Petition for Writ of Certiorari — Rogers v. United States

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pour, U.S.

Supreme Court, U.S.

FILED

t DEC 2 1.1992

OFACE OF THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1992

EDWIN W. EDWARDS, et al, Petitioners,

SOJOURNER T., et ai, Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RICHARD P. IEYOUB, Attorney General

M. PATRICIA JONES

Assistant Attorney General

LOUISIANA DEPARTMENT OF JUSTICE

Office of Attorney General

State Capitol—22nd Floor

Baton Rouge, LA 70806

(504) 342-7013

ROBERT E. WINN,*

JOY G. BRAUN, Special

Assistant Attorneys General

3500 Place St. Charles

201 St. Charles Avenue

New Orleans, LA 70170

(504) 582-1500

JAMES BOPP, JR., Special

Assistant Attorney General

191 Harding Avenue

P. O. Box 8100

Terre Haute, IN 47808-0410

(812) 238-2421

Counsel for Petitioners

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

QUESTIONS PRESENTED

1. Whether the Louisiana Abortion Statute is un-

constitutional in all of its possible applications and, if not,

whether it can be enforced in its constitutionally permissi-

ble applications?

2. Whether, in light of the undisputed facts of human

development and the recently acquired scientific evidence

of the humanity of the unborn child, Louisiana’s Abortion

Statute is an appropriate and reasonable exercise of

authority reserved to the states by the United States

Constitution?

PARTIES TO THE PROCEEDING

The Defendants-Appellants below and Petitioners in

the case at bar are Edwin W. Edwards, as Governor of the

State of Louisiana; and Richard P. Ieyoub, as Attorney

General of Louisiana. Harry Connick, Sr., as District At-

torney for the Parish of Orleans was also made a party

defendant in the district court. He appealed the district

court’s decision and has filed a separate petition for

certiorari.*

The Plaintiffs-Appellees below and Respondents

herein are Sojourner T., Jane and Ida B. on behalf of

themselves and all others similarly situated; James

DeGueurce, M.D., Calvin Jackson, M.D., and Pamela Bran-

ning, M.D., on behalf of themselves and all others similarly

situated, and their patients; Hope Medical Group for

Woman; Delta Women’s Clinic West; Causeway Medical

Suite; Emilia Bellone, M.S.W., on behalf of herself and her

clients; Reverend Kathleen Korb and Rabbi Michael

Matuson, on behalf of themselves and their congregants;

and Dr. Ifeanyi Charles Okpalobi.

*Harry Connick, Sr. was represented in the district court and Court of

Appeals by John S. Baker, Room 414, LSU Law Center, Baton Rouge,

LA 70806, (504) 388-8846.

AP EE “

lil

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED ....................... i

PARTIES TO THE PROCEEDINGS ............... ii

TABLE OF CONTENTS ......................... iii

TABLE OF AUTHORITIES ..................... Vii

OPP ROU MRED MOEMMOW ceca l

NS ah ok dep yd wld d Aas shew ea ss l

STATUTE & CONSTITUTIONAL PROVISIONS ....2

STATEMENT OF THE CASE..................... 2

A. Course of Proceedings and Disposition in the

Court Below ........................... sa ee 2

B. Statement of the Facts....................... 3

REASONS FOR GRANTING THE WRIT........... 6

PRELININARY STATEMENT

I. The Court Below Failed to Apply The

Normal Standard for Facial Challenges, Which

Must Be Applied in Cases Involving The Con-

stitutional Right to Abortion ................... 7

A. In a Facial Challenge to a Statute, the

Plaintiff Has the Burden of Proving That

No Application of the Statute Is

a lt ca ce kbs scaee. 7

B. The Normal Rule for a Facial Challenge

Should Apply to Cases Involving Abortion .. .8

TABLE OF CONTENTS (continued)

Page(s)

1. The facial challenge rule is a general

principle of law that should be applied

in an even-handed, neutral fashion ...... 9

2. Sound jurisprudential and practical

reasons support principled adherence

to the facial challenge rule ............ 10

3. The lower court failed to apply facial

challenge principles to the Louisiana

pe ee ee 11

II. The Court Should Grant Review to Consider

the Right of the State of Louisiana to Re-

Weigh the Interests of the Pregnant Woman

ee ee ce Pe ee 11

A. The Crucial Balancing in Roe of the Rights

of the Pregnant Woman Against Only the

Potential Life of the Unborn Child Was

Wrong and Should Be Re-Examined........ 12

B. Principles of Stare Decisis, Properly

Understood, Should Not Preclude Recon-

sideration of Roe and the Re-Balancing of

the Competing Interests in the Abortion

SG nce as ee nee ast 14

C. Louisiana’s Determination That Actual

Human Life Begins Jn Utero and Its Deci-

sion to Protect Such Life Accords With

Modern Scientific Knowledge Available

Since Roe v. Wade ........................ 17

TABLE OF CONTENTS (continued)

Page(s)

1. Modern developments in embryology

and fetology establish the humanity of

ee 17

2. Ultrasound enables us to observe the

humanity of the unborn child.......... 18

3. There is evidence of fetal pain......... 20

D. Louisiana’s Abortion Statute Is an Ap-

propriate and Reasonable Exercise of

Authority Reserved to the States by the

riley GHP Ces 0465 4 Zee hw Ske ds eh 22

1. This Court has recognized other areas

where States may legislate not-

withstanding individual privacy rights . . 22

2. Louisiana’s determination that actual

human life begins in utero accords with

the recognition of unborn human life in

the law of most States............. 24-25

3. Louisiana’s unique legal system has

historically afforded legal protection to

ree 26

CAIPGUUUE oo oh wk xn Chink Ceewn eae ee 29

TABLE OF CONTENTS (continued)

APPENDICIES: Page(s)

A. OPINION AND JUDGMENT OF THE

UT We TE 68k SRA wh he SAAR es A-l

OPINION OF THE DISTRICT COURT

REASONS FOR JUDGMENT ............. A-13

JUDGMENT OF THE DISTRICT COURT . .A-17

ACT 26 OF THE 1991 LOUISIANA

SAA EAIME, 55. us oy caw Dh b a va ek A-19

. OPINION OF THE LOUISIANA AT-

Wubeerems es GIBIIERAL.. . 6 cs cee cess, A-24

LIST OF STATES RECOGNIZING THAT

HUMAN LIFE BEGINS AT CONCEPTION . A-31

. LIST OF STATES THAT TREAT THE

KILLING OF AN UNBORN CHILD AS

at ee eae okay ee A-63

6 a IPM MEAS! gatas ite hag yb. A-68

Vii

TABLE OF AUTHORITIES

CASES: Page

Akron v. Akron Center for Reproductive Health,

Se I oc an ies aren 9

Barnes v. Moore, 970 F. 2d 12 (5th Cir. 1992), cert.

denied, Dec. 7, 1992, 61 U.S.L.W. 3303 ............ 6

Booth v. Maryland, 482 U.S. 496 (1987) .......... 15,16

Bowers v. Hardwick, 478 U.S. 186 (1986) ........... 24

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393,

406, 52 S.Ct. 443, 447, 76 L.Ed. 815 (1932) ........ 15

Byrn v. New York, 31 N.Y.2d 194 (1992) appeal

dismissed 410 U.S. 949 (1973) ................... 13

Connecticut v. Menillo, 423 U.S. 9 (1975) .......... 8,10

Danos v. St. Pierre, 402 So.2d 633 (La. 1981) ........ 28

Guam Society of Obstetricians and Gynecologists v. Ada,

962 F.2d 1366 (9th Cir. 1992); cert. denied, 61

U.S.L.W. 3399 (U.S. Nov. 30, 1992) ............... 5

Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct.

444, 451, 84 L.Ed. 604 (1940).................... 15

Johnson v. South New Orleans Light & Traction

Co., No. 9,048 (La. App. Orl. Cir. 1923), writ

denied, No. 26,443 (La. 1942) (unreported decisions) . 27

Vili

TABLE OF AUTHORITIES (continued)

CASES:

Members of City Council v. Taxpayers for Vincent,

S00 U.S. TOD, TOG (2984)... 2... ccc. 8,9

Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct.

to gg BEES PO NA a DT Ee 55 ata 24

National Metropolitan Bank v. U.S.. 323 U.S. 454

Pe ae ee ee ern 4

Ohio v. Akron Center for Reproductive Health, 110

es eo CP ie ee 9

Ifeanyi C. Okpalobi v. State 0 Louis’ x, et al, No.

91-2422 (E.D. La. July 3, 1991: ................... 3

Payne v. Tennessee, 111 S.Ct. 2597 (| ia 14,15,16

Planned Parenthood of Southeastern Pennsylvania

v. Casey, 112 S.Ct. 2791 (1992) .............. passim

Reynolds v. United States, 98 U.S. 145 mere. oe 23

Roe v. Wade, 410 U.S. 113 (1973) .............. passim

Rust v. Sullivan, 111 S.Ct. 1759, 1767 Si) | is 5,10

Schall v. Martin, 467 U.S. 253, 269 n. 19 (1984)...... 11

TABLE OF AUTHORITIES (continued)

CASES: Page

Smith v. Allwright, 321 U.S. 649, 665, 64 S.Ct.

757, 765, 88 L.Ed. 987 (1944)................. ee

Sojourner T. v. Edwards, 974 F. 2d 27 (5th Cir.

SE AG ick es Wa sachs Cs OW CY GO a ee ores passim

Sojourner T. v. Roemer, 772 F. Supp. 930 (E.D. La.

Peed Vo ora ce ee ee, ero ee passim

United States v. Salerno, 481 U.S. 739, 745 (1987) .8,9,10

Webster v. Reproductive Health Services, 492 U.S.

EE S28 areca cee vit aid 4 RII Soe oc 7,8,9,10

STATUTES:

oe ge eS A re ne neem 2

First Amendment, U.S. Constitution ............... 10

Tenth Amendment, U.S. Constitution ........... 2,6,22

Fourteenth Amendment, U.S. Constitution........ 13,27

ee Pe nos ic os oe cdc doe ban 2

ee BLeOS censdew sas oas 1

SD a we Wenn a ve hawt avns l

on iy Gog sense vapeudeeeadeue l

ok) 1

TABLE OF AUTHORITIES (continued)

STATUTES: |

Federal Rules of Civil Procedure 12(c).............. 2,3

Louisiana Abortion Statute ................ . . passim

La. Acts, 1855, Act 120, §24, p.132............... 27 |

Act 26 of the 1991 Louisiana Legislature ......... 2,3,4 |

ee ee eee . .28

ma. Tw, MOOG. IBD nn nk 5k vc een cccncacenacck. 28

La. Rev. Stat. $9:124 .......................0.0.. 28

La. Rev. Stat. §9:125 - pcan wiley Cee

oi, W.. TOG, RG oo ein vcd c vou d cn natans 4,27

La. Civil Code Article 26 ......................... 27

La. Civil Code Article 90, comment (b).............. 23

La. Civil Code Article 900 ........................ 23

May Petes OF

La. Civil Code Article 901 ........................ 23

La.

TABLE OF AUTHORITIES (continued)

Page

Raven Come Agtinte GB4 ... ww. ccc cce 27

Ciwll Code Articie 1474 ... 2... ccc ccc 27

Cowes Came Arties 1476 . ww. occ ee keen 13

Civil Code Article 1918 ....................... 13

Civil Code Article 2315 .................... ..28

Civil Code Article 2315.2(A) ................... 28

Cae OE Care Gs OR, GR won o's sein ccchuvs weal 13

Code of Civil Proc. art. 732... 2... ce 13

xii

TABLE OF AUTHORITIES (continued)

Page

OTHER SOURCES:

Affidavit of Raymond F. Gasser, Pk.D........... 20,21

American College of Obstetricians & Gynecologists

Technical Bulletin number 116 - May 1988 ........ 19

Anand & Hickey, ‘Pain and Its Effects in the

Human Neonate and Fetus,’”’ 317 New Eng. J.

Med. (1987): 1321, 1322, 1325 J: : ae 20,21,22

Boehm & Kazazian, ‘Prenatal Diagnosis by DNA

Analysis” in The Unborn Patient 82 (M. Har-

rison, M. Golbus and R. Filly eds. 2nd ed. 1991) ...17

55 C.J.S. Marriage §16, 831 (1948) ................. 23

Clark, J., ed. The Nervous System; Circuits of Com-

munication. The Human Body. Torstar Books,

tg: WG I OE oe on nw On 5 sks Civeawede hk 21

J. Domat, The Civil Law in Its Natural Order, Voll.

I, Part I, Prel. Book I. Titl. 2, § 1, Law 6, p. 138

(Strahan Transl. 1837) ....................... 26,27

Fletcher, ‘‘Pain in the Neonate,’”’ 317 New Eng. J.

Med. 1321, 1347-1848 .......................... 21

Flower, ‘‘Neuromaturation of the Human Fetus,”’

10 J. Med. Phil. 237, 242 (1988)............. 20,21,22

Harrison, ‘“‘The Fetus as a Patient: Historical

Perspective,” in The Unborn Patient 3 (M. Har-

rison, M. Golbus & R. Filly eds. 2nd ed. 1991) ..... 17

xiii

TABLE OF AUTHORITIES (continued)

OTHER SOURCES:

Harrison & Adzick, ‘The Fetus as a Patient.’’ 213

wt te eee i8

Johnson & Toi, “Overview of Obstetrical

Sonography”’ in Vol. 2 Diagnostic Ultrasound,

(C. Rumack, S. Wilson & J. Charboneau eds.

ee 19

The Nervous System; Circuits of Communication in

the Human Body 109 (J. Clark ed. 1985) .......... 21

Op. Att’y Gen. No. 91-419 (La. Aug. 23, 1991) ...... 4,5

Report on Human Life Bill, Sub-Committee on

Separation of Powers, Committee on the

Judiciary, United States Senate (97th Cong. Ist

Ee 25,26

Scanlon, ‘‘Appreciating Neonatal Pain.’’ 38 Ad-

vanced Pediatrics, 317, 320 (1991)................ 21

Siete Partidas, Part VII, Title XXXIII, Law VIII... .27

Wright & Miller, Federal Practice and Pro-

cedure: Civil 2nd §1368 (1990) (‘‘Practice Under

EE 3,4

siege

fas 8 9 scat So

saan Bs a POE cn ee

Bg RWS | cE PONE TS £ aes’

Supreme Court of the United States

October Term, 1992

EDWIN W. EDWARDS, et al., Petitioners,

Vv.

SOJOURNER T., et al, Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Petitioners Edwin W. Edwards, Governor of the

State of Louisiana, and Richard P. leyoub, Attorney

General of the State of Louisiana, respectfully petition this

Court for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Fifth Circuit in So-

journer T. v. Edwards, 974 F.2d 27 (5th Cir. 1992).

OPINIONS BELOW

The opinion and judgment of the United States

Court of Appeals for the Fifth Circuit is reported at 974

F.2d 27 (5th Cir. 1992). They are reprinted in the appendix

hereto, p. A-1, infra.

The decision and judgment of the United States

District Court for the Eastern District of Louisiana is

reported at 772 F.Supp. 930 (E.D. La. 1991). They are

reprinted in the appendix hereto, p. A-13 and p. A-17

respectively, infra.

JURISDICTION

Invoking federal jurisdiction under 42 U.S.C. § 1983

and 28 U.S.C. §§ 1331, 1343 (a)(3), and 1343(a)(4), Plaintiffs-

Respondents brought this suit in the Eastern District of

Louisiana. On August 7, 1991, the district court, pursuant

to Federal Rule of Civil Procedure 12(c), granted Plaintiffs’

Motion for Judgment on the Pleadings. See p. A-13, infra.

Defendants-Petitioners appealed. On September 22,

1992, the Fifth Circuit entered judgment affirming the

decision of the district court. See p. A-11, infra. No petition

for rehearing was sought.

The jurisdiction of this Court to review the judgment

of the Fifth Circuit is invoked under 28 U.S.C. § 1254(1).

STATUTE & CONSTITUTIONAL PROVISIONS

This case concerns Act 26 of the 1991 Louisiana

Legislature, the Louisiana Abortion Statute, which ap-

pears at A-19, infra. The relevant portion of the Due Pro-

cess Clause of the Fourteenth Amendment is “{NJor shall

any State deprive any person of life, liberty, or property,

without due process of law. . . .’”” U.S. Const. amend. XIV,

§1. The Tenth Amendment states:

“The powers not delegated to the United

States by the Constitution, nor prohibited by it to

the States, are reserved to the States respective-

ly, or to the people.”’

U.S. Const. Amend. X.

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition in the

Court Below

On June 18, 1991, Plaintiffs Sojourner T., et al,

brought suit in the district court challenging the Louisiana

Abortion Statute under the Due Process Clause of the

Fourteenth Amendment as interpreted by Roe v. Wade,

410 U.S. 113 (1973), and other constitutional theories and

requesting declaratory and injunctive relief. Sojourner T. v.

Roemer, 772 F. Supp. 930 (E.D. La. 1991). On July 3, 1991,

Dr. Ifeanyi Charles Okpalobi also challenged the Louisiana

Me me .

a BLL ODA Toe a ay wie

Abortion Statute under Roe v. Wade and other constitu-

tional theories seeking declaratory and injunctive relief.

Ifeanyi C. Okpalobi v. State of Louisiana, Sojourner T. v.

Roemer, 772 F. Supp. 930 (E.D. La. 1991). The district

court consolidated the cases. Both cases present solely

facial challenges because the statute was enjoined before

its effective date.

At the request of the district judge, cross motions for

judgment on the pleadings were filed along with extensive

supporting memoranda.! On August 7, 1991, the district

court, pursuant to Federal Rule of Civil Procedure 12(c),

determined that there was ‘‘no factual issue which could

change the result’’ and granted plaintiffs’ Motion for Judg-

ment on the Pleadings, declared the Statute unconstitu-

tional and enjoined its enforcement. See p. A-13, infra. The

court declined to reach other constitutional issues raised by

Plaintiffs, ‘‘because under the Roe decision they cannot

make any difference in the result.’ See p. A-16, infra.

The Notice of Appeal was filed on August 8, 1991.

The case was docketed August 14, 1991, in the Fifth Cir-

cuit. The case was argued and submitted on February 6,

1992, and on September 22, 1992, the Fifth Circuit affirm-

ed the judgment of the district court, citing particularly

Planned Parenthood of Southeastern Pennsylvania v.

Casey, 112 S.Ct. 2791 (1992). See A-1, infra.

B. Statement of the Facts”

The Louisiana Abortion Statute, Act 26 of the 1991

Louisiana Legislature, see p. A-19, infra, was passed over

1 Because Rule 12(c) provides that a Motion for Judgment on the

Pleadings will be converted into a motion for summary judgment if

necessary, petitioners filed extensive affidavits in the record detailing

fetal development and discussing the anticipated implementation of the

Abortion Statute.

