Amicus Curiae Brief — Gonzales v. Carhart

U )

Q/ FILED

No. 05-380 MAY 2 2 2006

OFFICE OF THE CLERK |

In The SUPREME COURT. U.S. |

Supreme Court of the Gnited States

¢

_ALBERTO R. GONZALES, ATTORNEY GENERAL,

Petitioner,

v

‘

V.

LEROY CARHART, M.D., WILLLAM G. FITZHUGH, M.D.,

WILLIAM H. KNORR, M.D., and JILL L. VIBHAKAR, M.D.,

on behalf of themselves and their patients,

Respondents.

¢

On Writ Of Certiorari To The United States

Court Of Appeals For The Eighth Circuit

®

BRIEF OF JOHN M. THORP, JR., M.D., and

MATERCARE INTERNATIONAL AS AMICI CURIAE

IN SUPPORT OF PETITIONER

¢

JAMES L. HIRSEN NIKOLAS T. NIKAS

Adjunct Professor of Law DORINDA C. BORDLEE

TRINITY LAW SCHOOL Counsel of Record

505 S. Villa Real Dr., Ste. 208 BIOETHICS DEFENSE FUND

Anaheim Hills, CA 92807 6811 E. Voltaire Ave.

Telephone: (714) 283-8880 Scottsdale, AZ 85254

Telephone: (480) 483-

Counsel for Amici Curiae

May 22, 2006

3597

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .....................ccscecccceeeceeessees ili

INTEREST OF THE AMICI CURIAE.....................00000-

SUMMARY OF THE ARGUMENT .....0.000000.......eeeeees 2

TE shachiitiaiciieptisteniiidiinissipuditiniinliabiesapiteleiieiienciidenes 5

I. THE LOWER COURTS ERRED IN BLINDLY

APPLYING A “HEALTH EXCEPTION” RE-

QUIREMENT TO A STATUTE THAT BANS A

PROCEDURE THAT IS IN AND OF ITSELF

DANGEROUS TO WOMEN’S HEALTH ..........

A. Partial-Birth Abortion Poses Serious

Medical Risks to the Health of Women ......

i.

ii.

ill.

Long-Term Risk of Cervical Incompe-

tence and Preterm Birth.......................

Risks Associated with Version to Foot-

ling Breech Position ........................2266:.

Risks Associated with Scissors..............

B. Abortion in General, including Partial

Birth Abortion, Poses Other Serious Long-

RE II IO ss dctidecesccicasnencsnssnctinsacenane

i RE TINIINIIIIOD sss sscclsicsh rcgsbidilitbledainnsenibandeh

ii. Suicide and Self-Harm...............: edduaaiiind

iii. Breast Cancer Due to Loss of Protec-

tive Effect of First Full Term Preg-

TABLE OF AUTHORITIES

Page

CASES

Ayotte v. Planned Parenthood, 126 S. Ct. 961 (2006) ..... 5,6

Doe v. Boltan, 410 U.S. 179 (19738)...........ccccecccccceeeceeeeee es 5, 7

Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476

SENET eiissitinnceshinsidisichcnauhetiiidaicepaiiiipaaiaiisiatiteleripeaihanidiibdlinaapicterhindgeivend 6

Planned Parenthood v. Casey, 505 U.S. 833 (1992)............ 5

Planned Parenthood v. Danforth, 428 U.S. 52

SSI Lcthsuissiinseicestietdasebedbcineicdeigh dij tieadciontheegpiininhadhdencndddesaiioandabenaionaia 6

Roe v. Wade, 410 U.S. 113 (1973) ......... ee eeeeeeeees 5, 6, 7

Stenberg v. Carhart, 530 U.S. 914 (2000).............0000.. 3,5

Thornburgh v. American College of Obstetricians

and Gynecologists, 476 U.S. 747 (1986) ...............::ceeeeee 6

STATUTES

Partial Birth Abortion Ban Act of 2003, Pub. L. No.

108-105, 117 Stat. 1201 (2008).............0.00 2, 4, 6, 8

MISCELLANEOUS

A. Gilchrist et al., Termination of Pregnancy and

Psychiatric Morbidity, BR. J. PSYCHIATRY, 167,

ek NITED insnedcincieaiberriinitersiedncnicsntieidlbitndibiiciedniiigtibigiaibetmiai 15

Amy R. Sobie & David C. Reardon, Detrimental

Effects of Adolescent Abortion, THE POST ABOR-

TION REVIEW Vol. 91), Jan.-Mar. 2001, at http://

www.afterabortion.info/PAR/V9/nl/teens_vs_older.

