Care Research and Review, at 85, 60(2) Supp.

June 2003.

22 U.S. Census Bureau 2004 Current Population Survey.

15

women’s earnings constitute a median of more than one-

third (35%) of the family’s income,?° and in about one-

fifth of all married couple families, women are the

primary wage earner.24 The median earnings of all

women in the workforce are low and have stagnated while

poverty among women has increased and deepened in the

last five years.25 A lack or reduction of wages could push

more women and their families closer to poverty and

others deeper into the poverty they endure.

Even when a woman plagued with health

complications is able to keep a job, the costs to her, her

family and her future prospects can be great. Increased

hospitalization and debilitation, for example, can mean at

a minimum time off from work that women can ill-afford.

Over 42 percent of all private-sector workers do not have

any paid sick leave at all.26 Women, as compared to men,

23 U.S. Department of Labor, Bureau of Labor Statistics, Table

24, “Contribution of wives' earnings to family income, 1970-

2003,” Women in the Labor Force: A Databook, available at

http://www .bls.gov/cps/wlf-table24-2005.pdf (May 2005),

24 U.S. Census Bureau, Table F-22, “Married-Couple Families

with Wives’ Earnings Greater Than Husbands’ Earnings:

1981 to 2004 (selected years),” Historical Income Tables ~

Families, available at http:/Awww.census.gov/hhes/

www/income/histinc/f22.html; U.S. Department of Labor,

Bureau of Labor Statistics, Table 25, “Wives Who Earn More

Than Their Husbands, 1987-2003,” Women in the Labor Force:

A Databook, available at www.bls.gov/cps/wlf-table25-2005.pdf

(May 2005).

25 Losing Ground: An Overview of Poverty, Income and Health

Insurance Trends Among Women, 2000-2005 (National

Women’s Law Center, Washington, D.C.), Sept. 2006, available

at : ‘

26 U.S. Bureau of Labor Statistics, U.S. Dep’t of Labor, Women

in the Labor Force: A Databook 2 (May 2005), available at

16

represent larger proportions of minimum wage and part-

time workers,2? who are most likely to lack paid sick

leave. Other types of paid leave often cannot be used as

an alternative, since from approximately one-quarter to

two-thirds of workers lack paid. annual or personal

leave.28 Even unpaid leave is not an option for a great

number of Americans. Forty percent of American workers

are not eligible for the job-protected, unpaid leave

guaranteed by the Family and Medical Leave Act.29 For

women workers facing health complications this lack of

leave means not only a loss of wages, but can even mean

the loss of a job. 3°

Beyond lost jobs and wages, women in poor health

may be unable to care for their children and families. It

27 U.S. Bureau of Labor Statistics, U.S. Dep’t of Labor, Women

in the Labor force: A Databook 2 & tbls. 20 & 26 (May 2005),

available at http://www.bls.gov/cps/wlf-databook-2005 pdf

28 U.S. Bureau of Labor Statistics, U.S. Dep't of Labor,

National Compensation Survey: Employee Benefits in Private

eee an S006, at 22 tbl. 18 (Aug. 2005), available at

29 Cantor, David et al., “Balancing the Needs of Families and

Employers: Family and Medical Leave Surveys,” Report

submitted to the U.S. Department of Labor. Washington, DC

Westat (2001).

30 Employees who are terminated for taking unapproved time

off face the problem of lost wages during the entire period of

their job search, a problem that can be significant when average

unemployment periods last 20 weeks. And women fired for

taking unapproved time off may not qualify for unemployment

insurance since in most states, the reason for their job

termination will not meet qualifying tests. Vicki Lovell,

Institute for Women’s Policy Research, No Time to be Sick: Why

Everyone Suffers When Workers Don’t Have Paid Sick Leave 5

(2004).

17

is women who are the primary care givers for family

members. Women are an estimated 72 percent of the

estimated 15 percent of Americans who are informal care

givers, and many of those women are caring both for an

ailing relative and caring for their own children.*! Not

only could a woman’s disability cause serious dislocation

in her family, but it may also have severe economic

consequences if paid child or family care must be secured

to substitute for care previously given by the disabled

woman.

The reduction in income of women left to cope with

a serious health condition is exacerbated by the increased

health costs and difficulty in obtaining comprehensive,

affordable health insurance that she will face. Over one-

fifth of women in fair or poor health lack insurance, and

one-third of such women delayed or went without care

over the course of a year because they could not afford

it.32. Even women with some insurance face problems in

securing comprehensive coverage and affording care.

Many of these women suffering complications from being

unable to obtain the safest second-trimester abortion

procedure would now have “pre-existing conditions,”

which, coupled with rising health care costs and

increasing numbers of employers scaling back on health

310ffice on Women’s Health, Dep't of Health and Human

Services, Women’s Health Issues: An Overview, May 2000,

available at http//www.4woman. gov/owh/pub/womhealth

%20issues/index.htm (citing “Majority of Women Control

Health Care Decisions”, based on a survey conducted by EDK

Associates, Merck Media Minutes, Summer 1997).