2 The facts of this case are those facts asserted in the Amended Com-

plaint which are admitted in the Answer and those ‘‘well pleaded factual

allegations in the adversary’s pleadings.’’ C. Wright & A. Miller, Federal

Practice and Procedure: Civil 2nd § 1368 (1990) (‘‘Practice Under Rule

the veto of the Governor on June 18, 1991. It amends and

reenacts LSA-R.S. 14:87, and would have gone into effect

September 6, 1991. The Act makes it a crime to ‘‘ad-

minister[ ] or prescribe[ ] any drug, potion, medicine, or

any other substance to a female”’ or to ‘‘use[ ] any instru-

ment or external force whatsoever on a female’’ “with the

specific intent of terminating a pregnancy.”’ See p. A-20, in-

fra. The Act provides exceptions for the termination of

pregnancy (1) ‘‘to preserve the life or health of the unborn

child or to remove a dead unborn child;”’ or (2) to ‘“‘save the

life of the mother;”’ or (3) when the ‘‘pregnancy is the result

of rape;”’ or (4) when the “‘pregnancy .. . is the result of in-

cest.’’ See p. A-20, infra. Before an abortion can be perform-

ed under the rape and incest exceptions, certain reporting

requirements must be met. See p. A-20, infra. Also, abor-

tions for reasons of rape and incest must be performed

prior to the thirteenth week after conception. See p. A-21,

infra. No criminal liability attaches to a woman upon whom

an abortion is performed.

The Louisiana Statute includes a specific finding

that human life begins at conception, but the statute ex-

tends the protection of the criminal law only from the onset

of pregnancy. Because of questions raised about the ap-

plicability of the Statute to the use of contraceptives and

the practice of in vitro fertilization, the Louisiana Attorney

General issued an advisory opinion, set forth in the appen-

dix E hereto, providing an authoritative interpretation of

the Statute:

It is the opinion of this office that LSA-R.S.

14:87, which prohibits abortions except in specific

(footnote 2 continued)

12(c)’’). Because the district court granted the Plaintiffs’-Respondents’

Motion for Judgment on the Pleadings, under Rule 12(c), the well plead-

ed factual assertions of the Defendants’-Petitioners’ Answer ‘‘are

assumed to be true and all contravening assertions in the movant’s

[Plaintiffs’-Respondents’] pleadings are taken to be false.’’ Wright &

Miller, Federal Practice and Procedure: Civil 2nd § 1368. See also Na-

tional Metropolitan Bank v. United States, 323 U.S. 454 (1945).

circumstances, does not prohibit authorized and

license[d] medical personnel from prescribing, or

administering medicines, drugs, potions,

substances or instruments that operate to pre-

vent pregency rather than to terminate pregnan-

cy. Because IUD’s, oral contraceptives and ‘‘the

morning-after-pill” prevent rather than terminate

pregnancy, their use is not made illegal by LSA-

R.S. 14:87; nor is the process of in vitro fertiliza-

tion subject to Act 26 until subsequent to the im-

plantation of a fertilized ovum in a female’s

uterus.

Op. Att’y Gen. No. 91-419 (La. Aug. 23, 1991), p. A-24,

infra.3

The facts reveal the following about the Plaintiffs.

Plaintiff Sojourner T. is pregnant. Plaintiff James

DeGueurce, M.D., performs abortions in Louisiana during

the first and second trimesters of pregnency. Plaintiff

Calvin Jackson, M.D., performs abortions in Louisiana up

to fifteen weeks gestational age. Plaintiff Pamela Brann-

ing, M.D., performs abortions in Louisiana. Plaintiff Hope

Medical Group for Women provides abortions in Louisiana

up to 22 weeks gestational age. Plaintiff Delta Women’s

Clinic West provides abortions in Louisiana up to 22 weeks

of gestation. Plaintiff Causeway Medical Suite provides

abortions in Louisiana up to 22 weeks gestational age. The

medical Plaintiffs above perform abortions not falling

within the exception for saving the life of the mother. Plain-

tiff Dr. Ifeanyi Charles Okpalobi performs abortions in

Louisiana.

According to Plaintiffs’ complaint (Paragraph 31),

over 17,000 abortions were performed in 1988 in Louisiana

and a comparable number of women would obtain abor-

3 Because this is a facial challenge, the standard of review announced

by this Court in Rust v. Sullivan, 111 S.Ct. 1759, 1767 (1991), is ap-

plicable. Alleged application of the Louisiana Abortion Statute to con-

traception or in vitro fertilization is outside the scope of this facial

challenge because the statute clearly is designed to regulate abortion.

tions in 1991. Later term abortions are more dangerous

than earlier term abortions. The Louisiana Abortion

Statute provides for and encourages rape victims to seek

medical attention promptly for the purposes, inter alia, of

preventing pregnancy and venereal disease.

REASONS FOR GRANTING THE WRIT

PRELIMINARY STATEMENT

Petitioners recognize that the Court recently denied

the petition for certiorari of the Territory of Guam. Peti-

tioners submit, however, that because of Louisiana’s

status as a state and the assurances of the Tenth Amend-

ment, and because of the importance of clarifying what the

facial challenge rule is in abortion litigation, their petition

should be granted.

Since the Court denied the Guam application, it has

denied the plaintiffs’ petition for certiorari in Barnes v.

Moore, 970 F. 2d 12 (5th Cir. 1992), cert. denied, Dec. 7,

1992, 61 U.S.L.W. 3303, in which plaintiffs challenged

Mississippi’s Informed Consent to Abortion law. In

Barnes, the Fifth Circuit clearly and forcefully applied the

facial challenge rule and upheld the constitutionality of the

statute. This Court refused to review its decision. In deny-

ing Guam’s application, the Court refused to consider the

adequacy of plaintiff’s facial challenge to the Guam

statute, although Guam contended that there were at least

some post-viability applications of its statute that would

be constitutional. In Sojourner T., the courts below com-

pletely failed to apply a facial challenge analysis. This

Court should accept Louisiana’s petition to consider when

and how the facial challenge rule applies in abortion

litigation.

In 1988 there were more than 1700 abortions per-

formed in Louisiana.4 Because Louisiana’s Statute was en-

joined before its effective date there is no reason to believe

there were fewer abortions in 1991 and 1992. Some of the

4 See paged, supra.

plaintiffs herein are physicians who in their complaint ad-

mit to performing abortions up to 22 weeks gestational

age. Especially in view of the four week margin of error

for determining viability found to exist in Webster, abor-

tions after viability are performed in Louisiana.®

The Court should remand this case to determine if

there is any constitutional application of Louisiana’s

Statute and whether the authority to protect unborn

human life is reserved to the State of Louisiana. For these

reasons and as explained below the Court should accept

Louisiana’s petition for certiorari.

I. The Court Below Failed to Apply the Normal

Standard for Facial Challenges, Which Must

Be Applied in Cases Involving the Constitu-

tional Right to Abortion.

Under the facial challenge rule, clearly and forcefully

articulated by this Court, the Court of Appeals should have

considered whether the Louisiana Abortion Statute had

any Constitutional applications.” If so, the Statute should

have been upheld against a facial challenge.

A. In a Facial Challenge to a Statute, the Plaintiff

Has the Burden of Proving That No Applica-

tion of the Statute Is Constitutional.

5 See page 5, supra.

6 Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct.

3040, 3055, 3057 (1989). In Webster the Court essentially upheld a provi-

sion of Missouri’s statute which created a presumption of viability at

twenty weeks by recognizing that there is a four week margin of error

in estimating gestational age.

7 The facial challenge issue was raised before the District Court.

Memorandum in Support of Motion for Judgment on the Pleadings at

1, Sojourner T. v. Roemer, 772 F. Supp. 930 (E.D. La. 1992) (‘‘[T]he stan-

dard of review to be applied must be that used for a facial challenge.”’).

The facial challenge issue was also raised before the Court of Appeals.

Brief for Appellants Roemer and Guste at 1, Sojourner T. v. Edwards,

974 F.2d 27 (5th Cir. 1992) (‘This is a facial challenge to a statute not

yet effective. The standard of review for a facial challenge is whether

any circumstance exists under which the Act would be valid.”’).

Plaintiffs challenged the Louisiana Abortion Statute

on its face. As Justice O’Connor explained in Webster v.

Reproductive Health Services, 492 U.S. 490 (1989), a facial

challenge requires plaintiffs to show that “ ‘no set of cir-

cumstances exists under which the Act would be valid.’ ”

Webster, 492 U.S. at 524 (O’Connor, J., concurring in part

and concurring in the judgment) (quoting United States v.

Salerno, 481 U.S. 739, 745 (1987)).

It is not sufficient in a facial challenge for plaintiffs

to demonstrate that a challenged act “might operate un-

constitutionally under some conceivable set of cir-

cumstances.’’ Jd., quoting Salerno. Plaintiffs must

demonstrate that a challenged law is “unconstitutional in

every conceivable application.”” Members of City Council v.

Taxpayers for Vincent, 466 U.S. 789, 796 (1984). The

burden of proof on this point is clearly upon the plaintiffs.

B. The Normal Rule for a Facial Challenge Should

Apply to Cases Involving Abortion.

Procedural rules and principles of adjudication in-

cluding the rule for a facial challenge should be applied in

a neutral manner. A challenge to a State’s abortion statute

should enjoy no special status. In the present case,

however, the lower court ignored the direct applicability of

the facial challenge rule.

It is noteworthy that where the normal rules of pro-

cedure have been applied, abortion regulation by the states

has generally been upheld. For example, in Connecticut v.

Menillo, 423 U.S. 9 (1975), an abortionist with no medical

training was prosecuted under a statute which made

criminal the performance of an abortion by “‘any person.”’

Id. at 10. As the statute was challenged in the criminal pro-

ceedings, the state supreme court struck down the statute

on its face on the basis of Roe v. Wade. This Court vacated

the decision and remanded the case with instructions to

reconsider the case as an applied challenge, noting that the

statute had a constitutional application to non-physicians,

even though in all other respects it might conflict with Roe.

The principle of stare decisis has been a guiding prin-

ciple of this Court throughout its history, although with

lesser force in constitutional cases. Webster, 492 U.S. at

490 (Rehnquist, C.J., joined by White and Kennedy, JJ.)

(plurality opinion).

This Court has recently placed great reliance on the

doctrine of stare decisis in the abortion context in Planned

Parenthood of Southeastern Pennsylvania v. Casey, 112 S.

Ct. 2791 (1992). See also Akron v. Akron Center for

Reproductive Health, 462 U.S. 416, 420 n.1 (1983) (relying

explicitly on the doctrine of stare decisis to reaffirm Roe).

Unlike the limited application of stare decisis in con-

stitutional cases, the principle applies with full force to

decisions setting forth adjudication principles, such as the

facial challenge rule. Decisions of this Court have clearly

applied the facial challenge rule in the abortion context.

a. The facial challenge rule is a general principle

of law that should be applied in an even-

handed, neutral fashion.

The facial challenge rule is a rule of general ap-

plicability and should be applied in an even-handed, neutral

fashion. It has been so applied in non-abortion contexts.

See, e.g., United States v. Salerno, 481 U.S. 739 (1987);

Members of City Council v. Taxpayers for Vincent, 466

U.S. 789 (1984). The facial challenge rule has also been ap-

plied in the abortion context. It was applied in Webster to

uphold provisions of the Missouri abortion law at issue.

Webster, 492 U.S. at 506-07 (plurality opinion). Justice

O'Connor, in Webster, relied on the facial challenge doc-

trine to uphold Missouri’s ban on the utilization of public

facilities and participation of public employees in the per-

formance of abortions not necessary to save the life of the

mother. Id. at 524 (O’Connor, J., concurring in part and

concurring in the judgment).

Justice Kennedy, in Ohio v. Akron Center for

Reproductive Health, 110 S. Ct. 2972 (1990), relied on the

facial challenge rule to uphold Minnesota’s parental

notification statute. Jd. at 2981. Similarly Justices O’Con-

nor, Kennedy, and Souter, in the Casey joint opinion, relied

on the facial challenge rule in upholding Pennsylvania’s

24-hour waiting period for women seeking abortions after

they were offered what Pennsylvania considered to be in-

formation necessary for an informed consent. Planned

Parenthood of Southeastern Pennsylvania v. Casey, 112 S.

Ct. at 2826. See also Connecticut uv. Menillo, 423 U.S. 9

(1975) and Rust v. Sullivan, 111 S.Ct. 1759 (1991).

2. Sound jurisprudential and practical reasons

support principled adherence to the facial

challenge rule.

There are sound reasons for the facial challenge rule.

Foremost among them is avoidance of deciding

hypothetical cases. The concreteness which a case achieves

through application of law to real facts not only allows for

better decisions as a practical matter, it also more closely

comports with the constitutional requirement that there be

a case or controversy for federal jurisdiction.

This principle was recently applied in Webster v.

Reproductive Health Services, 492 U.S. 490, wherein this

Court declined to review the preamble to the Missouri abor-

tion law—which declared that ‘‘the life of each human being

begins at conception’’—until the preamble was ‘‘applied to

restrict the activities of the appellees in some concrete

way.’ Jd. at 506. —

Historically, a facial challenge succeeds only when all

possible applications of a law are unconstitutional and the

burden is on the plaintiff to prove that result. Only in the

area of First Amendment free speech—where a chill on a

constitutionally super-protected right must be avoided—

has this Court recognized an overbreadth doctrine which

allows a statute to be struck down as unconstitutional if it

has constitutional and unconstitutional applications. The

overbreadth doctrine, however, is not recognized outside

the limited context of the First Amendment. Salerno,

481 U.S. at 745; Schall v. Martin, 467 U.S. 253, 269 n.18

(1984).

In the area of abortion, no less than in any other non-

speech area of constitutional law, the concreteness provid-

ed by actual application of the law is necessary.

3. The lower court failed to apply facial challenge

principles to the Louisiana Abortion Statute.

The lower court erred by not considering whether

there are any possible constitutional applications of the

Louisiana Abortion Statute. The proper question is not

whether the Louisiana Abortion Statute would ever impose

an “‘undue burden’”’ upon a woman seeking an abortion, but

whether it always would. The facial challenge rule requires

that the latter test be met, but the facial challenge test was

never applied by the lower courts. Nowhere in the present

case have the plaintiffs met their burden of proving that

the Louisiana Abortion Statute has no constitutional ap-

plications. Plaintiffs neither alleged nor attempted to prove

that Louisiana’s Abortion Statute has no possible con-

stitutioanl applications.

The lower courts should have considered, for exam-

ple, whether the Louisiana Abortion Statute might be ap-

plied after viability, to cases where abortions are sought for

reasons of the unborn child’s gender or race or are perform-

ed for the purpose of harvesting fetal body parts for

transplantation experiments. Clearly, because there are

some applications that do not impose an undue burden on

women, the Louisiana Abortion Statute should not have

been declared unconstitutional in its entirety. The lower

court erred both in analysis and outcome.

II. The Court Should Grant Review to Consider

the Right of the State of Louisiana to Re-

Weigh the Interests of the Pregnant Woman

and the Unborn Child.

A. The Crucial Balancing in Roe of the Rights of

the Pregnant Woman Against Only the Poten-

tial Life of the Unborn Child Was Wrong and

Should Be Re-Examined.

A fundamental flaw of Roe is its undervaluation of a

State’s interest in protecting unborn human life. According

to Roe, a State’s interest is only the protection of potential

human life, an interest less compelling than the protection

of actual human life. The result is that when the State’s in-

terest, declared by Roe to be less than compelling, is

measured against the pregnant woman’s purportedly fun-

damental right, the woman’s right normally outweighs the

State’s interest prior to viability.

As Justice Scalia pointed out in his dissenting and

concurring opinion in Planned Parenthood of Southeastern

Pennsylvania v. Casey, 112 S.Ct. at 2875, the Roe Court

begged the question of whether the State’s interest was

limited to the protection of merely potential human life.

Rather than answering the question of when human life

begins or deferring to the States’ determination, the Roe

Court simply assumed that the unborn child is merely a

potential human life. According the unborn child the status

of potential life was presented as a concession, but it was

really a devaluation. The Court bolstered its position with

three propositions, none of which supports Roe’s

conclusion.

The first, apparently intended as a concession to the

States, is that “‘as long as at least potential life is involved,

the State may assert interests beyond the protection of the

pregnant woman alone.’’ Roe v. Wade, 410 U.S. at 150.

From this concession that what the pregnant woman car-

ries within her is at least potential life, Roe apparently con-

cludes that what the pregnant woman carries within her is

at most potential life. It is not logical to equate ‘at least”’

with ‘‘at most,’’ yet that is what Roe does.

The second proposition Roe uses to bolster its con-

clusion that the unborn child is only potential life is that

the unborn are not “‘persons’’ as that term is used in the

Fourteenth Amendment. See 410 U.S. at 157-58. However,

the most that can be drawn from this proposition is that

the Fourteenth Amendment does not invalidate state laws

allowing abortion (because the Fourteenth Amendment

does not guarantee to the unborn the right to life). See Byrn

v. New York, 31 N.Y.2d 194 (1972), appeal dismissed 410

U.S. 949 (1973). It does not follow that the Fourteenth

Amendment invalidates state laws proscribing abortion.

Further, to draw from this proposition the conclusion that

a fetus is merely potential human life is to assume that the

Fourteenth Amendment is the only possible source of

rights the unborn can have. In other words, to say that the

Fourteenth Amendment does not guarantee a right is not

to say that the right does not exist at all.

The third proposition Roe uses to support its conclu-

sion is that in areas other than abortion, the unborn do not

have the same rights as persons already born live, and

whatever other rights the unborn have are often contingent

on live birth. See 410 U.S. at 161-62. But it does not follow

from this that an unborn child is not a human life worthy

of State protection. If it did, then it could be argued that

the lives of minor children are less worthy of protection by

the State, because minors’ legal rights are often less than

those of persons of majority age.® Certainly not all persons

enjoy every right, but a non-person has no rights.

To sum up: Roe’s conclusion that the State's

countervailing interest is in the protection of merely poten-

tial human-life, rather than actual human life, is not sup-

ported by logic. As will be shown below, there are compell-

ing reasons for a State to conclude that the unborn child is

an actual human life, not merely a potential human life.

This Court should grant a writ of certiorari so there can be

a re-balancing of the competing interests of the pregnant

8 There are many examples of this under Louisiana law. Minors general-

ly do not have the capacity to contract, or to make a will or an inter

vivos donation. La. Civ. Code arts. 1918 and 1476. Nor do minors have

the legal capacity to sue or be sued in civil actions. La. Code of Civ. Proc.

arts. 683 and 732.

woman and the unborn child, without Roe’s thumb on the

scales.

