Amicus Curiae Brief — J. M. v. V. C.

Supreme Court brief1993

Ask Donna

What actually matters in this document.

Text

y aupreme Court, U.S,

i

92-19 84 FILED

No. 92- JUN 1 1993

Supreme Court of the United States

OCTOBER TERM, 1992

—_—_

J.M., INDIVIDUALLY,

Petitioner,

- against -

V.C., wom.

Respondent.

BRIEF IN SUPPORT OF PETITION FOR CERTIORARI TO

SUPREME COURT OF NEW JERSEY

AND MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF

CONCERNED WOMEN FOR AMERICA; ABORTION'S AFTERMATH; AMERICAN RIGHTS

COALITION, INC.; CATHOLIC WOMEN'S LEAGUE OF NEW ZEALAND INCORPORATED, FEMCARE,

FEMINISTS FOR LIFE OF AMERICA; INSTITUTE FOR PREGNANCY LOSS, INTERNATIONAL BLACK

WOMEN'S NETWORK; NATIONAL COUNCIL OF CATHOLIC WOMEN; NATIONAL OFFICE OF

POST-ABORTION RECONCILIATION AND HEALING; OPEN ARMS; PREGNANCY COUNSELLING

SERVICES INCORPORATED; PROFESSIONAL WOMEN'S NETWORK; VICTIMS OF ABORTION NEW

ZEALAND INCORPORATED; VICTIM'S OF CHOICE: WOMEN AFFIRMING LIFE, WOMEN EXPLOITED

BY ABORTION; WOMEN FOR FAITH AND FAMILY; WOMEN FOR LIFE; WOMEN FOR WOMEN,

ACCION FAMILIAR; ALLIANCE FOR LIFE; AMERICAN CENTER FOR LAW AND JUSTICE; AMERI-

CAN FAMILY ASSOCIATION, INC.; APOSTOLATUS UNITE; CENTRO DE INVESTIGACION Y

DOCENCIA; CHRISTIAN ADVOCATES SERVING EVANGELISM; COALITIONS FOR AMERICA;

DELAWARE LAWYERS FOR LIFE; DELAWARE RIGHT TO LIFE; FAMILY AND YOUTH CONCERN:

FAMILY OF THE AMERICAS; FAMILY PROTECTION LOBBY; FREE SPEECH ADVOCATES,

FACULTAD DE MEDICINA; HUMAN LIFE FOUNDATION OF NEW ZEALAND; HUMAN LIFE

INTERNATIONAL; INSTITUTO DE CIENCIAS FAMILIARES; KNIGHTS OF THE SOUTHERN CROSS;

MARCH FOR LIFE; MARCH FOR LIFE EDUCATION AND DEFENSE FUND; NATIONAL INSTITUTE

OF FAMILY AND LIFE ADVOCATES; NEW ZEALAND SOCIETY FOR THE PROTECTION OF THE

UNBORN CHILD INCORPORATED; PRO-LIFE ACTION LEAGUE, RIGHT TO LIFE LEAGUE OF

SOUTHERN CALIFORNIA; ROCKLAND COUNTY CATHOLIC COALITION; SCOTTISH

ASSOCIATION FOR NATURAL FAMILY PLANNING; SERVICE AND RESEARCH FOUNDATION OF

ASIA ON FAMILY AND CULTURE; SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN,

SOCIETY OF ST. VINCENT DE PAUL IN NEW ZEALAND; AND WORLD ORGANIZATION FOR THE

FAMILY AS AMICI CURIAE IN SUPPORT OF PETITION

Calum B. Anderson, Esq. COONEY, SCULLY AND DOWLING

Counsel of Record Hartford Square North

(203) 527-1141 Ten Columbus Boulevard

Hartford, Connecticut 06106

Attorneys for Amici Curiae

BEST AVAILABLE COPY

MOTION FOR LEAVE TO Fi | RIAE BRIEF

The amicus curiae, Concerned Women for America:

Abortion’s Aftermath; American Rights Coalition, Inc.; Catholic

Women’s League of New Zealand Incorporated; FemCARE:

Feminists for Life of America; Institute for Pregnancy Lost;

International Black Women’s Network; National Council of Catholic

Women; National Office of Post-Abortion Reconciliation and

Healing; Open ARMS; Pregnancy Counselling Services

Incorporated; Professional Women’s Network; Victims of Abortion

New Zealand Incorporated; Victims of Choice; Women Affirming

Life; Women Exploited by Abortion; Women for Faith and Family;

Women for Life; Women for Women; Accion Familiar: Alliance for

Life; American Center for Law and Justice; American Family

Association, Inc.; Apostolatus Unite; Centro de Investigacion Y

Docencia; Christian Advocates Serving Evangelism; Coalitions for

America; Delaware Lawyers for Life; Delaware Right to Life; Family

and Youth Concern; Family of the Americas; Family Protection

Lobby; Free Speech Advocates; Facultad de Medicina; Human Life

Foundation of New Zealand; Human Life International: Instituto De

Ciencias Familiares; Knights of the Southern Cross; March for Life;

March for Life Education and Defense Fund; National Institute of

Family and Life Advocates; New Zealand Society for the Protection

of the Unborn Child Incorporated; Pro-Life Action League; Right to

Life League of Southern California; Rockland County Catholic

Coalition; Scottish Assocation for Natural Family Planning; Service

and Research Foundation of Asia on Family and Culture; Society

for the Protection of Unborn Children; Society of St. Vincent de

Paul in New Zealand; and World Organization for the Family hereby

move the court for leave to file an amici curiae brief in support of

the petitioner, J.M. Counsel for petitioner consents to the filing of

the brief, but Amici did not obtain consent of the respondent,

V.C.’s attorney.

———————E

TA N T

MOTION FOR LEAVE TO FILE AMICUS CURIAE BOWE 5 cw e i

TABLE OF AUTHORITIES ......................... iv

| WOUENESTS OF AMMCE oo inc cc cacccccey 1

SUMMARY OF ARGUMENT ...................... 24

EE Vee ees ee Ue vs oh ee eau a dsc. tl 26

. THE CENTRAL QUESTION PRESENTED IN THIS

CASE HAS NEVER BEEN RESOLVED BY THIS

COURT, AND IS THEREFORE BEFORE THIS COURT

ASA l REMEN

OF STARE DECISIS FOR OVERRULING ROE V.

WADE ARE COMPLETELY SATISFIED BY THE

FACTS OF LD

GRANT THE WRIT TO DECIDE THE CHILD'S

PEE Eee 26

A. THE QUESTION OF WHEN THE LIFE OF A CHILD BEGINS

WAS NOT DECIDED BY ROE AND IT IS THEREFORE THE

DUTY OF THIS COURT TO RESOLVE THE QUESTION. IT

WAS THE PROMISE OF ROE THAT A SUBSEQUENT

COURT WOULD DECIDE THIS ISSUE WHEN "MAN’S

KNOWLEDGE" WAS SUFFICIENT. ............. 27

B. EVEN IF PRINCIPLES OF STARE DECISIS WERE

APPLICABLE TO THIS CASE, BECAUSE OF NEW FACTS

AND NEW APPRECIATION OF OLD ONES, STARE DECIS/S

DOES NOT PRECLUDE THE COURT FINDING THAT THE

CHILD HAS CONSTITUTIONAL RIGHTS PRIOR TO

serge PRET Te ne 29

1. New Facts and New Appreciation of Old Ones... 30

2. Whether Aoe is in Conflict with Prior

Precedent at Odds with Personal Liberties

Depends Upon Whether the Child is a Human

re ere er 33

2. Given the Fact that the Child is a Human

Being, the Principles of Reliance (and

Workability) Has no Application. ......... 38

ee wR 6 rrr rer ee 41

T Ti

Akron v. Akron Center for Reproductive Health, 462 U.S. 416

EE eee 26

Baker v. Carr, 369 U.S. 186 (1962) .............. 28, 37

Berman v. Allan, 404 A.2d 8 (1979) ................ 35

Bolling v. Sharpe, 347 U.S. 497 (1954) .............. 39

Brown v. Bd. of Ed. of Topeka, 347 U.S., 483 (1954) .. 39-41

Burnet v. Coronado Oil and Gas Co., 285 U.S. 393 ... 31, 32

Califano v. Goldfarb, 430 U.S. 199 (1977) ............ 37

Colegrove v. Barrett, 330 U.S. 804 (1946) ............ 32

Colgrove v. Green, 328 U.S. 547 (1946) ............. 32

Craig v. Boren, 429 U.S. 190 (1976) ............. 37-38

Gleitman v. Cosgrove, 227 A.2d 689 (1967) .......... 34

Hummel v. Reiss, 608 A.2d 1341 (1992) ............. 34

Mapp v. Ohio, 367 U.S. 643 (1961) ............. 32, a0

New Jersey v. Novak, 121 A.2d 5 21 (1956) .......... 34

New Jersey v. Sicilano, 117 A.2d 490 (1956) ......... 34

Penna.-Reading, S.S. Lines v. Bd. of Pub. Utility Commrs., 74 A.2d

ee RES bn ccc t ba ev cenccscas 28

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505

OE Fe Re ye > passim

Vv

Procanik v. Cillo, 478 A.2d 755 (1984) .............. 35

Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, 201

Pie ee ROUND 4b ss ey wees a Oe een hee es 33, 34

Reynolds v. Sims, 377 U.S. 533 (1964) .............. 37

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

Shapiro v. Thompson, 394 U.S. 618 (1969) ........... 37

Smith v. Brennan, 157 A.2d 497 (1960) .......... 33, 34

Thornburgh v. A.C.0.G., 476 U.S. 747 (1985) ......... 26

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

ih bias EE rr le ee eee 26

Wolf v. Colorado, 338 U.S. 25 (1949) ............... 32

STATUTES:

sae case crate ee coats lip Ree ER OE TE ER BPEL ED ee Po ld neat 34

Pe OND 4 x'a's a ona A eee eee eee 36

sgh ins Te hak Maen CE COR OO Pee 37

OTHER LEGAL AUTHORITY:

Douglas, William O., Stare Decisis, 49 Colum. L. Rev. 735-743,

POT ORNTOD 006 os a 5654 Ee ee ee 30

THER R

49A Landmark Briefs at490 .................... 39-40

a ae

1

In The

Supreme Court Of The United States

OCTOBER TERM, 1992

No. 92-

| J.M., individually

Petitioner

} v.

V.C., et al.,

Respondents

INTERESTS OF AMICI

CONCERNED WOMEN FOR AMERICA ["“CWA"].

CWA is the largest, nonpartisan, politically active women’s

organization in the United States, representing approximately

600,000 persons, 80% of whom are women. CWA, which was

founded in 1979, maintains offices in Washington, D.C.

CWA has more than 600 chapters located in all 50 states.

It is an organization that is family oriented and is concerned with

preserving an environment in the United States which is conducive

to building strong families and raising healthy children. To achieve

that end, CWA works to preserve, protect and promote the

sanctity of human life among other family issues. CWA women

are active on the local and national levels in building strong families

and raising healthy children.

CWA believes abortion denigrates women in general and

demeans the legitimate and essential role of women as mothers;

it contributes to the overall denigration of the dignity of life and

has a negative impact upon the human race generally and its

self-worth in particular.

ABORTION’S AFTERMATH ["AA"].

AA was founded in 1989 to provide networking support for

post-abortion women in New Jersey. This Edison-based

organization has ties with over 50 post-abortion support

organizations in New Jersey, which in turn have contact with

about 5,000 women per year.

ee SS esses - =

2

AMERICAN CENTER FOR LAW AND JUSTICE

The American Center for Law and Justice is a national

public interest law firm, chartered to enter the legal arena on

issues of a broad public interest. The American Center has

members in all fifty States. Attorneys from every State of the

Union have affiliated with the American Center, to assit in the

restoration of pro-liberty, pro-life and pro-family values.

On behalf of its members, the American Center calls for an

end to the systematic exploitation and victimization of women by

the abortion industry, and an end to the holocaust of the

destruction of our progeny.

AMERICAN RIGHTS COALITION, INC. ["ARC”"].

ARC was incorporated in Tennessee in 1987. ARC assists

women with the physical and emotional problems resulting from

abortion by referring women to medical, emotional and legal

providers for assistance, including bringing malpractice claims

against those who injure them through abortions.

ARC receives between five and 100 telephone calls per

day. It has compiled data on deaths from legal abortions as

reported in newspapers and as uncovered in lawsuits, indicating

the extent to which the Federal Center for Disease Control

significantly understates the number of deaths attributable to

abortions.

ARC’s main office is located in Chattanooga, Tennessee.

CATHOLIC WOMEN’S LEAGUE OF NEW ZEALAND

INCORPORATED ["CWLNZ"}.

First established in 1931, CWLNZ became a national

corporation in New Zealand in 1949. CWLNZ is based in each of

the six dioceses of New Zealand. At this time, its central office is

in Hamilton.

CWLNZ’s objects are to unite Catholic women in New

Zealand in Christian fellowship in order to enhance the growth of

their spiritual, intellectual, family and social life, and to foster

mission and charitable works and social action, and, in particular,

to provide a means by which the voice of Catholic women in New

Zealand may be heard in national and international affairs. CWLNZ

3

participates in the pastoral life of the church and maintains liaison

with parish, diocesan and national organizations. CWLNZ

maintains affiliation and cooperation with the World Union of

Catholic Women’s Organizations. It maintains affiliations with

other organizations where and in whatever manner the National

Conference agrees is necessary or desirable to further the objects

and policy of the CWLNZ. Finally, CWLNZ encourages

Participation by its members in active roles in ecumenical and

community life.

CWLNZ conducts monthly gatherings of Catholic women,

performs community welfare action, church activities and mission

work for the South Pacific, among other things. It is actively

opposed to abortion and supports the protection and sanctity of

human life from conception until natural death.

CWLNZ has about 5,000 members from throughout New

Zealand.

CHRISTIAN ADVOCATES SERVING EVANGELISM

Christian Advocates Serving Evangelism is a legal defense

organization dedicated to protecting, preserving and defending the

right to proclaim the Gospel of Jesus Christ in public places.

Amicus is particularly concerned by a disturbing tendency

to undermine both cherished First Amendment freedoms and the

fundamental right to life in the name of a judge-created "right" to

abortion.

COALITIONS FOR AMERICA

COA was incorpoated in 1977 and is headquarted in

Washington, D.C.

COA is a grass-roots organizing and lobbying organization

that coordinattes activities amongst about 100 organizations

nationwide in areas related to social issues, defense and foreign

policy, legal and judicial matters, political reform and economic

issues. COA takes a pro-life position on the abortion issue.

COA’s activities include conducting coalition meetings

wherein activities of the many orgnizations with which COA works

are coordinated and acitivities, incluidng lobbying efforts, are

undertaken on their behalf. COA is not a membership organization

and has no members per se.

FEMCARE.

FemCare was founded in 1985 to provide post-abortion

support to women in the greater New York metropolitan area.

FemCare is headquartered in the Bronx, New York.

In addition to counseling individual women, FemCare

provides referrals to other counselors, psychologists and spiritual

directors. FemCare also assists in arranging the training of

professional post-abortion counselors and psychotherapists and

offers resource materials in post-abortion recovery for reference

and distribution.

As a result of its work, FemCare has insight into the

psychological, physical, social and emotional harm that abortion

causes women.

FEMINISTS FOR LiFE OF AMERICA ["FFLA"].

FFLA is a Wisconsin corporation which was formed in 1973

and which actively seeks to continue to promote and expand over

a century of effort by feminists toward achieving the goal of a

society in which women are empowered to make life-affirming

decisions for themselves and their children.

Headquartered in Kansas City, Missouri, FFLA has a total

membership of approximately 5,000 nationwide with 47 affiliated

chapters throughout the continental United States.

FFLA actively opposes societal pressures, direct and

indirect, which would compel, coerce or create pressure upon a

woman to abort her child. FFLA has provided the service of

gathering and disseminating information concerning abortion that

would otherwise not be available to the general public. FFLA,

therefore, represents a separate, distinct and unique viewpoint not

otherwise represented by any other organization either pro-life or

pro-abortion, and in such capacity, is specially situated to

present information that would otherwise not be available on the

abortion issue.

FFLA has concluded that abortion is actually exploitive of

women for many reasons. It is an institution that was created to

extend a "right" to a mother to kill her own child because it is

easier for a male-dominated society to fabricate such a right than

it is to address and correct the underlying problems that perpetuate

the exploitive use of women in a society which fails to extend to

5

women the respect, dignity and commitment that they deserve.

The presumption that the decision to take the life of her own child

belongs only to a mother is a furtherance of the isolation, stigma

and blame that is placed upon women in pregnancies out of

wedlock. It perpetuates and worsens the biased view that the

pregnancy is "her problem", and not that of the father. It is a

grave insult and indignity to women to suggest that a woman’s

place in the professional world and the workplace is conditioned

upon her willingness and ability to kill her own child.

The perspective of FFLA is unique in the context both of

abortion and of women’s rights.

FREE SPEECH ADVOCATES

Free Speech Advocates is a legal defense project that exists

to secure the First Amendment rights to engage in religous

witness, peaceful sidewalk counseing, and protest of or

conscientious objection to the destructionof unborn human life. Fee

Speech Advocates endeavors to assure a proper and competent

defense, due process, and all constitutional rights to those who

take a stand against abortion.

Free Speech Advocates believes that judicial restraint and

fidelity to the Constitution are essential to the presevation of

genuine constitutional rgihts. When activist courts announce novel

“fundamental rights" in a unprincipled manner, established

constitution rights suffer. This is so far a variety reasons: first,

judicially created rights dilute the significance of those rights the

prople have chosen to embody in the Constitution; second,

judicially created righs may actually conflict with or limit existing

rights; third, the illegitimate judicial creation of rights produces an

atmosphere of reactive hostility to claims of constitutional rights,

resulting in an unwillingness of courts to afford proper protection

for genuine constitutional rights.