htm (last visited Jul. 29, 2005)............... ccc. ccccc eee eeeeeees 15

ill

TABLE OF AUTHORITIES — Continued

Page

Brent Rooney and Byron C. Calhoun, M.D., In-

duced Abortion and Risk of Later Premature

Births, 8 J. AM. PHYSICIANS & SURGEONS 46, 47

NII cists uadeeaesinedhiiaiiintianibinabiiciainiediuies 11

C. Ananth et al., The Association of Placenta Previa

with History of Cesarean Section and Abortion:

A Meta-Analysis, AM. J. OBSTET. GYNECOL., 177,

IP IED cri siiesncsickinechcncntibdinedinsipetncetigthueiniiiees 13

C. Morgan et al., Suicides after Pregnancy, (letter)

BRR REL ARSED SD ACR ren serene 15

D.C. Reardon et al., Deaths Associated with Preg-

nancy Outcome: A Linkage-Based Study of Low

Income Women, SOUTH. MED J., 2002, 95:834-841........ 14

Gissler, Suicides after Pregnancy in Finland, 1987-

94: Register Linkage Study, BMJ, 1996, 313:1431-

SpUNtcchsbisoishstenliic hl cee itachi diehanniedahieeaeaepiced ed dean aebiben tin 14

J.M. Thorp, Jr., M.D., K.E. Hartmann, M.D., Ph.D.,

and E.M. Shadigian, M.D., Long-Term Physical

& Psychological Health Consequences of Induced

Abortion: Review of the Evidence, OB/GYN Sur-

- mw fie SS SS | eee renner passim

Joachim A. Martius et al., Risk Factors Associated

with Preterm (<37 + 0 weeks) and Early Preterm

Birth (<32+ 0 weeks): Univariate and Multivari-

ate Analysis of 106,345 Singleton Births from the

1994 Statewide Perinatal Survey of Bavaria,

EUROPEAN JOURNAL OF OBSTETRICS AND GYNE-

COLOGY AND REPRODUCTIVE BIOLOGY, 80, 1998, at

_RERERSREER SaSaO T NrFrs Wier arcage ts ON AS a id SER Ce i)

M. McMahon et al., Age at First Birth and Breast

Cancer Risk, BULL. WORLD HEALTH ORGAN., 43,

Ra EAS a ewe Rane ce eee 15

iv

TABLE OF AUTHORITIES — Continued

Page

March of Dimes, Complications of Premature Birth, at

http://www.marchofdimes.com/prematurity/5512.asp

(last visited May 18, 2006) ...............cccccceeeeeeeeeeeeeeeeeeeees 11

Reviewing the Medical Evidence: Long-Term Physi-

cal and Psychological Health Consequences of

Induced Abortion, U.S. Senate Subcomm. on Sci.,

Tech. and Space, Statement of Elizabeth M.

Shadigian, M.D. (March 3, 2004)................ 10, 13, 14, 15

W. Chie et al., Age at Any Full-Term Pregnancy and

Breast Cancer Risk, 151 Am J. Epidemiology 715

1

INTEREST OF THE AMICI CURIAE'

John M. Thorp, Jr., M.D. is the McAllister Distin-

guished Professor of Obstetrics and Gynecology at the

University of North Carolina, Chapel Hill School of Medi-

cine. He has an active practice in obstetrics and gynecol-

ogy with over 4000 patients. Dr. Thorp serves as Co-

Director of the North Carolina Program for Women’s

Health Research. In that capacity, he has conducted

comprehensive research on various topics including

perinatal substance abuse, preterm birth, and the health

effects of induced abortion on women’s health. He served

as lead author of the peer-reviewed study that forms the

basis of this brief: J.M. Thorp, Jr., M.D., KE. Hartmann,

M.D., Ph.D., and E.M. Shadigian, M.D., Long-Term Physi-

cal & Psychological Health Consequences of Induced

Abortion: Review of the Evidence, OB/GYN SuRvVEY 58(1):

67-79, 2003.

Dr. Thorp has an extensive research history including

key roles in more than 45 major funded studies, including

a prospective cohort of pregnancy outcomes that is in its

third cycle of federal funding. Dr. Thorp is a productive

author with more than 100 peer-reviewed publications, 20

commentaries, and 12 book chapters to his credit. Of note,

he is an experienced editor and peer reviewer, who reviews

for journals ranging from the New England -Journal of

Medicine to Pediatric and Perinatal Epidemiology, with a

special interest in advancing the quality of the literature

' Pursuant to Sup. Ct. R. 37.6, amici state that none of the counsel

for the parties authored this brief in whole or in part. Monetary funding

for the preparation of this brief has been requested in part from the

Alliance Defense Fund. Pursuant to Sup. Ct. R. 37.3(a), the parties

have consented to the filing of this brief. Letters of consent are being

filed with the Clerk.

