# Amicus Curiae Brief — Gonzales v. Carhart > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0219%3A51 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2007 - **Citation:** 550 U.S. 124 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0219%3A51. Public record. Not legal advice.