Thus, judicial invention of a "fundamental right to abortion"

has led to the dilution of free speech and othe rrights, has directly

impaired the right to life and the right of states to enact criminal

and medical regulations, and has triggered an understandable

backlash that threaens to impair judicial solicitude for legitimate

constitutional claims.

Abortion is not a thread in the fabric of liberty or privacy

rights. Rather, abortion is a malignant tumor on the body politic.

6

Free Speech Advocates strongly urges the Court to remove this

cancerous growth before it further consumes the flesh and fiber of

this nation.

INSTITUTE FOR PREGNANCY LOSS ["IFPL"}.

IFPL was founded in 1990 as an independent non-profit

corporation. It is an education, research and treatment center

dedicated to the study of the impact of human pregnancy loss

(miscarriage, stillbirth, induced abortion and adoption). IFPL is

particularly interested in the examination and remediation of

traumatic abortion and adoption experiences, both of which are

volitional in nature.

IFPL has been active in promoting public policies that are

based on objective, relevant and current information regarding

informed consent, adolescent crisis pregnancies, parental and

spousal consultation and abortion and adoption decision-making

and outcomes. IFPL provides information to the public and health

care professionals on the complex nature of stressful pregnancy

loss in general, and the psychological health risks of abortion and

adoption in particular. IFPL conducts workshops and offers

numerous publications, primarily in the area of the psychological

effects of abortion. IFPL also provides intensive treatment for

women and men traumatized by pregnancy loss, particularly in the

area of impacted grief from either an abortion and/or an adoption

experience.

IFPL is currently conducting a major international research

project on the comparative effects of pregnancy losses in different

cultures.

INTERNATIONAL BLACK WOMEN’S NETWORK [“IBWN"].

IBWN was founded in 1990 and has a membership of

approximately 1,000 in the United States.

IBWN is a Christ-centered organization founded to address

the needs of black women, especially in parenting and job

training. The network is specifically interested in strengthening the

family life of the black family and, in this context, IBWN has a

special interest in the issue of abortion and its negative impact

upon the black family in America today.

Le TT

7

LEGAL ACTION FOR WOMEN ["“LAW"}.

LAW was incorporated in Florida in 1988 to assist women

who have been physically injured by abortion in making medical

malpractice claims against clinics and doctors because of such

injuries.

LAW refers women for legal assistance and assembles a

data base of the country’s most notorious abortionists. LAW

operates in all 50 states. It operates two telephone toll-free

hotlines for women physically injured by abortion and receives 20

to 25 phone calls per day.

NATIONAL COUNCIL OF CATHOLIC WOMEN ["NCCW"}.

NCCW is headquartered in Washington, D.C. It was

established in 1920 and federates 8,000 Catholic women’s

organizations in the United States, which includes national

organizations such as Catholic Daughters of the Americas

(150,000 members), Daughter of Isabella (100,000 members) and

Ladies of Charity (35,000 members). In addition, there are 123

diocesan councils who are members of NCCW as well as 6,690

parish organizations.

in total, NCCW represents between 800,000 and

1,000,000 women nationwide.

NCCW’s primary function is to act through affiliated

organizations to educate and empower Catholic women in the

areas of spirituality, leadership and service. NCCW programs

address issues of concern in areas related to church, family,

community and legislation. Questions surrounding abortion and

the taking of the life of a child without justification, are issues with

which NCCW has dealt for many years. NCCW is familiar with

facts and information related to abortion. NCCW has acted as

advocate on behalf of women and children in state and national

legislatures and provides support to women in various

circumstances in their lives.

NATIONAL OFFICE OF POST-ABORTION RECONCILIATION AND

HEALING ["NOPARH").

NOPARH is a Wisconsin corporation, headquartered in

Milwaukee, and was organized in 1990. The purpose of NOPARH

|

oni

is to organize, educate and execute the international conference,

"Healing Visions", which it co-sponsors with Marquette

University. NOPARH also consults on the formation of

church-based post-abortion healing ministries, including "Project

Rachel" which is a post-abortion reconciliation service within the

Catholic Church.

NOPARH operates a national post-abortion referral line and

publishes an international post-abortion support services directory

and provides research and resources on matters of post-abortion |

aftermath and healing. NOPARH provides networking and acts as

a clearing house for clergy and therapists. NOPARH does not have

a membership per se, but does have more than 200 regular

financial

contributors. Supporters of the group are from across the United

States and from all walks and denominations.

OPEN ARMS ["OA"}.

OA is an international Christian ministry that was

incorporated in the State of Washington in 1986. Its national

office is located in Columbia, Missouri and OA has chapters

throughout the United States as well as in other countries.

OA is dedicated to bringing hope and healing to anyone

suffering from abortion’s emotional and spiritual aftermath. OA is

primarily made up of people who have personally experienced the

tragedy of abortion and who have felt its devastating after-effects.

OA representatives carry out their ministry in several ways.

They provide one-on-one confidential counseling through telephone

hotlines and through contacts made while speaking or working

with other pro-life sources. They sponsor monthly support groups

during which participants may share their own personal abortion

experiences in a non-threatening atmosphere. OA representatives

also conduct a Bible study program specifically geared toward

aiding those suffering from an abortion to achieve forgiveness and

healing. OA has trained hundreds of individuals for post-abortion

counseling and has done substantial research on the various harms

caused women by abortion. Finally, OA’s representatives engage

in public speaking to share the message of hope to those hurting

from abortion as well as to educate the church and the public

concerning the negative effects of abortion on individuals and

society.

|

9

PREGNANCY COUNSELLING SERVICES INCORPORATED ["PCSI"].

PCSI is a charitable trust incorporated under the laws of

New Zealand. Its principal office is located in Auckland, New

Zealand and it has 24 branches throughout the country.

PCSI is involved in counseling women distressed by

pregnancy and those suffering from post-abortion stress.

Post-abortion stress stems from the guilt and grief associated with

the knowledge that the woman has killed a child. PCS! reports

that clients frequently report they were deceived at the time of the

abortion into thinking that they were not dealing with another

human life.

PCSI counsels some 5,000 women annually and of this

number, approximately 85% are initially seeking abortions and

15% are suffering from post-abortion stress.

PCSI counsels women that abortion involves the taking of

a human life with the result that approximately two-thirds of those

initially seeking abortion decide to continue their pregnancies.

PROFESSIONAL WOMEN’S NETWORK ["“PWN"}.

PWN represents women from a variety of professional and

business fields who recognize the sanctity of all human life. PWN

members are lawyers, accountants, consultants, teachers, realtors,

professors and systems analysts. It has a membership of between

4,000 and 4,500 which is active in pro-life activities.

PWN is considered to be the voice of pro-life professional

women and it conducts talks, primarily before college level

assemblies, and also on television. PWN conducts a memorial

service for those women who have died as the result of abortion.

VICTIMS OF ABORTION NEW ZEALAND INCORPORATED

["VOA"}.

VOA was founded in 1989 and incorporated in New

Zealand in 1991.

VOA is headquartered in Wellington, New Zealand and has

nine branches each of which are staffed by a coordinator and

counselors.

VOA is a post-abortion counseling organization for victims

of abortion, including women, men, and children of women who

10

have had abortions. VOA’s principal activities are counselling as

well as providing information and submissions to Parliament and

other groups. Those persons served by VOA have all suffered

from the trauma of abortion.

VICTIMS OF CHOICE ["VOC"].

VOC was incorporated about 10 years ago in California. Its

offices remain in Vacaville, California.

VOC seeks to provide education, information and counseling

to women, primarily those suffering from post-abortion syndrome.

VOC’s Executive Director travels throughout the United States to

train counselors who then counsel women and educate the public

on issues arising out of post-abortion syndrome. VOC publishes

a manual and produces articles and pamphlets for a readership of

between 2 and 3,000. VOC’s public education programs include

workshops, conferences and seminars conducted throughout the

world.

VOC also provides speakers who speak on the subjects of

chastity, crisis pregnancy, fetal development, types of abortions,

post-abortion syndrome and abortion recovery. VOC specializes in

producing post-abortion materials and the training of counselors to

assist women who have been harmed by abortion and VOC

counsels those suffering the loss of an aborted family member.

VOC is also aware of the harm caused to others beside the mother

and her aborted child, especially siblings of aborted babies.

VOC provides services to approximately 20 new clients per

month in each of its over 100 centers. Currently, VOC is

expanding at the rate of approximately two new centers per

month.

WOMEN AFFIRMING LIFE ["WAL"].

WAL was founded in 1990 and has its principal office in

Boston, Massachusetts. Its membership of between 700 and

1,000 is drawn from 42 states.