2

in women’s health. He was recently honored by the editors

of Obstetrics and Gynecology as among their most valued

reviewers.

Matercare International is a nonprofit interna-

tional organization of Catholic health professionals (obste-

tricians, neonatologists, general practitioners, midwives

and others) whose mission is to address and provide

practical solutions to the poor state of maternal health

throughout the world as indicated by the unacceptably

high maternal mortality, morbidity and abortion rates.

Health Care professionals in the United States are an

important part of Matercare International. In addition to

collaborating with other health organizations to provide

maternal health care in Ghana, Kenya and Rwanda,

Matercare International members engage in research of

the highest scientific and ethical standards to assist in the

care of mothers both pre-natal and post-natal.

In the interest of protecting the health of women

considering late-term abortion, amici curiae, John M.

Thorp, Jr., M.D. and Matercare International, seek to

inform this Court of the serious long-term and immediate

health risks associated with partial-birth abortion in

particular, as well as abortion in general.

¢

SUMMARY OF THE ARGUMENT

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

No. 108-105, 117 Stat. 1201 (2003) (“the Act”) is a constitu-

tionally valid prohibition of a procedure’ that Congress

* While Congress used the term partial birth “abortion” to describe

the procedure being banned, there is a solid argument that the term

abortion is a misnomer. Indeed, since the destruction of the partially

(Continued on following page)

3

appropriately determined to be not only unnecessary, but

also dangerous to the health of women. Amici Professor

John M. Thorp, M.D. and Matercare International present

this Court with compelling evidence in support of Congress’s

born child occurs while most of the child is in the birth canal, the

relevant medical science and this Court’s abortion jurisprudence stating

that women have a “right to choose to terminate their pregnancy”

(pregnancy being medically defined as occurring in the uterus) strongly

support the conclusion that what is being banned is more accurately

described as “partial birth infanticide.” This Court has never held that

a ban on infanticide must include a health exception. (For a complete

medical and legal analysis of why partial birth “abortion” is infanticide

at its earliest point, see Brief of Amici Curiae Louisiana and Mississippi

in Support of Petitisiers in Stenberg v. Carhart, 530 U.S. 914 (2000)).

Indeed, as Justice Thurgood Marshall commented during the second

oral argument in Roe, killing a child in the process of birth “is not an

abortion”:

JUSTICE MARSHALL: What does that [parturition] statute

mean?

MR. FLOWERS: Sir?

JUSTICE MARSHALL: What does it mean?

MR. FLOWERS: I would think that -

JUSTICE STEWART: That it is an offense to kill a child in the

process of childbirth?

MR. FLOWERS: Yes sir. It would be immediately before child-

birth, or right in the proximity of the child being born.

JUSTICE MARSHALL: Which is not an abortion.

MR. FLOWERS: Which is not — would not be an abortion, yes,

sir. You're correct, sir. It would be homicide.

Reargument of Roe v. Wade, October 11, 1972 (emphasis added).

This exchange between Justice Marshal! and counsel for the State of

Texas occurred during the 1972 reargument of Roe in the context of a

discussion about the Texas parturition statute, which had not been

challenged as unconstitutional.

The entire written transcript of the October 11, 1972 reargument can

be found at http://www.oyez.org/oyez/resource/case/334/reargument/

transcript (last checked May 18, 2006).

4

informed determination that, beyond being “unnecessary,”

partial birth abortion “pos2s serious risks to the long-term

health of women, and in some circumstances, their lives.”

A health exception to a procedure that is itself a

health risk simply would not make sense. Indeed, the Act

logically requires no health exception to survive constitu-

tional scrutiny because an overt act that itself endangers a

woman’s health cannot be deemed to be medically neces-

sary.

Amici confirm the validity of the medical testimony

that formed the basis of Congress’s determination that

partial-birth abortion poses serious long-term and short-

term increased medical risks including:

1. Long-Term Risk of Cervical Incompetence

and Preterm Birth;

2. Risks Associated with Version to Footling

Breech Position; and

3. Risks Associated with Scissors

In addition, Amici present this Honorable Court with

a summary of long-term health risks associated with

abortion in general as presented in a 2003 peer-reviewed

systematic review article whose lead author is amicus

curiae Professor John M. Thorp, M.D.‘ The review article

* Partial Birth Abortion Ban Act of 2003, Pub. L. No. 108-105,

§ 2(2), 117 Stat. 1201 (2003) (“Act”).

* J.M. Thorp, Jr., M.D., KE. Hartmann, M.D., Ph.D., and E.M.

Shadigian, M.D., Long-Term Physical & Psychological Health Conse-

quences of Induced Abortion: Review of the Evidence, OB/GYN SURVEY,

58(1), 2003, at 67-79 (“the OGS Review”).