32 Kaiser Family Foundation, Women and Health Care: A

National Profile vi (July 2005), available at

18

benefits for their employees,°3 only will increase the

difficulties they confront. For mounting numbers of

women, financial difficulties caused by increased health

costs are severe enough to cause bankruptcy.*4

The Act’s disregard for women’s health needs and

the economic and other consequences that flow from that

disdain reinforce the disadvantage and discrimination

that this Court has recognized women have historically

faced in all aspects of their lives. See, e.g., Frontiero v.

Richardson, 411 U.S. 677, 684 (1973) (“[O]ur Nation has

had a long and _ @=unfortunate history of sex

discrimination.”); J.E.B. v. Alabama ex rel. T.B., 511 U.S.

127, 135 (1994) (“Since Reed v. Reed, 404 U.S. 71 (1971),

this Court consistently has [recognized] ... the real danger

that government policies that professedly are based on

reasonable considerations in fact may be reflective of

‘archaic and overbroad’ generalizations about gender”);

United States v. Virginia, 518 U.S. 515, 534 (1996) (([Sex]

33 According to the 2005 Annual Employer Benefits Survey

released by the Kaiser Family Foundation and Health Research

and Educational Trust, the percentage of businesses offering

health insurance to their workers has declined steadily over the

last five years as the costs of providing coverage continues to

outpace inflation and wage growth. The Kaiser Family

Foundation & Health Research and Educational Trust,

Employer Health Benefits: 2005 Annual Survey (2005),

available at http//www.kff.org/insurance/7315/upload/7315.pdf.

34 Almost half of all personal bankruptcy claims are due to

illness and unpaid medical bills. David U. Himmelstein,

Elizabeth Warren, Deborah Thorne, & Steffie Woolhandler,

MarketWatch: Illness And Injury As Contributors To

mov cera Affairs, _—_ 2, 2005, oarape at

; 3 Women are the men group in mere Elizabeth

Warren, What Is a Women’s Issue? Bankruptcy, Commercial

Law, and Other Gender-Neutral Topics, 25 Harvard Women's

Law Journal 19, 28 (2002).

19

classifications may not be used, as they once were, to

create or perpetuate the legal, social, and economic

inferiority of women.”) (citation omitted); Nevada Dep’t of

Human Res. v. Hibbs, 538 U.S. 745 (2003) (“All would

agree that women historically have been subjected to

conditions in which their employment opportunities are

more limited than those available to men.”) (Kennedy, J.,

dissenting). | Women’s legal, social and economic

inferiority repeatedly recognized by the Court is

reinforced by the Act’s adverse effects on women through

the absence of a health exception and the undue burden it

causes.

Il. THE ACT IMPERMISSIBLY IMPOSES ONE

MORAL VIEWPOINT ON WOMEN, DENYING

THEM PERSONAL DIGNITY AND EQUALITY

Denying women the right to have the best medical

care for themselves not only injures their health, it also

violates their constitutional due process right to make

choices about their personal lives and families free from

unwarranted governmental interference. A long line of

this Court’s precedents, most recently reaffirmed in

Lawrence, establish that the Government cannot impose

restrictions on such decisions based solely on one view of

the moral considerations at issue. Women terminating a

pregnancy after the first trimester are often faced with

very painful and difficult circumstances. As shown above,

some women discover that their fetus has a grave health

condition; others face serious health issues of their own;

others face both concerns.

Some women choose the intact D&E procedure

because it enables them to cope with their devastating

loss by seeing, holding, and grieving over an intact fetus.

Tammy Watts, for instance, who terminated her

pregnancy after learning that her fetus had « fa:al

anomaly, supra at 12-13, testified: “Thanks to the type of

procedure that Dr. McMahon uses in terminating these

20

pregnancies, we got to hold her and be with her and love

her and have pictures for a couple of hours, which was

wonderful and heartbreaking all at once.... We spent

some time with her, said our goodbyes.” See 1995 House

Hearing at 72. Ms. Watts also was able to donate the

fetal remains for research on the causes of trisomy-13,

the fetal anomaly that led to her abortion. See id. at 73.

“Because Dr. McMahon does the procedure the way he

does, it made the testing possible.” Jd.95 Ms. Watts

explained it gave more meaning to her devastating ordeal

to know that her fetus could help prevent other women

from going through the same experience. See id.

Eileen Sullivan, expecting her first child after

nearly three years of trying to conceive, learned during

her 26th week of pregnancy that her fetus was

improperly formed with a number of ailments, including

a malformed, failing heart and a malfunctioning liver.