WAL’s purpose is to voice the commitment of Catholic

women in support of women and the dignity of life and

motherhood. WAL’s purpose is to serve as a national

organization of Catholic women committed to upholding the

sanctity of each human life from conception to natural death.

11

WAL seeks to offer a public witness by women in defense of the

unborn and unwanted through personal

commitment, educational efforts, prayer and home and

professional life.

WAL embodies a pro-life women’s perspective on the issue

of abortion.

WOMEN EXPLOITED BY ABORTION ["WEBA"].

WEBA was founded in 1982 in recognition of the fact that

abortion carries with it serious emotional, psychological and

physical consequences for women that were being ignored by

society. During the 1980's it became apparent that many women

felt they had been lied to about abortion and that abortion is not

a safe or simple procedure and that pro-abortionists’ public

statements to that effect had operated to deceive women.

WEBA initially focused on providing support and counseling

for women who have had abortions. By 1985, more than 30,000

women had contacted WEBA seeking help. Today, WEBA has

chapters throughout the United States and in seven foreign

countries. Each day WEBA’s headquarters alone receives 50 to

100 telephone calls and numerous letters per day from women

who are suffering because of abortion.

In addition to providing post-abortion counseling, WEBA

also provides counseling to women in crisis pregnancy situations

who may be considering abortion. WEBA provides information and

educational materials concerning the true nature of abortion and

also practical assistance and final alternatives to abortion. WEBA

also works to educate the public about abortion and its damaging

effects on women. From their own experiences, WEBA counselors

and volunteers understand that the easy availability of abortion

creates pressures on women which effectively negate other

options in dealing with the problem pregnancy.

WOMEN FOR FAITH AND FAMILY ["WFF"].

WFF, which has its main office in St. Louis, Missouri, was

incorporated in 1984. WEF is a Catholic women’s organization

which educates people on issues important to Catholics including

those related to the family and is intended to aid women in their

efforts to continually deepen their understanding of the Catholic

12

faith. WEF is an organization committed to pro-life principles from

conception to natural death. WFF specifically rejects the notion

that abortion, the deliberate killing of unborn children, is the “right”

of any human being, male or female, or of any government.

WFF conducts conferences and produces publications

wherein issues of Catholic faith and in support of family issues are

enunciated. WFF draws its membership from the United States,

United Kingdom, Canada, Australia and Holland. It has

approximately 50,000 affiliated women in the U.S. and

approximately 10,000 internationally.

WOMEN FOR LIFE (N.Z.), INC. ["WEFL"].

WEL is a New Zealand corporation, having been formed in

1978. Its national office is located in Auckland, New Zealand.

WEL defends the rights of the unborn child from conception

and supports the right to life of all persons until natural death.

WEL supports and encourages women in their role as mothers,

recognizing the major contributions made by them in their

child-rearing and home-making roles. We believe a mother should

have the right to be a full-time homemaker and a mother and that

government should take steps to insure that mothers can

economically exercise that right. We want to see the family once

again actively supported and recognized as the cornerstone of

society.

WEL lobbies the government on many issues, from daycare

to homepay for mothers who choose to stay at home to care for

their children. WFL submits material on pornography, the New

Zealand Human Rights Amendment Bill, contraception, sterilization

and the Abortion Amendment Bill. WFL presents. the

chastity-based program, "Learning to Say No, its Your Choice” into

high schools, youth groups and parents groups. WFL speaks on

abortion, homosexuality, daycare and condom failure. WFL is a

Christian organization whose members believe in the sanctity of

life, sound moral principles and family life.

WEL has a membership numbering 2,000, which is drawn

from Auckland, Hamilton, Wellington, Taranaki, Te Awamutu,

Northland, South Island and Palmerstown North in New Zealand.

WOMEN FOR WOMEN ["WFW"}.

13

WFW is a corporation that was formed in Indiana in 1987

to protect and foster respect for the sanctity of human life from

the moment of conception until natural death. WFW upholds the

Virgin Mary as a role model for women. WFW recognizes the

equality of men and women, while acknowledging their differences

SO as to promote the dignity and value of womanhood. In

addition, WFW upholds and propagates the virtue of chastity and

recognizes the true nature and essence of the sexual union and

natural family planning.

WFW is an educational organization that produces a

quarterly newsletter that addresses issues relating to feminism,

church and family issues. WFW has a readership of more than

1,500 and although WFW members are primarily Roman Catholic,

its membership derives from all denominations from 28 states,

Canada, India and the Philippines.

ACCION FAMILIAR ["AF"}.

AF is an unincorporated association that was formed in

1979 in Spain in order to help the family with all aspects of

problems facing the family today, including, in areas related to

legal and moral issues. Its main office is located in Madrid. AF

believes that the family is the root of all health and sickness in

society. AF promotes family values and supports the position that

life cannot be taken by anyone from the moment of conception

until natural death. AF believes in the stability of married couples.

AF disseminates information on family issues in national

political campaigns, and has proposed an amendment to Spain’s

abortion law which served to forestall its effectiveness for one

year. AF’s members appear on television and radio programs, they

lecture to school assemblies, and provide information to national

senators and congressmen and to international congresses on

matters relating to family values.

AF’s membership is approximately 15,000 and is drawn

from throughout the Spanish nation. Spanish citizens are generally

reluctant to be publicly associated with organizations, and

consequently AF’s support in Spain is far broader than that

signified by its membership numbers.

ALLIANCE FOR LIFE ["AFL"].

14

AFL was formed in Canada in 1972. The corporation’s

executive office is located in Winnipeg, Manitoba. Its purposes

include educating Canadians on matters of human development,

human experimentation, reproductive technologies, adoption,

abortion, chastity, euthanasis and similar issues affecting human

life. AFL provides counseling and referral services to the public

with respect to unforeseen pregnancies and post-abortion trauma.

AFL provides educational services and materials for its member

groups to educate Canadians on human development, human

experimentation, reproductive technologies, adoption, abortion,

chastity, euthanasia and similar issues affecting human life. It has

researched and published articles, pamphlets, and newsletters on

issues Surrounding the right to life, principally on abortion matters.

It presents expert speakers on the issue of abortion, hosts

conferences and presents briefs to government and policy-making

organs. AFL has a 24 hour toll-free telephone line to counsel

women facing inconvenient pregnancies and has produced a one

hour television special on unplanned pregnancy and alternatives to

abortion. AFL is a coordinating organization for 250 educational

pro-life groups throughout Canada.

AMERICAN FAMILY ASSOCIATION, INC. ["AFA"].

AFA is a corporation organized in 1977 with offices in

Tupelo, Mississippi. AFA purpose is to be a leader of citizen and

church participation to promote traditional American values and to

apply the biblical ethic in society.

AFA’s local chapters are active in seeking to preserve the

lives of unborn children and the physical and emotional health of

their mothers.

AFA has approximately 600 local citizen chapters

throughout the U.S. which are active in seeking to preserve

community integrity through the implementation of public decency

laws. It has a subscribers list of more than 885,000 individuals

and churches for its monthly newsletter, AFA Journal.

APOSTOLATUS UNITE ["AU"].

AU was organized in 1986 and incorporated in Maryland in

1988. It has its offices in Woodstock, Virginia.

15

AU is a Catholic lay organization which has as its purpose

to bring people to Jesus Christ to experience the Holy Eucharist

through the Holy Mother of the Church, in union with the Holy

Father.

AU organizes Rosary Congresses which consist of one to

seven day prayer gatherings featuring Eucharistic adoration, Marian

devotion and sound church teaching. AU conducts evangelization

projects throughout the United States by bringing apostolates or

organizations together who share the mission for the Holy

Eucharist, Mary and the Church. One of AU’s main prayer efforts

is the World Prayer Movement which is ecumenical and global in

nature. A Global Week of Prayer is conducted annually during the

first week in October during which participants pray and fast to

end abortion. The Global Week of Prayer is conducted in 88

countries and has over 11 million participants.

CENTRO DE INVESTIGACION Y DOCENCIA

Dedicated to the promotion of Natural Family Planning and

Defense of human life.

COALITIONS FOR AMERICA ["COA"}.

COA was incorporated in 1977 and is headquartered in

Washington, D.C.

COA is a grass-roots organizing and lobbying organization

that coordinates activities amongst about 100 organizations

nationwide in areas related to social issues, defense and foreign

policy, legal and judicial matters, political reform and economic

issues. COA takes a pro-life position on the abortion issue.

COA’s activities include conducting coalition meetings

wherein activities of the many organizations with which COA

works are coordinated and activities, including lobbying efforts, are

undertaken on their behalf. COA is not a membership organization

and has no members per se.

DELAWARE LAWYERS FOR LIFE ["DLL"}.

DLL is an unincorporated non-denominational association of

Delaware lawyers which was formed approximately one year ago.

16

DLL has a membership of more than 30 Delaware lawyers.

The organization is involved in the representation and counseling

of primarily single women who are clients of Birthright crisis

pregnancy centers. DLL counsels its clients on the legal aspects

of single parenthood, custody and visitation. In addition, DLL

defends people on First Amendment grounds who are arrested for

demonstrating in opposition to abortion.