The OGS Review was entered into evidence in the district court

as Defendant’s Exhibit #631.- Tr. 1548:7. Dr. Elizabeth Shadigian,

(Continued on following page)

5

analyzed the medical literature of the first 30 years of

legalized abortion, and found that, in addition to the

increased risk of cervical incompetence and preterm birth

particularly associated with partial-birth abortion, in-

duced abortion in general is associated with increased

long-term risks of:

1. Placenta Previa;

2. Suicide and Self-Harm; and

3. Breast cancer due to loss of protective effect

of first full-term pregnancy.

*

ARGUMENT

I. THE LOWER COURTS ERRED IN BLINDLY

APPLYING A “HEALTH EXCEPTION” RE-

QUIREMENT TO A STATUTE THAT BANS A

PROCEDURE THAT IS IN AND OF ITSELF

DANGEROUS TO WOMEN’S HEALTH

While concern for women’s health has been a constant

theme in this Court’s jurisprudence addressing abortion

regulations, an authentic concern for women’s health

must also consider the risks and dangers of abortion itself

on women’s health as documented in respected medical

journals.

co-author of the OGS Review, testified about the study at pages 1534-

1543 of the trial transcript. Tr. 1534-1543.

* Roe v. Wade, 410 U.S. 113, 164-65 (1973); Doe v. Bolton, 410

U.S. 179, 192 (1973); Planned Parenthood v. Casey, 505 U.S. 833, 879

(1992); Stenberg v. Carhart, 530 U.S. 914, 930 (2000); Ayotte v.

Planned Parenthood, 126 S. Ct. 961, 967 (2006).

6

The lower courts failed to give enough weight to the

evidence supporting Congress’s informed determination

that partial-birth abortion is a procedure that “poses

serious risks to a woman’s health [which] lies outside the

standard of medical care.” The lower courts further erred

when they, as if by rote, ruled that a health exception is

constitutionally required for an Act that bans a procedure

that itself is a health threat to women.

Amici submit that the Act logically requires no health

exception to survive constitutional scrutiny because an

overt act that itself endangers a woman’s health cannot be

deemed to be “necessary, in appropriate medical judgment,

for preservation of the life or health of the mother,” as

required by this Court’s jurisprudence. Ayotte v. Planned

Parenthood, 126 S. Ct. 961, 967 (2006).’

While some amici supporting Petitioner address the

medical evidence supporting Congress’s finding that

partial-birth abortion is never necessary to preserve the

health of the mother,’ Amici Dr. John M. Thorp and

Matercare International present this Court with compel-

ling evidence supporting Congress’s important and deter-

minative findings concerning the dangers posed by “the

serious risks to the long-term health of women”™ associated

* Act, supra note 3, at §13.

” Id. (quoting Roe, 410 U.S. at 164-165); also citing Thornburgh v.

American College of Obstetricians and Gynecologists, 476 U.S. 747, 768-

769 (1986); Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476, 482-

486 (1983) (opinion of Powell, J.); Planned Parenthood of Central Mo. v.

Danforth, 428 U.S. 52, 79 (1976).

* See Brief Amici Curiae of the American Association of Pro-Life

Obstetricians and Gynecologists, et al.

* Act, supra note 3, at §2(2).

7

with partial-birth abortion, as well as its short-term risks

of immediate complications.

A. Partial-Birth Abortion Poses Serious Medi-

cal Risks to the Health of Women

To assist this Court’s analysis of whether a health

exception” is required to uphold the constitutionality of

the Act, Amici bring this Court’s attention to the evidence,

as presented in the record of both Congress and in the

district court, of the three serious health risks posed

specifically by the partial-birth abortion procedure: 1)

cervical incompetence and preterm birth, 2) uterine

trauma caused as a result of converting the child to a

footling breech position, and 3) risk of severe bleeding

caused by using scissors to pierce the fetus’s head while it

is inside the woman's cervix.

i. Long-Term Risk of Cervical Incompe-

tence and Preterm Birth

Partial-birth abortion, as described by those who use

the procedure, requires more cervical dilation than that

* Because Roe allowed abortion in the second and third trimesters

for the “life or health” of the mother, the following definition of “health”

has been used by abortion providers to make abortion on demand

available through all nine months of pregnancy:

“(T}he medical judgment may be exercised in the light of all

factors — physical, emotional, psychological, familial, and

the woman’s age — relevant to the well being of the patient.

All these factors may relate to health.” Doe v. Bolton, 410

U.S. 179, 192 (1973).

Amici urge this Court to address this overbroad definition of “health.”