B. Principles of Stare Decisis, Properly

Understood, Should Not Preclude Reconsidera-

tion of Roe and The Re-Balancing of the Com-

peting Interests in the Abortion Decision.

In Planned Parenthood of Southeastern Penn-

sylvania v. Casey, 112 S. Ct. 2791 (1992), this Court re-

affirmed the ‘essential holding” of Roe v. Wade. Though

Justices O’Connor, Kennedy and Souter expressed some

doubts about the correctness of Roe, they apparently

believed that the doctrine of stare decisis required them to

put aside their doubts.9

The joint opinion in Casey misconstrued the doctrine

of stare decisis. A proper understanding and application of

the doctrine leads to the conclusion that this Court should

reconsider Roe.

Recently in Payne v. Tennessee, 111 S.Ct. 2597

(1991), this Court summarized the accepted view of stare

decisis:

Adhering to precedent “‘is usually the wise policy,

because in most matters it is more important that

9 See, e.g., 112 S.Ct. at 2808 (‘‘[T]he reservations any of us may have in

reaffirming the central holding of Roe are outweighed by the explication

of individual liberty we have given combined with the force of stare

decisis."’); 2812 (‘Within the bounds of normal stare decisis analysis,

then, and subject to the considerations on which it customarily turns,

the stronger argument is for affirming Roe’s central holding, with

whatever degree of personal relunctance any of us may have, not for

overruling it.’’); 2817 (‘We do not need to say whether each of us, had

we been Members of the Court when the valuation of the State interest

came before it as an original matter, would have concluded, as the Roe

Court did, that its weight is insufficient to justify a ban on abortions

prior to viability even when it is subject to certain exceptions. The mat-

ter is not before us in the first instance, and ... we are satisfied that the

immediate question is not the soundness of Roe’s resolution of the issue,

but the precedential force that must be accorded to its holding.’’).

the applicable rule of law be settled than it be

settled right.’’ Burnet v. Coronado Oil & Gas Co.,

285 U.S. 393, 406, 52 S.Ct. 443, 447, 76 L.Ed.815

(1932) (Brandeis, J., dissenting). Nevertheless,

when governing decisions are unworkable or are

badly reasoned, “‘this Court has never felt con-

strained to follow precedent.” Smith v. Allwright,

321 U.S. 649, 665, 64 S.Ct. 757, 765, 88 L.Ed. 987

(1944). Stare decisis is not an inexorable com-

mand; rather, it “‘is a principle of policy and not

a mechanical formula of adherence to the latest

decision.” Helvering v. Hallock, 309 U.S. 106,

119, 60 S.Ct. 444, 451, 84 L.Ed. 604 (1940). This

is particularly true in constitutional cases,

because in such cases “correction through

legislative action is practically impossible.’

Burnet v. Coronado Oil & Gas Co., supra, 285

U.S., at 407, 52 S.Ct., at 447 (Brandeis, J.,

dissenting).

111 S.Ct. at 2609-10. In his concurring opinion in Payne,

Justice Scalia, joined by Justices O’Connor and Kennedy,

explained the reasons behind the doctrine of stare decisis.

Though Justice Scalia was speaking of Booth v. Maryland,

482 U.S. 496 (1987), which this Court overruled in Payne,

his statements apply equally to Roe v. Wade:

[Stare decisis], to the extent it rests upon

anything more than administrative convenience,

is merely the application to judicial precedents of

a more general principle that settled practices

and expectations of a democratic society should

generally not be distrubed by the courts. It is

hard to have a genuine regard for stare decisis

without honoring that more general principle as

well. A decision of this Court which, while not

overruling a prior holding, nonetheless announces

a novel rule, contrary to long and unchallenged

practice, and pronounces it to be the Law of the

Land—such a decision, no less than an explicit

overruling, should be approached with great cau-

tion. It was, I suggest, Booth, and not today’s

decision, that compromised the fundamental

values underlying the doctrine of stare decisis.

Payne, 111 S.Ct. at 2614 (Scalia, J., concurring).

Application of the majority opinion in Payne, and of

Justice Scalia’s concurrence, leads to the conclusion that

this Court should revisit Roe to decide what it did not

decide in Casey, namely whether Roe was decided correctly

in the first place. Roe was a constitutional decision. Hence,

the normal doctrine of ‘‘more important that the law be

settled than it be settled correctly’”’ does not apply. On the

contrary, because legislative correction of Roe is virtually

impossible, this Court should not avoid reconsidering the

correctness of Roe. This is particularly so where, as shown

in Casey, four justices plainly believe Roe was wrongly

decided and three more have intimated that it was.10

Another reason this Court should re-examine Roe is

that Roe was the kind of decision Justice Scalia, joined by

Justices O’Connor and Kennedy, spoke of in his concur-

rence in Payne quoted above. Though Roe did not overrule

prior case law, it ‘“‘announce{d] a novel rule, contrary to

long and unchallenged practice, and pronounce{d] it to be

the Law of the Land ....’’ That novel rule, of course, was

that States may not proscribe abortion, at least not before

viability. In doing so, Roe outlawed a “long and un-

challenged practice’ of a majority of the States in proscrib-

ing abortions.!! Thus, Roe itself ‘‘compromised the fun-

damental values underlying the doctrine of stare decisis,”

that ‘the settled practices and expectations of a

democratic society should generally not be disturbed by

the courts.” Payne, 111 S.Ct. at 2614 (Scalia, J.,

10 See n. 9, supra.

11 See Roe v. Wade, 410 USS. at 118 n.2 (citing statutes from 30 States

proscribing abortion except those performed for the purpose of saving

the mother’s life).

concurring).

This Court should not shy away from reconsidering

a wrong constitutional decision under the incorrect belief

that stare decisis prevents this Court from doing so, par-

ticularly when that decision itself violated the fundamental

principles underlying the doctrine of stare decisis. This

Court should grant this writ of certiorari to answer the

question left unanswered by Casey, namely, whether Roe

was correctly decided in the first place.

C. Louisiana’s Determination That Actual

Human Life Begins Jn Utero and Its Decision

to Protect Such Life Accords With Modern

Scientific Knowledge Available Since Roe v.

Wade.

1. Modern developments in embryology

and fetology establish the humanity of

the unborn child.

In 1973, when Roe v. Wade was decided, the unborn

child was a veritable stranger to the scientific and medical

community. Only since 1973 have new techniques permit-

ted scientists to know and observe what is occurring in

utero as the human being develops from conception to

birth.!2 Biological advances now permit the scientific in-

vestigator to look at a human’s building blocks to deter-

mine not only what happens at a molecular level, but also

when it happens.!3 New technology in ultrasound and real

time ultrasound allows visualization of the unborn child in

utero with such superb clarity that diagnosis and treat-

ment of fetal disorders that were not even recognized to

12 Harrison, “The Fetus as a Patient: Historical Perspective” in The

Unborn Patient 3 (M. Harrison, M. Golbus & R. Filly eds. 2nd ed. 1991).

13 For a listing of the many biological technological advances and

discoveries that have revolutionized man’s knowledge of the developing

human being, see Boehm & Kazazian, “Prenatal Diagnosis by DNA

Analysis” in The Unborn Patient 82 (M. Harrison, M. Golbus & R. Filly

eds. 2nd ed. 1991).

exist in 1973 can now be successfully performed. !4

The very creation of a new medical subspecialty of

maternal-fetal medicine attests to the great leap of

knowledge as respects the unborn child over the last two

decades. As technology continues to evolve, the

capabilities of science and medicine have increased. Physi-

cians are improving the quality of unborn patient care on

an almost daily basis and in the process increasing and im-

proving their knowledge of the humanity of the unborn

child.

2. Ultrasound enables us to observe the

humanity of the unborn child.

Today, in stark contrast to 1973, there is no serious

dispute or lack of scientific consensus that unborn children

are human beings. Individual human life begins at concep-

tion. Scientists accept this statement as scientific fact,

physicians accept it as medical fact, and pregnant women

accept it as a natural fact.

With the marvelous technological advances in ultra-

sound and in utero photography during the last decade, the

visual proof of the humanity of the unborn child is

available for all to see. Ultrasounds are routinely perform-

ed in obstetrical offices every day, permitting physicians

and parents alike to witness the facts of growth and

development of that distinctly unique and separate human

14 Two physicians from the Fetal Treatment Program and the Depart-

ment of Surgery, University of California, San Francisco, California

recently wrote about the fetus as a patient. They stated:

Prenatal diagnosis has undergone an explosion of growth in

the last decade. The primary impetus for this rapid expan-

sion has come from the widespread use of prenatal

ultrasonography. After the first reports of in utero

ultrasonographic diagnosis of congenital anomalies in the

1970s, increasingly sophisticated equipment and experience

in interpretation led to the accurate prenatal diagnosis of a

growing number of surgical lesions. Harrison & Adzick,

‘The Fetus as a Patient’ 213 Ann. Sur. 279 (1991).

individual present within the womb.15

Fact: After the union of the sperm and the ovum

there is a cell formed that is a living, genetically unique and

distinctly human individual. During the first week of life,

this new individual journeys down the fallopian tube to

reach the uterus where it attaches to the uterine wall.

Fact: In the third week the heart forms and begins to

beat. Before the end of the first month after conception,

beginnings of the mouth, brain, heart, gut and limbs can be

identified.

Fact: There is electrical activity in the human brain

six weeks after conception. By the end of the second month

of life the face is distinctly human in appearance, there are

ten fingers and ten toes and all the nerves and blood vessels

are present. Ninety-nine percent of the muscles are also

present.

Fact: By the end of the third month all organ

systems of the body are present and functional. At five

months there are distinct fingerprints on the digits. During

the last two months of pregnancy the unborn baby attains

his or her birth size and prepares for life outside the uterus.

The moment the individual is outside the uterus, he

or she converts in name only from a fetus to a newborn.

Fact: That fetus/newborn has the same unique, living, feel-

ing body before birth as after birth, regardless of whether

he or she was inside the uterus for only three months or as

15 Today, between 60% and 100% of mothers in North America, Great

Britain and Western Europe have a sonographic examination during

pregnancy. See Johnson & Toi, ‘“Overview of Obstetrical Sonography”’

in Diagnostic Ultrasound, Vol. 2 (C. Rumack, S. Wilson & J. Charboneau

eds. 1991). Interestingly, it is noted in American College of Obstetri-

cians & Gynecologists technical bulletin, number 116—May 1988 that

obstetrical ultrasound has been in clinical use some 15 years. Fifteen

years prior to 1988 was the year 1973, the year Roe v. Wade was decid-

ed. A.C.0.G. Technical Bulletin 116 (1988).

many as nine months.!6

The Roe Court could not have known that society

was on the verge of tremendously important technological

advances and innovations as concerns the scientific truths

about the humanity of the unborn child.

3. There is evidence of fetal pain.

Recent evidence also establishes that the human

fetus perceives pain. Research done over the last few

decades contradicts earlier studies which concluded that

perception or localization of pain was not present in either

the human fetus or newborn.

It is now clearly recognized that the neural pathways

for pain may be traced from the sensory receptors in the

skin to sensory areas in the cerebral cortex. These sensory

receptors begin appearing around the mouth of the

developing child in the seventh week of gestation and

spread to the rest of the face, the palms of the hands and

the soles of the feet by the eleventh week, to the trunk and

parts of the arms and legs by the fifteenth week, and to all

cutaneous and mucous surfaces by the twentieth week.17

The development of neurotransmittors between the sen-

sory fibers and interneurons in the dorsal horn of the spinal

cord first appear during the sixth week of gestation. 18

It was once believed that lack of myelination of the

nervous system in premature and newborn babies rendered

16 The facts recited in the accompanying text are taken from the Af-

fidavit of Raymond F. Gasser, Ph.D., included as part of the record in

the district court and included herein as Appendix H.

17 Anand & Hickey, ‘‘Pain and Its Effects in the Human Neonate and

Fetus,’ 317 New Eng. J. Med. 1321, 1322 (1987); Flower,

‘‘Neuromaturation of the Human Fetus,” 10 J. Med. Phil. 237, 242

(1988).

18anand & Hickey, supra, at 1322; Flower, supra, at 242.

them incapable of pain perception. However, this has been

scientifically proven false. First, even in adults, pain im-

pulses are carried through unmyelinated and thinly

myelinated fibers. Lack of myelinization merely means a

slower conduction velocity in the nerves or central nerve

tracts. This is offset completely by the shorter interneuron

and neuromuscular distances traveled by the impulse.!9

Moreover, quantitative neuroanatomical data has

shown that the sensory nerve tracts that carry pain sensa-

tion undergo complete myelinization during the second and

third trimesters of gestation.2°

Electroencephalographs (EEG’s) of the unborn and

the newborn can now demonstrate the functional matura-

tion of the cerebral cortex from about 20 weeks gestation

to 27 weeks gestation. Well defined periods of quiet sleep,

active sleep and wakefulness can be seen occurring in utero

beginning at 28 weeks gestation.2!

Additionally, physiological responses to painful

stimuli, such as cardiorespiratory changes, have been

documented in newborns of various gestational ages.22

The unborn child is not only capable of experiencing pain,

it does in fact feel pain. Behavioral changes associated with

pain, including purposeful withdrawal of a limb and

distinct facial expressions have been observed in very

19The Nervous System; Circuits of Communication in the Human Body

109 (J. Clark ed.1985); Anand & Hickey, “‘Pain and Its Effects in the

Human Neonate and Fetus,”’ 317 New Eng. J. Med. 1321, 1322 (1987):

Flower, ‘‘Neuromaturation of the Human Fetus,’’ 10 J. Med. Phil. 237,

242 (1988). See also Scanlon, ‘‘Appreciating Neonatal Pain,” 38 Advanc-

ed Pediatrics 317, 320 (1991).

20 Anand & Hickey, supra, at 1322.

} Appendix H, affidavit of Raymond F. Gasser, Ph.D at p. 5.

22 See Fletcher, ‘Pain in the Neonate,’”’ 317 New Eng. J. Med. 1321,

1347-1348 (1987).

premature newborns (less than 30 weeks gestation).23

Advances in the scientific arena have conclusively

shown that the traditional view widely held in the early

1970’s that the unborn (and the newborn) was not capable

of experiencing pain and did not feel pain is wrong. Any

view, indeed any decision, predicated in the least on the no-

tion that the unborn child is insensitive to or immune from

pain is outmoded and must be revisited and revised.

D. Louisiana’s Abortion Statute Is an Ap-

propriate and Reasonable Exercise of Authori-

ty Reserved to the States by the U. S.

Constitution.

There are three reasons why Louisiana’s Abortion

Statute is an appropriate exercise of authority reserved to

the States by the U.S. Constitution. First, the Constitu-

tion, including especially the Tenth Amendment, permits

States to regulate and even to proscribe acts of individuals

in other areas encompassed by the right to privacy

recognized in Roe. There is no principled reason for regula-

tion or proscriptioin of abortion to be treated differently.

Second, Louisiana’s recognition of the humanity of unborn

children is consistent with the recognition of unborn

human life accorded by the laws of most other States.

Finally, Louisiana’s protection of unborn human life is con-

sistent with Louisiana’s own unique civil law tradition,

which from Roman times has proscribed abortion.

;. This Court has recognized other areas

where States may legislate notwith-

standing individual privacy rights.

23 Anand & Hickey, supra, at 1325; Flower, supra, at 242.

The soe Court held that a pregnant woman’s right to

have an abortion was simply part of the right of privacy im-

plied by the Constitution. 410 U.S. at 153. This right to

privacy is said to extend ‘‘to personal decisions relating to

marriage, procreation, contraception, family relationships,

child rearing, and education,” areas ‘“‘involving the most in-

timate and personal choices a person may make in a

lifetime, choices central to personal dignity and autonomy

| Planned Parenthood of Southeastern Pennsylvania v.

Casey, 112 S.Ct. at 2807. Yet in other areas encompassed

by the right of privacy, this Court has recognized the

States’ right to regulate and in some cases to proscribe the

“private” acts of individuals.

Consenting adults might make the intimate and per-

sonal decision to practice bigamy or polygamy. Yet this

Court has held that the Constitution does not prevent

government from proscribing bigamy or polygamy, even

when polygamy is part of the exercise of one’s religion.

Reynolds v. United States, 98 U.S. 145 (1879).

Similarly, first cousins might make the intimate and

personal decision to marry one another. Under the common

law, first cousins could validly marry. 55 C.J.S. Marriage

§ 16, at 831 (1948). However, Louisiana, like many other

States, prohibits such marriages. La. Civ. Code art. 90.24

No court has ever held that such State interference in the

intimate and personal decision of first cousins to marry

violates the Constitution.25

24 First cousins are “[clollaterals within the fourth degree.”’ See La. Civ.

Code art. 90, comment (b); see also id, arts. 900 and 901 (defining

degrees as used to describe consanguinity).

25 Today, if first cousins living in a State that proscribes their marrying

one another want to marry, they have to travel to, and perhaps take up

domicile in, a State that permits their marrying. Before Roe v. Wade, a

woman living in a State that proscribed abortion who nonetheless

wanted an abortion had to travel to a State that permitted abortion. If

the former situation does not impermissibly burden the right to make

a personal and intimate decision, then neither did the latter.

An adult homosexual might make the intimate and

personal decision to commit sodomy with another adult

homosexual, in the privacy of the home. Yet the intimate

and personal character of such a choice did not stop this

Court from permitting States to criminalize homosexual

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

A biological father of a child born of another man’s

wife might have a protected familial interest in developing

a relationship with the child. Yet according to Michael H.

v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333 (1989), a State

can deprive the biological father of the right to visit his

child. Three of the dissenting justices in Michael H. v.

Gerald D. admitted that a State could deprive the

biological father of visitation rights if it were in the best in-

terest of the child. See 491 U.S. at ____, 109 S.Ct. at 2359

(Brennan, J., dissenting, joined by Marshall and

Blackmun, JJ.).

It is ironic that this Court permits States to regulate

and even to proscribe activity in these private areas, yet

bars States from proscribing abortion. The State’s interest

in proscribing abortion is more compelling than its interest

in proscribing activities in these other private areas. As

Roe itself recognized, abortion involves the destruction of

an embryo or fetus, and therefore is “inherently different’’

from other areas where the privacy of individuals is at

stake. For this reason, ‘‘{t]he pregnant woman cannot be

isolated in her privacy.” Roe, 410 U.S. at 159.