DLL’s members respect and defend the sanctity of human

life frorn the moment of conception.

DELAWARE RIGHT TO LIFE ["DRL"].

DRL is a Delaware corporation with headquarters in

Newark, Delaware. The corporation was formed in 1973 in order

to educate people regarding issues of life, abortion and

euthanasia. DRL supports respect for human life from fertilization

until natural death.

DRL’s activities include giving speeches, manning display

boothes in community presentations, and sponsoring a "life chain”

twice per year. DRL sponsors speakers and transportation for the

"March for Life.” DRL has approximately 1,250 dues paying

members, with about twice that number on its newsletter mailing

list.

FACULTAD DE MEDICINA

Dedicated to the promotion of Natural Family Planning and

defense of human life.

FAMILY AND YOUTH CONCERN ["FYC"].

FYC was established in 1971 in the United Kingdom and

currently has a membership of approximately 25,000 people. FYC

is headquartered in Milton Keynes, England and has three branches

in the United Kingdom.

FYC is concerned with, and has acted as a focus for, the

welfare of the family and the issue of abortion which is necessarily

an important part of the overall concern for the family. The issues

of Aids, abortion, child abuse, divorce, illegitimacy, obscenity,

parental responsibility and pedophilia are all of concern to FYC as

manifestations of the underlying social dislocation that has been

17

called the breakdown of the family ecology. FYC’s sponsors

include many prominent persons from the medical profession,

including the former gynecologist to Her Majesty, the Queen.

Among FYC’s activities, are the production and promotion

of educational booklets and videos intended to enhance the value

of the traditional family and the value of human life.

FAMILY OF THE AMERICAS ["FOA"].

FOA was incorporated in 1977 in Missouri. This

organization, whose office is in Dunkirk, Maryland, provides

educational services to women and families on matters of natural

family planning and teaches parents to enable them to remain the

primary educators of their children regarding human sexuality.

FOA provides materials and offers training sessions to

educate teachers from all over the world in matters of natural

family planning. FOA’s educational materials have been translated

into more than 22 languages.

Although FOA does not have a membership per se, those

who work in its programs are drawn from throughout the world.

FAMILY PROTECTION LOBBY ["FPL"].

FPL is an unincorporated association which was formed in

Maryland in 1980. The purpose of FPL is to lobby the state

legislature on behalf of evangelical churches in Maryland and to

represent its membership on Judaeo-Christian issues, including in

support of the position that human life begins at conception.

FPL provides educational information to its 3,000 active members

and to those on its mailing list.

FPL’s membership is drawn from a broad spectrum of

evangelical and other protestant churches, as well as some

Catholic churches.

FREE SPEECH ADVOCATES ["FSA"].

FSA is a legal defense project with an office in Washington,

D.C., that exists to secure the First Amendment right to engage in

religious witness, peaceful sidewalk counseling, and protest of, or

conscientious objection to, the destruction of unborn human life.

FSA endeavors to assure a proper and competent defense, due

18

process and all constitutional rights to those who take a stand

against abortion.

FSA and its legal counsel have specialized in litigation in

both state and federal courts with regard to various First

Amendment issues.

HUMAN LIFE FOUNDATION OF NEW ZEALAND ["HLF"]. (NEW

DESCRIPTION)

HLF was formed in Auckland, New Zealand in 1984 and

incorporated in 1985 under the Charitable Trusts Act of 1957.

HLF’s objects are to promote the saving and protection of

human life throughout its whole course from the moment of

conception until natural death, with a view to the moral, ethical

and mental advancement of the public in order to educate the

public as to the need for respecting human life at every stage of its

development. Additionally, HLF strives to educate the public to

the sacredness and the dignity of natural procreation of human life

and of marriage and family life. It endeavors to educate the public

on all aspects of human life, its natural procreation (including

natural family planning), its development and its natural death.

HLF strives to conduct or encourage research into all aspects of

human life, its natural procreation (including natural family

planning), its development and its natural death, and to

disseminate the results of such research. It assists graduate or

undergraduate students or others to pursue studies or research at

any level in accord with the stated objectives, including the

provision of scholarships, bursaries, grants and/or payments of

expenses.

In furtherance of its goals, HLF disseminates information

and

submissions on issues concerning respect for life and the activities

associated with the establishment of life.

HUMAN LIFE INTERNATIONAL

Human Life International, the world’s largest pro-life

organization, was founded in 1981 by Father Paul Marx, O.S.B.,

Ph.D. Its mission: bring the pro-life/pro-family messange to

countries throughout the world. HLI

19

INSTITUTO DE CIENCIAS FAMILIARES ["ICF"].

ICF was organized in 1952 and subsequently incorporated

in 1985 in Uruguay. ICF’s sole purpose is to foster natural family

planning. In fulfilling its purpose, it operates doctors’ consulting

rooms and trains instructors in natural family planning. ICF

conducts courses in sexual education and family counseling. It

publishes the Family Digest and gives talks on television and radio.

ICF conducts its own four year university course in the education

of Family Social Workers.

ICF, which has 19 members in its corporation and an

additional 50 persons who are employed or who volunteer their

services to the organization, operates in Uruguay, Argentina,

Paraguay and Brazil.

KNIGHTS OF THE SOUTHERN CROSS ["KOSC"].

KOSC is an unincorporated association formed in 1923 in

Auckland, New Zealand and now headquartered in Wellington. It

is an association of Catholic laymen active in the lay apostolate

and having over 500 members in 16 branches throughout New

Zealand.

KOSC is currently engaged in pro-life issues, speaking out

against the increasing number of abortions in New Zealand and

opposing the pro-euthanasia lobby. KOSC is represented on New

Zealand bio-ethics committees. KOSC has been effective in

marshalling the public in support of Catholic causes.

Membership in KOSC is broadly based and includes lawyers,

doctors and other professional men.

MARCH FOR LIFE ["MFL"].

MFL was incorporated in Washington, D.C. in 1974. The

purpose of MFL is to insure the constitutional protection of the

right to life of each human being from fertilization. MFL lobbies

Congress and testifies on pro-life issues. MFL’s Board of Directors

has liaison with pro-life groups throughout the United States.

MARCH FOR LIFE EDUCATION AND DEFENSE FUND ["MLEDF"].

20

This corporation was formed approximately 13 years ago in

Washington, D.C. Endeavoring to protect the right to life of each

human being in existence from the moment of fertilization and to

provide care for the pregnant mother and her pre-born child,

MLEDF provides educational materials and conducts seminars

student contests and an annual convention and seminars on

pro-life issues. MLEDF sponsors the annual March for Life.

MLEDF’s membership, whichis comprised of those who contribute

time and/or money, is drawn from across the United States.

NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES

("NIFLA"].

NIFLA was recently incorporated in April 1993. It is

headquartered in Manassas, Virginia.

NIFLA is not a membership organization. It advises,

counsels and gives legal assistance in matters of public interest

law, particularly to pro-life crisis pregnancy centers throughout the

United States, of which there are approximately 3,000.

NIFLA trains and provides legal assistance to pro-life crisis

pregnancy centers to enable them to support women in crisis

pregnancies so that they might carry their babies to term. In

addition, NIFLA educates the public at large, through speakers and

publications, on the issue of abortion and the need to provide

compassionate, caring alternatives to abortion.

NEW ZEALAND SOCIETY FOR THE PROTECTION OF THE

UNBORN CHILD INCORPORATED ["NZS"].

incorporated in New Zealand in 1970, NZS has its national

office in Wellington.

NZS has more than 28,000 active financial supporters from

throughout the country, which is divided into 70 branches.

The objects of NZS are to uphold and promote the intrinsic

value of human life and to uphold and protect the rights of unborn

children from the time of conception. NZS seeks to uphold and

protect the rights of unborn children and it encourages and

promotes the study and research, collection and dissemination of

the information on the moral, medical, legal, political and social

implications of pregnancy and questions associated therewith.

NZS informs and educates the public on the need for legal and

21

other safeguards for protecting and preserving the rights of unborn

children. This organization assists and promotes the well-being of

mothers and children, both before and after childbirth and, in

particular, those who face adverse circumstances. NZS

encourages the formation of local constituent societies and

coordinates their activities on a national basis. NZS cooperates

with government departments, other organizations and individuals

engaged in fostering respect for human life, and in promoting

social conditions which will provide the best opportunities for

mothers and children. NZS subscribes to, and will work

purposefully towards, the achievement of the realizable ideal of no

abortions within society.

NZS develops systems to educate the public to influence

the political process and to insure that adequate law is established

and upheld. There is a common desire amongst NZS’ membership

to have all children protected both before and after birth. Its

members come from all walks of life, all age groups, and from

throughout New Zealand.

PRO-LIFE ACTION LEAGUE ["PLAL"].

PLAL was formed in 1980 when it was incorporated in

lilinois, where it continues to have its main office.