8

required in other abortion procedures." Congress found

that partial-birth abortion poses an “increase in a woman's

risk of suffering from cervical incompetence, a result of

cervical dilation making it difficult or impossible for a

woman to successfully carry a subsequent pregnancy to

term.” Act, §2(14)(A).

This finding is supported by a multitude of studies

included in a landmark 2003 peer-reviewed abstract of the

body of abortion-related health studies over the first thirty

years of legalized abortion entitled “Long-Term Physical &

Psychological Health Consequences of Induced Abortion:

Review of the Evidence” (“the OGS Review”) (see Appendix

which contains an internet link to full article).'* The OGS

Review evaluated over sixty international studies that

included more than one million women. The study's au-

thors, lead by Dr. John M. Thorp, amicus herein, are

dedicated to gold standard research and hail from prestig-

ious university medical programs.”

" Congress considered the statement of Dr. Haskell’s 1992 NAF

paper that partial-birth abortion involves an amount of dilation beyond

that of D&E. Dr. Haskell described this process as “Dilation and MORE

DILATION” involving the use of up to 25 osmotic dilators on the

second day alone. June 17 Hearing at 17 (emphasis of “MORE DILA-

TION” in original).

” “Long-Term Physical & Psychological Health Consequences of

Induced Abortion: Review of the Evidence,” by J.M. Thorp, Jr., M.D.,

K.E. Hartmann, M.D., Ph.D., and E.M. Shadigian, M.D., OB/GYN

SuRVEY, 58(1), 2003, at 67-79.

The OGS Review was entered into evidence in the Nebraska

District Court as Defendant’s Exhibit #631. Dr. Elizabeth Shadigian, co-

author of the OGS Review, testified about the study at pages 1534-1543

of the trial transcript.

" John M. Thorp, Jr, M.D. (Amicus Curiae herein), McAllister

Distinguished Professor of Obstetrics and Gynecology, Department of

Epidemiology, School of Public Health, and Department of Obstetrics

(Continued on following page)

9

Of the several increased health risks surveyed in the

OGS Review, of most relevance to the partial-birth abor-

tion procedure is the study’s conclusions concerning

preterm birth. Dr. Elizabeth Shadigian, a co-author of the

OGS Review, testified at trial that preterm birth is a

potential long-term risk of partial-birth abortion (also

referred to as D&X) because “we are talking [about] a

much greater size of the baby, and this baby being pulled

through a partially-open cervix such that . . . the potential

for damage to the cervix is much greater in a D&X proce-

dure than it would be in a simple first trimester proce-

dure.”

The OGS Review explains that preterm birth is a

major cause of “perinatal [infant] mortality and neurologi-

cal long-term morbidity” in industrialized nations.” The

OGS Review found twenty-four studies that explored the

connections between induced abortion and preterm birth

and Gynecology, School of Medicine, University of North Carolina,

Chapel Hill; Co-Director of the North Carolina Program for Women’s

Health Research.

Katherine E. Hartmann, M.D., Ph.D., Assistant Professor, Depart-

ment of Epidemiology, School of Public Health, and Department of

Obstetrics and Gynecology, School of Medicine, University of North

Carolina, Chapel Hill; Director of the North Carolina Program for

Women’s Health Research.

Elizabeth Shadigian, M.D., Clinical Associate Professor, Depart-

ment of Obstetrics and Gynecology, School of Medicine, University of

Michigan, Ann Arbor.

* Tr. 1549-1550 (Elizabeth Shadigian, M.D.).

* OGS Review, supra note 12 at 70, n. 70 (citing Joachim A.

Martius et al, Risk factors associated with preterm (<37 + 0 weeks) and

early preterm birth (<32+ O weeks): univariate and multivariate

analysis of 106, 345 singleton births from the 1994 statewide perinatal

survey of Bavaria, EUROPEAN JOURNAL OF OBSTETRICS AND GYNECOLOGY

AND REPRODUCTIVE BIOLOGY, 80, 1998, at 183-189.)

10

or low birth weight.” “Twelve studies found an association

which almost doubled the risk of preterm birth. More-

over, seven of the twelve identified a higher risk for

preterm birth for women who have had more abortions.”

Congress considered what Amici deem to be accurate

medical testimony that the increased amount of dilation

required in partial-birth abortion increases the risk of

premature delivery in a subsequent pregnancy. See, e.g.,

Nov. 1995 Hearing at 77 (statement of Dr. Pamela Smith)

(“[blecause you are forcefully dilating [the cervix] and

opening it over a course of three days, [a woman]... could

develop a problem called incompetent cervix,” and she

“will not be able to deliver a baby or carry a baby to

term”); March 2003 Hearing at 114 (statement of Dr.

