Amicus Curiae Brief — United States v. Vuitch

(i)

TABLE OF CONTENTS

INTRODUCTORY STATEMENT

INTEREST OF THE AMICI AND THEIR POSITION IN THE

1. Interest of the Amici

2. The Position of the“Amici on the Issues

QUESTIONS PRESENTED

SUMMARY OF ARGUMENT

I. The Statute Is Not Unconstitutionally Vague

A. The Question Should be Illumined by Some |

B. The Statutory Exemption Is Not Vague

Il. The Court Should Not Pass Upon the Additional

Constitutional Contentions Advanced by Appellee .

A. Appellee’s Standing To Complain of the Al

leged Constitutional Rights of Pregnant Women

Is Doubtful

The Record Is Not a Proper One To Serve asa

Basis of Decision for the Additional Constitu-

tional Objections Pressed by the Appellee. .....

C. Two Additional Reasons for Declining Review . .

Unfettered Authority To Destroy an Unborn Child

Is Not a Right of Womanly Privacy Beyond the Jus-

tified Interest of and Reasonable Regulation by the

&

A. The State’s Interest in Protecting the Rights of

an Unborn Child Rests on a Proven Medical

Basis.

The Law’s Recognition of the Property Rights

of an Unborn Child

Evolving Rights Afforded an Unborn Child by

the Law of Torts

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D. The Law’s Recognition of an Unborn Child's

RRB 00 GE a aii ko dad oe 00 8654 Sees 34

E. The Right of a Fetus To Life Has Been Pre-

ferred to His Parents’ Free Exercise of Religion

Seth oe cose kine ens ska ees bee ¥

F. Life Should Be Preferred Over Privacy in Any

| Rational Hierarchy of Constitutional Values or

SE ik Soho Rae end ace n aan 37

G. No Precedents of this Court Afford a Basis for

Preferring Privacy Above a Right to Life ...... 44

IV. The Remaining Arguments Advanced by the Appellee

Rip EE ko oo Wb e400 ve eine oo 8 ened 48

A. The Statute Does Not Abridge a Doctor’s First

and Fifth Amendment Rights.............. 48

B. Nor Does the Statute Effect Any Invidious Dis-

crimination Between Richand Poor.......... 49

C. Their Persuasiveness Apart, Appellee’s Com-

mon Good Arguments Are Misplaced ....... 50

ST DECharsD ac ked bb deb ab rae ce heres aus 53

TABLE OF CITATIONS

Cases:

Anderson v. Atherton, 302 U.S. 643 (1937) ............. 3

Application of the President and Directors of Georgetown Col-

lege, Inc., 331 F.2d 1000, 1008 (C.A. D.C., 1964), cert.

Pg Re ee 34, 35, 42

Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wisc., 1970), app.

pend., No. 297, October Term, 1970 .............. 20, 21, 42

Barnett v. Pinkston, 238 Ala. 327, 191 So. 371 (1939) ....... 29

Barrows v. Jackson 346 U.S. 249, 255 (1953) .......005- 16

Beauharnais v. Illinois, 343 U.S. 250, 253 (1952) ......... 12

Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108 (1958)..... 32

Board of Education v. Barnette, 319 U.S. 624, 639 (1943) . 34

Bonbrest v. Kotz, 65 F. Supp. 138, 142 (D. D.C., 1946)....... 31, 32

(iti)

Carroll v. United States, 354 U.S. 394, 399-400 (1957)

Craig v. Rowland, 10 App. D.C. 402 (1897)

Daley v. Meier, 33 Ill. App.24 218, 178 N.E.2d 691 (1961) .

Damasiewicz v. Gorsuch, 197 Md. 417, 79 A.2d 550(1951) .. .

DeBacker v. Brainard, 396 U.S. 28, 32 (1969)

Dietrich v. Northhampton, 138 Mass. 14, 17 (1884)

Doe v. Clarke, 2H. Bl. 399, 126 Eng. Rep. 617 (1795)

Mary Doe, et al. v. General Hospital of the District of Colum-

bia, et al.,C.A. No. 24,011

Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567, 568 (1921) .

Ellis v. Dixon, 349 U.S. 458, 462 (1955)

Ferguson v. Skrupa, 372 U.S. 726, 730 (1963)

Fisch v. General Motors Corp., 169 F.2d 266, 270 (C.A. 6,

1948)

Giboney v. Empire Storage and Ice Co., 336 U.S. 490, 498

Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689, 693 (1967) .

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

Hall v. Hancock, 15 Pick. 255 (Mass., 1834).

Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93

BED8 727 CIGSE) ow ccc vsvccvcevecesccsssvce

Ide v. Scott Drilling Co., Inc., 341 Mich. 164, 67 N.W.2d 133,

135 (1954)

In Re Sankey’s Estate, 199 Cal. 391, 249 P. 517 (1926)

In Re Well’s Will, 221 N.Y.S. 417 (1927)

Kelly v. Gregory, 282 App. Div. 542, 125 N.Y.S.2d 696, 697

Kudish v. Bd. of Registration in Medicine, __ Mass. __,

248 N.E.2d 264, 266 (1969)

Kyne v. Kyne, 38 Cal. App.2d 122, 100 P.2d 806 (1940) .

(iv)

Lochner v. New York, 198 U.S. 45 (1905) ........50005.

Loving v. Virginia, 388 U.S. 1, 12 (1967) .........+5005.

Mallison v. Pomeroy, 205 Ore. 690, 291 P.2d 225 (1955) . 32

McGowan v. Maryland, 366 U.S. 420, 429-30 (1961) ........ 16

Miller v. Bennett, 190 Va. 162, 169, 56 S.E.2d 217 (1949) . 4%

Parker v. County of Los Angeles, 338 U.S. 327, 333 (1949) . 12

People v. Estergard, ___Colo.__, 457 P.2d 698, 699(1969) . 34

People v. Yates, 114 Cal. App. Supp. 782, 298 P.961(1931) . 34

Perkins v. North Carolina, 234 F. Supp. 333, 336 (W.D. N.C.,

° Page

La Blue v. Specker, 358 Mich. 558, 100 N.W.2d 445 (1960) . 29

43

44

re rrrrrrne ss errr) Tere i ya Pee eee 14

Pierce v. Society of Sisters, 268 U.S. 510(1925) ........ 45

Poe v. Ullman, 367 U.S. 497, 501 (1961) .......---0005, 3

Powell v. Texas, 392 U.S. 514, 521 (1968) ............. 18, 19

Prince v. Massachusetts, 321 U.S. 158, 166-67 (1943)........ 36

Railway Express Agency v. New York, 336 U.S. 106, 110

SE hb caNed oe Rae e dae dhe dav bnee bese ass 50

Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson,

42 NJ. 421, 201 A.2d 537, 538 (1964), cert. den., 377

oF i Pert ser reer Lreoe ee: 35, 36, 42

Riggs National Bank v. Summerlin, et al., C.A. 187-69, Memo.

Opinion (D. D., 1969) on ccccsccccccccccccvvees 30

Schmerber v. California, 384 U.S. 757 (1966) ............ 42

~ Scott v. McPheeters, 33 Cal. App.2d 629, 92 P.2d 678 (1939) . 31

Seattle-First Nat'l Bank v. Rankin, 59 Wash.2d 288, 367 P.2d

CUP ANE sc becnccerbeeebusscecaceessesentus 32

Sinkler v. Kneale, 401 Pa. 267, 164 A.2d93(1960) ........ 32

Skinner v. Oklahoma, 316 U.S. 535 (1942). .......00005: 44

Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960) ...... 32

Swain v. Bowers, 91 Ind. 307, 158 N.E. 598 (1927)........ 29

Sylvia v. Gobeille, 101 R.I. 76, 220 A.2d 222, 223-24 (1966) . 32

Thelluson v. Woodford, 4 Ves. 227, 31 Eng. Rep. 117 (1798) .