PLAL is a pioneer in pro-life activism. The league uses

every media opportunity to get the pro-life message out and to

bring the focus of public attention back to the unborn child.

Although PLAL has no actual membership, it does have

newsletter subscribers and supporters numbering between 8 and

10,000. PLAL’s supporters are drawn from throughout the U.S.,

Canada, Australia, Ireland and Africa.

PLAL, in its activites, stresses the importance of sidewalk

counseling at abortion clinics so as to offer women who are facing

crisis pregnancies an alternative to abortion. PLAL contributes

articles and letters to the media and has its representatives appear

on television and radio programs in support of its positions. It has

sponsored three conferences featuring former abortion providers

and promoters who have given up the abortion business and are

now actively pro-life.

RIGHT TO LIFE LEAGUE OF SOUTHERN CALIFORNIA ["RTLLSC"}.

22

RTLLSC is a California corporation, having been

incorporated in 1969. Its offices are located in Pasadena,

California.

RTLLSC’s purposes are twofold: to provide education and

service. RTLLSC’s education department handles several hundred

speaking requests per year. The league holds an annual

educational conference with nearly 500 people in attendance. Its

Collegians for Life have clubs on 30 campuses throughout

California. In addition, RTLLSC operates 13 Pregnancy Counseling

Centers, three medical clinics and four education chapters.

RTLLSC has a membership of approximately 50,000

families drawn mainly from Southern California. In 1992 alone,

RTLLSC counseled more than 20,000 women facing unplanned

pregnancies.

ROCKLAND COUNTY CATHOLIC COALITION ["RCC"].

This unincorporated association was organized in Rockland

County, New York in 1990. RCC is a grass-roots organization

seeking to educate, inform and speak out on issues supporting

Catholic teachings. RCC has approximately 750 members and a

mailing list of 4,000.

RCC conducts meetings at which positions in support of

Catholic teachings are taken. RCC members meet with

representatives of school boards and publicizes its positions by

communicating with the media and provides a speaking panel to

various organizations. RCC takes a position in support of the belief

that human life begins at conception and human life is entitled to

protection and respect from that point in time until natural death.

SCOTTISH ASSOCIATION FOR NATURAL FAMLY PLANNING

Organized in 1979. Dedicated to teaching fertility

awareness in schools, colleges and to groups of teachers, nurses,

doctors, and seminarians which enables couples to responsibly

plan their families. Teaches engaged and married couples about

natural family planning.

SERVICE AND-RESEARCH FOUNDATION OF ASIA ON FAMILY

AND CULTURE

23

Dedicated to go beyond welfare measures for the well-being

of women by promotiong natural family planning.

SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN

["“SPUC")].

SPUC is an unincorporated, non-profit English association

which was established in 1966. Its national headquarters are in

London, England.

SPUC was established to fight against the passage of the

Termination of Pregnancy Bill in England, a bill to legalize abortion

which was introduced into the House of Commons. SPUC was the

first group of its kind in the world. Since its inception, SPUC’s role

has been two-fold: educational and political. As its title implies,

its prime concern is to win legal protection for the unborn child

from the moment of conception until birth and so most of its our

work is concerned with spreading and extending knowledge of the

humanity of the human person before birth and demonstrating that

abortion represents the most fundamental abuse of human rights.

SPUC is regarded both inside and outside Parliament as the

premier political body fighting against abortion and euthanasia and

in performing educational and research work. SPUC has won

worldwide recognition particularly with the production of a box-set

of fetal models, "How You Began", with accompanying text,

which was developed in consultation with experts in obstetrics and

gynecology, pediatrics and embryology.

SPUC has 50,000 paying members and 300 local groups

throughout the United Kingdom. In addition to its headquarters in

London, SPUC has full-time offices in Glasgow, Belfast, Cardiff,

Preston, Stockton, Barrow and South London.

SPUC’s trained speakers fulfill thousands of speaking

engagements each year throughout the country, addressing

schools, universities and colleges. In addition, it produces millions

of leaflets each year to the genera! public. SPUC has a number of

specialist divisions, including a Handicap Division which comprises

people with severe disabilities and their close relatives who

campaign and are trained to speak out for the right to life of the

disabled both before and after birth. In addition, SPUC has

established a national organization called British Victims of

Abortion through which women who have had abortions reach out

24

to others to provide counseling and healing following the abortion

experience. ;

SOCIETY OF ST. VINCENT DE PAUL IN NEW ZEALAND ["SSV"].

Originally formed in France in 1833, SSV was incorporated

in New Zealand in 1883.

SSV is an international charitable organization whose

members practice Christianity by helping those in need on a

person-to-person basis. Although Catholic in origin and character,

SSV is open to all who wish to live their faith by loving their

neighbors in the person of the needy and by helping people

regardless of race, color or creed in all their temporal, personal and

Spiritual needs.

SSV has approximately 2,500 members (New Zealand’s

total population is only 3.5 million) drawn from throughout New

Zealand. SSV has 25 central and district councils and 169

branches.

WORLD ORGANIZATION FOR THE FAMILY

Dedicated to helping parents to remain primary educators

of their children. The organization is a strong defender of human

life from the moment of conception and they promote the natural

method of family planning.

SUMMARY OF ARGUMENT

This Court should grant certiorari in this case. The Court in

Roe v. Wade, 410 U.S. 113 (1973) declined to decide the most

important issues presented by J.M.’s petition: when does the life

of the child begin and, if the child is a human being prior to birth,

does the child have constitutional rights.

The question of when the child’s life begins was

intentionally left to future courts because of the Roe Court’s

Oe ee a ee Te

25

concern about the inadequacy of "man’s knowledge" in 1973. This

question is before this Court in the first instance and the only

criteria for its disposition is the correctness of the court’s

determination, not principles of stare decisis, as though Roe had

attempted to resolve the inquiry. It is the affirmative duty of this

Court to resolve these questions now it is clear they can be

resolved.

The legal significance of the fact that the child is a human

being who experiences pain has never before been considered. No

acceptance of Aoe is possible until the Court does so.

Because the child is a human being prior to birth, none of

the concerns of the Court, expressed in Roe, such reliance, and

workability, are principles that preclude a decision in the J.M. case

that would have a different result than Roe, recognizing the child

has a right to live. Such a determination would demonstrate that

Roe, in reality, was gravely at odds with principles that protect the

most basic of human liberties: the welfare of children and their

very existence.

Until these central issues are addressed, and the Court can

state, with conviction, that all of the issues are correctly decided,

26

as if before the Court for the first time, it seems unlikely that Roe

can ever be respected or accepted.

RGUMENT

I. TH TRA ASE HA

NEVER | ND _|

THEREF ; INA

FOR

OVERRULING ROE V, WADE ARE COMPLETELY SATISFIED

Y_ THE FACT | H HOULD

RANT THE WRI | HILD’S RIGHTS.

As much as anything else, this Court’s decision in Planned

Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. _,

112 S.Ct. 2791 (1992) reaffirmed the central holding in the

twenty-year old case of Roe v. Wade, 410 u.s. 113 (1973) based

upon principles of stare decisis.' The Joint Opinion of the Court

explained:

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 -

' Two of the three authors previously expressed views that apparently challenged

Roe’s central holding; see, Thornburgh v. A.C.0.G., 476 U.S. 747, 814, 828

(O’Connor, J., dissenting: "1 do, however, remain of the views expressed in my

dissent in Akron, 462 U.S. at 459-466. The state has compelling interests in

ensuring the general health and protecting potential human life, and these

interests exist ‘throughout pregnancy’"). Justice Kennedy joined in the opinion

of the Chief Justice in Webster v. Reproductive Health Services, 492 U.S. 490

(1989), in which he stated: "We do not see why the state’s interest in protecting

potential human life should come into existence only at the point of viability.”

core eeeeteretteentattnacceaaeaaecicaaiaaiaaaiiiliiaiiieaaiiiaiiial

27

even when it is subject to certain exceptions. The matter is

not before us in the first instance, and coming as it does

after nearly twenty years of litigation in Roe’s wake we are

satisfied that the immediate question is not the soundness

of Roe’s resolution of the issue, but the precedental force

that must be accorded to its holding. Casey, 112, S.Ct. at

2817.

The principles of stare decisis do not preclude a decision in

the case of J.M. v. V.C. which is different from that reached in

Roe for two separate reasons: [1] the central issue in this case

[when does the life of the child begin? and, if the child is a human

being prior to birth do those children have constitutional rights?]

was not decided in Aoe at all; and [2] even if the doctrine of stare

decisis does apply, J.M. v. V.C. meets all of the requirements to

overrule Roe.

A.

THE QUESTION OF WHEN THE LIFE OF A CHILD BEGINS WAS

NOT DECIDED BY ROE AND IT IS THEREFORE THE DUTY OF

THIS COURT TO RESOLVE THE QUESTION. IT WAS THE

PROMISE OF ROE THAT A SUBSEQUENT COURT WOULD

DECIDE THIS ISSUE WHEN "MAN’S KNOWLEDGE" WAS

SUFFICIENT.