Camilla C. Hersh) (“[a] woman’s cervix is forcibly dilated

over several days. This risks creating an incompetent

cervix, a leading cause of subsequent premature delivery”);

and March 1997 Hearing at 122 (statement of Dr. Curtis

Cook) (partial birth abortion “involves several techniques

which are concerning. . . , the first of which is the forceful

placement of multiple dilators into the cervix, leading to

potential cervical complications”).

A pregnancy resulting in pre-term birth for a woman

who had undergone a previous partial-birth abortion can

result in tragic medical conditions for her subsequently

born infant. The elevated risk of pre-term birth can result

in newborns suffering from a variety of health problems

* OGS Review, supra note 12, at 70; see also, Reviewing the

Medical Evidence: Long-Term Physical and Psychological Health

Consequences of Induced Abortion, U.S. Senate Subcomm. on Sci., Tech.

and Space, Statement of Elizabeth M. Shadigian, M.D. (March 3, 2004)

(“Shadigian Senate Testimony.”).

” OGS Review, supra note 12, at 70.

11

and disabilities including, among other things, cerebral

palsy,” incomplete lung development, and sight or hearing

problems for the infant due to underdeveloped eyes and

ears. The March of Dimes summarizes nine complications

associated with preterm birth: (1) Respiratory Distress

Syndrome; (2) Intraventricular Hemorrhage; (3) Necrotiz-

ing Enterocolitis; (4) Retinopathy of Prematurity; (5)

Chronic Lung Disease; (6) Infections; (7) Anemia; (8)

Patent Ductus Arteriosus; and (9) Apnea.”

ii. Risks Associated with Version to Foot-

ling Breech Position

In addition to the long-term risk of cervical incompe-

tence and preterm birth, Congress properly considered the

short-term risks of immediate complications.

Congress considered evidence that partial-birth

abortion involves the “routine version” of a fetus “into a

breech (feet first) position, followed by extraction of the

fetus up to the neck, when the base of the fetal skull is

perforated with surgical instruments.” Nov. 1995 Hearing

at 246 (statement of Dr. Warren Hern).

Congress considered reliable evidence that “internal

rotation, or version [of the unborn child] is a technique

largely abandoned in modern obstetrics” and that it is a

* Brent Rooney and Byron C. Calhoun, M.D., Induced Abortion

and Risk of Later Premature Births, 8 J. AM. PHYSICIANS & SURGEONS

46, 47 (Summer 2003).

* March of Dimes, Complications of Premature Birth, at http://

www.marchofdimes.com/prematurity/5512.asp (last visited May 18,

2006). Id.

* March 1997 Hearing at 123 (statement of Dr. Curtis Cook).

12

“rarely used [technique] ... because it has high risks to

both mother and baby, and the risk to the mother is

_ primarily rupture of the uterus.””

Risk of uterine rupture or trauma such as a tearing in

the lateral wall of the uterus is an obvious risk of partial-

birth abortion considering that internal conversion of the

fetus in the uterus is performed by literally flipping the

fetus around.” This risky practice is done solely for the

purpose of getting the fetus who is normally in a head

down position turned around into a feet-first breech

position so that when the child’s body is brought into the

vaginal canal, the head can be held inside of the cervix

and the skull can be emptied and crushed before delivery

is fully completed.

iii. Risks Associated with the Scissors

Congress also heard evidence that using scissors to

pierce the base of fetus’s skull while it is inside the

woman's cervix presents risks of maternal injury.” Dr.

Mark G. Neerhof explained in his statement to Congress

that blindly forcing scissors into the base of the fetus’s

head “risks maternal injury from laceration of the uterus

or cervix by the scissors and could result in severe bleed-

ing and the threat of shock or even maternal death.””

* Nov. 1995 Hearing at 140 (testimony of Dr. Pamela Smith)

(emphasis added).

* Id.

*® March 2003 Hearing at 115 (letter from Dr. Hersh).

* Id. at 7 (statement of Dr. Neerhof).

13

B. Abortion in General, including Partial-

Birth Abortion, Poses Other Serious Long-

Term Health Risks

The thirty year survey of the long-term impact of

abortion on women’s health in the OGS Review concluded

that induced abortion in general (which would include

partial-birth abortion) is associated with increased risks of

placenta previa, serious mental health disorders/suicide,

and breast cancer due to loss of protective effect of first

full-term pregnancy.

i. Placenta Previa

The medical condition where the placenta covers the

cervix, making a cesarean section necessary to deliver the

baby, is called “placenta previa.”

When pregnancies are complicated by placenta previa,

the result is high rates of preterm birth, low birth weight

babies, and infant death.” Women who develop this

condition are also at an increased risk for blood loss,

subsequent blood transfusions, and hysterectomies (loss of

the uterus) which thus require more extensive surgery.”