In short, if States can constitutionally proscribe

polygamy, marriage between first cousins, homosexual

sodomy, and similar acts resulting from intimate and per-

sonal decisions, then there is no principled reason why

States should not be able to proscribe abortion as well. If

anything, because abortion results in the destruction of

human embryonic or fetal life, States have a greater in-

terest in proscribing it than they do in proscribing these

other acts.

Z Louisiana’s determination that actual

human life begins in utero accords with

the recognition of unborn human life in

the law of most states.

Louisiana is not alone in its recognition of the

humanity of the unborn child. Thirty-nine states and the

District of Columbia have recognized that human life

begins at conception, and if it were not for this Court’s

holdings in Roe and Casey many of those states would ac-

cord legal protection to unborn human life.26

Nine states define by statute the killing of an unborn

child to be a form of homicide, regardless of the stage of

pregnancy. Six states declare that killing the unborn after

quickening is homicide, and five more make killing after

viability a form of homicide. New York’s penal law

punishes as homicide killing after 24 weeks of

pregnancy.2?

In upholding Roe’s factual finding that the unborn

child is only potential human life, the Court acted without

a full factual record and relied on scientific data predating

its 1973 Roe decision. The Court’s conclusion that the

human embryo and fetus are not actual human life is at

odds with the determination made by the great majority of

state legislatures which have considered the humanity of

the unborn and found that unborn human life is entitled to

legal protection even if such protection cannot be said to be

mandated by the United States Constitution.

The only official finding made by the United States

Congress regarding the humanity of the unborn child was

in a 1981 report of the Sub-Committee on the Separation of

Powers, U.S. Senate Committee on the Judiciary, which

found that as a matter of scientific fact that life begins at

conception. The Committee found: ‘‘...today the facts are

26 See Appendix F, infra.

27 See Appendix G, infra.

beyond dispute. Physicians, biologists, and other scientists

agree that conception marks the beginning of the life of a

human being....’’28

In view of scientific developments since 1973, the

determination made by the great majority of state

legislatures which were equipped to and did investigate the

facts relating to the humanity of the unborn child, and the

overwhelming importance of the issue to the country, the

Court should consider anew the underlying scientific facts

and the constitutional balancing of competing interests.

3. Louisiana’s unique legal system has

historically afforded legal protection to

the unborn child.

The Roe Court believed that statutes proscribing

abortion were a relatively recent phenomenon. Roe, 410

U.S. at 715. While that may or may not have been true in

the other forty-nine states under their common-law tradi-

tion, it was not true in Louisiana, which has a civil law

tradition unique in this Nation. Since Roman times, the

civil law has recognized and protected the life of the un-

born. Louisiana’s Abortion Statute at issue here is a con-

tinuation of this venerable tradition. The depth of this

tradition reflects the compelling nature of Louisiana’s in-

terest in protecting the life of the unborn.29

In the criminal arena, under Roman law, a woman

who procured her own abortion was ‘punished as a

Murderer.”’ J. Domat, The Civil Law in Its Natural Order,

Vol. I, Part I, Prel. Book I. Titl. 2, § 1, Law 6, p.138

(Strahan Transl. 1837). Similarly, Louisiana law before

28 Report on Human Life Bill, Sub-Committee on Separation of Powers,

Committee on the Judiciary, United States Senate (97th Cong. 1st Sess.

1981) p. 7.

29 Much of the following discussion is not original. Another appellant

before the Court of Appeals in this case, District Attorney Harry Con-

nick, set forth the history of the civil law's and Louisiana’s recognition

of the life and rights of the unborn in greater detail in his appellate brief.

1805 decreed the death penalty for all those, including the

pregnant woman, who procured or performed the abortion

of a living unborn child. The Siete Partidas, Part VII, Title

XXXIII, Law VIII. In 1855, over ten years before the

adoption of the Fourteenth Amendment, Louisiana enacted

a strict abortion statute. Under this statute, anyone who

administered or caused to be administered anything to a

woman for the purpose of procuring an abortion or

premature delivery was to be imprisoned at hard labor for

between one and ten years. La. Acts, 1855, Act 120, § 24,

p. 132. A successor of this statute was in effect at the time

this Court decided Roe v. Wade, 410 U.S. at 118 n.2 (citing

La. Rev. Stat. §14:87). Louisiana’s current statute

criminalizing abortion reflects a tradition with deep roots.

Likewise in the civil arena, the civil law that is Loui-

siana’s unique legacy has recognized the life of unborn

children and legal rights accruing to them. As far back as

Roman times, those who were conceived but not yet born

were accorded the right to inherit. J. Domat, supra. That

tradition continues to this day, and is now reflected in

Louisiana Civil Code articles 954 (governing intestate suc-

cessions) and 1474 (governing testate successions). Article

26 of the Louisiana Civil Code embodies the same tradition:

An unborn child shall be considered as a

natural person for whatever relates to its in-

terests from the moment of conception. If the

child is born dead, it shall be considered never to

have existed as a person, except for purposes of

actions resulting from its wrongful death.

As long ago as 1923, a Louisiana court recognized a

cause of action for the wrongful death of an unborn child,

even though the child was not born alive. Johnson v. South

New Orleans Light & Traction Co., No. 9,048 (La. App. Or.

Cir. 1923), writ denied, No. 26,443 (La. 1942) (unreported

decisions). In the later case of Danos v. St. Pierre, 402

So.2d 633 (La. 1981) (on rehearing), the Louisiana Supreme

Court approved of the Johnson court’s ruling.

What is notable about Louisiana’s providing a right

to recover for the wrongful death of a stillborn child is that

the right depends on the decedent having been a person.

When Danos was decided, Louisiana Civil Code article 2315

permitted recovery for the wrongful death of a person.

Danos, 402 So.2d at 637.39 Defendants argued that the un-

born were not persons, hence their death did not give rise

to a cause of action for wrongful death. T.1e Danos court

evidently disagreed with this argument.3!

Today, with the advent of in vitro fertilization, Loui-

siana has passed legislation to adapt its venerable and uni-

que civil law tradition to new circumstances. La. Rev. Stat.

§§ 9:121 et seg. This legislation recognizes that the in vitro

fertilized ovum is a “juridical person,” id. §§ 9:123, 124 and

125, with “certain rights granted by law,” id. § 9:121.

Though the legislation and the technology necessitating it

are new, the reverence for and interest in protecting em-

bryonic life reflected in the legislation are ancient.

30 Louisiana law is the same today. Louisiana Civil Code article

2315.2(A)} provides, ‘‘If a person dies due to the fault of another, suit

may be brought by [certain] persons to recover damages which they sus-

tained as a result of the death ....”’

31 In Roe, this Court minimized the significance of state laws permit-

ting parents of a stillborn child to recover for the child’s wrongful death,

under the belief that ‘‘[s]uch an action ... would appear to be one to vin-

dicate the parents’ interest and is thus consistent with the view that the

fetus, at most, represents only the potentiality of life.” Roe, 410 U.S. at

163. This is yet another area where Roe’s reasoning does not apply to

Louisiana. As the preceding discussion makes clear, under Louisiana’s

civil law system, the existence of a cause of action for the wrongful

death of a stillborn child depends on the child’s having been a person

while in utero. This is inconsistent with Roe’s view “‘that the fetus, at

most, represents only the potentiality of life.’ 410 U.S. at 163.

One of the cornerstones of Roe was the idea that

abortion statutes were relatively new, and thus not accord-

ed the weight of tradition. Regardless of whether this idea

was true as to the other forty-nine states, it is not true as

to Louisiana. Louisiana’s unique legal system, rooted in

Roman law, reflects this State’s ancient, compelling, and

perhaps uniquely strong interest in protecting embryonic

and fetal life.

CONCLUSION

In his Reasons for Judgment District Judge Duplan-

tier said he regretted that he was compelled to follow the

Roe majority and not Justice White’s dissent wherein

Justice White expressed his dismay that the Supreme

Court could peremptorily strike down the existing abortion

statutes of most states. Justice White decried the effect of

Roe in these terms:

“The upshot is that the people and the

legislatures of fifty states are constitutionally

disentitled to weigh the relative importance of the

continued existence and development of the fetus,

on the one hand, against a spectrum of possible

impacts on the mother, on the othe hand.”’ Roe v.

Wade, 410 U.S. at 223.

See, Appendix A-14.

In his special concurrence to the Fifth Circuit’s affir-

mation, Judge Garza expressed his concern over Casey. He

felt compelled to follow Roe and Casey, but he made his opi-

nion very clear:

Because a decision to permit or proscribe abor-

tion is a political choice, I would allow the people

of the state of Louisiana to decide this issue for

themselves.

Twenty years have passed since Roe was decided in

1973. Millions of unborn lives have been lost. The decisions

of countless state legislatures have been swept aside

because of the Court’s adherence to Roe. The United States

Constitution establishes that in our republican form of

government important policy decisions such as who will

;

ee ee

live and who will die, when and under what circumstances,

should be made by the elected representatives of the people

acting through their legislatures and the Congress. We

respectfully ask that Roe be reconsidered, and in that

reconsideration that proper deference be given to the role

of the states in our constitutional system.

For the reasons set out in Section I, this Petition

should be granted to decide that the facial challenge rule

applies in abortion cases, and the case should be remanded

to determine the constitutional applications of the Loui-

siana Abortion Statute.

For the reasons set out in Section II, the Court

should reconsider its decision in Roe uv.

Wade, and

recognize the State of Louisiana’s right to consider the

competing interests of the pregnant woman and the unborn

child.

RICHARD P. IEYOUB,

Attorney General

M. PATRICIA JONES,

Asst. Atty. Gen

LA DEPT. OF JUSTICE

Office of Atty. Gen.

State Capitol—22nd Floor

Baton Rouge, La 70806

(504) 342-7013

JAMES BOPP, JR..,

Special Asst. Atty. Gen.

191 Harding Avenue

P. O. Box 8100

Terre Haute, IN

47808-8100

(812) 232-2434

* Counsel of Record

December 18, 1992.

Respectfully submitted,

ROBERT E. WINN,*

Special Asst. Atty. Gen

JOY G. BRAUN,

Special Asst. Atty. Gen.

3500 Place St. Charles

201 St. Charles Avenue

New Orleans, LA 70170

(504) 582-1500

A-1

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-3677

FILED

SEP 22 1992

SOJOURNER T, on Behalf of Herself and All

Others Similarly Situated, ET AL.,

Plaintiffs-Appellees,

versus

EDWIN W. EDWARDS, As Governor of the

State of Louisiana, ET AL.,

Defendants-Appellants.

ERRRERERRESEREREREREREEEEESEEERSSEEEES EERE

DR. IFEANYI CHARLES OKPALOBI,

Plaintiff-Appellee,

versus

RICHARD P. IEYOUB, Attorney General of

the State of Louisiana, ET AL.,

Defendants-Appellants.

Appeal from the United States District Court for the

Eastern District of Louisiana

Before JOLLY, and EMILIO M. GARZA, Circuit Judges,

and SHAW, District Judge.*

E. GRADY JOLLY, Circuit Judge:

*Chief J udge of the United States District Court of the Western District

of Louisiana, sitting by designation.

A-2

This suit challenges the Louisiana Abortion Statute,

which criminalizes performing abortions except under very

limited circumstances. In the district court, the plaintiffs

argued that the Statute is preempted by federal law, that

the Statute is unconstitutional under Roe v. Wade, 410

U.S. 113 (1973), that the Statute is unconstitutional under

Griswold v. Connecticut, 381 U.S. 479 (1965), and that the

Statute is void for vagueness. The state of Louisiana

defended the Statute arguing that Roe v. Wade has been

overruled sub silentio by Webster v. Reproductive Health

Services, 109 S.Ct. 3040 (1989), and its progeny. The

district court struck down the Statute, holding that

because Roe v. Wade is still good law, the Statute is

unconstitutional.

The same arguments are presented to us that were

made in the district court. After this case was argued

before us, the Supreme Court, in Planned Parenthood of

Southeastern Pennsylvania uv. Casey, 60 U.S.L.W. 4795,

Nos. 91-744 & 91-902 (June 29, 1992), reaffirmed the essen-

tial holding of Roe v. Wade. Because the Louisiana statute

is clearly unconstitutional under Casey, we affirm the

district court’s order.

Sojourner T., et al., brought this suit in federal

district court challenging the Louisiana Abortion Statute.

They argued that the statute is preempted by the Food,

Drug and Cosmetic Act! and by FDA regulations approv-

ing the use of certain contraceptives. They also argued that

the statute violates the Commerce Clause and that it is un-

constitutional under Roe v. Wade and Griswold v. Con-

necticut. They requested declaratory and injunctive relief.

1 21 U.S.C. § 360K (1988).

A-3

Dr. Okpalobi, also seeking declaratory and injunc-

tive relief, challenged the Louisiana statute on vagueness

grounds. The district court consolidated these two cases.

Motions for judgment on the pleadings and suppor-

ting memoranda were filed by all parties. Pursuant to Fed.

R. Civ. P. 12(c), the district court granted the plaintiffs’

motion for judgment on the pleadings on the grounds that

under Roe v. Wade, the Louisiana Abortion Statute is un-

constitutional. The state appeals.

The Louisiana Abortion Statute was passed on June

18, 1991.2 It amends and reenacts LSA-R.S. 14:87. The

Statute makes it a crime to ‘‘administer{] or prescrib[e] any

drug, potion, medicine, or any other substance to a female”’

or to “‘us[e] any instrumental or external force whatsoever

on a female’ ‘“‘with the specific intent of terminating a

pregnancy.” The Statute provides exceptions when: (1) the

physician terminates the pregnancy in order to preserve

the life or health of the unborn baby or to remove a dead

unborn child; (2) the physician terminates the pregnancy to

save the life of the mother; (3) pregnancy is the result of

rape; and (4) pregnancy is the result of incest. Before an

abortion can be performed under the rape and incest excep-

tions, certain reporting requirements must be met. For ex-

ample, the victims must report the rape or incest to law en-

forcement officials. Also, abortions performed on rape and

incest victims must be performed within the first thirteen

weeks of pregnancy.

No criminal liability attaches to a woman seeking or

procuring an abortion.

2 1991 La. Acts 26.

A-4

II]

In urging us to uphold the Statute, the state con-

cedes that Roe v. Wade has not been expressly overruled.

Instead, the state argues that Roe has been overruled sub

silentio by Webster and its progeny.

On the other hand, Sojourner, et al., argue that we

should avoid deciding this case on constitutional grounds.

Instead, we should affirm the district court on the grounds

that the Statute is preempted by FDA regulations and by

the Food, Drug and Cosmetic Act. They also present alter-

native arguments: we should affirm the district court on

the grounds that the Statute violates the Commerce

Clause, on the grounds that the Statute is unconstitutional

under Griswold, or on the grounds that the Statute is un-

constitutional under Roe. Their argument that the Statute

is preempted by federal law, that the Statute violates the

Commerce Clause, and that the statute is unconstitutional

under Griswold is contingent on their particular reading of

the Statute. They argue that the Statute criminalizes the

use of contraceptives in Louisiana that act after concep-

tion. They argue that if we entertain doubts about this con-

struction of the Statute, we should, before reaching the

other issues in this case, certify to the Louisiana Supreme

Court the question of whether the Statute criminalizes the

use of certain contraceptives.

Dr. Okpalobi argues that the Statute is unconstitu-

tionally vague. His vagueness argument emphasizes the

elusiveness of the definitions of the rape and incest excep-

tions. He also argues that this court should certify to the

Louisiana Supreme Court the question of whether the Act

violates the right to privacy guaranteed by Article 1, Sec-

tion 5 of the Louisiana Constitution.

A-5

Below, the plaintiffs challenged the facial validity of

the Statute. Thus, we must determine whether the plain-

tiffs are correct that the Statute cannot be construed and

applied without infringing upon constitutionally protected

rights. Rust v. Sullivan, 111 S.Ct. 1759, 1767 (1991). The

district court found that Roe v. Wade is still good law and

that the Louisiana Abortion Statute clearly transgresses

those constitutional rights, as enunciated in Roe v. Wade,

of women who seek an abortion.

The Supreme Court recently reaffirmed the essential

holding of Roe v. Wade in Casey. Casey, 60 U.S.L.W. at

4798. In Casey, the Court held that a woman has a right to

chose to have an abortion before viability and that legisla-

tion restricting abortions before viability must not place an

under burden on that right. Jd. ‘‘An undue burden exists,

and therefore a provision of law is invalid, if its purpose or

effect is to place a substantial obstacle in the path of a

woman seeking an abortion before the fetus attains viabili-

ty.’’ Id. at 4807. The Court held that before viability, a

State’s interests are not strong enough to support a pro-

hibition of abortion. Jd. at 4798. Thus, the Louisiana

statute is clearly unconstitutional under Casey.

Sojourner, et al urge us to avoid deciding this case on

constitutional grounds and to affirm the district court on

the grounds that the Statute is preempted by FDA regula-

tions and the Food, Drug and Cosmetic Act, arguing that

we must, when possible, decide a case on statutory rather

than constitutional grounds. We can, of course, affirm the

district court’s judgment on any grounds supported by the

record. Mangaroo uv. Nelson, 864 F.2d _= 1202,

A-6

1204 n.2 (5th Cir. 1989). Furthermore, we acknowledge that

it is usually true that if a case can be decided either on

statutory or constitutional law, we should address the

statutory issue first. Harris v. McRae, 448 U.S. 297,

306-307 (1980). We do not think, however, that the facts

and the procedural posture of this case warrant the applica-

tion of this jurisprudential principle. The plaintiffs brought

a facial challenge to the constitutionality of the Statute.

The district court entered a judgment on the pleadings on

the grounds that the Statute was unconstitutional under

Roe v. Wade. It did not address the preemption issue.

There was no trial or hearing to develop the record with

respect to the several crucial factual and legal issues that

underlie the premption arguments, including whether cer-

tain contraceptives act after contraception, and if so,

whether the Statute criminalizes the use of these con-

traceptives. Additionally, we are not applying a new inter-

pretation of the Constitution to decide this case; we are on-

ly applying the clear holding of Casey. Therefore, the facts

and posture of this case do not obligate us to reach the

statutory issue first.3

Similarly, Dr. Okpalobi urges us to avoid deciding .

the case on federal constitutional grounds by certifying the

question to the Louisiana Supreme Court whether, because

it invades the right of privacy, the Statute is unconstitu-

tional under the Article 1, Section 5 of the Louisiana Con-

stitution. Because Dr. Okpalobi raises this issue for the

first time on appeal, we do not address it. Honeycutt v.

Long, 861 F.2d 1346, 1352 (5th Cir. 1988). Planned Parent-

hood of Louisiana, as amicus curiae, argues that we should

abstain from deciding this case because there is a pending

3 Since we decide this case on the grounds that the Statute is un-

constitutional under Casey, Sojourner's motion to certify the question

of whether the Louisiana Abortion Statute criminalizes the use of cer-

tain contraceptives is denied.