Roe did not decide when the life of a child begins. The Roe

Court specifically, and with deliberation, found that in 1973 it was

unable to determine that question:

We need not resolve the difficult question of when life begins.

When those trained in the respective disciplines of medicine,

philosophy and theology are unable to arrive at any consensus,

the judiciary, at this point in the development of man’s

28

knowledge, is not in a position to speculate as to the answer.

410 U.S. at 159 (emphasis added).

Roe specifically reserved this particular issue for later Courts by

recognizing that "man’s knowledge” grows and expands with new

information and greater appreciation of the old. Roe recognized

sufficiency of knowledge is a function of time and although "at

this point in the development of man’s knowledge” (1973) the

Court could not reach a conclusion, the decision is reserved for

future review.

Here, this issue is before this Court, "in the first instance,” and

the only criteria for its disposition is the correctness of the Court’s

determination. The Court is in no sense bound by Roe’s inability to

determine this issue, and stare decisis is not, in the strict niten.

applicable to this issue in this case. C.f., Baker v. Carr, 369 U.S.

186, 236-237 (1962); Penna.-Reading, S.S. Lines v. Bd. of Pub.

Utility Commrs., 5 N.J. 114, 121-124 (if facts, which form the

basis for a constitutional principle, differ in a subsequent case, the

first is not even precedent as to the second). The legal significance

of the fact that the child is a human being experiencing pain was

never before considered.

Danaea eet aatetaetaeienee iit

29

Casey calls for the nation to accept Roe’s central holding in an

effort to finally resolve a divisive national debate. But Roe itself

never made a ruling upon the central issue before it, reserving it for

future Courts. There can never be an acceptance of Roe until this

Court decides these central issues and is able to explain, with

conviction, that its decision is legally correct. It would constitute

a "breach of faith” with the people of this nation, as well as to the

very constitutional principles on which it is built, if the court left

unaddressed the issue on which the entire debate turns. By refus-

ing to answer the question of when life begins, Roe made nothing

short of a promise that this court would answer that question

when it could. It must now do so, correctly and with conviction.

"At this point in the development of man’s knowledge” it is

clear that a child is a complete, separate human being from

conception (and surely long before "viability") (see pet., p. 18-35)

and this fact renders Roe’s analysis on the question of the child’s

rights irrelevant (see, pet., p. 11 to 17). These matters are left for

this court and no interpretation of stare decisis absolves the court

of the duty to resolve them.

B. EVEN IF PRINCIPLES OF STARE DEC/S/S WERE APPLICABLE

TO THIS CASE, BECAUSE OF NEW FACTS AND NEW

APPRECIATION OF OLD ONES, STARE DEC/SIS DOES NOT

inate

30

PRECLUDE THE COURT FINDING THAT THE CHILD HAS

CONSTITUTIONAL RIGHTS PRIOR TO BIRTH.

Casey described four principles of stare decisis which it felt

precluded overruling Roe: (1) there is no change of fact; (2) Roe is

not inconsistent with other principles of constitutional law; (3)

reliance; and (4) workability. Casey, 112 S.Ct. at 2808-2812. All

of these are satisfied in this case, on the issue of the child’s rights.

1. New Facts and New Appreciation of Old Ones.

William O. Douglas, a member of the majority in Roe, wrote of

stare decisis:

[a] search for a static security - in the law - is misguided. The

fact is that security can only be achieved through constant

change, through the wise discarding of old ideas...and through

the adopting of others to current facts. \t is easy...to

overemphasize stare decisis as a principle in the lives of men.

... The difficulty is to estimate what effect a slightly different

shade of facts will have. (emphasis added) Douglas, William O.,

Stare Decisis, 49 Colum. L. Rev. 735-743, 735-736 (1949).

The new information now available on when the life of a child

begins, and the fact that the child experiences pain as early as

eight weeks after conception (see Pet. p. 18 to 35) is of particular

significance.

First, once it is appreciated that the child is a human being who

experiences pain before birth, Roe, itself, to be upheld would have

to completely ignore prior holdings of the Court, and other

a |

31

authorities. (see, Pet. p. 11 to 17; p. 35 to 47; p. 58-59, n. 87).

If Roe itself ignored prior precedent it would be difficult to

conceive of a justification to extend any precedental value in the

Roe decision. To do so would frustrate stare decisis because a

maverick opinion could change law without regard to the doctrine,

and then subsequent courts would be bound by stare decisis to

follow an opinion which originally ignored stare decisis principles.

Second, new facts or new appreciation of old ones are often the

basis to overrule prior precedent. Casey found that there were no

new facts on the issues before them concerning the state power

to intrude in personal decisions of a woman (Casey, 112 S.Ct. at

2811-2812). Yet, Casey cited Justice Brandeis’ dissenting opinion

in Burnet v. Coronado Oil and Gas Co., 285 U.S. 393, 405-413

with approval, that in many instances when the Court applies the

Due Process Clause, the issue before the Court is a mixed question

of fact and law, and the nature of the factual inquiry should not be

obscured merely because it is a court that makes the

determination. 285 U.S. at 410-411. Whether the child is a human

being who enjoys constitutional rights is precisely such a mixed

question (see, Pet., p. 15 to 17).

32

When this Court, in Mapp v. Ohio, 367 U.S. 643 (1961),

overruled Wo/f v. Colarado, 338 U.S. 25(1949), decided only

twelve years earlier, the court based its ruling on a new

appreciation of facts which made the "“"Exclusionary Rule”

necessary. Mapp is an example of a case which applied the Due

Process Clause and involved a mixed question of fact and law. The

facts suggested the need for a particular method of implementation

of a recognized right. In the strictest sense, abortion is a method

of implementing an underlying privacy right. In Baker v. Carr,

supra, in which the court overruled Co/egrove v. Green, 328 U.S.

547 (1946), and distinguished Co/egrove v. Barrett, 330 U.S. 804,

the Court reasoned that new facts required the result.

In J.M., two ultimate facts must now be taken into

consideration: this is indeed a human being from conception, and

these children experience pain (Pet. p. 18 to 35). Both of these

facts constitute a new appreciation of old ones. They dictate new

recognition of the interests of the child and father, give rise to the

child’s rights, and impact upon the application of the Due Process

Rights involved. Burnet, supra, (Brandeis, J. dissenting), 285 U.S.

at 405-413. In addition, our experiences since Roe, because of

new advances in contraception and the disappearance of social

—_

33

stigma, renders abortion as an unnecessary method of

impiementation of the privacy interest sought to be protected, as

well as one which unjusting impacts the child. C.f. Mapp v. Ohio,

supra.

2. Whether Roe is in Conflict with Prior Precedent at Odds with

Personal Liberties Depends Upon Whether the Child is a Human

Being.

The Casey majority argued that Roe is not in conflict with prior

precedent and does not influence developments at odds with

personal liberties. This statement is incorrect when the child’s

humanity must be acknowledged. (see, petition of J.M. at p. 58 to

50, including n. 87).

Casey’s suggestion would have to ignore the reality that before

birth the child is a human being who experiences pain. Roe,

conflicts with all law which seeks to protect the best interests of

children and is tragicly fatal to children who suffer during abortion,

as well as detrimental to many children who survive it. Before Roe,

the New Jersey Supreme Court held that the child was a separate

person whose life began at conception and had constitutional

rights before birth. Smith v. Brennan, 157 A.2d 497, 504-505

(1960); Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson,

422 N.J. 421, 201 A.2d 537 (1964). This interpretation of New

34

Jersey law was recently affirmed in Hummel v. Reiss, 608 A.2d

1341, 1345-1346 (1992). Smith v. Brennan, and Raleigh Fitkin

reflected New Jersey's strong policy for protecting life over its

destruction. Smith, 31 N.J. at 364; Raleigh Fitkin, 422 N.J. at

423, 424. This policy, prior to Roe, resulted in protection of

children from the harm and pain of abortions. See N.J.S.A. 2A:87-

1. (To perform an abortion was a high misdemeanor which brought

a penalty of fifteen years of incarceration. See New Jersey v.

Novak, 121 A.2d 5 21 (1956); New Jersey v. Sicilano, 117 A.2d

490 (1956)). In refusing to recognize a tort action for the so called

“wrongful birth" claims the New Jersey Supreme Court eloquently

explained the public policy of New Jersey against abortion:

It is basic to the human condition to seek life and hold on to it

however, heavily burdened. ...the right to life is inalienable in

our society. ...we are not faced here with the necessity of

balancing a mother’s life against that of a child. The sanctity of

a single human life is the decisive factor ...(that) it may have

been easier for the mother and less expensive for the father to

terminate the life of the child while he was an embryo, but these

alleged determinants cannot stand against the preciousness of

a single human life ... Gleitman v. Cosgrove, 227 A.2d 689

(1967).