(v)

Tileston v. Ullman, 318 US. 44, 46 (1943). ...--- eee eeee 16

y. Watertown News Co., 352 Mass. 446, 225 N.E.2d

926, 927 (1967) .- sere eee c cr eeereceerecrcceees 31

Tursi v. New England Windsor Co., 19 Conn. Supp. 242, 111

A220 14(1955) .-ceccrccccrcccecscccersercces 31

United States v. American Express Co., 265 U.S. 425, 435-36

(1924) ves secccccccrecccceeeneteceaanccees 3

United States v. Automobile Workers, 352 U.S. 567,591 (1957) . 11

United States v. Blue, 384 U.S. 251, 256 (1966) .....-+66- 3

United States v. Burroughs, 289 U.S. 159 (1933)....--06- 19

United States v. Five Gambling Devices, 346 U.S. 441, 449

TS) ee 11

United States v. Petrillo, 332 U.S. 1,11 (1947) .....-+-+-- 15

United States v. Raines, 362 U.S. 17, 22, 27 (1960)... 0.006 15,16

United States v. Sisson, 38 U.S. Law Week 4616, 4623, June

W,19TO nc acccvcccsvcsccssescccservcevcers 20

United States v. Sweet, 38 U.S. Law Week 3520, June 30,

ee cin pb aehe SN GAS INO REE MOR DS Tad es 19

United States v. Vuitch, 305 F. Supp. 1032 (D. D.C., 1969) . 1

United States v. Wurzbach, 280 U.S. 396, 399 (1930)....-.-- 14

Wallis v. Hodson, 2 Atk. 117......--0e eee eececeeeeee 28

Williams v. Marion Rapid Transit, Inc., 152 Ohio 144, 87

N.E.2d 334 (1949) 0... 2c ceccccccccccccccccces 32

Williams v. United States, 138 F.2d 81 (C.AD.C. 1943) 12,

13, 40

Willner v. Committee on Character and Fitness, 373 US. 96,

102-03 (1963)... cccccccccsccvscsccccccvccces 15,49

Wolfe v. North Carolina, 364 U.S. 177, 194(1960) .....--- 18

Constitutional and Statutory Provisions:

California Penal Code $274 2... ccc ccc cece ccc ccvces 12

Criminal Appeals Act, 18 U.S.3731 .........eeeeeeeeeeees 19, 20

72 DC. Code 201 (1967)... ccc cccccccccccccvccees passim

23 D.C. Code 105 (1967) +--+ see cere rere tere eeeeces

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Eighth Amendment to the United States Constitution ...... 18

Fifth Amendment to the United States Constitution ...... passim

First Amendment to the United States Constitution........ passim

Fourteenth Amendment to the United States Constitution . passim

Fourth Amendment to the United States Constitution ...... 4,14

La. Row. Giet. Bam, GPT csc descvenesscrccsse 52

Miscarriage of Women Act (1803), 43 Geo. 3c. 58 ........ 47

Ninth Amendment to the United States Constitution ...... passim

Miscellaneous:

Annotation, 16 Law Ed.2d 1332, 1338-43 (1967) ........ 42

Black’s Law Dictionary 1415 (1951) .................. 28

2 Bracton, De Legibus et Consuetudinibus Angliae 278-79

COU GE. WEE s au 6h6 6a ee 0-8 8 eae 82 8 on 808 Ok es 47

Cavanagh, Reforming the Abortion Laws: A Doctor Looks at

the Case, America, April 18, 1970, pp. 406,408 ........ 24, 51

Coniff, The World of the Unborn, New York Times Magazine,

PN GS Te GG lc nace asiveseesasensasce 4

Gesell, The First Five Years of Life 11 (1940) .......... %6

Gordon, The Unborn Plaintiff, 63 Mich. L.R. 579, 627 (1965) . 31, 32

Gottleib, Developmental Genetics 17 (1966).............. 4

Granfield, The Abortion Decision 25 (1969) ............ 5

Gruenwald, Growth of the Human Fetus, 94 Am. J. Obstetrics

and Gpmmeanny FEET CRORE. ane ccc cece wcccceses 32

Guttmacher, Pregnancy and Birth 86 (1960) ............ 4%

Guttmacher, Therapeutic Abortion: The Doctor’s Dilemma,

21 Jour. Mt. Sinai Hosp. 111 (1954) ............006- 13

Harper and James, Torts, Sec. 18.3 (1956) .........00055 31

Hellegers, Abortion, the Law, and the Common Good, 3 Medi-

cal Opinion and Review, No. 5 (May 1967), pp. 84, 90. 13, 40, 51

Hellegers, Fetal Development, Vol. 31, No. 1, Theological

EE F GU, BOTED bn ca cet ewencaneuseee cues 26

Hughes, The Supreme Court of the United States50 ....... ll

Krislov, The Amicus Brief: From Friendship to Advocacy, 72

Wee as GG, FER CUUED ob 0s he can cae cencessabake

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Page

Justinian, Digest 25.4.1.1....... 00.00 cece eee eee eees 23

Liley, Modern Motherhood 26-27 (1967). eee eee eee 25

Montagu, Hemolytic Disease of the Fetus, Intra-Uterine De-

velopment 443, 455 (A. Barnes ed. 1968) ....---+-+>> 23

Montagu, Life Before Birth 2 (1964) .....-- ee eee ee eeee 24

Morison, Foetal and Neonatal Pathology 99-100 (1963) ....-.- 32

New York Times, July 2, 1970, p. 1... +--+ eeeeeeeeees 51

New York Times, June 26,1970, p.1 .. +++ ee errr eee 2

Noonan, Amendment to the Abortion Law: Relevant Data and

Judicial Opinion, 15 The Catholic Lawyer, No. 2 (Spring,

MEI uaccsesecanctetavdarenndanseseseges 37

Noonan, The Constitutionality of Regulation of Abortion, 21

Hastings L.J. 51, 60,61 (1969) .....-.-eee sere eens 41

Noonan, Contraception 491 (1965) ...--- +++ +eeeerees 46

Noonan, Freedom To Reproduce: Cautionary History, Present

Invasions, Future Assurance, Biennial Conference on the

“Control of One’s Own Body”, New York University, New

York (1970)... eee e cece cence rece eee eeeeeeeeeeeees 52

Packer & Gamspell, Therapeutic Abortion, A Problem in Law

and Medicine, 11 Stanford L.R. 418, 444 (1959)......-. 13

Patterson, Law in Scientific Age 5 (1963)... +--+ ee eeee 33

Prosser or Torts, Sec. 56 (1964) 2... eee eee eee eens 31, 33

Report of the Third Committee of the General Assembly, Of-

ficial Records, 14th Session, p. 593°... +--+ eee ere eee 38

Rosen, Therapeutic Abortion, Medical, Psychiatric, Anthro-

pological and Legal Considerations (1954) ....ceeseeee 41

Stern & Gressman, Supreme Court Practice 41-42 (1969) .... 3

Uhrus, Some Aspects of the Swedish Law Governing Termina-

tion of Pregnancy, The Lancet 1292 (1964) .......-+++> 51

United Nations, Declaration of the Rights of the Child, Offi-

cial Records of the General Assembly 19-20, 14th Session

TT nc sac cc anvdonecessassscevectscueecsse 38

Washington Post, June 27, 1970, p. Bel ....-- +--+ eee e 22

Washington Post, June 26, 1970, p. A-l. ..---- eee eres 2

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Page

Washington Post, June 24, 1970, p. C-l 2... 6. ce eee eee 2

Washington Post, June 22, 1970, p. C46... . 6... cece eee 43

Wiener, Briefing and Arguing Federal Appeals 270 (1961) . 3

Zacchia, Quaestiones Medico-Legales 9.1 (1621) .......... 23

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

No. 84

UNITED STATES OF AMERICA,

Appellant,

V.

MILAN VUITCH,

Appellee.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRIEF OF DOR. WILLIAM F. COLLITON, JR.,

AND OTHER DISTRICT OF COLUMBIA PHYSICIANS,

AMICI CURIAE IN SUPPORT OF APPELLANT

INTRODUCTORY STATEMENT

The few facts of record in this case, the pertinent District

of Columbia statute and the opinion of the court below’ are

found in the brief filed by the United States. These amici,

all of whom are identified in the footnote,” accept them for

'The District Court’s opinion is officially reported at 305 F. Supp.

1032 (D. D.C., 1969).

2Orhan Aydinel, M.D.; Salvatore V. Battiata, M.D., John F.

Bresette, M.D.; John Cavanagh, M.D.; Edward J. Connor, M.C.;

James D’Albora, M.D.; Joseph A. Dugan, M.D.; George J. Ellis,

MD.; Eugene Finegan, M.D.; J. Blaine Fitzgerald, M.D.; James

J, Foster, M.D.; George Gartland, M.D.; Henry S. Gering, M.D.

Richard Guy, M.D.; John Harrington, M.D.; William J. Hogan,

M.D.; Paul F. Jaquet, M.D.; John J. Kuhn, M.D.; Juan G.

Nolan, M.D.; Seamus Nunan, M.D.; and Joseph Schanno, M.D.

2

the purposes of their own brief. Both parties have given

their written consents to the filing of this amici curiae brief.

These. have been filed with the Clerk.

INTEREST OF THE AMICI AND THEIR

POSITION IN THE CASE

1. Interest of the Amici. All of the amici are doctors li-

censed to practice medicine in the District of Columbia. Most

of them are obstetricians, gynecologists, internists or surgeons

with considerable experience in the practice of their respective

specialties. Several of them serve on the faculties of local

medical schools, and some are on the staffs of various hospi-

tals in the District of Columbia.