See Partial-Birth Abortion: The Truth: Joint Hearing

Before the Comm. on the Judiciary and the Subcomm. on

the Constitution of the H. Comm. on the Judiciary, 105th

Cong. Ist Sess. 125 (1997) (hereinafter, the “1997 Joint

Hearing”). Ms. Sullivan’s doctors explained that the

fetus could not survive. When considering her options,

Ms. Sullivan emphasized that “[flor my husband and I,

the opportunity to see and touch and hold our child was

extremely important.” Jd. at 126. Ms. Sullivan and her

husband elected an intact D&E procedure. Id. “We were

able to say goodbye,” she testified. Jd.

The amicus brief filed on behalf of the Institute for

Reproductive Health Access and Fifty-Two Clinics and

Organizations recounts the story of “Gina,” a married,

self-described Christian woman who desperately wanted

a child, who was pregnant with twins who were

35 PPFA J. App. 296-97 (testimony of Dr. Broekhuizen) (patient in case

of rare fetal anomaly requested intact D&E so that testing and autopsy

could be performed).

21

diagnosed with several fetal anomalies. She prayed,

consulted with her pastor, and finally made the decision

to undergo an intact D&E — saying that if God could not

save her in utero twins, “I wanted to be able to hold them

and say goodbye before I lost them forever.”26 Accord

PPFA J.App. 427 (Dr. Westhoffs testimony that intact procedure

allowed woman to hold fetal twins “with clergy and her family

present”).

Other women choose an intact procedure because

they believe it is the humane or compassionate choice for

the fetus. See 1995 Senate Hearing at 282 (Viki Stella

testifying “I did the kindest thing, the most loving thing I

knew to do”); id. at 286 (Mr. Ades testifying that “[i]ntact

D&E was the safest, most humane procedure available to

our family”); 1997 Joint Hearing at 159 (Coreen Costello

testifying that “the procedure [is} humane [and]

dignified”); 1996 House Hearing at 328 (Mary-Dorothy

Line testifying that procedure was “safe and very

compassionate”).37

These kinds of intensely personal decisions are

protected by the Due Process Clause. This Court in

Lawrence, striking down Texas’s criminal sodomy law,

36 If the intact D&E procedure were not available, the only

option for women who wish to be able to hold the fetus or allow

for genetic testing would be an induction abortion, which

simulates labor. As set forth above, however, that procedure

also is limited by the Act and, even if available, generally

requires hospitalization, takes far longer, and may present

greater safety risks or even be contra-indicated in certain

circumstances. See supra note 6.

37 See supra at 10-13. The amicus brief filed by the Institute

for Reproductive Health Access and Fifty-Two Clinics and

Organizations contains numerous additional descriptions of the

agonizing choices women must make, and further shows the

deeply personal, moral, and religious concerns, as well as

medical consequences, that accompany those decisions.

22

confirmed the importance of individuals’ due process right

to be free from unwarranted governmental intrusions in

their private lives in the strongest possible terms:

Liberty protects the person from unwarranted

government intrusions into a dwelling or other

private places. In our tradition the State is not

omnipresent in the home. And there are other

spheres of our lives and existence, outside the

home, where the State should not be a dominant

presence. Freedom extends beyond spatial

bounds. Liberty presumes an autonomy of self

that includes freedom of thought, belief,

expression, and certain intimate conduct.

539 U.S. at 562.

In this statement, the Court reaffirmed what

earlier cases in the abortion context, including Casey,

have established: that a vital part of liberty consists of

being able to make private decisions - about

relationships, about family, about reproduction, about

contraception — free of government interference, so that

individuals may be free to “control their destiny” by

making their own decisions about how to conduct their

private lives. Id. at 578; accord id. at 574 (quoting Casey,

505 U.S. at 857: “At the heart of liberty is the right to

define one’s own concept of existence, of meaning, of the

universe, and of the mystery of human life.”)

Lawrence makes plain that considerations of

personal dignity and equality among all members of

society are critical to determining whether a law

impermissibly interferes with personal liberty. £.g., id.

at 567 (confirming “that adults may choose to enter upon

{a homosexual) relationship in the confines of their homes

and their own private lives and still retain their dignity as

free persons”); id. at 575 (“Equality of treatment and the

due process right to demand respect for conduct protected

by the substantive guarantee of liberty are linked in

important respects, and a deci*ion on the latter point

23

advances both interests.”).88 The Court described, for

instance, the ways in which a criminal prohibition on

same-sex sexual conduct “in and of itself is an invitation

to subject homosexual persons to discrimination both in

the public and in the private spheres,” describing the

“collateral consequences” to future employment, among

other areas, from a criminal conviction. Jd.