A-7

state court challenge to the Statute under the Louisiana

Constitution.* This argument was also raised for the first

time on appeal, and we therefore do not address it. United

States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826,

840 n.13 (5th Cir. 1975), cert. denied, 425 U.S. 944 (1976).

In conclusion, we hold that the Louisiana statute, on

its face, is plainly unconstitutional under Casey because

the statute imposes an undue burden on women seeking an

abortion before viability. The order of the district court is

therefore

AFFIRMED.

4 Apparently, the state court action was stayed pending the outcome of

this suit.

5 Because we decide the case on the grounds that the Statute is un-

constitutional under Casey, we do not reach the appellees’ arguments

that the Statute violates the Commerce Clause, that the Statute is un-

constitutional under Griswold, or that the Statute is unconstitutioonal-

ly vague.

A-8

EMILIO M. GARZA, Circuit Judge, concurring specially:

I agree with Judge Jolly that “the Supreme Court, in

Planned Parenthood of Southeastern Pennsylvania v.

Casey, . . . reaffirmed the essential holding of Roe v.

Wade’’! and that “the Louisiana [Abortion] Statute is

clearly unconstitutional under Casey.’ See Planned

Parenthood v. Casey, ___ U.S. ___, 112 S.. Ct. 2791, 2804,

120 L. Ed.2d 674 (1992) (‘After considering the fundamen-

tal constitutional question resolved by Roe, principles of in-

stitutional integrity, and the rule of stare decisis, we are led

to conclude this: the essential holding of Roe v. Wade [that

a woman has the right to terminate her pregnancy before

viability] should be retained and once again reaffirmed.’’).

Accordingly, I concur in J udge Jolly’s opinion.

Casey, nonetheless, causes me concern. “The issue is

whether [abortion] is a liberty protected by the Constitu-

tion of the United States.” Jd. at 2874 (Scalia, J., dis-

senting). Two essential facts seem apparent: ‘‘[T]he Con-

stitution says absolutely nothing about [abortion], and. . .

the longstanding traditions of American Society have per-

mitted [abortion] to be legally proscribed.’’? Id.. (footnote

omitted) (citation omitted). Casey ‘‘decorate[s] a value

1 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).

. slip op. at 2.

3 Compare Roe, 410 U.S. at 138-42, 93 S. Ct. at 719-21 (historical review

of abortion laws in America) with Michael H. v. Gerald D., 491 U.S. 110,

121-28, 109 S. Ct. 2333, 2341-44, 105 L. Ed. 2d 91 (1989) (overview of

presumption of legitimacy) and Bowers v. Hardwick, 478 U.S. 193,

191-95, 106 S. Ct. 2841, 2844-46, 92 L. Ed. 2d 140 (1986) (brief history

and list of sodomy laws in America).

" A-9

judgment‘ and concealjs] a political choice.” Jd. at 2875. If

this assessment is correct, the Court’s reaffirmance—

whether viewed as a good or bad result—has accelerated

the Court “towards systematically eliminating checks

upon its own power; and [at least with Roe and Casey] it

[has] succumbfed] [to this temptation].’’ Jd. at 2874.

Because the decision to permit or proscribe abortion

is a political choice, I would allow the people of the State

4 The joint opinion states: “‘Our obligation is to define the liberty of all,

not to mandate our own moral code. The underlying constitutional issue

is whether the State can resolve these philosophic questions in such a

definitive way that a woman lacks all choice in the matter, except

perhaps in those rare circumstances in which the pregnancy is itself a

danger to her own life or health, or is the result of rape or incest.” Casey,

112 S. Ct. at 2806. I do not agree with the joint opinion’s articulation

of the issue. First, States legislate morality every day in the form of

criminal statutes. For example, “‘[a] person commits an offense if he

... intentionally or knowingly causes the death of an individual,’’ see

Tex. Pen. Code Ann. § 19.02 (West 1992), is the legal formulation of the

commandment: “Thou shall not kill.’’ See Bowers v. Hardwick, 478 U.S.

at 196, 106 S. Ct. at 2846 (‘‘The law, however, is constantly based on no-

tions of morality, and if all laws representing essentially moral choices

are to be invalidated under the Due Process Clause, the courts [would]

be very busy indeed.’’).

Second, the underlying constitutional issue is not ‘‘whether the

State can resolve these philosophic questions in such a definitive way

that a woman lacks all choice in the matter,”’ but whether States have

the constitutional power to make this ontological choice. For example,

States choose for ontological reasons, to protect the lives of their

citizens. In this instance, “liberty’’ gives way to protection of human

life. See Casey, 112 S. Ct. at 2859 (Rehnquist, C.J., dissenting) (‘‘To look

‘at the act which is assertedly the subject of a liberty interest in isola-

tion from its effect upon other people [is] like inquiring whether there is

a liberty interest in firing a gun where the case at hand happens to in-

volve its discharge into another person’s body.’ "’ (quoting Michael H.

v. Gerald D., 491 U.S. at 124 n.4, 109 S. Ct. at 2342 n.4 (1989))). The

ultimate question—if one accepts the joint opinion’s view that viability

is critical—is whether States have the constitutional authority to decide

for themselves whether viability makes an ontological difference.

A-10

of Louisiana to decide this issue for themselves.5

Nonetheless, I acknowledge that Casey controls, and

therefore, I concur.

5 See Michael H., 491 U.S. at 122, 109 S. Ct. at 2341 (‘Whenever the

Judiciary [realizing that the present construction of the Due Process

Clause represents a major judicial gloss on its terms, as well as on the

anticipation of the Framers, strikes down legislation adopted by a

State], it unavoidably preempts for itself another part of the govern-

ance of the country without express constitutional authority.’’ (quoting

Moore v. East East Cleveland, 431 U.S. 494, 544, 97 S. Ct. 1932, 1958,

52 L. Ed. 2d 531 (1977))).

A-11

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-3677

FILED

SEP 22 1992

D.C. Docket No. CA-91-2247-H & CA-91-2422-H

SOJOURNER T, on Behalf of Herself and All

Others Similarly Situated, ET AL..,

Plaintiffs-Appellees,

versus

EDWIN W. EDWARDS, As Governor of the

State of Louisiana, ET AL..,

Defendants-Appellants.

KRKKKKAKKKKKKKKKKKKKKKKKKKKKKKKKKKKEKES

DR. IFEANYI CHARLES OKPALOBI,

Plaintiff-Appellee,

versus

RICHARD P. IEYOUB, Attorney General of

the State of Louisiana, ET AL.,

Defendants-Appellants.

Appeal from the United States District Court for the

Eastern District of Louisiana

Before JOLLY, and EMILIO M. GARZA, Circuit Judges,

and SHAW, District Judge.!

ISSUED AS MANDATE: OCT 14 1992

1 Chief Judge of the United States District Court of the Western District

of Louisiana, sitting by designation.

A-12

JUDGMENT

This cause came on to be heard on the record on ap-

peal and was argued by counsel.

ON CONSIDERATION WHEREOPF, It is now here

ordered and adjudged by this Court that the judgment of

the District Court in this cause is affirmed.

IT IS FURTHER ORDERED that defendants-

appellants pay to plaintiffs-appellees the costs on appeal to

be taxed by the Clerk of this Court.

September 22, 1992

A-13

APPENDIX B

OPINION OF THE DISTRICT COURT

UNITED STATES COURT OF APPEALS

EASTERN DISTRICT OF LOUISIANA

SOJOURNER T, ET AL CIVIL ACTION

VS. NO. 91-2247

BUDDY ROEMER, AS GOVERNOR OF

THE STATE OF LOUISIANA, ET AL SECTION ‘“H”’

CONSOLIDATED WITH

DR. IFEANYI CHAS. OKPALOBI

VERSUS NO. 91-2422

STATE OF LOUISIANA, ET AL SECTION ‘“H”’

REASONS FOR JUDGMENT

When the pleadings demonstrate that there is no fac-

tual issue which could change the result, any party may

move for judgment on the pleadings. Fed. R. Civ. P. 12(c).

At my first meeting with counsel on the day after the first

of these two consolidated actions was files, I suggested

that this case would meet the test. After consideration of

motions for judgment on the pleadings and extensive sup-

porting memoranda filed by all of the parties, I have con-

cluded that no facts which could be developed at a trial

could change the legal result dictated by Roe v. Wade, 410

U.S. 113, 93 S. Ct. 705 (1973). Therefore, for the following

A-14

reasons, the motions for judgment will be entered declaring

Act 26 of the 1991 Louisiana Legislature unconstitutional

and enjoining its enforcement.

Justice White’s dissenting opinion in Roe v. Wade,

410 U.S. at 222-23, 93 S. Ct. at 763, includes the following

statement, with which I wholeheartedly agree:

The Court simply fashions and announces a new

constitutional right for pregnant women and,

with scarcely any reason or authority for its ac-

tion, invests that right with sufficient substance

to override most existing state abortion statutes.

The upshot is that the people and the legislatures

of 50 States are constitutionally disentitled to

weigh the relative importance of the continued ex-

istence and development of the fetus, on the one

hand, against a spectrum of possible impacts on

the mother, on the other hand.

However, the majority opinion in Roe, not Justice

White’s dissent, is still the law of this land. The Constitu-

tion of the United States means what the Supreme Court

states that it means at any given time. Just two years ago,

in Webster v. Reproductive Health Services, the appellants

and the United States Department of Justice as Amicus

Curiae urged the Court to overrule Roe; Justice Scalia in

his concurring opinion did likewise. The Court declined to

do so, I quote from the Chief Justice’s opinion: ‘“This case

therefore affords us no occasion to revisit the holding of

Roe, which was that the Texas statute unconstitutionally

infringed the right to an abortion derived from the Due

Process Clause, id. at 164, and we leave it undisturbed.’’

Webster v. Reproductive Health Services, 492 U.S. 490,

521, 109 S. Ct. 3040, 3058 (1989). The Court has still not

revisited Roe.

A-15

The Texas statute held unconstitutional in Roe is in

all pertinent respects identical to the Louisiana statute

under attack here. Thus Roe in effect declares the Lou-

isiana statute unconstitutional. Even though the Supreme

Court has thus far explicitly refused to overrule Roe,

counsel for defendants urge that I should anticipate that it

will now do so. The Supreme Court has repeatedly held that

I have no such authority:

Needless to say, only this Court may overrule one

of its precedents. Thurston Motor Lines, Inc. v.

Jordan K. Rand, Ltd., 460 U.S. 533, 535, 103 S.

Ct. 1343, 1344, 75 L. Ed. 2d 260 (1983).

. .. unless we wish anarchy to prevail within the

federal judicial system, a precedent of this Court

must be followed by the lower court, no matter

how misguided the judges of those courts may

think it to be. Hutto v. Davis, 454 U.S. 370, 375

(1981).

Defendants contend that a decision upholding the

constitutionality of the Louisiana statute under attack

would not amount to the overruling of Roe. They argue

that Webster and two later Supreme Court decisions! have

effectively overruled Roe, sub silentio. There are persuasive

authorities cited in support of the right (arguably, the du-

ty) of a lower court to decline to apply Supreme Court

precedent when the Court in later decisions has itself de

facto overruled that precedent, although not expressly. The

temptation to apply that principle is great, especially when

I agree with the result which would follow. But I cannot

conclude that Roe has been overruled by implication in the

face of an explicit refusal in Webster to overrule it express-

ly. A lower court cannot decide that a Supreme Court de-

1 Hodgson v. Minnesota, _____ U.S. , 110 S. Ct. 2926 (1990); Ohio v.

Akron Center for Reproductive Health, ___ U.S. ___, 110 S. Ct. 2972

(1990).

A-16

cision has been overruled de facto when in three cases in the

past two years the Supreme Court has declined the oppor-

tunity to overrule that decision de jure. No one could

seriously argue that in cases after Roe the Court has acted

sub silentio? as to the Roe decision.

Every judge in the United States takes an oath to

uphold the Constitution as it is interpreted by the U.S.

Supreme Court. No judge in the United States enjoys the

luxury of applying his or her own interpretation of the U.S.

Constitution with respect to an issue which the United

States Supreme Court has previously decided. No judge in

the United States can overrule Roe v. Wade; only the

Supreme Court can do so.

Other issues are raised by the pleadings and in

memoranda. I do not consider them, because under the Roe

decision they cannot make any difference in the result. I-

recognize that if the Supreme Court overrules Roe v.

Wade, one or more of these issues may have to be con-

sidered on remand.

It matters not what my personal opinion may be as

to whether the United State Constitution nullifies the ac-

tion of elected state legislators in prohibiting abortions

under certain circumstances. I am bound by my oath of of-

fice to decide that under the existing Supreme Court inter-

pretation, the Louisiana statute under attack is

unconstitutional.

Disposition of claims for attorney’s fees is deferred

until the conclusion of the litigation.

8/7/91

/s/ Adrian Duplantier

Judge

2 Sub silentio. Under silence; without any notice being taken. Black’s

Law Dictionary 1428 (6th ed. 1991).

A-17

APPENDIX C

JUDGMENT OF THE DISTRICT COURT

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SOJOURNER, T., ET AL CIVIL ACTION

VERSUS NO. 91-2247

BUDDY ROEMER, AS GOVERNOR OF

THE STATE OF LOUISIANA, ET AL SECTION “H”

CONSOLIDATED WITH

DR. IFEANYI CHAS, OKPALOBI

VERSUS NO. 91-2422

STATE OF LOUISIANA, ET AL SECTION ‘H”’

JUDGMENT

Considering the court’s Reasons for J udgment filed

in the record this date, and further considering the court’s

direction as to entry of judgment;

IT IS ORDERED, ADJUDGED AND DECREED

that there be judgment herein in favor of plaintiffs and

against defendants, declaring Act 26 of the 1991 Louisiana

Legislature unconstitutional and enjoining defendants

from enforcing said statute.

A-18

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the disposition of the claims for at-

torney’s fees is hereby deferred until the conclusion of the

litigation.

New Orleans, Louisiana, this 7th day of August,

1991.

/s/ Adrian Duplantier

UNITED STATES DISTRICT JUDGE

A-19

APPENDIX D

ACT 26 OF THE 1991 LOUISIANA LEGISLATURE

HOUSE BILL NO. 112

BY: REPRESENTATIVE SAM THERIOT,

SENATOR BARES, REPRESENTATIVE

DIMOS, LANCASTER, LABORDE, SITTIG,

HIGGINBOTHAM, ACCARDO, ACKAL,

DIEZ, DONELON, GLOVER, GUIDRY, HAIK,

HERRING, LEBLANC, LEMOINE, MARTIN,

STELLY, AND STINE AND SENATORS

MCPHERSON, PICARD, CRAIN,

SAUNDERS, BRINKHADS, AND POSTON

AN ACT

To amend and reenact R.S. 14.87, relative to abortion; to

define and prohibit abortions; to provide for ex-

ceptions; to provide for penalties; and to provide

for related matter.

Be it enacted by the Legislature of Louisiana:

Section 1. Legislative findings and purpose. Life

begins at conception.

It is declared to be the public policy of the state of

Louisiana that it has a legitimate compelling interest in

protecting, to the greatest extent possible, the life of the

unborn from the time of conception until birth. We also af-

firm our belief that life begins at conception and that life

thereafter is a continuum until the time of death.

In furtherance of this compelling interest we declare it

A-20

to be a reasonable and proper exercise of the police power

of the state to prohibit and otherwise reasonably regulate,

through the imposition of criminal penalties, the perfor-

mance of abortions.

Section 2. R.S. 14:87 is hereby amended and

reenacted to read as follows:

§ 87. Abortion

A.(1) Abortion is the performance of any of the

following acts, with the specific intent of terminating

a pregnancy.

(a) Administering or prescribing any drug, po-

tion, medicine, or any other substance to a female; or

(b) Using any instrument or external force

whatsover on a female.

(2) This Section shall not apply to the female

who has an abortion.

B. It shall not be unlawful for a physician to

perform any of the acts described in Subsection A of

this Section if performed under the following

circumstances:

(1)The physician terminates the pregnancy in

order to preserve the life or health of the unborn child

or to remove a dead unborn child.

(2) The physician terminates a pregnancy for

the express purpose of saving the life of the mother.

(3) The physician terminates a pregnancy

which is the result of rape as defined in either R.S.

14:42, R.S. 14:42.1, or R.S. 14:43 and in which all of

the following requirements are met prior to the

pregnancy termination:

(a) The rape victim obtains a physical ex-

amination and/or treatment from a physician other

A-21

than the physician who is to terminate the pregnancy

within five days of the rape to determine whether she

was pregnant prior to the rape and to prevent

pregnancy and veneral disease, unless the rape victim

is incapacitated to such a degree that she is unable to

obtain this examination. If the victim is unable to ob-

tain the examination due to such incapacity, then an

examination shall be performed within five days after

the incapacity is removed; and

(b) The rape victim reports the rape to law en-

forcement officials within seven days of the rape

unless the victim is incapacited to such degree that

she is unable to report the rape. If the victim is unable

to report the rape due to such incapacity, then a report

shall be made within seven days after the incapacity is

removed; and

weeks of conception.

(4) The physician terminates a pregnancy

which is the result of incest as defined in R.S. 14:78,

provided the crime is reported to law enforcement of-

ficials and the abortion is performed within thirteen

weeks of conception.

C.(1) Prior to the performance of any abortion

under Subsection (B)(3) or (B)(4) of this Section, the

physician who is to perform the abortion shall obtain

from the victim a statement in writing verifying that

she has obtained the physical examination and shall

obtain written verification by a law enforcement of-

ficial that the victim reported the rape to law enforce-

ment officials as required under this Section.

(2) Every physician who conducts a physical ex-

A-22

amination of a rape victim within five days of the rape

shall immediately upon written request of either the

victim or the physician who is to perform the abortion

on the victim, provide to the victim or the requesting

physician written verification of his examination.

(3) Every law enforcement official who

receives a report of a rape victim within seven days of

the rape or receives a report of incest shall immediate-

ly, upon written request of either the victim or the

physician who is to perform the abortion, provide to

the victim or requesting physician written verification

of the report which was made to the official.

D. As used in this Section, the following words

and phrases are defined as follows:

(1) ‘Law enforcement official or officer’

means any peace officer or agency empowered to en-

force the law in criminal matters within his or its

respective jurisdiction, including but not limited to a

state police officer, sheriff, constable, local police of-

ficer, and district attorney.

(2) ““Physician” means any person licensed to

practice medicine in this state.

(3) “Unborn child’”’ means the unborn off-

spring of human beings from the moment of concep-

tion until birth.