The amici do not maintain or imply that the position

which they espouse in this brief represents the unanimous,

or even the majority, opinion held by doctors who practice

medicine in the District of Columbia.* However, as practic-

ing physicians, these amici are called upon from time to time

for medical advice and professional assistance with respect to

terminating an unwanted pregnancy. Whatever the final de-

termination of the Court in this case may be, its ruling will

necessarily affect and, to some extent, control the medical

practice and professional conduct of these amici, as well as

all other doctors practicing medicine in the District of

Columbia. Clearly, the law’s treatment of a recurring aspect

of their medical practice is a matter of substantial profes-

sional interest to them and one on which, we believe, they

are entitled to be heard in this litigation.

2. The Position of the Amici on the Issues. As will ap

pear, these amici support the United States in maintaining

that the relevant statute* is not unconstitutionally vague on

3The members of the District of Columbia Medical Society obviously

have differing opinions on the general questions upon which this case

touches. Washington Post, June 24, 1970, p. C-1. The same strong

division of medical opinion exists within the American Medical Asso-

ciation. New York Times, June 26, 1970, p. 1; Washington Post, June

26, 1970, p. A-1.

422 D.C. Code 201 (1967).

— ©

3

its face. Additionally, however, there may arise other issues

which were raised by the defendant in the court below and

which he again presses in this Court. These include his

claims that the statute: (1) abridges First and Fifth Amend-

ment rights of doctors and (2) unconstitutionally invades cer-

tain rights of privacy and family interests allegedly guaran-

teed by the Constitution, because the law does not rest on

any substantial competing state interest sufficient to justify

its existence and application.*®

It is the understanding of these amici that the Solicitor

General does not intend to deal with this second category of

constitutional issues. We share his opinion that such issues

need not be reached and also, as we argue below, should not

be decided on the sparse record which furnishes the “fragile

_. . foundation” on which this appeal is grounded. Poe v.

Ullman, 367 U.S. 497, 501 (1961). Nevertheless, the defend-

ant did raise them, at least in a general way, in his motion to

dismiss the indictment (A. 4). While the District Court judge

did not pass upon these issues, he did acknowledge, with

some favor, their assertion by the defendant (A. 6, 8). Thus,

they may be open to the defendant as grounds on which he

might rely in supporting the trial court’s decision on the

Government’s appeal to this Court. Anderson v. Atherton,

302 U.S. 643 (1937); United States v. American Express Co.,

265 U.S. 425, 435-36 (1924); but cf. United States v. Blue,

384 U.S. 251, 256 (1966); Stern & Gressman, Supreme Court

Practice 41-42 (1969).

The instant case then is an appropriate one for these amici

to attempt to offer assistance to the Court in reaching its de-

cision, especially since there may lurk in the record important

constitutional issues which the Court may wish to take up

and decide, but to which the appellant may not direct argu-

ment.®

5Appellee’s Motion To Affirm, p. 26.

®Krislov, The Amicus Brief: From Friendship to Advocacy, 72

Yale L.J. 694, 715 (1963); Wiener, Briefing and Arguing Federal Ap-

peals 270 (1961).

4

QUESTIONS PRESENTED

As amici see it, the determinative question presented is, as

stated by the Solicitor General, whether the phrase “‘neces-'

sary for the preservation of the mother’s life or health” con-

tained in the District of Columbia abortion statute is uncon-

stitutionally vague on its face. However, the Court also may

be called upon to decide: (a) whether it should pass upon the

further constitutional issues urged upon it by the appellee,

and, if so, (b) whether the statute, on its face, abridges or im-

pairs rights guaranteed doctors by the First and Fifth Amend-

ments and rights of privacy of pregnant women provided by

virtue of the interaction of the Fourth, Fifth and Ninth

Amendments to the Constitution of the United States.

As they argue below, amici believe that the answer to all

three of these questions should be in the negative.

SUMMARY OF ARGUMENT

i.

A. The claim that the statute is unconstitutionally vague

should not be determined on the basis of the present record,

completely unilluminated by any facts. For the Court to de-

cide that issue would be the type of precipitate and unneces-

sary judicial consideration of a constitutional question which

this Court has traditionally avoided.

B. The phrase “necessary for the preservation of the

mother’s life or health” has been interpreted by the Circuit

Court of Appeals for the District of Columbia to protect the

physician who concludes in good faith that an abortion is

necessary to preserve the mother’s life or health, including

mental health. The doctors of the District of Columbia are

neither in doubt nor in fear as to where abortions permitted

by the statute end and where those prohibited by it begin.

The standard of “‘preservation of life or health” is the same

standard which a doctor applies in making medical judgments

in almost every aspect of his practice. The defendant could

5

not have been in any genuine doubt whether he was acting as

a doctor or as an abortionist.

Il.

A. We have the gravest doubts that a purported abortionist

has the proper standing to assert alleged, but as yet unestab-

lished, rights of privacy on the part of pregnant women. In

the absence of weighty countervailing policies, a litigant may

only assert his own constitutional rights or immunities. No

woman, pregnant or not, married or single, is a party to this

litigation. Indeed, the record may show that the defendant

performed an abortion on a woman who could turn out to be

the chief complaining witness against him. It would appear

ironic, if not offensive, to recognize any right in the defend-

ant to raise vicariously the constitutional rights of pregnant

women in the District of Columbia.

B. The appellee urges the Court to decide novel constitu-

tional issues of great magnitude, the resolution of which will

have a nationwide impact upon the law, the practice of medi-

cine and the social mores of the people. Yet, the present rec-

ord is utterly inadequate to permit the sort of informed and

responsible adjudication which alone can support the enun-

ciation of the far-reaching, new constitutional principle which

the appellee urges the Court to proclaim. Completely missing

are any of the specific facts on which the offense charged is

based. In addition, there is a complete lack in the record of

any medical, social, economic or other relevant facts which

bear on the question of whether the Constitution should be

construed to vest in a pregnant woman the unfettered right

to destroy her unborn child for any reason whatsoever.

C. The prematurity for decision of the issues that appel-

lee would have the Court resolve on the barren record in this

case is further compounded by two other circumstances.

First, since the case has come here by direct review, this

Court has not had the advantage of the view of the United

States Court of Appeals for the District of Columbia Circuit.

Direct appeals are not favored. This is especially true when a

a

6

direct appeal raises issues which were never passed on in the

single court which heard the case prior to its arrival in this

Court. Moreover, the Court will have opportunity soon

enough to pass on the question of whether the Constitution

confers on a woman the unabridgeable right to terminate an

unwanted pregnancy. One such case is already pending in

this Court. Nine other cases which raise the same constitu-

tional issues advanced by the appellee are now in various

stages of litigation in the federal and state courts.

Ill.

A. Whatever the metaphysical view, the legal concepts as ,

to the nature and rights of an unborn child have drastically

changed, based on expanding medical knowledge over the

last 2,500 years. As recently as 1921, a respected state court

could maintain that the child in the womb is part of his

mother. The findings of medical science have destroyed that

myth. The leading doctors and scientists in the field now

agree that life begins not at birth, but either at conception or

within six or seven days thereafter. They further agree that

a developing fetus is alive, not only in the sense that he is

composed of living tissue, but also in the sense that he isa

living, striving human being, from the very beginning. Very

early in the pregnancy the fetus manifests a working heart

and brain different from his mother. There is no question but

that his individual animate existence, or life, begins no later

than the stage at which the cells which make up the fetus sepa-

rate from those cells which later become the placenta. Thus,

the state’s interest in the preservation of human life in the

womb rests upon the undisputed medical evidence.

B. The law has recognized the rights of an unborn child in

other important areas. For example, the property rights of

an unborn child, at all stages of fetal development, were recog-

nized by English law before the end of the eighteenth cen-

tury. The same recognition was afforded the property rights

of an unborn child by American courts. In property law

there was no requirement that the fetus must be “quick”,

7

ie.,that his presence within her body be felt or recognized by

the mother. The rules protecting property rights of an un-

born child have been applied even where their application

benefited some third party rather than the child, and even

where the child himself suffered disadvantage because of such

application. We believe it would be an ironic and inexplica-

ble perversion of both human and constitutional values if it

were to be the law that a state has an interest in protecting

the property rights of an unborn child but has no compel-

ling, constitutionally justifiable interest in regulating the cir-

cumstances and conditions under which he may be destroyed.

C. In the field of tort law there has been a dramatic de-

velopment and complete change in the law in response

to expanding scientific knowledge and medical facts that

formerly were unavailable. Until well into the twentieth

century most American decisions denied recovery in tort

to the human offspring harmed in the womb, primarily

on the ground that the defendant owed no duty to a person

who was not in existence at the time of the tort. The pre-

mise here, of course, was the now repudiated notion that the

unborn child was a part of his mother. Almost every jurisdic-

tion which has considered the issue in the last 30 years has

upheld the right of an infant to sue for injuries sustained

prior to birth, including the right to sue under a wrongful

death statute, whether or not the injury occurred at the time

the unborn child was viable or not. If the state may protect

the unborn child by a court action awarding damages for a

tort, a fortiori it cannot be impotent to protect the same liv-

ing being by criminal sanctions which prohibit his arbitrary

destruction.