All of the three studies that have been done with over

100 subjects and one meta-analysis found a positive asso-

ciation between induced abortion and placenta previa. The

OGS Review concluded that induced abortion increases the

* OGS Review, supra note 12, at 70, n. 27 (citing C. Ananth et al.,

The association of placenta previa with history of cesarean section and

abortion: A meta-analysis, AM. J. OBSTET. GYNECOL., 177, 1997, at 1071-

1078.)

* Shadigian Senate Testimony, supra note 16; OGS Review, supra

note 12, at 70.

14

risk of placenta previa in subsequent pregnancy by ap-

proximately 50%.”

ii. Suicide and Self-Harm

One of the most dramatic and disturbing tabulations

of the OGS Review is the increased risk of death by sui-

cide. In addition to a variety of mental health disorders

including depression, two studies, one from the United

States and the other from Finland, have shown startling

increased rates of suicide following abortion.” This phe-

nomena is not seen after miscarriage.”

The United States study showed that women who had

abortions were 2.5 times more likely to die from suicide.”

The Finland study showed that women who had abortions

were 3.1 times more likely to die from suicide than non-

pregnant women and 6.5 times more likely to die from

suicide than women who completed their pregnancy.”

The Finland study further showed that teenagers who

have abortions are two to four times more likely to

” OGS Review, supra note 12, at 70, 75 (cited in Shadigian Senate

Testimony, supra note 16).

* Id. at 74. See also, Shadigian Senate Testimony, supra note 16.

* OGS Review, supra note 12, at 74 (miscarriage referred to

medically as “spontaneous abortion”).

* Id. at 73, n. 96 (Table 7, ref. n. 96, citing David C. Reardon et al.,

Deaths Associated With Pregnancy Outcome: A Linkage-based Study of

Low Income Women, SOUTH. MED J., 2002, 95:834-841.)

* Id. at 73, n. 90 (Table 7, ref. n. 90, citing Gissler, Suicides after

pregnancy in Finland, 1987-94: Register linkage study, BMJ, 1996,

313:1421-1434).

15

commit suicide compared to women who have abortions in

adulthood.”

In addition, self-harm is more common in women who

have undergone induced abortion.” In England, psychiat-

ric hospital admissions because of suicide attempts are

three times more likely for women after induced abor-

tion, but not before.”

The OGS Review concluded that regardless of whether

there is a causal link, the observation of the association

“suggests careful screening and follow-up for depression

and anticipatory guidance/precautions for women who

choose elective abortion.””

iii. Breast Cancer: Loss of Protective Ef-

fect of First Full-Term Pregnancy

Since the 1970’s, medical literature has shown that

there is a “protective effect of a first full term pregnancy”

early in one’s reproductive life.” “Protective effect” means

* Amy R. Sobie & David C. Reardon, Detrimental Effects of

Adolescent Abortion, THE POST ABORTION REVIEW Vol. 9(1), Jan.-Mar.

2001, at http//www.afterabortion.info/PAR/V9/n L/teens_vs_older.htm (last

visited Jul. 29, 2005).

” Shadigian Senate Testimony, supra note 16 (citing the OGS

Review at 74, n. 97 (A. Gilchrist et al., Termination of pregnancy and

psychiatric morbidity, BR. J. PSYCHIATRY 167, 1995, at 243-248.)).

* Id. (citing the OGS Review, supra note 2, at 74, n. 93 (C. Morgan

et al., Suicides after Pregnancy, (letter) BMJ, 314, 1997, at 902)).

* OGS Review, supra note 12, at 76.

* Shadigian Senate Testimony, supra note 16 (citing M. McMahon

et al., Age at First Birth and Breast Cancer Risk, BULL. WORLD HEALTH

ORGAN., 43, 1970, at 209-221 (as cited in OGS Review, supra note 12, at

75 n. 101)); See also Chie W. et al., Age at Any Full-Term Pregnancy and

(Continued on following page)

16

that when a pregnancy is brought to term, a woman’s risk of

breast cancer is reduced as compared to women who have

not given birth. When a woman undergoes an induced

abortion, she is losing this protective effect and this

decision can almost double her lifetime risk of breast

cancer.” The OGS Review thus concluded that “[iJt is

clear that a decision to abort and delay pregnancy culmi-

nates in a loss of protection with the net effect being an

increased risk.”

The OGS Review further concluded that women

should be given informed consent about the increased risk

of breast cancer related to the “undisputed protective

effect of a full-term delivery early in one’s reproductive

life.””

The OGS Review concluded that “a young woman

facing an unwanted pregnancy can and should be in-

formed of the loss of that protection that would derive

from a decision to terminate her pregnancy and delay

having a baby.” The authors demonstrated that a decision

Breast Cancer Risk, 151 Am J. Epidemiology 715 (2000) (cited in the

OGS Review, supra note 12, at 75 =. 98).