(4) “Conception” means the contact of sperm-

atozoan with the ovum.

E.(1) Whoever commits the crime of abortion

shall be imprisoned at hard labor for not less than one

nor more than ten years and shall be fined not less

than ten thousand dollars nor more than one hundred

thousand dollars.

(2) This penalty shall not apply to the female

who has an abortion.

A-23

Section 3. If any provision or item of this Act or the

application thereof is held invalid, such invalidity shall not

affect other provisions, items or applications of this Act

which can be given effect without the invalid provisions,

items or applications, and to this end the provisions of this

act are hereby declared severable.

Section 4. This act shall become effective upon

signature by the governor or, if not signed by the governor,

upon expiration of the time for bills to become law without

signature by the governor, as provided in Article III, Sec-

tion 18 of the Constitution of Louisiana.

/s/

SPEAKER OF THE HOUSE OF

REPRESENTATIVES

/s/

PRESIDENT OF THE SENATE

GOVERNOR OF THE STATE OF

LOUISIANA

VETOED: June 14, 1991

/s/ Buddy Roemer

[emblem]

A-24

APPENDIX E

OPINION OF THE

LOUISIANA ATTORNEY GENERAL

State of Louisiana

Department of Justice

Williamn J. Guste, Jr. Baton Rouge

Attorney General 70804-9005

September 24, 1991

OPINION NO. 91-419

Honorable John M. Mamoulides

District Attorney

Parish of Jefferson

Jefferson Parish Courthouse

Annex Building—5th Floor

Gretna, Louisiana 70053

Dear District Attorney Mamoulides:

In your letter of August 5, 1991, you requested an

opinion of this office. You asked the following questions

concerning Act 26 of 1991 relating to abortion:

What is the definition of wregnancy?

Does the Act apply to the -prescription, ad-

ministration and use of the oral contraceptive pill,

the intrauterine device (IUD), and the morning-

after pill?

What is the effect of the Act on the process of in

vitro fertilization as regulation [sic] by La. R.S.

9:121-133?

Consistent with the answer we filed in Sojourner, et

A-25

al vs. Roemer, et al, No. 91-2247 on the docket of the United

States District Court for the Eastern District of Lou-

isiana, we respond to your questions as follows:

LSA-R.S. 14:87, as amended by Act 26, provides in

pertinent part as follows:

§87 Abortion

A. (1) Abortion is the performance of any of the

following acts, with the specific intent of ter-

minating a pregnancy:

(a) Administering or prescribing any drug, po-

tion, medicine, or any other substance to a

female; or

(b) Using any instrument or external force what-

soever on a female.

1. Although Act 26 defines ‘‘conception’”’ as the con-

tact of spermatozoon and ovum, and it defines ‘‘unborn

child’ as the unborn offspring of human beings from con-

ception until birth, the Act does not define the term

‘pregnancy’. It is not necessary that it do so. In inter-

preting a statute, words and phrases should be used in

their context and should be construed in accordance with

common and approved usage. See LSA-R.S. 1:3 and LSA-

R.S. 14:3. Thus the term pregnancy must be given its

customary meaning.

Within the medical profession, pregnancy is

understood to refer to a woman’s condition after implanta-

tion of a fertilized ovum. It is defined as ‘‘the condition of

having a developing embryo or fetus in the body, after the

union of an ovum and spermatozoon.’’! The term ‘‘em-

lSee Dorland’s Illustrated Medical Dictionary 1349, 543 (27th Ed.

1988); Williams Obstetrics 8-10 (18th Ed. 1989). Both Dorland’s and

A-26

bryo”’ is commonly and appropriately used to describe the

unborn child once the embryonic disc forms at about the

eighth day after contact of ovum and spermatozoon. The

embryonic period extends until about the eighth week,

after which the developing human is known as a fetus.2

Because implantation of the fertilized ovum occurs on ap-

proximately the sixth day after union of ovum and sper-

matozoon, it is clear that the embryo is not considered by

medical experts to exist until some time after implantation

of the fertilized ovum.

In everyday medical usage the term pregnancy is

equated with implantation.4 Implantation in the fallopian

tube or other extra uterine site is referred to as a tubal or

ectopic pregnancy. The important point is that the Act

makes criminal only those actions taken with the specific

intent of terminating a pregnancy, unless done for the

health of the unborn child, to remove a dead unborn child,

to save the life of the mother, or in certain cases of rape and

incest.

Footnote continued.

Williams were used and relied upon by the U.S. Supreme Court in Roe

v. Wade, 410 U.S. 113 at 130, 160; 93 S.Ct. 705 at 716, 730 (1973).

2 K. Moore, Before We Are Born, Basic Embryology and Birth Defects

I (2nd Ed. 1983).

# See Dorland’s, supra note 1 at 824.

4 See Williams Obstetrics 8-10 (18th Ed. 1989); U.S. Department of

Health and Human Services regulations define pregnancy as follows:

§46.203 Definitions:

((b) ‘“‘Pregnancy’’ encompasses the period of time from confirma-

tion of implantation (through any of the presumptive signs of pregnan-

cy, such as missed menses, or by a medically acceptable pregnancy test),

until expulsion or extraction of the fetus.)

Protection of Human Subjects, 45 C.F.R. §46:203 (1990). See also,

Complaint, Para 42, Sojourner et al vs. Roemer et al, U.S.D.C, E.D. La.

CA 91-2247.

A-27

Therefore, anything done which has operative effect

before implantation is not affected by or subject to the

criminal provisions of Act 26.

2. Our examination and analysis of Act 26 leads us

to conclude that the Act does not apply to the prescription,

administration and use of the oral contraceptive pill, the in-

trauterine device (IUD), and the morning-after pill.5 The

Act proscribes, with criminal sanctions, only the ad-

ministering or prescribing of any drug, potion, medicine or

other substance or use of any instrument or external force

on a female with the specific intent of terminating a

pregnancy. The oral contraceptive pill, IUD and morning-

after pill operate and have their effect prior to implanta-

tion, i.e., prior to pregnancy. Therefore, Act 26 will have no

effect on the prescribing, administering or use of such

drugs or devices.®

3. We have also been asked what effect Act 26 will

have on efforts by women to become pregnant through the

process of in vitro fertilization. In Louisiana in vitro fer-

tilization is regulated by La. R.S. 12:121-133. As is evident

from those statutes and the common understanding of in

> The criminal sanctions of the Act do apply to the administering or

prescribing of any drug which has its operative effect after the onset of

pregnancy, i.e., after implantation. Thus, drugs, including RU 486, when

administered or prescribed for use after implantation are prohibited

under the Act.

6 Williams, supra, at note 4, at 922-923, 929 and 931. How and when

some oral contraceptives and the IUD work is a matter of considerable

debate. The question debated is whether ‘’the pill’ and “the IUD” sup-

press ovulation (the release of the ovum) thereby preventing conception

(as defined by Act 26 as contact of the spermatozoon and ovum) or

whether they act to prevent implantation, or whether they act both to

suppress ovulation and prevent implantation. For the purpose of Act 26,

the debate need not be resolved, because Act 26 has no effect until after

implantation of a fertilized ovum.

A-28

vitro fertilization, it is a process intended to ultimately

result in pregnancy. There is no pregnancy, however, dur-

ing the process and Act 26 does not apply until after the

successful implantation of a fertilized ovum.

Act 26 reaffirms Louisiana’s longstanding position

that life begins at conception and Louisiana’s policy of pro-

tecting to the greatest extent possible the life of the unborn

child from conception until birth. However, in order to pro-

ve the elements of the crime of abortion as defined by Act

26, a prosecutor must prove beyond a reasonable doubt

that someone other than the woman with child acted with

the specific intent of terminating a pregnancy. Because

medical tests to determine whether conception has occur-

red are not reliable until a time following sexual intercourse

coincident with implantation, it would not be possible to

prove the requisite specific intent for actions taken prior to

the time of implantation, i.e., prior to pregnancy.

In enacting Act 26 the Legislature effectively

reinstated Louisiana’s criminal law regarding abortion as it

existed before the United States Supreme Court’s 1973

decision in Roe v. Wade. In reenacting its prior law, the

Legislature used more modern language for its definition of

abortion, made explicit the exception for protecting the life

of the mother and the exemption of the pregnant woman

from prosecution, and added exceptions for abortion per-

formed in cases of rape and incest under certain cir-

cumstances. The new statute also provides a financial

penalty in addition to the one to ten years imprisonment

which was provided in the prior law.

The pre-Roe v. Wade definition of abortion contained

in LSA-R.S. 14:87 was the performance of certain acts

‘‘with the intent of procuring premature delivery of the em-

bryo of (sic) fetus.’’ The recently enacted Act 26 also

A-29

extends the protection of the criminal law to the embryo

and fetus by prohibiting the termination of a pregnancy ex-

cept under certain specified conditions. The new statute

takes the same approach and is in accord with Louisiana’s

law prohibiting abortion as it existed prior to 1973.7

In consideraing the application of LSA-R.S. 14:87,

we note that the guidelines of LSA-R.S. 14:3 apply. That

section provides as follows:

The article of this code cannot be extended by

analogy so as to create crimes not provided for

herein; however in order to promote justice and to

effect the objects of the law, all of its provisions

shall be given a genuine construction, according

to the fair import of their words, taken in their

usual sense, in connection with the context, and

with reference to the purpose of the provision.

This rule of stricti juris, or strict construction, requires

that a criminal statute be strictly construed in factor of the

accused. We must adhere to that rule of interpretation. (See

State v. Young, 357 So.2d 503 (La. 1978); State v. Sloan,

139 La. 881, 72 So. 428 (1916).

It is the opinion of this office that LSA-R.S. 14:87,

which prohibits abortions except in specific circumstances,

does not prohibit authorized and licenses (sic) medical per-

sonnel from prescribing, or administering medicines,

7 Use of the more modern language in the current statute also avoids

the problem of possible dismissal of a prosecution because the informa-

tion or indictment refers to an embryo when evidence might establish

that the pregnancy was far enough along so that a fetus was actually

aborted. See, e.g., State v. DORE, 227 La. 282, 79 So.2d 209 (1955). See

also, Rosen v. La. State Board of Medical Examiners, 319 F.Supp. 1217

(E.D. La. 1970).

A-30

drugs, potions, substances or instruments that operate to

prevent pregnancy rather than to terminate pregnancy.

Because IUD’s, oral contraceptives and ‘‘the morning-after

pill’ prevent rather than terminate pregnancy, their use is

not made illegal by LSA-R.S. 14:87; nor is the process of in

vitro fertilization subject to Act 26 until subsequent to the

implantation of a fertilized ovum in a female’s uterus.

Yours very truly,

/s/

WILLIAM J. GUSTE, JR.

Attorney General

WJG,Jr./gbs

A-31

APPENDIX F

States Recognizing That Human Life

Begins at Conception

Alabama:

Trent v. State, 15 Ala. App. 485, 488, 73 So. 834, 836

(1916) (interpreting state abortion law) (‘‘ ’does not the new

being from the first day of its uterine life, acquire a legal

and moral status that entitles it to the same protection as

that guaranteed to human beings in extrauterine life?” ’)

(quoting from the 1911 Transactions of the Medical

Association of Alabama)

Wolfe v. Isbell, 291 Ala. 327, 331, 280 So.2d 758, 761

(1973) (rejecting viability requirement in wrongful death

action where death occurs after live birth):

[T]he more recent authorities emphasize that

there is no valid medical basis for a distinction

based upon viability, especially where the child

has been born alive. These [decisions] proceed on

the premise that the fetus is just as much an in-

dependent being prior to viability as it is after-

wards, and that from the moment of conception,

the fetus or embryo is not a part of the mother,

but rather has a separate existence within the

body of the mother.

Eich v. Town of Gulf Shores, 293 Ala. 95, 98-99, 300

So. 2d 354, 356-57 (1974) (rejecting live birth requirement

in wrongful death action) (stating that ‘‘the paramount

purpose of our wrongful death statutes ... is the preserva-

tion of human life” and holding that “‘it is illogical to allow

liability to depend on whether death from fatal injury oc-

curred before or after live birth’”’)

A-32

Alabama Constitutional Convention Call (S.J. Res. 9,

1980 Ala. Acts 396):

[A]pplies to the Congress . . . to call a convention

for the sole and exclusive purpose of proposing an

amendment to the Constitution that would pro-

tect the lives of all human beings including un-

born children at every stage of their biological

development and providing that neither the

United States nor any state shall deprive any

human being, from the moment of fertilization, of

the right to life without due process of laws, nor

shall any state deny any human being, from the

moment of fertilization, the equal protection of

the laws, except where pregnancy results from

rape or incest; or where abortion is necessary to

save the life of the mother; or where testing

revealed abnormality or deformity of the fetus.

Arizona:

Nelson v. Planned Parenthood Center of Tucson, 19

Ariz. App. 142, 505 P.2d 580, 586 (1973) (construing state

abortion law):

One cannot gainsay a legislative determination

that an embryonic or fetal organism is ‘life.’ Once

begun, the inevitable result is a human being, bar-

ring prior termination of the pregnancy.

Ariz. Rev. Stat., §13-1103(A)(5) (West. 1989) (defining

offense of manslaughter to include ‘Vk]nowingly or

recklessly causing the death of an unborn child at any state

of its development by any physical injury to the mother of

such child which would be murder if the death of the

mother had occurred’’)

A-33

Summerfield v. Superior Court, 144 Ariz. 467, 476,

698 P.2d 712, 721 (1985) (‘‘this statute [§13-1103(A)(5)] is in

the section traditionally associated with the killing of per-

sons (manslaughter) and .. . it refers not to a fetus but to

an unborn child’’)

Ariz. Rev. Stat., §13:702(D)(10) (West 1989) (death of

an unborn child “‘at any stage of its development” an ag-

gravating circumstance for purposes of sentencing)

Arkansas:

Ark. Const., Amend. 68, §2 (‘[t]he public policy of

Arkansas is to protect the life of every unborn child from

conception until birth, ... .’’)

Arkansas Constitutional Conventiion Call (Res. of

Feb. 17, 1977, H.R.J. Res. 2):

Requests Congress to call a convention to pro-

pose a constitutional amendment which would

provide that every human being subject to the

jurisdiction of the United States or any state

shall be deemed from the moment of fertilization

to be a person and entitled to the right of life; pro-

vides that Congress and the states shall have con-

current powers to enforce such an amendment.

Ark. Code Ann., §5-13-201(A)(5) (1991 Supp.) (amen-

ding first degree battery statute to include physical in-

juries to pregnant woman resulting in miscarriage or

stillbirth)

California:

Cal. Pen. Code, §187(a) (West 1988) (‘‘[mJurder is the

unlawful killing of a human being, or a fetus, with malice

A-34

aforethought’’)

People v. Apodaca, 78 Cal. App. 2d 479, 486, 142 Cal.

Rptr. 830, 835 (1978) (§187 ‘‘gives to all persons of common

intelligence ample warning that an assault on a pregnant

woman without her consent for the purpose of unlawfully

killing her unborn child can constitute the crime of

murder’’)

Cal. Civ. Code, §29 (West 1982) (‘‘[a] child conceived

but not yet born, is to be deemed an existing person, so far

as may be necessary for its interests in the event of its

subsequent birth’’)

Scott v. McPheeters, 33 Cal. App. 2d 629, 634, 92

P.2d 678, 681 (1939) (it is ‘‘an established and recognized

fact by science and by everyone of understanding” that

‘“‘an unborn child is a human being separate and distinct

from its mother’’)

Connecticut:

Conn. Gen. Stat., Ann. §53-31(a) (1985) (‘[t]he public

policy of the state and the intent of the legislature is to pro-

tect and preserve human life from the moment of concep-

tion’’) (rep. by P.A. 90-113, §4 (1990))

Simon v. Mullin, 34 Conn. Sup. 139, 147, 380 A.2d

1353. 1357 (1977) (rejecting viability requirement in

wrongful death action where death occurs after live birth)

(‘‘[t]he development of the principle of law that now per-

mits recovery by or on behalf of a child born alive for

prenatal injuries suffered at any time after conception,

without regard to the viability of the fetus, is a notable il-

lustration of the viability of our common law’’)

A-35

Delaware:

Scott v. State, 49 Del. 401, 409-10, 117 A.2d 881,

835-36 (1955) (characterizing abortion law as one which

defines an offense against the lives and persons of

individuals)

Delaware Constitutional Conventioin Call (Res. of

May 23, 1978, H.R. Con. Res. 9):

Requests Congress to call a convention to pro-

pose a constitutional amendment that would pro-

tect the lives of all human beings, including un-

born children at every stage of their biological

development.

District of Columbia:

Bonbrest v. Kotz, 65 F. Supp. 138, 140 (D.

D.C. 1946) (recognizing cause of action for

prenatal injuries) (‘‘[f}rom- the viewpoint of the

civil law, and the law of property, a child en ven-

tre sa mere is not only regarded as [a] human be-

ing, but as such from the moment of

conception—which it is in fact’’)

Greater Southeast Community Hosp. v.

Williams, 482 A.2d 394, 396 (D.C. Ct. App. 1984)

(rejecting viability requirement in wrongful death

acticn where death occurs after live birth) (refer-

ring to “established medical fact that a fetus is a

person separate from its mother’’)

Florida:

Day v. Nationwide Mut. Ins. Co., 328 So.2d

560, 561 (1976) (rejecting viability requirement in

case of prenatal injuries) (quoting with

A-36

approval Prosser, Handbook of the Law of Torts, §55 at

336 (4th ed. 1971)):

Viability of course does not affect the question of

the legal existence of the foetus, and therefore of

the defendant’s duty; and it is a most unsatisfac-

tory criterion, since it is a relative matter, depen-

ding upon the health of the mother and child and

many other matters in addition to the stage of

development. Certainly, the infant may be no less

injured; and all logic is in favor of ignoring the

stage at which it occurs.!

Georgia:

Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504,

504-05, 93 S.E.2d 727, 728 (1956) (rejecting viability re-

quirement in case of prenatal injuries) (‘‘{i]f a child born

after an injury sustained at any period of its prenatal life

can prove the effect on it of a tort, it would have a right to

recover’) (a dissent characterized majority opinion as

holding, in effect, ‘’that an infant becomes a ‘person’ from

the moment of conception, with the right to sue for a tor-

tious injury after its birth”), id. at 506, 93 S.E.2d at 729

Morrow v. Scott, 7 Ga. 535, 587 (1849) (‘ijn

... general, a child is to be considered as in being, from the

time of its conception, where it will be for the benefit of

such child to be so considered’’)

Gulf Life Ins. Co. v. Brown, 181 G. App. 72, 74, 351

S.E. 2d 267, 269 (1986) (‘‘unquestionably, Georgia cases

show a clear tendency toward placing a high premium on

! To which to the Fifth Edition of Prosser & Keaton (1984) adds: “With

recent advances in embryology and medical technology, medical proof of

causation in these cases has become increasingly reliable, which argues

for eliminating the viability or other arbitrary developmental require-

ment altogether.”’ Jd. at 369.