D. It is also now established that the law will recognize an

unborn child’s right to support by his parents. If a state

has sufficient justification to require a father to support

an unborn child which he may not want, can it be fairly

maintained that the same state has no justifiable interest in

protecting from destruction as a living being a child which

his mother may not want?

8

E. This Court has firmly settled that the free exercise of

religion rights guaranteed by the First Amendment are sus-

ceptible of restriction only to prevent grave and immediate

danger to interests which the state may lawfully protect.

Nevertheless, the right of an unborn child to live has served

to permit the state’s abridgement of or interference

with a mother’s religious convictions when necessary to

save the life of an unborn child. These are cases where

the court has to override the religious convictions of

a mother and order a blood transfusion in order to save an un-

born child within the womb. Either expressly or impliedly

such judicial results are based on the findings of modern medi-

cal science concerning the nature of the fetus and constitute

recognition of the right of the child in the womb to the pro-

tection of the law.

F. The amici believe that in any balancing of constitu-

tional values or rights, life must be preserved over alleged

privacy. Even if there is a certain right of privacy on the

part of a woman arising from the marital relationship, with

which the state cannot unjustifiably interfere, there is another

right involved here, and the most fundamental of the personal

liberties protected by the Due Process Clause, i.e. , the unborn

child’s right not to “be deprived of life”, in the very words of

that constitutional provision. Thus, the Court is not con-

fronted with a balancing between a right of personal liberty

on the one hand and some lesser competing state interest on

the other. The choice here is between a nebulous and as yet

unrecognized legal right of privacy on the part of a woman

with respect to the use of her body and the personal right to

life of an unborn child, with a concomitant right on the part

of a state to prevent its unjustifiable destruction.

The state’s interest in regulating abortion is not bottomed

exclusively on its concern for the health of the mother. The

state interest which justifies what the Congress had done rests

on concern for the preservation of human life, even though

that life be within the womb. There are no decisions of this

Court which suggest the existence of an unrestricted right of

body integrity on the part of a woman sufficient to permit

—

her alone to decide, for whatever reason, whether to termi-

nate a pregnancy. To sustain the attack on the statute which

the appellee makes in urging that it offends against an alleged

right of privacy would require this Court’s unabashed return

to the long-repudiated concept of substantive due process

which plagued its decisions for several generations.

Public and medical opinion with respect to liberalization

of the abortion laws is divided. However, the predilections of

the populace, even those of its most enlightened members,

much less the individual preferences of judges, cannot serve as

a basis to strike down legislation within the competence of a

state to enact, especially when such legislation is aimed at

protecting the most fundamental of the personal liberties

protected by the Due Process Clause, that is, the right not

to “be deprived of life.”

G. All the cases cited by the appellee in support of his

claim that a right of privacy is constitutionally guaranteed

are clearly distinguishable on their facts. The only one that

even superficially might be regarded as an analogy to support

appellee’s position here is Griswold v. Connecticut, 381 US.

479 (1965). Griswold stands only for the proposition that a

law outlawing the use of contraceptives, enforcement of

which would require invasion of the marital bedroom, trans-

gressed on the intimacies of and the right of privacy inherent

in the marital relationship, including the sexual relationship.

The District of Columbia abortion statute does not affect

the sexual relationships of husband and wife. Moreover, in

Griswold the Court was not called upon to choose between

the right to privacy and the right to life, the choice it must

make in this case. Nor can it seriously be argued that abor-

tion, a crime at common law, is a fundamental, albeit “pe-

numbral”, liberty reserved by the Ninth Amendment.

9

on

10

IV.

A.. The appellee’s claims that the statute abridges his

First and Fifth Amendment rights are without merit. He

was indicted for performing an abortion, not for making a

speech or giving medical advice. If the statute is one within

the competency of the District of Columbia to enact, then

argument is closed, since a criminal act does not fall within

the freedom of speech which the First Amendment protects,

The same rationale answers the appellee’s claim that he is un-

constitutionally restrained in the practice of his profession,

B. Nor does the statute effect any invidious discrimina-

tion between rich and poor, as suggested by the appellee. It

applies to all persons committing the acts condemned by it

and there is no suggestion that it seeks to discriminate on any

invidious basis, including that of income. Even if it is true

that the rich are in a better position to go to a jurisdiction

where abortions are legal or to engage the services of more

sympathetic physicians, the answer would be no different.

There is no requirement of equal protection that all evils of

the same genus be eradicated, or none at all. If the law in this

instance, as in so many others, bears more oppressively on the

less financially fortunate, the remedy lies in the elimination

of the causes of poverty and the reform of the administration

of criminal justice, not by the selective invalidation of other-

wise lawfully enacted statutes.

C. The appellee argues that the common welfare would be

better served by a liberal abortion law. He is concerned about

the unsafe conditions which surround criminal abortions and

is also moved by the grave problem of overpopulation. What-

ever the efficacy of such arguments, it is to the Congress, not

to this Court, that they should be directed. Apart from that,

the amici question their persuasiveness. The evidence is that

liberalization of abortion laws has effected no reduction in

the rate of abortions in other countries, so all that is done is

to increase the total number of abortions. Finally, so far as

the problem of overpopulation is concerned, an abortion,

whether on the free demand of a woman or pursuant to the

11

intimidating command of the state, appears to us as a singu-

larly ineffective, and indeed extremely dangerous, way to at-

tempt to solve the population problem, at least in the context

of the humanistic values traditional to Western Civilization.

In any event, this Court is not the forum, and this case is not

the occasion, to debate whether unrestricted abortion would

best serve the general welfare of the people of the District of

Columbia.

ARGUMENT

I.

THE STATUTE IS NOT UNCONSTITUTIONALLY VAGUE

A. The Question Should Be Illumined by Some Facts. The

amici cannot offer arguments of additional substance to those

which the Solicitor General has made in challenging the deci-

sion of the court below on the vagueness issue. They agree

with the Government’s contention that the statute should

not have been held unconstitutionally vague on its face. Ra-

ther, as the Solicitor General urges, the case should be re-

manded for further proceedings in the trial court to deter-

mine whether the facts, which, for the most part, are unknown

on the basis of the existing record, fairly generate issues of

constitutional dimension requiring a decision by this Court.

United States v. Automobile Workers, 352 U.S. 567, 591

(1957). Mr. Chief Justice Hughes’ lament concerning the

Court’s “self-inflicted wounds” covers several kinds of pre-

cipitate and unnecessary judicial consideration of constitu-

tional issues, including the construction of statutory language

in the vacuum of a barren record, as is the case here. Such

concern has a special force when the Court is asked to strike

down an Act of Congress, a co-equal branch of the Federal

Government. United States v. Five Gambling Devices, 346

US. 441, 449 (1953). And it remains unassailably true that

the “best teaching of this Court’s experience admonishes us

"Hughes, The Supreme Court of the United States 50.

12

not to entertain constitutional questions in advance of the

strictest necessity.” Parker v. County of Los Angeles, 338

U.S. 327, 333 (1949).

Amici accordingly urge that the case be remanded to the

trial court, as suggested by the Solicitor General, and that any

determination of the vagueness issue be deferred until the

facts have been developed at trial.

B. The Statutory Exemption Is Not Vague. Again, there is

not much that these amici can add to the Solicitor General’s

argument that the statute is not unconstitutionally vague and

sets forth with reasonable clarity and sufficient particularity

the kind of conduct which the statute penalizes and that

which it exempts. The exempting phrase, “‘necessary for the

preservation of the mother’s life or health’’, clearly protects

the District of Columbia physician who concludes in good

faith that an abortion is necessary to preserve the mother’s

life or health, including mental health. Williams v. United

States, 138 F.2d 81, 84 (C.A. D.C., 1943). Such is the pre-

cise interpretation which the highest court of the District of

Columbia has given the statute now drawn into question in

this case. Williams v. United States, supra. Under the circum-

stances, it appears particularly inappropriate to these amici,

all doctors who have lived easily with the statute as thus de-

fined, to ask that this Court now “parse .. . [the] statute as

grammarians or treat it as an exercise in lexicography ...

{rather than reading] it in the animating context of well-

defined usage.”” Beauharnais v. Illinois, 343 U.S. 250, 253

(1952).

Doctors, we assure the Court, are neither in doubt nor in

fear as to where abortions permitted by the statute end and

where those barred by it begin. For example, a recent study

in California, whose abortion statute has an exception limited

solely to cases where termination of the pregnancy is neces-

sary to preserve the life of the mother,® shows that there has

never been a prosecution for an abortion performed in a hos-

8Cal. Penal Code § 274.

—_—_

13

pital by a physician licensed to practice medicine in that State.