Roe required New Jersey to abandon its policy of protecting the

lives of children. in 1979, even when Roe compelled New Jersey

Ds see casein hiliadaia dain danaa dealin

35

to recognize the wrongful birth cause of action, its Supreme Court

noted:

One of the most deeply held beliefs of our society is that life ...

is more precious than nonlife (citation omitted) ... concrete

manifestations of this belief are not difficult to discover.

Documents which set forth principles upon which our society

are founded are replete with references to the sanctity of life.

The federal constitution characterizes /ife as one of the three

fundamental rights of which no one can be deprived without due

process of law ... our own constitution proclaims that the

‘enjoyment and defending of life’ is a natural rights. N.J.

CONST. (1947), ART. 1, SEC. |. The declaration of independence

states that the primacy of man’s ‘unalienable’ right to life is a

‘self-evident truth’. Nowhere in these documents is there to be

found an indication that the life of persons suffering from

handicaps are to be less cherished than those non-handicapped

human beings. Berman v. Allan, 80 N.J. 421, 429, 404 A.2d 8

(1979).

The harm created by Roe is quite evident when the Court

recognizes that the unborn child is a human being. Law that was

carefully developed to protect innocent lives was swept away

because the Court has failed to acknowledge that these were

persons in fact. For the children who are not aborted, Aoe is often

cruel. New Jersey now feels compelled to tell children that doctors

who fail to inform their parents that the child may be born with a

handicap, must pay large sums of money to their parents because

their parents lost an opportunity to terminate their lives. (See

Berman v. Allan, 80 N.J. 420 (1979); Procanik v. Cillo, 97 N.J.

36

339, 478 A.2d 755 (1984). That these chidren must live with this

knowledge is harm fostered by Aoe.

A father has no right to demand an abortion, nor should he. His

embarrassment, hardship, or distress that flow from an unplanned

pregnancy, whether he is prepared to rear or support the child, is

irrelevant to whether society should extend him the "right" to take

the child’s life. However, where the right he seeks to enforce is

one consistent with the child’s best interest, the same statute that

imposes obligations upon him based upon the single act of-

conception, extends to him the right to affirmatively choose to

discharge his obligations through custody or visitation and support.

Likewise, under the adoption statutes, a judgment of adoption

cannot be entered against the natural father over his objection,

unless there is a specific finding of abandonment or neglect.

N.J.S.A. 9:3-46. The right of a natural father who is not married

to the mother is based solely upon his status as genetic father. See

In re Adoption of a Child by J.R.D., 246 N.J. Super. 619

(Ch.Div.1990).

The issue can be framed in different ways. Casey may choose

to frame the issue as a father blocking the mother’s right to take

the life of her own child. More to the point is that what V.C.

bn ccanieteieieneneaileiniaiiaaaatiaatiiditaiiiatin aan

37

proposes is that the father’s enjoyment of the benfits of his

relationship with his child, his fundamental constitutional rights,

can be entrusted to another who could arbitrarily destroy a

relationship with his child for any reason.

Building on Roe, Casey found that although a father’s

constitutional rights and those of a mother are “equal” after birth

the mother’s can destroy those of a father before built. Casey, 112

S.Ct. at 2830. This may be the consequence of Aoe, but it is

drastically in conflict with precedent dealing with the equal

protection of the laws. See Craig v. Boren, 429 U.S. 190 (1976);

Califano v. Goldfarb, 430 U.S. 199, (1977); (gender based

classifications require at least an interemediate level of scrutiny;

strict scrutiny if there is a denial of a fundamental right?).

Under the New Jersey parentage act N.J.S.A. 9:17-40 et seg.

the obligations of J.M. as father are derived from the fact of

conception alone. The birth is the natural consequence of the

conception.

If the fundamental constitutional right of the father is implicated,

then the creation of a classification extending exclusive decision

? Shapiro v. Thompson, 394 U.S. 618, 638 (1969); Baker v. Carr, 369 U.S. 186

(1962); Reynolds v. Sims, 377 U.S. 533, 561-562 (1964).

38

making power to the mother violates equal protection, because

there would be no compelling interest of the State. Shaprio, supra;

Baker, supra. \f his constitutional rights are not fundamental, the

classification created is gender based, requiring intermediate

scrutiny. Craig v. Boren, 429 U.S. 190 397 (1976). As a result,

the State classification must serve important governmental

objectives and must be substantially related to the achievement of

the objectives. The objective here is to protect the right of the

mother to participate in making decisions about whether she

should have children. See Roe, 410 U.S. at 153. That objective is

already served. Once the mother conceives, she aleady has a child.

The inconvenience of the mother in carrying the child, although

real and substantial, can never outweigh the child’s interest in life.

3. Given the Fact that the Child is a Human Being, the Principles

of Reliance (and Workability) Has no Application.

Casey states the fact that some segments of our society have

relied upon the court’s prior holding in Roe requires affirmance,

Casey, 112 S.Ct. at 2809, even if it cannot assert that it was

correctly decided in the first instance. 112 S.Ct. at 2817.

By Casey’s own calculation, the last case before this Court

which required it to determine an issue of the magnitude of those

Tiananmen nema

39

in the J.M. case, was Brown v. Bd. of Ed. of Topeka, 347 U.S.,

483 (1954). Casey, 112S.Ct. at 2814-2815. The irony of Casey’s

discussion of reliance is in the fact it was the very argument of

those who sought in Brown to perpetuate racial segregation by

affirmance of Plessy v. Ferguson, 163 U.S. 537 (1896). The

reliance argument found in Casey is indistinguishable from the

reliance argument of the four states seeking to preserve

segregation in the consolidated cases that are universally known

as Brown v. Bd. of Ed.°*

Invoking the premise that longstanding principles which have

been continually relied upon should be left unchanged, John W.

Davis argued in Briggs, supra, that “somewhere, sometime to

every principle comes a moment of repose when it has been so

often announced, so confidently relied upon, so long continued,

that it passes the limits of judicial discretion and disturbance.” 49A

> The Brown case was actually a grouping of four segregation cases decided

together. The accompanying cases were Briggs v. Elliott, Davis v. County School

Board of Prince Edward County, VA, and Gebhart v. Belton. These cases

concerned various statutes pertaining to school segregation in the respective

States of Kansas, South Carolina, Virginia, and Delaware. Although it was decided

separately, Bolling v. Sharpe, 347 U.S. 497 (1954) was also argued with Brown.

The initial oral argument for these cases occurred before the United States

Supreme Court on December 9-11, 1952, while the Court was presided over by

Chief Justice Vinson. The cases were subsequently reargued, upon the request

of the Court, on December 7-9, 1953, with Earl Warren having succeeded Mr.

Vinson as Chief Justice.

40

Landmark Briefs at 490. Davis asserted that the South Carolina

statute must stand because:

{wle relied on the facts that this Court had, not once but seven

times, ... pronounced in favor of the "separate but equal”

doctrine. We relied on the fact that the courts of last appeal in

some sixteen or eighteen states have passed upon the validity

of the “separate but equal” doctrine vis-a-vis the Fourteenth

Amendment. We relied on the fact that Congress has

continuously since 1862 segregated its schools in the District of

Columbia. id. (Emphasis added).

Indeed, it was the theme of all of the States that desegregation

was contrary to longstanding customs and traditions which were

"deeply ingrained", the disturbance of which would cause such

dire consequence that on those grounds alone Plessy had to be

affirmed. See, J. Lindsay Almond, id. at 383-384; 512-513;

Kansas, id. at 752; Davis, id. at 490-491; T. Justin More, Id. a

407; 510-511; Casey observed:

While we think Plessy was wrong the day it was decided,

(citation omitted), we must also recognize that the Plessy

court’s explanation for its decision was so clearly at odds with

the facts apparent to the court in 1954 that the decision to

examine Plessy was on this ground alone not only justified but

required. Casey, 112 S.Ct. at 2813.

This statement is pertinent in the J.M. case because, whether

or not the Roe court believed that it could not determine when the

life of a human being began, no one could, in light of the present

evidence, dispute that the biological life of a complete, separate

scare eenaamaaeaeaacaasaeaaeacassaaaemenamamaarasaas ree el

41

and individual human being begins at conception. The court likens

Brown to Roe, but Roe more resembles Plessy than it resembles

Brown. The Brown case more resembles J.M. Roe simply does not

possess the moral force of Brown. Brown corrected a wrong. Roe

created one.

The Court should grant certiorari in this case with no fear that

overruling Roe would be any more difficult to implement than

Brown was, and no harder for the public to accept. When it is

understood that these children are human beings, who experience

pain and that the premise of this nation is that the life of every

human being has value, and that each one of us is unique and

irreplaceable, an acceptance of overturning Roe will follow, if

overruling it is. CONCLUSION

Because Aoe did not determine the central issues presented by

this case, and the principles of stare decisis, as applied to this

case, do not otherwise preclude overruling Roe, the Court should

grant a writ of certiorari in this case.

O /) -)

, a , .

ES GO ee

CALUM B. ANDERSON, ESQ.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.