A-37

human life and an unmistakable willingness to recognize a

fetus as a person at a time prior to actual delivery’’)

Idaho:

Nash v. Meyer, 54 Idaho 283, 301, 31 P.2d 273, 280 (1934)

(construing state abortion law) (criminal abortion statute

intended “‘to discourage abortions because thereby the life

of a human being, the unborn child, is taken’’)

Blake v. Cruz,, 108 Idaho 258, 261, 698 P.2d 315, 323

(1984) (Bistline, J., concurring in part and dissenting in

part) (“[tJhis Court recently committed itself to the proposi-

tion that an unborn child is_a person in being,” citing Volk

v. Baldazo, 103 Idaho 570, 651 P.2d 11 (1982) (rejecting live

birth requirement in wrongful death action where death oc-

curs after viability))

Idaho Constitutional Convention call (S. Con. Res.

132, 45th Legis. 2d Sess., 1980 Idaho Sess. Laws 1005):

Request| Js that the Congress . . . call a constitu-

tional convention for the specific and exclusive

purpose of proposing an amendment .. . [to pro-

vide that):

[a] From the moment of conception a person

shall be guaranteed all perscnal! rights extended

to all individuals under the constitution and laws

of the United States of America and the state or

states of residence and only under extreme cir-

cumstances shall it be otherwise, namely, to save

the life of the mother, or other extenuating cir-

cumstances where at least two consulting physi-

cians, one not having previously been involved in

the case, and after due and thorough consultation

with all persons having the legal right

A-38

to be involved, find it is necessary and just that

the life of the unborn shall be terminated.

(b) Provide that the several states shall have the

power to enforce such an amendment and

establish priority of life by appropriate

legislation.

Illinois:

Ill. Ann. Stat., ch. 38, 81-21 (Smith-Hurd

1977) (preamble to Illinois Abortion Act of 1975):

[T]he General Assembly of the State of Iinois do

solemnly declare and find in reaffirmation of the

longstanding policy of this State, that the unborn

child is a human being from the moment of con-

ception and is, therefore, a legal person, for pur-

poses of the unborn child’s right to life and is en-

titled to the right to life from conception under

the laws and constitution of this State... .

Renslow v. Mennonite Hospital, 67 I1l.2d 348-352-53,

367 N.E.2d 1250, 1252-53 (1977) (rejecting viability re-

quirement in cause of action for prenatal injuries)

Ill. Rev. Stat., ch. 70, 42.2 (1991) (amending wrongful

death statute to allow wrongful death action to be brought

on behalf of an unborn child without regard to the stage of

pregnancy when the child is injured or whether there is a

live birth)

Ill. Rev. Stat., ch. 38, $9-1.2(b)(1) (1991) (defining

“unborn child” as ‘‘any individual of the human species

from fertilization until birth’’)

Ill. Rev. Stat., ch. 38, $49-1.2, 9-2.1, 9-3.2, 12-3.2,

12-4.4 (1991) (amending criminal code to define broad range

A-39

of crimes, including homicide, that can be committed

against unborn child, regardless of gestational age)

Indiana:

Cheaney v. State, 259 Ind. 138, 145, 285 N.E.2d 265,

268 (1972) (construing state abortion law) (‘‘[iJt is now

established that some sort of independent life begins at

conception,’’ rejecting quickening and viability as out-

dated and arbitrary distinctions)

Cowe v. Forum Group, Inc., 541 N.E.2d 962, 967-68

(Ind. App. 1989), rev'd and remanded on other grounds, 575

N.E.2d 630 (Ind. 1991) (recognizing cause of action for

prenatal injuries at any time after conception and rej ecting

viability requirement)

Kentucky:

Ky. Rev. Stat. Ann., §311.710(5) (Michie/Bobbs-

Merrill 1990):

If... the United States constitution is amended

or relevant judicial decisions are reversed or

modified, the declared policy of this Com-

monwealth to recognize and to protect the lives of

all human beings regardless of their degree of

biological development shall be fully restored.

Ky. Rev. Stat. Ann., §311.720(5), (6) (abortion regula-

tions) (defining “fetus” as ‘‘a human being from fertiliza-

tion until birth” and “thurman being’’ as ‘‘any member of

the species homo sapiens from fertilization until death’’)

Kentucky Constitutional Convention call (H.R. Res.

7,.1978 Gen. Assembly, Reg. Sess., 1978 Ky. Acts 1401):

[Rlequest[s] Congress . . . to call a convention for

the sole purpose of proposing the following article

as an amendment to the Constitution

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Section 1. With respect to the right to life, the

word person as used in this article and in the

Fifth and Fourteenth Articles of Amendment to

this Constitution applies to all human beings ir-

respective of age, health, function, or condition of

dependency, including their unborn offspring at

every state of their biological development.

Section 2. No unborn person shall be deprived

of life by any person, provided, however, that

nothing in this article shall prohibit a law permit-

ting only those medical procedures required to

prevent the death of the mother.

Section 3. The Congress and the several

states shall have the power to enforce this article

by appropriate legislation.

Louisiana:

La. Stat. Ann., §14.2(7) (West 1986) (defining ‘‘per-

son”’ for purposes of criminal code to include ‘‘a human be-

ing from the moment of fertilization and implantation’’)

La. Stat. Ann., §§14:32.5-32.8 (West 1992 Supp.)

(defining feticide offenses)

Danos v. St. Pierre, 383 So.2d 1019, 1027 (La. App.

1980), aff'd, 402 So.2d 633 (La. 1991) (Lottinger, J.,

concurring):

This definition [La. Stat. Ann., §14.2(7) (West

1986)] added to the Criminal Code in 1976,

reflects a legislative intent to classify an unborn

child as a “‘person’’ for purposes of violent

criminal conduct like homicide and battery. The

definition reveals an express recognition by the

legislature that life begins at the moment of con-

ception and that this form of life can indeed be the

victim of a harm, i.e., a murder or battery.

A-4]

§1 of Acts 1991, No. 26 (amending state abortion

law):

It is declared to be the public policy of the state

of Louisiana that it has a legitimate compelling

interest in protecting, to the greatest extent

possible, the life of the unborn from the time of

conception until birth. We also affirm our belief

that life begins at conception and that life

thereafter is a continuum until the time of death.

Johnson v. Southern New Orleans Light and Trac-

tion Co., Docket 9048 (La. App. Orl. Dec. 10, 1923) (rejec-

ting live birth and viability requirements in cause of action

for wrongful death) (quoted with approval in Danos v. St.

Pierre, 402 So.2d 633, 639 (La. 1981)):

The argument of the defendant is that the infant

before it is born is not a child, not a human being,

that it is only a thing, a part of the anatomy of the

mother, as are her organs. We cannot accept that

theory. We believe that the infant is a child from

the moment of conception, although life may be in

a state of suspended animation, the subject of

love, affection and hope and that the injury or

killing of it in its mother’s womb is covered by the

[wrongful death statute] and gives its bereaved

parents to a right of action against the guilty par-

ties for their grief and mental anguish.

Accord: Valence v. La. Power & Light Co., 50 So.2d 847 (La.

App. 1951) (wrongful death of two to four month old un-

born child).

Danos v. St. Pierre, 383 So.2d 1019, 1027 (La. App.

1980), aff'd, 402 So.2d 633 (La. 1991) (rejecting live birth re-

quirerment in action for wrongful death of a viable unborn

child) (Lottinger, J., concurring):

A-42

Viability has not been the controlling factor in

some previous Louisiana cases allowing recovery

[for wrongful death of a stillborn child], and there

is no need to make it a controlling factor in this

decision. Just as live birth is an arbitrary cut off

point for wrongful death purposes, viability is

equally arbitrary in deciding whether the fetus is

a “‘person” whose wrongful killing is

compensable.

Louisiana Constitutional Convention Call (Res. of

July 16, 1976, S. Con. Res. 70):

Requests Congress to call a convention to pro-

pose a constitutional amendment extending the

term “person” in the Fifth and Fourteenth

amendments to apply to all human beings “‘ir-

respective of age, health, function or condition of

dependency, including unborn offspring at every

stage of their biological development;’’ permits

states to adopt laws necessary to preserve the

woman's life; requests state legislative bodies to

apply to Congress to call a convention to propose

this constitutional amendment; grants Congress

and the states the power to enforce the

amendment.

Maine:

Smith v. State, 33 Me. 48, 57 (1851) (construing

criminal abortion statute which abolished the quickening

distinction):

There is a removal of the unsubstantial distinc-

tion, that it is no offense to procure an abortion,

before the mother becomes sensible of the motion

of the child, nowwithstanding it is then capable of

inheriting an estate; and immediately afterwards

is a great misdemeanor. It is now equally criminal

A-43

to produce abortion before and after quickening.

And the unsuccessful attempt to cause the

destruction of an unborn child is a crime, whether

the child be quick or not.

Maryland:

Damasiewicz v. Gorsuch, 197 Md. 417, 438,

79 A.2d 550, 559 (1951) (recognizing cause of ac-

tion for prenatal injuries) (‘‘from a medical point

of view, a child is alive within the mother before

the time arrives when it can live apart from her’’),

id. at 440, 79 A.2d at 560 (theory that ‘‘an unborn

child is a part of the mother” is ‘‘an outworn

point of view, now rejected by modern medicine’’)

Group Health Ass’n v. Blumenthal, 295

Md. 104, 119, 453 A.2d 1198, 1207 (1983) (‘‘a

cause of action lies for the wrongful death of a

child born alive who dies as a result of injuries

sustained while en ventre sa mere”’ (rejecting

viability requirement)

Massachusetts:

Commonwealth v. Cass, 392, Mass. 799,

801, 467 N.E.2d 1324, 1325 (1984) (viable fetus is

a ‘‘person”’ within meaning of vehicular homicide

statute):

In keeping with approved usage, and giving

terms their ordinary meaning, the word ‘‘person’’

is synonymous with the term “‘human being.” An

offspring of human parents cannot reasonably be

considered to be other than a human being, and

therefore a person, first within, and then in the

normal course outside, the womb. . . . By the use

of the term[ |] ‘‘person’’ . . . the Legislature has

given no hint of $a _ contemplated

A-44

distinction between pre-born and born human

beings.

Torigian v. Watertown News Co., Inc., 352 Mass.

446, 449, 225 N.E.2d 926, 927 (1967) (rejecting viability re-

quirement in wrongful death action where death follows

live birth) :

Massachusetts Constitutional Convention Call (Act

of June 8, 1977, H.R. 5984):

Requests Congress to call a convention to pro-

pose a constitutional amendment extending the

term ‘“‘person’’ in the Fifth and Fourteenth

amendments to apply to all human beings ‘“‘ir-

respective of age, health, function or condition of

dependency, including unborn offspring at every

stage of their biological development;”’ permits

states to adopt laws necessary to preserve the

woman’s life; grants Congress and the states the

power to enforce the amendment.

Michigan:

Womack v. Buchhorn, 384 Mich. 718, 725, 187

N.W.2d 218, 222 (1971) (recognizing cause of action for

prenatal injuries and rejecting viability requirement

because ‘‘a child has a legal right to begin life with a sound

mind and body’”’)

O’Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785

(1971) (recognizing cause of action for wrongful death of a

viable stillborn child)

Larkin v. Cahalan, 389 Mich. 533, 540, 208 N.W.2d

176, 179 (1973) (construing state abortion law) (‘‘statutes

proscribing manslaughter by abortion are designed to pro-

tect human life and carry the necessary implication that

A-45

that life, the destruction of which is punishable as

manslaughter, is human life’’)

Minnesota:

Minn. Stat. Ann., §§609.266, 609.2661 through

609.2665, 609.267, 609.2671, 609.2672, 609.268 (1987 &

1992 Supp.) (amending criminal code to include a broad

range of crimes, including homicide, that can be committed

against an unborn child, regardless of gestational age)

Verkennes v. Corniea, 229 Minn. 365, 369, 38 N.W.2d

838, 840 (1949) (rejecting live birth requirement in

wrongful death action) (quoting with approval federal

district court opinion in Bonbrest v. Kotz, 65 F.Supp. 138,

140 (D. D.C. 1946), where court said ‘‘[f}rom the viewpoint

of the civil law, and the law of property, a child en ventre

sa mere is not only regarded as [a] human being, but as

such from the moment of conception—which it is in fact’’)

Missouri:

Mo. Ann. Stat., §1.205.1(1) (Vernon Supp. 1992)

(preamble to Missouri Abortion Law) (‘‘[t]he life of each

human being begins at conception’’)

Mo. Ann. Stat., $188.015(6) (Vernon Supp. 1992)

(abortion regulations) (defining ‘‘unborn child’”’ as ‘‘the off-

spring of human beings from the moment of conception un-

til birth and at every stage of its biological development’’)

Rodgers v. Danforth, 486 S.W.2d 258, 259 (Mo. 1972)

(construing criminal abortion law) (accepting stipulation

that “‘unborn children have all the qualities and attributes

of adult human persons differing only in age or maturity”’

and that “[mledically, life is a continuum from conception

to death’’)

A-46

Steggall v. Morris, 363 Mo. 1224, 1229-33, 258

S.W.2d 577, 579-81 (1953) (rejecting viability requirement

in cause of action for prenatal injuries)

Missouri Constitutional Convention Call (Res. of

Apr. 24, 1975, S. Con. Res. 7):

Requests Congress to call a convention to pro-

pose a constitutional amendment extending the

term ‘‘person’”’ in the Fifth and Fourteenth

amendments to apply to ali human beings “‘ir-

respective of age, health, furction, or condition of

dependency, including unborn offspring at every

stage of their biological development;’’ permits

states to adopt laws necessary to preserve the

woman’s life; grants Congress and the states the

power to enforce the amendment.

Montana:

Mont. Code Ann., §50-20-102 (1991) (statement of

legislative purpose and intent—abortion regulations):

The legislature reaffirms the tradition of the state

of Montana to protect every human life, whether

unborn or aged, healthy or sick. In keeping with

this tradition and in the spirit of our constitution,

we reaffirm the intent to extent the protection of

the laws of Montana in favor of all human life.

Mont. Code Ann., §41-1-103 (1991) (‘‘{a] child conceiv-

ed but not yet born is to be deemed an existing person, so

far as may be necessary for its interests in the event of its

subsequent birth’’)

A-47

Nebraska:

Neb. Rev. Stat., §28-325 (1989) (legislative findings

in statutes regulating abortion) (legislators ‘‘deplore the

destruction of the unborn human lives which has and will

occur. . .as a consequence of the United States Supreme

Court’s decision,” and lament their inability “‘to protect

the life, health, and welfare of pregnant women and unborn

human life’’)

Hans v. State, 147 Neb. 67, 72, 22 N.W.2d 385, 389,

on rehearing, 147 Neb. 73, 25 N.W.2d 35 (1946) (statute

defining offense of ‘‘foeticide’’ meant ‘‘the unlawful

destruction of an unborn child, in ventre sa mere, at any

stage of gestation’’)

Nebraska Constitutional Convention Call (Res. of

Apr. 21, 1978, Legis. Res. 152):

Legislature . . . petition[s] ... Congress . . . to call

a convention for the sole purpose of proposing the

following article as an amendment to the Con-

stitution of the United States... .

ARTICLE

Section 1. With respect to the right to life,

the word person as used in this article and in the

Fifth and Fourteenth Articles of Amendment to

this Constitution applies to all human beings ir-

respective of age, health, function, or condition of

dependency, including their unborn offspring at

every stage of their biological development.

Section 2. No unborn child shall be deprived

of life by any person, provided, however, that

nothing in this article shall prohibit a law permit-

A-48

ting only those medical procedures required to

prevent the death of the mother.

Section 3. The Congress and the several

states shall have the power to enforce this article

by appropriate legislation.

Nevada:

White v. Yup, 85 Nev. 527, 536-37, 458 P.2d 617, 623

(1969) (recognizing cause of action for prenatal injuries and

for the wrongful death of a viable, stillborn child) (proposi-

tion that ‘“‘[aJn unborn child is a part of its mother until

birth and thus has no juridical existence’’ ‘“‘has no scientific

or medical basis in fact’’)

Nevada Constitutional Convention Call (S.J. Res. 27,

60th Legis.. 1979 Nev. Stat. 2014):

[Ljegislature requests .. . Congress... to call a

convention limited to proposing an amendment to

the Constitution . . . to protect human life by

restricting abortion [subject to exceptions in

cases where the pregnancy results from rape or in-

cest and where continuation of the pregnancy

would seriously endanger the life of the mother].

New Hampshire:

Bennett v. Hymers, 101 N.H. 483, 485, 147 A.2d 108,

110 (1958) (rejecting viability requirement in cause of ac-

tion for prenatal injuries) (‘“‘[w]e adopt the opinion that the

fetus from the time of conception become a separate

organism and remains so throughout its life’)

Wallace v. Wallace, 120 N.H. 675, 679, 421 A.2d 134,

136 (1980) (wrongful death action) (‘‘[tlo deny a nonviable

A-49

fetus a [wrongful death] cause of action is not to deny that

life begins with conception’’)

N.H. Rev. Stat. Ann., §§631:1, 631:2 (1991 Supp.)

(amending criminal assault statutes to include physical in-

juries to pregnant woman resulting in miscarriage or

stillbirth)

New Jersey:

Smith v. Brennan, 31 N.J. 353, 362, 157 A.2d 497,

502 (1960) (rejecting viability requirement in cause of ac-

tion for prenatal injuries) (‘‘[m]Jedical authorities have long

recognized that a child is in existence from the moment of

conception, and not merely a part of its mother’s body’’):

We see no reason for denying recovery for

a prenatal injury because it occurred before the

infant was capable of independent existence. In

the first place, age is not the sole measure of

determining in a borderline case whether or not a

fetus was viable at the time of the injury, unless

it was immediately born. Therefore, the viability

rule is impossible of practical application. . . . In

addition, . . . medical authority recognizes that an

unborn child is a distinct biological entity from

the time of conception, and many branches of the

law afford the unborn child protection

throughout the period of gestation. The most im-

portant consideration, however, is that the

viability distinction has no relevance to the in-

justice of denying recovery for harm which can be

proved to have resulted from the wrongful act of

another. Whether viable or not at the time of the

injury, the child sustains the same harm after

birth, and therefore, should be given the same op-

portunity for redress.

A-50

Id. at 367, 157 A.2d at 504.