Packer & Gamspell, Therapeutic Abortion, A Problem in Law

and Medicine, 11 Stanford L.R. 418, 444 (1959). Other re-

cent studies show the same has been true in New York and in

Maryland. Hellegers, Abortion, the Law, and the Common

Good, 3 Medical Opinion and Review, No. 5 (May 1967), p.

84, The amici are confident that this has also been the fact

in the District of Columbia, and in that jurisdiction, as in the

others, “the law has not gone out of its way to make things

difficult for the physician, . . .”® Indeed, if there is a more

appropriate and familiar guide or standard than “preservation

of life or health” to govern the practice of medicine generally

we are unaware of it. In truth, it is the same standard which a

doctor applies in making medical judgments in almost every

aspect of his practice.

The studies cited in the preceding paragraph confirm the

practical wisdom of then Judge Thurmond Arnold’s observa-

tion, made 27 years ago, that it is “easy for the physician who

directs an abortion in good faith to testify that it was neces-

sary for health and such evidence would be extremely diffi-

cult to refute.” 138 F.2d at 84. Thus, in the District of

Columbia and, we feel certain, in most other American juris-

dictions the so-called “‘doctor’s dilemma”, as Dr. Guttmacher

once put it in reference to the “preservation of life” excep-

tion to state anti-abortion statutes,'® is purely a philosophical

or subjective choice, the resolution of which has no adverse

Hellegers, supra at 84. Indeed, a recent decision of the Court of

Appeals for the District of Columbia Circuit suggests, should appellee

prevail on this appeal, that any “doctor’s dilemma” will not be whether

he will be punished if he performs an abortion but whether he will

be punished if he does not. Mary Doe, et al. v. General Hospital of

the District of Columbia, et al., C.A. No. 24,011. For a recent case

showing this is not an illusory concern see Gleitman v. Cosgrove,

49 N.J. 22, 227 A.2d 689 (1967). Should doctors who object to per-

forming abortions for social or economic reasons offered by women

because such abortions offend either their religious, philosophical or

professional convictions be exposed to serious civil liability?

Guttmacher, Therapeutic Abortion: The Doctor’s Dilemma, 21

Jour. Mt. Sinai Hosp. 111 (1954).

id

practical consequences, either in the administration of the

criminal law or on the food faith practice of medicine. See, e.g,

Kudish v. Bd. of Registration in Medicine, ___Mass. ___,

248 N.E.2d 264, 266 (1969).

Perhaps it was partially because of his brilliant doctor-

father that Mr. Justice Holmes was blessed with an eminently

practical, as well as a superbly philosophical, turn of mind.

In any event, his words, as in so many other areas of constitu-

tional law, supply the answer to any claim of the alleged

vagueness of 22 D.C. Code 201. Speaking for the Court in

United States v. Wurzbach, 280 U.S. 396, 399 (1930), he

said:

“Whenever the law draws a line there will be cases very

near each other on opposite sides. The precise course

of the line may be uncertain, but no one can come

near it without knowing that he does so, if he thinks,

and if he does so it is familiar to the criminal law to

make him take the risk.”

Here, too, Dr. Vuitch could not have been in any genuine

doubt whether he was acting as a doctor or as an abortionist."!

The Solicitor General is right in arguing that the trial court

erred in holding the statute to be unconstitutionally vague on

its face, and his decision should be reversed.

Il.

THE COURT SHOULD NOT PASS UPON THE ADDI-

TIONAL CONSTITUTIONAL CONTENTIONS AD-

VANCED BY APPELLEE

As he did in the trial court, the appellee again raises in this

Court claims that the District of Columbia anti-abortion sta-

tute violates certain First and Fifth Amendment rights of his,

and also impinges upon alleged Fourth, Fifth and Ninth

See also Perkins v. North Carolina, 234 F. Supp. 333, 336

(W.D. N.C., 1964), where it was held that the phrase “abominable and

detestable crime against nature, with either mankind or beast” was

not unconstitutionally vague, although if it had been a newly enacted

statutory proscription it would have been.

_

Amendment “rights of privacy” possessed by a woman en-

titling her alone to make the untrammeled decision to termi-

nate an unwanted pregnancy. As stated supra, p. 3, the

District Court did not pass upon these particular contentions

of the appellee.'? Nor should this Court—for several reasons.

‘These are: (1) the substantial doubt which exists regarding

the appellee’s standing to raise constitutional rights allegedly

| inhering in pregnant women; (2) the complete dearth in the

| record, both of the specific facts of this criminal case and of

| the broader medical and social facts which necessarily must

attend resolution of the unique and far-reaching constitu-

:

)

15

tional issues offered by the defendant; and (3) the pendency

of other cases, one of which, before too long, surely will

provide a more appropriate vehicle for an authoritative

decision by this Court on such important issues.

A. Appellee’s Standing To Complain of the Alleged Con-

stitutional Rights of Pregnant Women Is Doubtful. Amici do

not dispute Dr. Vuitch’s right to argue that the statute im-

pinges on (a) rights of free speech guaranteed him by the First

Amendment and (b) the right to practice his profession

which the Fifth Amendment protects.'? However, they have

the gravest doubts that a purported abortionist has the proper

standing to assert alleged, but as yet unestablished, rights of

privacy on the part of pregnant women sufficient to permit

them to authorize, on their own volition, the destruction of

an unwanted, unborn child.

2The amici admit that these contentions or grounds, while not

passed upon in the court below, technically may appear to have been

preserved in this Court. United States v. Raines, 362 US. 17, 27

(1960). The matter, however, as the Solicitor General points out, is

not free from doubt and if such claims represent “constitutional ques-

tions that are not yet precisely in issue” this Court, of course, will not

consider them on the Government’s appeal under the Criminal Appeals

Act (18 U.S.C. 3731). United States v. Petrillo, 332 U.S. 1, 11 (1947).

13 wilizer v. Committee on Character and Fitness, 373 U.S. 96, 102-

03 (1963).

16

This Court many times has held that, in the absence of

“weighty countervailing policies . . . a litigant may only as-

sert his own constitutional rights or immunities.” United

States v. Raines, 362 U.S. 17, 22 (1960); Barrows v. Jackson,

346 U.S. 249, 255 (1953). Almost precisely in point would

appear to be McGowan v. Maryland, 366 U.S. 420 (1961). In

that case, the Court upheld the conviction of employees of a

department store who had been found guilty of selling goods

in violation of the state’s Sunday Closing Laws. Concerning

their contention that the Sunday Closing Laws violate the

Free Exercise Clause of the First Amendment, as incor-

porated in the Fourteenth, the Court said:

“First, appellants contend here that the statutes

. .. Violate the constitutional guarantee of freedom of

religion in that the statutes effect is to prohibit the

free exercise of religion in contravention of the First

Amendment, made applicable to States by the Four-

teenth Amendment. But appellants allege only econo-

mic injury to themselves; they do not allege any in-

fringement of their own religious freedoms due to

Sunday closing. In fact, the record is silent as to what

appellants’ religious beliefs are. Since the general rule

is that ‘a litigant may only assert his own constitu-

tional rights and immunities,’ we hold that appellants

have no standing to raise this contention. . . . Those

persons whose religious rights are allegedly impaired

by the statutes are not without effective ways to as-

sert these rights. Appellants present no weighty coun-

tervailing policies here to cause an exception to our

general principles.” 366 U.S. at 429-30.

Similarly, in the case at bar no “weighty countervailing

policies” require the drawing of an exception to the general

rule that a party can assert his own constitutional rights but

not those of others. If well established Free Exercise of Reli-

gion rights may not be vicariously asserted, surely alleged,

unique, sweeping but, at this point in time, legally unrecog-

nized rights on the part of a pregnant woman to terminate an

unwelcome pregnancy for any reason should not be decided

upon the urging of a stranger. Tileston v. Ullman, 318 US.

17

44, 46 (1943). No woman, pregnant or not, married or single,

is a party to this litigation. For all the present enigmatic rec-

ord ultimately may show, it is very possible that the woman

upon whom Dr. Vuitch is alleged to have performed the abor-

tion may turn out to be the chief complaining witness against

him. A more direct conflict of interests would be difficult to

arrange. Putting aside the irony of such a possible state of the

facts, the circumstances of this case strike the amici as one

where it would be almost offensively inappropriate to permit

the appellee to stand in the constitutional place of the preg-

nant mothers of the District of Columbia, who, for one rea-

son or another, wish to get rid of their unborn child.’* For

reasons, the lack of standing on the part of the appellee to

raise the “right of privacy” question should deter the Court

from adjudicating it on this appeal.