The Act presents similar considerations of equality

and personal dignity. When a woman already facing

what is often an extremely difficult decision is denied

access to a medical procedure that is best able to preserve

her health or comport with her deeply held personal,

moral, or religious beliefs, her “dignity as a free person” is

severely compromised. As discussed above, women also

face substantial “collateral consequences” from the Act’s

ban, including potentially serious health issues and

adverse effects on financial security and ability to care for

family, consequences which undermine women’s full and

equal participation in society. The fact that the Act

effectively precludes virtually all second trimester

procedures leads to an even more substantial adverse

effect on women’s full and equal participation in society.

Casey, 505 U.S. at 856 (“The ability of women to

participate equally in the economic and social life of the

Nation has been facilitated by their ability to control their

reproductive lives.”).

38 See generally Pamela Karlan, Colloquium: The Boundaries

of Liberty After Lawrence v. Texas, 102 Mich. L. Rev. 1447,

1450, 1453 (2004) (“At its core, the liberty interest at issue in

Lawrence is the right of gay people to equal respect for their life

choices”; “The real problems with prohibitions on same-sex

intimacy ... come from the collateral consequences of such laws:

the way in which they undergird ‘discrimination both in the

public and in the private spheres’ and tell gay people that their

choices about how to live their lives are unworthy of respect”).

24

Lawrence also shows that restrictions on personal

liberty cannot be justified solely because a governing

majority believes that a particular practice is immoral.

Overruling Bowers v. Hardwick, the Court cited Justice

Stevens’s dissent in that case, in which he described a

proposition made “abundantly clear” by prior decisions:

[T]he fact that the governing majority in a

State has traditionally viewed a particular

practice as immoral is not a sufficient reason

for upholding a law prohibiting the practice;

neither history nor tradition could save a law

prohibiting miscegenation from constitutional

attack.

539 U.S. at 577-78.

The Court confirmed (quoting Casey) that the

obligation of the Court is to “define the liberty of all, not

to mandate our own moral code.” Jd. at 571. As fully

stated in Casey:

Men and women of good conscience can

disagree, and we suppose some always shal]

disagree, about the profound moral and

spiritual implications of terminating a

pregnancy.... Some of us as individuals find

abortion offensive to our most basic principles

of morality, but that cannot control our

decision. Our obligation is to define the

liberty of all, not to mandate our own moral

code.

505 U.S. at 850. Accord id. at 851 (although it is

“conventional constitutional doctrine that where

reasonable people disagree the government can adopt one

position or the other,” that is not the case where the

government choice “intrude|s] upon a protected liberty”).

The Act does what Lawrence, Casey, and their

many precedents forbid. It interferes in one of the most

personal choices a woman can make based on one view of

morality. See Act § 2(1) (claiming a “moral, medical, and

25

ethical consensus” for the Act). In doing so, it violates

the “promise of the Constitution that there is a realm of

personal liberty into which the government may not

enter.” Lawrence, 539 U.S. at 578 (quoting Casey, 505

U.S. at 847).

Just as there is no “medical ... consensus”

supporting a ban on the intact D & E procedure®? (and

even if there were, the Act still would unduly burden

women’s abortion rights because of its broad definition of

the procedure), there is also no “moral ... and ethical

consensus” behind the Act. 4° While a majority of those in

Congress (over the strong opposition of others) may

believe that the intact D&E procedure is inhumane and

immoral, many women, including those whose tragic

stories are told above, believe the opposite — that it is

more humane and moral. See supra at 20-21. These

women and their families chose an intact D&E abortion

procedure based on their own intensely felt moral, and

39 Section I.A., the Respondents’ briefs, and the amicus briefs

submitted by ACOG and the National Abortion Federation al]

demonstrate that Congress’ conclusion that there is “medical

consensus” with respect to the intact D&E procedure is

incorrect.

40 Moreover, to the extent that the Act’s proponents believe it

would serve additional purposes, such as enforcing medical

standards or promoting respect for life, these purposes in fact

would be served only because the Act would express the

legislative majority's moral opposition to the intact D&E

procedure. Similar purposes were asserted for the Texas

sodomy law - for example, that it would promote marriage, see,

e.g., Brief of Amici Curiae Texas Legislators in Support of

Respondent, 2002 U.S. Briefs 102, at 15-25 (Feb. 18, 2003) — yet

the Court reeegnized that such purposes ultimately depended

on the statute's expression of moral disapproval of

homosexuality, and found them insufficient to overcome the

liberty interests at stake.

26

sometimes religious, convictions. They thought the

procedure was humane, and they wanted the opportunity

to hold the fetus and grieve with their families over the

lost pregnancy.

Moreover, many religious organizations believe

that choosing the intact D&E procedure may be moral. As

the amicus brief submitted on behalf of the Religious

Coalition for Reproductive Choice and Thirty-Four Other

Religious and Religiously Affiliated Organizations and

Individual Clergy and Theologians demonstrates, many

mainstream religious groups oppose the Act:

Because protecting the health of women is a core

expression of the religious values of amici, amici

agree that all women whose health is at risk

should be free to seek the safest medical

treatment, without governmental coercion or

constraint, in making the difficult decision to

terminate a pregnancy. Other religious

traditions and organizations also give primacy to

women’s health and conscience....”