In Smith v. Brennan, the New Jersey Supreme Court

quoted with approval Chief Justice Brogan’s dissent in

Stemmer v. Kline, 128 N.J.L. 455, 466, 26 A.2d 489, 687

(1942):

While it is a fact that there is a close dependence

by the unborn child on the organism of the

mother, it is not disputed to-day that the mother

and the child are two separate and distinct en-

tities; that the unborn child has its own system of

circulation of the blood separate and apart from

the mother; that there is no communication be-

tween the two circulation systems; that the heart

beat of the child is not in tune with that of the

mother but is more rapid; that there is no

dependence by the child on the mother except for

sustenance. It might be remarked here that even

after birth the child depends for sustenance upon

the mother or upon a third party. It is not the fact

that an unborn child is part of the mother, but

that rather in the unborn state it lived with the

mother, we might say, and from conception on

developed its own distinct, separate personality.

Giardina v. Bennett, 111 N.J. 412, 545 A.2d 139

(1988) (granting to parents a common law cause of action

where a physician negligently causes the pre-birth death of

an infant)

State v. Gedicke, 43 N.J.L. 86, 89-90 (1881) (inter-

preting state abortion law) (state abortion law amended ‘‘to

protect the life of the child also, and inflict the same

punishment, in case of its death, as if the mother should

die’)

New Jersey Constitutional Convention Call (Act of

Apr. 21, 1977, S. 1271):

A-51

Requests Congress to call a convention to pro-

pose a constitutional amendment which would

provide that every human being subject to the

jurisdiction of the United States or any state

shall be deemed from the moment of fertilization

to be a person and entitled to the right to life; pro-

vides that Congress and the states shall have con-

current powers to enforce such an amendment.

New Mexico

State v. Willis, 98 N.M. 771, 782, 652 P.2d 1222,

1223 (Ct. App. 1982) (holding that vehicular homicide

statute did not apply to the death of an unborn viable fetus

but recognizing that “‘this State and every other State has

an interest in protecting the life of an unborn child’’) (result

changed by statute)

N.M. Stat. Ann. §§30-3-7, 66-8-101.1 (1991) (defining

new criminal offenses of “injury to pregnant woman”’ and

“injury to pregnant woman by vehicle”’ resulting in miscar-

riage or stillbirth at any stage of gestational development)

New York:

Byrn v. City Hosp. Ass’n of New York City, 31

N.Y.2d 194, 199, 335 N.Y.S.2d 390, 392, 286 N.E.2d 887,

888 (1972) (rejecting constitutional challenge to pre-Roe

abortion law which allowed abortion on demand through

the twenty-fourth week of gestation):

It is not effectively contradicted, if it is con-

tradicted at all, that modern biological disciplines

accept that upon conception a fetus has an in-

dependent genetic ‘‘package’”’ with potential to

become a full-fledged human being and that it has

an autonomy of development and character

although it is for the period of gestation de-

pendent upon the mother. It is human, if only

because it may not be characterized as not

human, and it is unquestionably alive.

Kelly v. Gregory, 282 A.D. 542, 543-44, 125 N.Y.S.2d

A-52

696, 697 (1953) (rejecting viability requirement in cause of

action for prenatal injuries) (“legal separability should

begin where there is biological separability’’ and

“separability begins at conception’’):

The mother’s biological contribution from concep-

tion on is nourishment and protection; but the

foetus has become a separate organism and re-

mains so throughout its life. That it may not live

if its protection and nourishment are cut off

earlier than the viable stage of its development is

not to destroy its separability; it is rather to

describe conditions under which life will not con-

tinue. Succeeding conditions exist, of course, that

have that result at every stage of its life, post-

natal as well as pre-natal.

Id. at 544, 125 N.Y.S.2d at 697.

North Carolina:

DiDonato v. Wortman, 320 N.C. 423, 435, 358 S.E.2d

489, 496 (1987) (recognizing cause of action for wrongful

death of a viable unborn child) (‘‘[t}he public policy of this

state as expressed by the legislature in our statutes

recognizes that an unborn child is a person’’) (Martin, J.,

concurring in part and dissenting in part)

Corkey v. Edwards, 322 F. Supp. 1248, 1252

(W.D.N.C. 1971), vacated and remanded (construing

criminal abortion statute):

Apart, the sperm and the unfertilized egg will die;

neither has the capacity to grow and develop in-

dependently as does the fertilized egg. During fer-

tilization, sperm and egg pool their nucleii and

chromosomes. Biologically, a living organism

belonging to the species homo sapiens is created

out of this organization. Genetically, the adult

man was from such a beginning all that he essen-

tially has become in every cell and human

attribute.

North Dakota:

N.D. Cen. Code, §§12.1-17.1-02 through 12.1-17.1-06

(Supp. 1991) (amending criminal code to define broad range

of crimes, including homicide, that can be committed

against unborn child, regardless of gestational age)

Hopkins v. McBane, 359 N.W.2d 862, 865 (rejecting

viability requirement in cause of action for prenatal in-

juries and live birth requirement in wrongful death actions)

(“it is commonly understood that an unborn child is a

human being or person which has life and which, even prior

to the process of birth, can experience death’’)

statute providing that ‘‘[a] child conceived but not

born is to be deemed an existing person so far as may be

necessary for its interests in the event of its subsequent

birth’’ was intended “‘to ensure and to protect the interests

of a child subsequent to its conception but prior to its

birth’), id. 359 N.W. 2d at 864

Ohio:

Steinberg v. Brown, 321 F. Supp. 741, 746 (N.D. Ohio

1970) (construing criminal abortion law) (holding that

human life is entitled to federal constitutional protection

from conception) (‘‘a new life comes into being with the

union of human egg and sperm cells’’ and ‘‘such terms as

‘quick’ or ‘viable’, which are frequently encountered in

legal discussion, are scientifically imprecise and without

recognized meaning’’)

Williams v. Marion Rapid Transit, 152 Ohio St. 114,

128-29, 39 Ohio Ops. 433, 439-40, 87 N.E.2d 334, 340 (1949)

(recognizing cause of action for prenatal injuries):

A-54

To hold that the plaintiff in this case [a viable un-

born child] did not suffer an injury in her person

would require this court to announce that as a

matter of law the infant is part of the mother un-

til birth and has no existence in law until that

time. In our view such a ruling would deprive the

infant of the right [to a remedy] conferred by the

[Ohio] Constitution upon all persons, by the ap-

plication of a time worn fiction not founded on

fact and within common knowledge untrue and

unjustified.

The court also quoted with approval Prosser on

Torts (3d ed.) wherein Professor Prosser stated, ‘‘So far as

duty is concerned, if existence at the time [of injury] is

necessary, medical authority has recognized long since that

the child is in existence from the moment of conception,

and that for many purposes its existence is recognized by

the law.”’ Id. at 127, 39 Ohio Ops. at 439, 87 N.E.2d at 339.

Oklahoma:

Okla. Stat. Ann., tit. 63, §1-730(2) (1984) (abortion

regulations) (defining ‘‘unborn child’”’ as ‘“‘the unborn off-

spring of human beings from the moment of conception,

through pregnancy, and until live birth... .’’)

Evans v. Olson, 550 P.2d 924, 925 (1976) (rejecting

viability requirement in cause of action for prenatal in-

juries and live birth requirement in wrongful death actions)

(‘‘there is no medical or scientific basis’’ for the proposition

that ‘‘[aJn unborn child has no juridical existence apart

from its mother’’)

Oregon:

State v. Ausplund, 86 Or. 121, 131-32, 167 P. 1019,

A-55

1022-23 (1917) (construing criminal abortion law):

The statute refers to “‘any woman pregnant with

a child’ without reference to the stage of

pregnancy. When a virile spermatozoon unites

with a fertile ovum in the uterus, conception is ac-

complished. Pregnancy at once ensues, and under

normal circumstances continues until parturition.

During all this time the woman is “‘pregnant with

a child’”’ within the meaning of the statute. She

cannot be pregnant with anything else than a

child. From the moment of conception a new life

has begun, and is protected by the enactment.

The product of conception during its entire course

is imbued with life, and is capable of being

destroyed as contemplated by the law. By such

destruction the death of a child is produced and

often that of its mother as well.

Mallison v. Pomeroy, 205 Or. 690, 696-97, 291 P.2d

225, 228 (1955) (recognizing cause of action for prenatal in-

juries) (‘‘[im Oregon we have recognized by statute the

separate entity of an unborn child by protecting him in his

property rights and against criminal conduct, and we can

see no logical reason why a viable child should not be pro-

tected for injuries sustained through the tortious acts of

another’’)

Libbee v. Permanente Clinic, 268 Or. 258, 518 P.2d

636, 520 P.2d 361 (1974) (recognizing cause of action for the

wrongful death of a viable stillborn child)

Pennsylvania:

Pa. Cons. Stat. Ann., tit. 18, §3203 (Purdon’s 1992

Supp.) (abortion regulations) (defining ‘‘unborn child’’ and

“‘fetus’’ as ‘‘an individual organism of the species homo sa-

piens from fertilization until live birth’’)

A-56

Amadio v. Levin, 509 Pa. 199, 204, 501 A.2d 1085,

1087 (1985) (rejecting live birth requirement in wrongful

death actions) (“‘a child en ventre sa mere is a separate in-

dividual from the moment of conception’’)

Sinkler v. Kneale, 401 Pa. 267, 273, 164 A.2d 93, 96

(1960) (rejecting viability requirement in cause of action for

prenatal injuries) (viability ‘‘has little to do with the basic

right to recover, when the foetus is regarded as having ex-

istence as a separate creature from the moment of

conception’’)

Pennsylvania Constitutional Convention Call (H.R.

71, 1978 Gen. Assembly, 1978 Pa. Laws 1431):

[A]pplication to the Congress . . . to call a conven-

tion for drafting and proposing an amendment to

the Constitution . . . to guarantee the right to life

to the unborn fetus by doing the following:

(a) With respect to the right to life

guaranteed in the United States Constitution,

provide that every human being subject to the

jurisdiction of the United States or any state

shall be deemed from the moment of fertilization

to be a person and entitled to the right to life.

(b) Provide that Congress and the several

states shall have concurrent powers to enforce

such an amendment by appropriate legislation.

* * *

(d) Nothing in this article shall prohibit a law

permitting only those medical procedures re-

quired to prevent the death of the mother.

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Rhode Island:

R.I. Gen. Laws, §11-3-4 (1981) (1973 R.I. Pub. Laws

68-70, ch. 15, §2) (criminal abortion statute):

It shall be conclusively presumed in any action

concerning the construction, application or validi-

ty of sec. 11-3-1 [prohibiting abortion] that human

life commences at the instant of conception and

: that said human life at said instant of conception

is a person within the language and meaning of

the fourteenth amendment of the Constitution . .

—

Sylvia v. Gobeille, 101 R.I. 76, 79, 220 A.2d 222,

223-24 (1966) (rejecting viability requirement in cause of ac-

tion for prenatal injuries) (noting ‘‘the medical fact that a

fetus becomes a living human being from the moment of

conception’”’ and rejecting viability as a ‘decisive

criterion’’ because “‘there is no sound reason for drawing a

line at the precise moment of the fetal development when

the child attains the capability of an independent

existence’’)

Presley v. Newport Hospital, 117 R.I. 177, 183, 365

A.2d 748, 751 (1976) (rejecting live birth requirement in

wrongful death of a viable unborn child) (citing with ap-

proval the civil law proposition that ‘‘from the moment of

conception a separate organism comes into existence’’ and

the medical proposition that ‘‘an ovum, once it is fertilized,

is a separate living entity’’):

[V]iability is a concept bearing no relation to the

attempts of the law to provide remedies for civil

wrongs. If we profess allegiance to reason, it

would be seditious to adopt so arbitrary and

uncertain a concept as viability as a dividing line

A-58

between those persons who shall enjoy the protec-

tion of our remedial laws and those who shall

become, for most intents and purposes, nonen-

tities. If it seems that if live birth is to be

characterized, as is so frequently has been, as an

arbitrary line of demarcation, then viability,

when enlisted to serve that same purpose, is a

veritable non sequitur.

Id. at 188, 365 A.2d at 753-54 (dicta in plurality opinion).

Rhode Island Constitutional Convention Call (Act. of

Apr. 21, 1977, H.R. 5150):

Requests Congress to call a convention to pro-

pose a constitutional amendment which would

provide that every human being subject to the

jurisdiction of the United States or any state

shall be deemed from the moment of fertilization

to be a person and entitled to the right to life; pro-

vides that Congress and the states shall have con-

current power to enforce such an amendment.

South Dakota:

State v. Munson, 86 S.D. 663, 669, 201 N.W.2d 123,

126 (1972), vacated and remanded, 410 U.S. 950 (1973) (con-

struing criminal abortion law) (citing with approval holding

in Steinberg v. Brown, 321 F. Supp. 7431 (D. Ohio 1970),

that human life is entitled to federal constitutional protec-

tion from conception)

S.D. Codified Laws Ann., §21-5-1 (1987) (amending

wrongful death statute to include ‘‘an unborn child’’

without regard to gestational age)

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S.D. Codified Laws Ann., §22-17-6 (1988) (‘‘[aJny per-

son who intentionally kills a human fetus by causing an in-

jury to its mother is guilty of a Class 4 felony’’)

S.D. Codified Laws Ann., §26-1-2 (1992) (‘‘{a] child

conceived, but not born, is to be deemed an existing person

so far as may be necessary for its interests in the event of

its subsequent birth’’)

Tennessee:

Hogan v. McDaniel, 204 Tenn. 235, 243, 319 S.W.2d

221, 224 (1958) (rejecting cause of action for wrongful death

of viable unborn child but recognizing ‘‘the biological fact

that life begins at the moment of conception’’) (result over-

turned by statute, Tenn. Code Ann., §20-5-106(b) (1991).

Texas:

Thompson v. State, 493 S.W.2d 913, 918 (Tex. Crim.

App. 1971) vacated and remanded, 410 U.S. 950 (1973) (con-

struing criminal abortion law):

The State of Texas is committed to preserving

the lives of its citizens so that no citizen ‘’shall be

deprived of life . .. except by the due course of the

law of the land.”’ [Citation omitted]. [The Texas

abortion law] is designed to protect fetal life . . .

and this justifies prohibiting termination of the

life of the fetus or embryo except for the purpose

of saving the life of the mother.

Leal v. C.C. Pitts Sand and Gravel, Inc., 419 S.W.2d

820, 822 (Tex. 1967) (recognizing cause of action for

wrongful death for prenatal injuries where death occurs

after live birth), rev’g 413 S.W.2d 825 (Tex. Civ. App. 1967)

A-60

(denying cause of action) and app’g dissenting opinion of

Justice Cadena, 413 S.W.2d at 828 (‘‘medical science. . .

consider[s] that life begins at conception”), id. at 829

(‘legalistic concept that the unborn child is but a part of its

mother” is ‘“‘contrary to scientific fact and common sense’’)

Witty v. Am. Gen. Capital Dist., Inc., 727 S.W.2d

503, 505 (Tex. 1987) (denying cause of action for wrongful

death of viable child who was stillborn but recognizing “‘the

fetus as having an existence separate from its mother’’)

Yandell v. Delgago, 468 S.W.2d 475 (Tex. Civ. App.

1971) (rejecting viability requirement in cause of action for

prenatal injuries), writ ref’d n.r.e. per curiam, 471 S.W.2d

569 (Tex. 1971)

Utah:

Utah Code Ann., §76-7-301.1(1) (1992) (preamble to

Utah abortion law):

It is the finding and policy of the Legislature,

reflecting and reasserting the provisions of Arti-

cle I, Sections 1 and 7, Utak Constitution, which

recognize that life founded on inherent and in-

alienable rights is entitled to protection of law

and due process; and that unborn children have

inherent and inalienable rights that are entitled

to protection by the state of Utah pursuant to the

provisions of the Utah Constitution.

§76-7-301.1(2):

The State of Utah has a compelling interest in the

protection of the lives of its unborn children.

§76-7-301.1(3):

A-61

It is the intent of the Legislature to protect and

guarantee to unborn children their inherent and

inalienable right to life as required by Article I,

Sections 1 and 7, Utah Constitution.

Utah Code Ann., §76-5-201(1) (1992 Supp.) (defining

offense of criminal homicide as causing ‘‘the death of

another human being, including an unborn child’’)

Utah Constitutional Convention Call (H.R.J. Res. 28,

42nd Legis., Reg. Sess., 1977 Utah Laws 1317, 1318):

Requests Congress to call a convention for the

purpose of drafting and submitting for ratifica-

tion by the states, an amendment to the Constitu-

tion that will guarantee to every human life, from

the moment of fertilization throughout its natural

existence, in every state, territory, and posses-

sion of the United States, the full protection of all

laws respecting life, excepting an unborn child

whose mother’s life would otherwise be lost.

Virginia:

Kalafut v. Gruver, 239 Va. 278, 283-84, 389 S.E.2d

681, 683-84 (1990) (rejecting viability rule in cause of action

for prenatal injuries or for wrongful death following live

birth) (noting ‘‘developments in medical science, especially

in the field of embryology,” court held that ‘‘an action may

be maintained for recovery of damages for any injury oc-

curring after conception, provided the tortious conduct and

the proximate cause of the harm can be established’’)

Wisconsin:

Wis. Stat. Ann., §940.04(6) (West 1982) (criminal

A-62

abortion statute defining ‘‘unborn child”’ as ‘‘a human be-

ing from the time of conception until it is born alive’’)

Puhl v. Milwaukee Auto Ins. Co., 8 Wis.2d 343, 356,

99 N.W.2d 163, 170 (1959) (rejecting viability requirement

in cause of action for prenatal injuries):

The viability theory has been challenged as

unrealistic in that it draws an arbitrary line be-

tween viability and non-viability and fails to

recognize the biological fact that there is a living

human being before viability. A child is no more

a part of its mother before it becomes viable than

it is after viability. It would be more accurate to

say that the fetus from conception lives within its

mother rather than as a part of her. The claim of

a child injured before viability is just as

meritorious as that of a child injured during the

viable stage.

Kwaterski v. State Farm Mut. Auto. Ins. Co., 34

Wis.2d 14, 21, 148 N.W.2d 107, 111 (1966) (rejecting born

alive requirement in wrongful death actions) (assertion that

‘‘{a] child has no juridical existence apart from its mother’”’

has “‘no scientific or medical basis in fact’’)

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APPENDIX G

States That Treat The Killing of an

Unborn Child as Homicide

Nine States define (by statute) the killing of an unborn

child as a form of homicide, regardless of the stage of

pregnancy:

Arizonia: Ariz. Rev. Stat. §13-1103(A)(5) (West

1989) (man

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