” OGS Review, supra note 12, at 76.

- =

* Id. at 75. Note that the “loss of protective effect of first full-term

pregnancy” risk factor is separate and distinct from studies that assess

whether induced abortion is an “independent risk factor” for breast

cancer. “Loss of protective effect” compares the increased risk of women

who have undergone abortion to women who have given birth. By

contrast, the “independent risk factor” compares women who have

undergone abortion with women who have not been pregnant at all.

This brief focuses on the risk of breast cancer due to “loss of protective

effect” that results when a woman aborts her first pregnancy because

that significant increased risk is “undisputed.” Jd.

© Id.

17

of an 18 year old pregnant woman to terminate her preg-

nancy “can almost double her 5-year and lifetime risk of

breast neoplasia at age 50.”

The review article stated that “the ‘loss of protection’

effect is most pronounced in women under 20 years of age

who elect to undergo abortion rather than continue their

pregnancy.” The OGS Review authors thus concluded

“that clinicians are obliged to inform pregnant women that

a decision to abort her first pregnancy may almost double

her lifetime risk of breast cancer through loss of the

protective effect of a completed first full-term pregnancy

earlier in life.”

°

CONCLUSION

The lower courts’ rulings requiring a health exception

to an Act that bans the medically dangerous partial-birth

abortion procedure is akin to requiring a health exception

to an Act that bans the use of crack cocaine. Not only is

the banned practice not necessary to preserve anyone’s

health, it is affirmatively dangerous enough that a legisla-

tive body is within its constitutional authority to entirely

prohibit the matter as a danger to public health.

For the foregoing reasons, Amici Curiae, Professor

John M. Thorp, Jr., M.D., and Matercare International

4) Id.

© Id. at 76.

© Id.

18

respectfully request this Honorable Court to reverse the

judgment of the Court of Appeals.

Respectfully submitted,

JAMES L. HIRSEN NIKOLAS T. NIKAS

Adjunct Professor of Law DORINDA C. BORDLEE

TRINITY LAW SCHOOL Counsel of Record

505 S. Villa Real Dr., Ste. 208 BIOETHICS DEFENSE FUND

Anaheim Hills, CA 92807 6811 E. Voltaire Ave.

Telephone: (714) 283-8880 Scottsdale, AZ 85254

Telephone: (480) 483-3597

Counsel for Amici Curiae

May 22, 2006

App. 1

- APPENDIX -

The following is the official abstract of the OGS Review. A

._pdf version of the entire article is posted on for the Court’s

review at the following internet address, with the permis-

sion of John M. Thorp, Jr., MD:

www.BDFund.org/OGSReview.pdf

Long-Term Physical and Psychological

Health Consequences of Induced

Abortion: Review of the Evidence

Obstetrical & Gynecological Survey. 58(1):

67-79, January 2003.

Thorp, John M. Jr., MD; Hartmann,

Katherine E. MD, PhD; Shadigian, Elizabeth MD

Abstract:

Induced abortion is a prevalent response to an unintended

pregnancy. The long-term health consequences are poorly

investigated and conclusions must be drawn from observa-

tional studies. Using strict inclusion criteria (study popu-

lation >100 subjects, follow up >60 days) we reviewed an

array of conditions in women’s health. Induced abortion

was not associated with changes in the prevalence of

subsequent subfertility, spontaneous abortion, or ectopic

pregnancy. Previous abortion was a risk factor for placenta

previa. Moreover, induced abortion increased the risks for

both a subsequent preterm delivery and mood disorders

substantial enough to provoke attempts of self-harm.

Preterm delivery and depression are important conditions

in women’s health and avoidance of induced abortion has

potential as a strategy to reduce their prevalence. Only

review articles including the single published meta-

analysis exploring linkages between abortion and breast

cancer were relied upon to draw conclusions. Reviewers

App. 2

were mixed on whether subsequent breast neoplasia can

be linked to induced abortion, although the sole meta-

analysis found a summary odds ratio of 1.2. Whatever the

effect of induced abortion on breast cancer risk, a young

woman with an unintended pregnancy clearly sacrifices

the protective effect of a term delivery should she decide to

abort and delay childbearing. That increase in risk can be

quantified using the Gail Model. Thus, we conclude that

informed consent before induced abortion should include

information about the subsequent risk of preterm delivery

and depression. Although it remains uncertain whether

elective abortion increases subsequent breast cancer, it is

clear that a decision to abort and delay pregnancy culmi-

nates in a loss of protection with the net effect being an

increased risk.

Copyright © 2002

By Lippincott Williams & Wilkins, Inc.