Brief of Amici Curiae Religious Coalition for Reproductive

Choice and Thirty-Four Other Religious and Religiously

Affiliated Organizations and Individual Clergy and

Theologians in Support of Respondents at 1-2.

In such circumstances, as Lawrence recognized, it

is the task of the courts not to “mandate our own moral

code” but to “define the liberty of all.” As Stenberg

explained, when the Court has been faced with the

“virtually irreconcilable points of view” that exist in the

abortion debate, it has “consideried] the matter in light of

the Constitution’s guarantees of fundamental individual

liberty,” and has “redetermined that the Constitution

offers basic protection to the woman’s right to choose.”

530 U.S. at 920-21. The Constitution requires that

protection be extended to women in these cases as well.

27

Hil. THE ACT UNCONSTITUTIONALLY

VIOLATES WOMEN’S BODILY

INTEGRITY

Another aspect of the constitutionally-protected

liberty to make intensely personal decisions without

governmental interference is the due process right to be

free of unwarranted intrusions into one’s own “bodily

integrity”: “It is settled now, as it was when the Court

heard arguments in Roe v. Wade, that the Constitution

places limits on a State’s right to interfere with a person’s

most basic decisions about family and parenthood, as well

as bodily integrity.” Casey, 505 U.S. at 849 (citations

omitted). It follows that women having abortions, like al]

individuals, have a constitutional right to choose the

medical treatment they deem most appropriate for

themselves. See id. at 857 (a woman’s right to choose

may be seen as a rule “of personal autonomy and bodily

integrity, with doctrinal affinity to cases recognizing

hmits on governmental power to mandate medical

treatment or to bar its rejection”).

Under these principles, the Act impermissibly

interferes with women’s bodily integrity. It effectively

denies women the right to choose abortion at all after the

first trimester, because the broad and vague definition of

the ban reaches virtually all second trimester procedures.

And, even if the Act banned only the intact D&E

procedure, it would force women to undergo a procedure

that is riskier and less safe for them, may contravene the

recommendation of their doctors, and may be contrary to

their moral, personal, and religious beliefs. See supra at

7-13, 20-21. These constraints severely violate the

woman’s bodily integrity.

A number of analogous cases recognize that the

Due Process Clause protects individuals’ right to bodily

integrity, and that the government may not, for instance,

pump suspects’ stomachs for evidence or force them to

28

undergo medical care they do not desire. See Rochin, 342

U.S. at 173-74 (it violates due process to pump a suspect’s

stomach for evidence); Washington, 494 U.S. at 221-222,

227 (the Due Process Clause provides protection against

unwanted administration of antipsychotic drugs; an

inmate may be given such medications against his will

only if he is dangerous and a doctor determines such

treatment is in his medical interest); Cruzan v. Director,

Missouri Dep't. of Health, 497 U.S. 261, 279 (1990)

(assuming that the Due Process clause guarantees a

competent person the right to refuse life-saving hydration

and nutrition). Surely, if a criminal suspect need not

suffer the temporary discomfort of having his stomach

pumped, a woman who is not accused of any crime should

not have to increase her risk of uterine perforation,

cervical laceration, infection, and hemorrhage.

Therefore the Act violates women’s due process

rights by impermissibly interfering with their ability to

make their own medical and moral choices about their

bodies. The government should not, and cannot, preclude

women from obtaining the best and safest medical care

available — and force them to jeopardize their health and

their future ability to bear children, to care for themselves

and their families, and to violate their own moral and

religious principles.

CONCLUSION

For the reasons stated above, amici respectfully

request that this Court affirm the decisions of the Courts

of Appeals for the Eighth and Ninth Circuits.

29

Respectfully submitted,

MARCIA D. GREENBERGER ELIZABETH B. McCALLUM*

DINA R. LASSOW *Counsel of Record

GRETCHEN BORCHELT ANN MARIE PHILLIPS

NATIONAL WOMEN’S LAW ASHLEY BASS

CENTER HOWREY LLP

11 Dupont Circle, NW 1299 Pennsylvania Avenue, NW

Suite 800 Washington, DC 20004-2402

Washington, DC 20036 (202) 783-0800

(202) 588-5180

Attorneys for Amici Curiae

September 20, 2006

APPENDIX

1(a)

THE AMICI ORGANIZATIONS

The National Women’s Law Center is a non-profit

legal advocacy organization that has been working since 1972 to

advance and protect women’s legal rights. The fundamental nght

to abortion recognized in Roe v. Wade is of profound importance

to the lives, health, and futures of women throughout the country.