B. The Record Is Not a Proper One To Serve As a Basis of

Decision For the Additional Constitutional Objections Pressed

by the Appellee. There is no question but that the additional

constitutional! issues which appellee would have this Court de-

cide, as he has put it, in the interest of obtaining a “‘final de-

finitive rule’”,'5 raise novel constitutional issues of great mag-

nitude. Their resolution will have a nationwide impact upon

the law, the practice of medicine and the social mores of the

14Nor does Griswold v. Connecticut, 381 U.S. 479 (1965), argue

against that proposition. In that case the doctor was convicted of

aiding and abetting married couples in advising and prescribing the use

of contraceptive devices prohibited by Connecticut law. The use of

such devices was the principal crime in the commission of which it

was charged that the doctor had aided and abetted. In the instant case

the defendant was not charged with a crime which could only be com-

mitted by those whose rights he now purports to vindicate, i.e., preg-

nant women wishing to destroy a fetus. Moreover, the language of

22 D.C. Code 201 (1967) implies that a mother could not be con-

victed of the crime of abortion on herself. Certainly there is no

reported case in the District of Columbia which suggests that the prose-

cution has ever attempted to invoke the statute against an aborting

mother.

'S Appellee’s Motion To Affirm, p. 19.

people. Before this Court succumbs to the temptation to re

solve such issues now, it first must decide whether the instant

case is the appropriate vehiicle in which to do that.

The Court often has admonished that it will not decide im-

portant constitutional questions, however appealing, on the

basis of an inadequate or amorphous record. Ellis v. Dixon,

349 U.S. 458, 462 (1955):; Wolfe v. North Carolina, 364 US.

177, 194 (1960). More re:cent examples of the same prudent

restraint may be found in DeBacker v. Brainard, 396 US. 28,

32 (1969), and Powell v. Texas, 392 U.S. 514, 521 (1968).

In Powell, four members of this Court declined the oppor-

tunity to determine that tthe Cruel and Unusual Punishment

Clause of the Eighth Amemdment, as now incorporated in the

Fourteenth Amendment, 'barred conviction of a chronic al-

coholic for the crime of public drunkenness. Even more so

than in Powell, supra, the record in the present case “‘is ut-

terly inadequate to permitt the sort of informed and responsi-

ble adjudication which alone can support the announcement

of an important and far ramging new constitutional principle.”

392 US. at 521.

The record in the instant case is deficient in two important

respects. First, almost completely lacking are the specific

facts on which the offense charged is based. The record shows

only that the defendant iis a licensed physician and was in-

dicted for performing an abortion on a pregnant woman (A. 2).

Missing are any facts as to:: (1) whether the woman was mar-

ried or unmarried; (2) whether she was an adult or a minor;

(3) whether, if married, her husband knew of, and approved,

the abortion; (4) whether the abortion was performed in a

hospital, a doctor’s office, a private home or a garage; (5)

whether the fetus which was destroyed was 2, 25 or 35 weeks

old; (6) whether the unborm child was biologically alive, viable

or had “quickened”; (7) whether or not the life or health, in-

cluding the mental health., of the woman was endangered if

the abortion was not perfformed or whether the mother de-

sired to terminate the pregmancy for economic or purely social

reasons; and (8) whether or not the mother suffered any ad-

ww,

19

yerse physical or mental consequences as a result of the abor-

tion allegedly performed by the defendant.

Could such a total factual vacuum furnish the proper oc-

casion for this Court to decide the grave issues urged by the

appellee in the alleged interests of avoiding “costs and delay,

prevent[ing] continued litigation on the substantive issues,

and conserv[ing] judicial time and resources”? Putting it

most mildly, the impoverished record which accompanies this

appeal “hardly reflects the sharp legal and evidentiary clash

between fully prepared adversary litigants which is tradi-

tionally expected in major constitutional cases.” Powell,

supra at 522.

Going beyond, however, the complete lack of specific evi-

dentiary facts peculiar to the case itself, there also may not be

found in this record a single jot of medical, fetological, physi-

cal, psychiatric, psychological, psychoanalytical, social or

economic evidence or other relevant general facts which might

bear on the question of whether the Constitution should be

construed to vest in a pregnant woman the unfettered right to

destroy her unborn child when she feels so disposed.

C. Two Additional Reasons for Declining Review. The

prematurity or inappropriateness for decision of the issues

that appellee seeks the Court to resolve on this barren

record is further compounded by two other circumstances.

First, the case has come here by direct appeal, pursuant to

the Criminal Appeals Act, 18 U.S.C. 3731, and thus has not

been subject to review by the United States Court of Ap-

peals for the District of Columbia Circuit, in which court

some of the constitutional arguments that underlay the

novel issues tendered by the appellee might have been de-

veloped in more informative detail. It would appear by vir-

tue of 23 D.C. Code 105 (1967) that the case could have been

appealed to the Circuit Court of Appeals, and this Court’s

order of June 29, 1970 in this case suggests that it may be

troubled that such an appeal route was not followed. United

States v. Sweet, 38 U.S. Law Week 3520, June 30, 1970;

United States v. Burroughs, 289 U.S. 159 (1933). Amici are

a

inclined to agree with the parties that the literal language of -

the Criminal Appeals Act tends to support this Court’s juris.

diction of the appeal, at least so far as the issue of alleged

vagueness is concerned. Nevertheless, the lack of interme-

diate review by the Court of Appeals of the District of

Columbia Circuit furnishes another sound reason for this

Court to decline review of other important constitutional

issues which are not necessary for its decision and which are

without the benefit of any factual record. Direct appeals

under 18 U.S.C. 3731 are generally something “unusual, ex-

ceptional and unfavored, . . .” Carroll v. United States, 354

U.S. 394, 399-400 (1957); United States v. Sisson, 38 US.

Law Week 4616, 4623, June 30, 1970. Especially should this

be true when a direct appeal raises issues never considered

or ruled on in the only court which heard the case prior to its

arrival in this Court.

Finally, there is little doubt that the Court will have an op-

portunity quite soon enough to pass upon the question of

whether the Constitution confers on women, or at least on

married women, an unabridgeable right to terminate an un-

wanted pregnancy. Already pending in this Court is the ap-

peal taken from the decision of a three-judge federal court in

Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wisc., 1970),

app. pend., No. 297, October Term, 1970. Babbitz squarely

raises the “right of privacy”’ question, the lower court having

upheld such a right in striking down the Wisconsin abortion

statute. In that case, there is a “great volume of legal, medi-

cal and biological evidence”’® bearing on the novel and im-

portant issue which the appellee asks the Court to decide in

this case. Amici can also report to the Court that there are at

least nine other cases, the majority of them three-judge fede-

ral court cases, in various postures of litigation, in which are

raised, in several factual contexts, the same constitutional

20

16 Appellant’s Jurisdictional Statement in No. 1729, October Term

1969, filed June 20, 1970, p. 21.

21

issues which the appellee would have the Court decide on the

basis of the flimsy record out of which this appeal arises.'”

For these several compelling reasons, amici respectfully

urge that the Court decline to decide the additional constitu-

tional issues which the appellee now raises in an attempt to

convince the Court that the District Court’s decision should

be sustained, however it may decide the vagueness question.

iil

D AUTHORITY TO DESTROY AN UNBORN

CHILD IS NOT A RIGHT OF WOMANLY PRIVACY BEYOND

THE JUSTIFIED INTEREST OF AND REASONABLE REGU-

LATION BY THE STATE

As the Solicitor General points out, the decision of the

District Court may have created a situation where any

licensed physician in the District of Columbia may perform

an abortion on a pregnant woman who desires it for any

reason whatsoever. Of course, if this Court should agree that

the trial court erred in finding the statute vague on its face,

such an unfortunate state of affairs would be rectified. How-

ever, if the appellee convinces the Court to accept his argu-

ment as to the alleged constitutional right of privacy on the

part of a pregnant woman to destroy her unborn child for

17 apart from the Babbitz case, there are three-judge federal court

cases pending in the Northern District of Georgia (Mary Doe, et al. v.

Bolton, C.A. No. 13676), the Northern District of Illinois Jane Doe,

et al. v. Scott, C.A. No. 70C395), the Southern District of Indiana

(Amold, et al. v. Sendak, et al, C.A. No. IP70C-217), the Eastern

District of Kentucky (Crossen v. Breckenridge, C.A. No. 2143), Minne-

sota (John Doe, et al. v. Randall, et al., C.A. No. 3-70, Civ. 97), New

Jersey (Young Men’s Christian Ass'n of Princeton, N.J., et al. v. Kuglar,

C.A. No. 264-70), and the Northern District of Texas Vane Roe v.

Wade, C.A. No. 3-3690-B). A decision of the three-judge court, declar-

ing the Texas abortion statute to be an unconstitutional invasion of

the mother’s right of privacy, was entered June 17, 1970. Two recent

state cases have been decided, one in Massachusetts (Commonwealth

of Massachusetts v. Brunelle, Superior Court for Middlesex Co., No.

8379), and another in South Dakota (South Dakota v. Munson, Circuit

Court for Pennington County).