Because of the tremendous significance to women of the freedom

to choose whether to bear children, the National Women’s Law

Center seeks to preserve women’s right to a safe abortion, and

has filed or participated in numerous amicus briefs in this Court

in cases that affect this right.

Americans for Democratic Action (ADA) is the

nation’s most experienced independent liberal political

economic and social justice at home and abroad. Since 1947, we

have led public opinion and coalitions by taking early, principled

stands on a broad range of issues including the reproductive

rights of women everywhere.

The American Jewish Congress is an organization of

American Jews founded in 1918 to protect the civil, political and

religious rights of American Jews and all Americans. For almost

half a century, it has opposed laws which restrict the choices of

women with regard to procreation. Whether abortion or a

particular abortive technique is morally acceptable is hotly

debated by Americans. We neither endorse nor reject any

particular resolution of that debate when we say that such

contested matters are assigned by the Constitution to the

individual conscience of citizens, rather than government.

The Asian American Justice Center (AAJC) is a

national non-profit, non-partisan organization whose mission is to

advance the legal and civil rights of Asian Americans.

Collectively, AAJC and its affiliates the Asian Law Caucus, the

Asian Pacific American Legal Center of Southern California, and

the Asian American Institute have over 50 years experience in

2(a)

iding legal public policy, ad ond ‘ty educati

on discrimination issues. The question presented by this case is

of great interest to AAJC because it implicates the availability of

California Women Lawyers (CWL) is a non-profit,

umbrella organization for women’s bar associations throughout

the state of California. Chartered in 1974, CWL serves as a

network that permits California’s women attorneys, judges, law

professors and law students to work together to achieve common

goals, including the protection of civil rights of all individuals.

CWL actively engages in the public policy debate concerning the

rights of women and prepares or joins others in presenting

amicus briefs in cases affecting constitutional rights, especially

those that have a special impact on women.

The California Women’s Law Center (CWLC) is a

non-profit specializing in the civil rights of women and girls.

Established in 1989, it is the first law center in California solely

dedicated to addressing the comprehensive and unique legal

needs of women and girls. Since its inception, CWLC has worked

to ensure that all women have full and complete access to all

Enforcement Center to collaborate with grassroots community

based organizations to develop and disseminate culturally and

linguistically appropriate reproductive health and rights

information to diverse communities of women. CWLC has also

authored numerous amicus briefs, articles, and legal education

materials on abortion rights.

The Center for Women Policy Studies was founded

in 1972 with a mission to shape public policy to improve women’s

lives. A hallmark of our work is the multiethnic feminist lens

through which we view all issues affecting women and girls. In

all of our work, we look at the combined impact of gender, race,

ethnicity, class, age, disability, and sexual orientation. We

struggle for women’s human rights—justice and equality for

3(a)

women on such issues as equal credit opportunity, educational

equity, violence against women and girls, welfare reform,

work/family balancing and workplace diversity policies,

reproductive rights and health, the women’s HIV/AIDS epidemic,

access to health care for low-income women, and much more.

The Coalition of Labor Union Women (CLUW) is an

AFL-Cl0 affiliate with over 20,000 members, a majority of whom

are women. For more than 20 years, CLUW has advocated to

strengthen the role and impact of women in every aspect of their

lives. CLUW focuses on key public policy issues such as equality

in educational and employment opportunities, affirmative action,

pay equity, national health care, labor law reform, family and

medical leave, reproductive freedom and increased participation

of women in unions and in politics. Through its 75 chapters

across the United States, CLUW members work to end

discriminatory laws, and policies and practices adversely affecting

women through a broad range of educational, political and

advocacy activities. CLUW has frequently participated as amicus

curiae in numerous legal cases involving issues of gender

discrimination and reproductive freedom. CLUW has provided

educational and training programs for many years to educate and

inform workers, union leaders and employers about issues of

reproductive freedom and gender equality in the workplace.

Concerned Citizens for Medical Freedom is a non-

profit organization of health care and legal professionals

dedicated to the concept that the limits on medicine should be

does not discount the importance of law and ethics. However,

because modern science is always evolving, the importance of

medicine having the freedom to readily adjust to new discoveries

and technology is paramount.

The Connecticut Women’s Education and Legal

Fund (CWEALF) is a non-profit women’s rights organization

dedicated to empowering women, girls, and their families to

achieve equal opportunities in their personal and professional

4(a)

lives. CWEALF defends the rights of individuals in the courts,

educational institutions, workplaces and in their private lives.

Since its founding in 1973, CWEALF has provided legal

information and conducted public policy and advocacy to advance

women’s rights. Throughout our history, we have defended

women’s access to full reproductive health services.

Equal Rights Advocates (ERA) is a San Francisco-

based wmen’s rights organization whose mission is to secure and

girls through litigation and advocacy. Founded in 1974, ERA

Hitigntes i ' inal Mntahashoall

bi; rm ' ee ss a eked Aapee 1 » rte

women each year on their legal rights.

The Guttmacher Institute is an independent,

nonprofit corporation that advances sexual and

reproductive health in the United States and around the

world through an interrelated program of research, policy

analysis and public education. The Institute works to

protect, expand and equalize access to information,

services and rights that will enable women and men to

avoid unplanned pregnancies, prevent and treat sexually

transmitted infections, including HIV, exercise the right

to choose abortion, achieve healthy pregnancies and

births and have healthy, satisfying sexual relationships.

The Idaho Women’s Network is a_ non-profit

education and advocacy organization locatéd in Boise, Idaho.

Founded in 1988, and representing 28 organizational and 400

individual members, the Idaho Women’s Network is the only

statewide, non-partisan women’s coalition in Idaho. The Idaho

Women’s Network serves as a voice for women and their families

in the development of public policy, including women’s

reproductive rights.

Law Students for Choice represents over 1500 law

students and lawyers who are working to increase curricula in

~ §(a)

reproductive rights law and to augment professional training in

reproductive justice work. Law Students for Choice works on a

grassroots basis at law schools in both the United States and

law, maintains a website, and publishes a quarterly newsletter.

Law Students for Choice is committed to educating, organizing,

and supporting law students to ensure that a new generation of

advocates will be prepared to protect and expand reproductive

rights as basic civil and human rights.

Legal Momentum advances the rights of women and

girls by using the power of the law and creating innovative public

policy. Legal Momentum views reproductive rights as central to

women’s equality. For that reason, Legal Momentum has

litigated numerous cases involving reproductive health services,

including Schenck v. Pro-Choice Network, 519 U.S. 357 (1997),

and Bray v. Alexandria Women’s Health Clinic, 06 US. 263

(1993), and has submitted amicus briefs on behalf of

organizations that support women’s equality in abortion cases

including Ayotte v. Planned Parenthood, 126 S. Ct. 961 (2006),

and Stenberg v. Carhart, 530 U.S. 914 (2000).

The Ms. Foundation for Women supports the efforts

of women and girls to govern their own lives and influence the

world around them. Through its leadership, expertise and

financial support, the Foundation champions an equitable society

by effecting change in public consciousness, law, philanthropy

and social policy. Our work is guided by our vision of a just and

safe world where power and possibility are not limited by gender,

race, class, sexual orientation, disability or age. We believe that

equity and inclusion are the cornerstones of a true democracy in

which the worth and dignity of every person are valued. We

founded the Reproductive Rights Coalition and Organizing Fund

in 1989 to support state- and local-level organizations working on

the wide range of reproductive rights issues, from abortion to

contraceptive coverage to sexuality education. We believe that all

women are entitled to the best possible health care.

6(a)

The National Asian Pacific American Women’s

Forum (NAPAWF) is a membership based organization

dedicated to forging a grassroots progressive movement for social

and econonuic justice and the political empowerment of Asian

Pacific American women and girls. Ensuring that all women

have access to safe and timely sexual and reproductive health

care services is one of the central issues that forms the basis of

NAPAWF's advocacy at the national and chapter levels.

NAPAWF supports policies and practices that will increase

health care coverage for all women and men, educate health care

appropriate services, and ensure that all women, regardless of

freedom to access the full range of sexual and reproductive health

The National Center for Lesbian Rights (NCLR) is

a national legal resource center with a primary commitment to

advancing the rights and safety of lesbians and their families

through a program of litigation, public policy advocacy, and public

education. Since its inception in 1977, NCLR has had a

particular interest in defending reproductive freedom for all

women, regardless of sexual orientation.

The National Center for Youth Law (NCYL) is a

non-profit organization located in Oakland, California. Since

1970, NCYL has worked to improve the lives of poor children

nationwide. NCYL provides representation to children and

adolescents in class action litigation and other cases which have

broad impact. The Center also engages in legislative and

administrative advocacy at the national and state levels. NCYL

provides support for the advocacy efforts of others through its

legal journal and training programs, and by providing technical

assistance to other advocates for youth nationwide. One of

NCYL’s particular concerns is access to critical health care for

adolescents. Beginning in 1987 and continuing for ten years,

NCYL was counsel in American Academy of Pediatrics v.

Lungren, 66 Cal. Rptr. 2d 210 (1997). In that landmark case, the

7(a)

California Supreme Court determined that a legislatively-enacted

requirement that minors get the permission of a parent or a judge

before exercising their right to an abortion violated the California

State Constitution.

The National Coalition of Abortion Providers

(NCAP) is a 501(cX4) organization founded in 1990 to provide

advocacy and networking opportunities to independent abortion

providers. Currently, NCAP has 150 member clinics located

throughout the United States providing abortion and other

reproductive health care services to women and their families.