—

22

any reason she may have, then it is extremely doubtful that

the District of Columbia or any state in the Union could

pass a law regulating abortion, with the exception of requir-

ing that abortions be performed by licensed physicians and,

perhaps, that they take place in hospitals.'* The basic pos-

tulates from which the appellee’s arguments proceed are:

(1) that the woman’s sovereignty or control over her own

body is a right of privacy similar to other rights growing out

of the marital relationship; and (2) this right cannot be inter-

fered with by the state, at least in the form which the present

District of Columbia abortion statute takes, since the state

cannot demonstrate any competing substantial interest to

justify its intrusion into that relationship.

The contrary assumptions which disprove the propositions

urged upon the Court by the appellee and which are devel-

oped in more detail in the amici’s brief are: (1) The state’s

interest in preventing the arbitrary and unjustified destruc-

tion of an unborn child now rests more securely than ever

on the undisputed medical evidence, recently confirmed by

the new science of fetology, that the fetus is a living, human

being even in the very earliest stages of its development;

(2) Whatever personal right of privacy a woman may have

with respect to the use and disposition of her body must be

balanced against the personal right of an unborn child to

life; and (3) The District of Columbia abortion statute strikes

a constitutional balancing of such rights.

18Even here, should the logic which underlies the appellee’s basic

position be carried just a bit farther, there may be serious doubt,

despite the District Court’s holding to the contrary, whether any right

of unrestricted abortion could be limited to their performance in hos-

pitals. If a woman has the “sovereignty over . . . her own body”, which

the appellee asserts, one could persuasively argue that she should be

entitled to decide where the abortion is to be performed. Indeed, the

appellee very recently stated publicly that “there was no need to

restrict abortions to hospitals” and that his office, for one, “‘is ——

sufficiently to be considered a small out-patient clinic, . . The

Washington Post, June 27, 1970, p. B-1.

23

A. The State’s Interest in Protecting the Rights of an

Unborn Child Rests on a Proven Medical Basis. Whatever the

metaphysical view of it is, or may have been, it is beyond

argument that legal concepts as to the nature and rights of

an unborn child have drastically changed, based on expand-

ing medical knowledge, over the last 2,500 years. In the

ancient world, a child in the womb was considered as part

of his mother.’? And up to the seventeenth century it was

prevailing doctrine, based upon Aristotle’s notion, that 40 to

80 days after conception the fetus underwent a trarisforma-

tion that placed him in the human class. This notion was

successfully demonstrated to be medical nonsense as early

as 1621.2° Thereafter, the medical profession gradually

accepted the view that no valid line could be drawn within

the womb. The law followed, but dragged considerably

behind, the medical lead. For example, as recently as 1921,

the Court of Appeals of New York, with Judge Cardozo

dissenting, could hold that when “justice or convenience

requires, the child in the womb is dealt with as a human

being although physiologically it is part of the mother, ...”

Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567, 568 (1921).

At this point in time, however, there can no longer be

sound medical facts offered to support the ancient notion

that a fetus is “part” of his mother. The unassailable medical

evidence to the contrary has now been convincingly con-

firmed by the findings of the new science of fetology, which

came into existence by virtue of Liley’s work on blood

transfusions in the fetus.24 Some of the observations and

opinions on the question held by the most eminent of doc-

19 This view was expressly incorporated in Roman law. Justinian,

Digest 25.4.1.1.

207 acchia, Quaestiones Medico-Legales 9.1 (1621).

214] iley’s pioneering work not only has opened new avenues in the

treatment of erythroblastosis fetalis, but has inspired the whole new

sub-specialty of ‘fetology’ and created a need for fetological surgeons

and fetological medical specialists for the future.” Montagu, Hemo-

lytic Disease of the Fetus, Intra-Uterine Development 443, 455 (A.

Barnes ed. 1968).

—

24

tors specializing in the field may be of interest to this Court,

although a more comprehensive discussion of the medical

evidence is to be found in the amicus curiae brief filed in

this case by Dr. Heffernan of Chicago, Illinois.

Professor Ashley Montagu of Columbia University has

stated it very concisely:

“The basic fact is simple: Life begins, not at birth,

but at conception.

“This means that a developing child is alive, not only

in the sense that he is composed of living tissue, but

also in the sense that from the moment of concep-

tion, things happen to him, even though he may be

only two weeks old, and he looks more like a crea-

ture from another world than a human being—he

reacts. In spite of his newness and his appearance,

he is a living, striving human being from the very

beginning.”’??

It is now undisputed, for example, that the conceptus, or

new fetus, possesses at the moment of its formation the so-

called genetic code, the transmitter of all the potentialities

that make men human, something that is not present in

either their spermatozoon or ovum. Gottleib, Developmental

Genetics 17 (1966). At the moment conception takes place,

scientists now generally agree “‘a new life begins—silent,

secret, unknown.”’?? Moreover,

“The child may be parasitic and dependent, but it

is a functioning unit, an independent life. A child is

22Montagu, Life Before Birth 2 (1964). Even if there is doubt

whether the fetus can be recognized as a separate human being from

the time of fertilization, there is no sound medical opinion which

would deny that individual animate existence (or life) begins at the

stage when the fetus separates or differentiates from the cells which

will become the placenta. This development, called the blastocyst

stage, occurs about six or seven days after conception. Cavanagh,

Reforming the Abortion Laws: A Doctor Looks at the Case, America,

April 18, 1970, p. 406.

23Coniff, The World of the Unborn, New York Times Magazine,

January 8, 1967, p. 41.

25

not, in the words of Mr. Justice Holmes, ‘a part of

its mother.’ However visceral may be its temporary

residence, however dependent it may be before birth

—and for some years after birth—it is a living being,

with its separate growth and development, with its

separate nervous system and blood circulation, with

its own skeleton and musculature, its brain and heart

and vital organs.”

A most vivid description of the fetus within the womb is

found in the report of Dr. Liley and his wife, both pioneers

of the new science of fetology. In 1967 they said:

“Because the fetus is benignly protected, warmed

and nourished within the womb, it was long thought

that the unborn must have the nature of a plant,

static in habit and growing only in size. Recently

through modern techniques of diagnosing and treat-

ing the unborn baby, we have discovered that little

could be further from the truth.

“The fluid that surrounds the human fetus at 3, 4,

5 and 6 months is essential to both its growth and

{ its grace. The unborn’s structure at this early stage

is highly liquid, and although his organs have devel-

oped, he does not have the same relative bodily pro-

portions that a newborn baby has. The head, housing

the miraculous brain, is quite large in proportion to

the remainder of the body and the limbs are still rela-

tively small. Within his watery world, however (where

we have been able to observe him in his natural state

by closed circuit x-ray television set), he is quite beau-

tiful and perfect in his fashion, active and graceful. He

is neither an acquiescent vegetable nor a witless tad-

pole as some have conceived him to be in the past, but

rather a tiny human being as independent as though

he were lying in a crib with a blanket wrapped around

him instead of his mother.”’?5

*4Granfield, The Abortion Decision (1969), p. 25.

251 iley, Modern Motherhood 26-27 (1967).

26

In District of Columbia medical circles, Dr. Hellegers has

summarized the nature of the fetus during the first 12 weeks

of its development as follows:

“After this second week of pregnancy the zygote rap- __

idly becomes more complex and is now called the

embryo. Somewhere between the third and fourth

week the differentiation of the embryo will have been

sufficient for heart pumping to occur, although the

heart will by no means yet have reached its final con-

figuration. At the end of six weeks all of the internal

organs of the fetus will be present, but as yet in a

rudimentary stage. The blood vessels leading from

the heart will have been fully deployed, although they

too will continue to grow in size with growth of the

fetus. By the end of seven weeks tickling of the

mouth and nose of the developing embryo with a

hair will cause it to flex its neck, while at the end of

eight weeks there will be readable electrical activity

coming from the brain. The meaning of the activity

cannot be interpreted. By now also the fingers and

toes will be fully recognizable. Sometime between

the ninth and the tenth week local reflexes appear

such as swallowing, squinting, and tongue retraction.

By the tenth week spontaneous movement is seen,

independent of stimulation. By the eleventh week

thumb-sucking has been observed and X rays of the

fetus at this time show clear details of the skeleton.

After twelve weeks the fetus, now 3-1/2 inches in

size, will have completed its brain structure, although

growth of course will continue. By this time also it

has become possible to pick up the fetal heart by

modern electrocardiographic techniques, via the moth-

er.”’26

And the trial court judge’s father, an eminent child psychol-

ogist, concluded thirty years ago that the development of the

fetus reflects ‘mental growth” as early as the fourth week.”’

26Hellegers, Fetal Development, Vol. 31, No. 1, Theological Studies

7 (March, 1970).

27 Gesell, The First Five Years of Life 11 (1940).

27

It is for these medical reasons that the amici, like other

doctors practicing their profession in good faith, treat the

fetus or unborn child as a second patient, different from the

mother. This is acceptable medical practice and is almost

universally done in obstetrics. It is, perhaps, the only area of

medical practice where a doctor treats two patients at the

same time, taking that unique fact into account in his treat-

ment of both patients.