The National Council of Women’s Organizations

(NCWO) is a nonpartisan, non-profit umbrella organization of

over 200 groups that collectively represent some ten million

women across the United States. NCWO members collaborate

through substantive policy work and grassroots activism to

address issues of concern to women, including women’s

reproductive nights and justice.

Founded in 1973, the National Gay and Lesbian

Task Force was the first national lesbian, gay, bisexual and

remains the movement's leading voice for freedom, justice and

equality. We work to build the grassroots political strength of our

community by training state and local activists and leaders,

working to strengthen the infrastructure of state and local allies,

and organizing broad-based campaigns to build public support for

complete equality for LGBT people. As part of a broader social

justice movement, the Task Force works to create a world that

identity where all people may fully participate in society.

Headquartered in Washington, D.C., we also have offices in New

York, Los Angeles, Cambridge Massachusetts, and Miami.

The National Lawyers Guild (NLG) is a national

association of progressive lawyers, law students, legal workers

and jailhouse lawyers. Since its founding in 1937, the Guild has

8(a)

been concerned with reproductive freedom and women’s rights.

Most recently, the NLG has spoken out against efforts in the

federal government and some states to test whether the current

political climate on this Court can be exploited to undermine

women’s rights under settled precedent. The NLG also

The National Organization for Women Foundation

is the education, litigation and advocacy arm of the National

Organization for Women, the nation’s largest organization of

feminist activists. Since its founding in 1986, the primary mission

of the NOW Foundation has been to achieve full equality for

women, including bodily integrity and the right to make their

throughout that time in support of that mission.

The National Partnership for Women & Families is

a non-partisan, non-profit advocacy groups founded in 1971 that

uses public education and advocacy to promote fairness in the

workplace, quality health care, and policies that help women and

men meet the dual demands of work and family. The National

Partnership firmly believes that quality health care must include

access to the full range of women’s reproductive health services.

As a result, the National Partnership has a long history of

promoting and defending a woman’s right to choose by filing

cases.

The Northwest Women’s Law Center (Law Center)

is a regional non-profit public interest organization based in

Seattle, Washington, that works to advance the legal rights of all

rights education. Since its founding in 1978, the Law Center has

been dedicated to protecting and expanding women’s

reproductive rights, and has long focused on the threats to

women’s access to safe and legal abortion. Toward that end, the

Law Center has participated as counsel and as amicus curiae in

cases throughout the Northwest and the country to help ensure

9(a)

that women have the right to selfdetermination and bodily

autonomy. The Law Center obtained the first injunction in the

country that applied to all women’s health clinics in the state and

effectively stopped blockades by bringing contempt actions

against blockaders who refused to obey the court’s injunction.

Similarly, the Law Center was a leader in successfully defeating

a Washington citizen initiative that would have banned certain

abortion procedures. The Law Center remains involved in

legislative and litigation efforts that seek to protect women’s

reproductive rights, and serves as a regional expert and leading

advocate for reproductive freedom.

Our Bodies Ourselves (OBOS) provides clear,

evidence-based information about health, sexuality and

reproduction from a feminist and consumer perspective. OBOS

advocates for women’s health by challenging the institutions and

systems that block women’s ability to obtain essential resources

and support to ensure optimal health and well-being. We serve

in the public interest, do not accept funds from the

pharmaceutical industry, and collaborate frequently with other

organizations also committed to improving the lives of women

and their families.

The Sexuality Information and Education Council

of the United States (SIECUS) has served as a leading

rights for over 40 years. SIECUS affirms that sexuality is a

fundamental part of being human, one that is worthy of dignity

and respect. SIECUS advocates for the right of all people to

accurate information, comprehensive education about sexuality,

and sexual health services.

The Southwest Women’s Law Center is a non-profit

Its mission is to create the opportunity for women to realize their

full economic and personal potential. The Southwest Women’s

Law Center seeks to promote access to comprehensive

reproductive health care information and services and to

10(a)

a a a ye a

and information based on gender.

The Women’s Law Center of Maryland, Inc., is a

reproductive rights. Established in 1971, the Women’s Law

implementation of innovative legal services programs to facilitate

systemic change.

Founded in 1974, the Women’s Law Project (WLP) is

a non-profit feminist legal advocacy organization with offices in

Philadelphia and Pittsburgh, Pennsylvania. WLP works to

advance the legal and economic status of women and their

years, WLP has played a leading role in the struggle to protect

women’s reproductive liberty and autonomy. WLP has

patients before this Court in Ferguson v. City of Charleston, 532

US. 67 (2001); Planned Parenthood v. Casey, 505 U.S. 833 (1992);

and Thornburgh v. American College of Obstetricians &

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

WOMENS WAY is the nation’s oldest and largest

women’s funding federation. Founded in 1977, WOMENS

WAY ’s proud mission is to fight for and achieve women’s equality,

safety, self-sufficiency, and reproductive freedom through women-

centered funding, advocacy and education.