Ordinarily, we would see no point in belaboring the sci-

entifically obvious. Life begins at either conception or six

or seven days thereafter; very early in its development, and

much before “quickening” is manifested, the fetus manifests

a working heart and a brain different from and independent

of the mother in whose womb he resides; and an unborn fetus

is a living, human being. Finally, even if it were still open to

dispute as to whether life begins at conception or shortly

thereafter, it is universally agreed that life has begun by the

time the mother realizes she is pregnant and asks her doctor

to prescribe an abortion. The amici have indulged in this

short compilation of undisputed medical opinion only out of

their concern that the Court might be tempted to take up and

decide constitutional issues of the greatest magnitude with-

out the advantage of familiarity with the relevant modern

medical facts most germane to any such determination. Now,

before they turn to the question of whether any alleged evolv-

ing right of privacy on the part of married women to do with

their bodies what they will is constitutionally protected from

application of an abortion statute such as 22 D.C. Code 201

(1967), despite the unrefuted medical data establishing that

the fetus is a living person within the womb at conception or

very soon thereafter, amici briefly refer to other areas of the

law in which the legal rules or principles applicable to the

rights of the fetus have substantially changed in response to

knowledge acquired from the evoiving biological data sup-

plied by ever-improving and enlightened medical and scien-

tific research.

28

B. The Law's Recognition of the Property Rights of an

Unborn Child. The first area where the rights of the unborn

- child, at all stages of fetal existence, were recognized by the

law was in the realm of property law. In Doe v. Clarke, 2 H.

Bl. 399, 126 Eng. Rep. 617 (1795), the court interpreted the

ordinary meaning of “‘children” in a will to include a child in

the womb: “An infant en ventre sa mere, who by the course

and order of nature is then living, comes clearly within the de-

scription of ‘children living at the time of his decease’.” In

Thelluson v. Woodford, 4 Ves. 227, 31 Eng. Rep. 117 (1798),

the court rejected the contention that this was a mere rule of

construction invoked for the benefit of the child: “Why

should not children en ventre sa mere be considered gen-

erally as in existence. They are entitled to all the privileges

of other persons.” /bid. at 323. To the argument that such a

child was a nonentity it replied:

“Let us see, what this non-entity can do. He may be

vouched in a recovery, though it is for the purpose of

making him answer over in value. He may be an exe-

cutor. He may take under the statute of distribu-

tions. He may take by devise. He may be entitled

under a charge for raising portions. He may have an

injunction; and he may have a guardian.” Ibid. at

322.

When the English property rules were adopted by American

courts, the same approach was taken. In Hall v. Hancock, 15

Pick. 255 (Mass., 1834), the issue was whether a bequest to

grandchildren “living at my decease” was valid, and the court

was asked to say that “in esse” was not the same as “living”

and that for a child to be “living”, the mother must be at

least “quick”.?® Chief Justice Shaw held that a conceived

child fell within the meaning of the language and quoted with

approval Lord Hardwicke in Wallis v. Hodson, 2 Atk. 117;

28Ouickening” of the child means only that his presence in the

womb is felt by the mother for the first time. Black’s Law Dictionary

1415 (1951). “Quickening” served to prove the existence of life to

common law men. Modern medicine now can prove the same exist-

ence long before it can be seen by the eye or felt by the mother.

29

“The principal reason I go upon is, that a child en ventre sa

mere is a person in rerum natura, so that, both by the rules of

the civil and common law, he is to all intents and purposes a

child, as much as if born in the father’s life-time.”

In In Re Well’s Will, 221 N.Y.S. 417 (1927), a trust fund

originating from the estate of the deceased was to be divided

into “as many parts as I have grandchildren living at the date

of my decease.” The decedent died on May 22, 1922;a grand-

daughter of the decedent was conceived on May 1, 1922. The

granddaughter was held to be entitled to a share in the trust

estate. See also Swain v. Bowers, 91 Ind. 307, 158 N.E. 598

(1927).

In the case of La Blue v. Specker, 358 Mich. 558, 100

N.W.2d 445 (1960), an unborn illegitimate child was held to

be a child or “other person” having standing to bring suit

under a dram shop act, for the death of his father, which had

occurred before the child’s birth. Quoting from /de v. Scott

Drilling Co., Inc., 341 Mich. 164, 67 N.W.2d 133 at 135, the

court in the La Blue case stated:

“For certain purposes, indeed for all beneficial pur-

poses, a child en ventre sa mere is to be considered as

born. .. . It is regarded as in esse for all purposes

beneficial to itself, but not to another. ... Formerly,

this rule would not be applied if the child’s interests

would be injured . . . thereby, but for purposes of the

rule against perpetuities such a child is now considered

a life in being, even though it is prejudiced by being

considered born. . . . /ts civil rights are protected at

every period of gestation.”” (Emphasis supplied).”°

The foregoing approach has not been a sentimental con-

cession to the supposed benefit of some forgotten posthumous

child. The rule has been applied even where its application

benefited some third party, Barnett v. Pinkston, 238 Ala.

327, 191 So. 371 (1939), and also in cases where the child

himself has been injured by the rule, Jn re Sankey’s Estate,

199 Cal. 391, 249 P. 517 (1926), in which a child conceived

29100 N.W.2d at 449.

30

but not born was held bound by a decree entered against the

living heirs.

The English and American common law doctrine under

which an unborn child is considered as a “child” or as “in

existence” for purposes of inheritance and trusts has long

been followed in the District of Columbia. Craig v. Rowland,

10 App. D.C. 402 (1897).*

These amici believe that it would be an ironic and an inex-

plicable perversion of both human and constitutional values

if it were to be the law that the state has an interest in pro-

tecting the property rights of an unborn child, but has no

constitutionally justifiable interest in regulating the circum-

stances and conditions under which such a child may

be destroyed, ie., put out of existence and denied further

life as a human being. Nor is it any answer to reply that the

property rights of a fetus which are protected by the state

are merely contingent and depend upon his having been

born. It is only the remedy, not the right, which is contin-

gent. Existence as an unborn child is the basis of the state’s

interest in granting and protecting the property rights of an

unborn child. The fact that the child may not survive to

enjoy those rights does not denigrate the state’s interest or

deny its authority to implement that interest by law, either

as promulgated by legislatures or enunciated in judicial deci-

sions. We should assume that the proposition would have spe-

cial applicability when the state’s interests and action are di-

rected at insuring that the existence of life of the unborn

child, and all such contingently enforceable property rights

as he may possess, are not exterminated by his deliberate

destruction, at least short of an overwhelming countervailing

interest such as the protection of the life or health of another

human being—the mother.

C. Evolving Rights Afforded an Unborn Child by the Law

of Torts. Perhaps even more demonstrably so than in the case

of purely property rights, including rights of inheritance, it is

The rule was recently applied in Riggs National Bank v. Summer-

lin, et al., C.A. 187-69, Memo. Opinion (D. D.C., 1969).

—

31

in the law of torts where we witness a dramatic development,

indeed, an abrupt change, of the law in response to ex-

panding scientific knowledge and medical facts formerly

unavailable.

Well into the twentieth century most American decisions

denied recovery in tort to the human offspring harmed in the

womb. The denial was based in part on the danger of fraudu-

lent claims, in part on the difficulty of proving causation, but

principally on the ground that “the defendant could owe no

duty of conduct to a person who was not in existence at the

time of his action”, Prosser on Torts, Sec. 56 (1964). The

theory followed was that succinctly expressed by Justice

Holmes in Dietrich v. Northhampton, 138 Mass. 14, 17

(1884): “The unborn child was a part of the mother at the

time of the injury.”

There is no doubt of the sweeping nature of the reversal of

the Dietrich doctrine that the unborn child is a part of the

mother and therefore cannot sue for pre-natal injuries. Al-

most every jurisdiction which has considered the issue in the

last 30 years has upheld the right of an infant to sue for

injuries sustained prior to his birth. Prosser on Torts, Sec. 56;

Gordon, The. Unborn Plaintiff. 63 Mich. L.R. 579, 627

(1965). Moreover, it appears that a majority of jurisdictions

now recognize that a wrongful death action may be brought

for negligently inflicted injury to the unborn child resulting

in its death, whether or not it was viable at the time of the

injury, and whether born alive or still born. Torrigan v.

Watertown News Co., 352 Mass. 446, 225 N.E. 2d 926, 927

(1967); Harper and James, Torts, Sec. 18.3 (1956).

Many of the early cases required that the unborn child

have reached the stage of viability (ie., capable of living out-

side of the mother’s uterus) at the time the injuries were

inflicted in order to maintain an action.2! The modern trend,

31 ponbrest v. Kotz, 65 F. Supp. 138 (D. D.C., 1946); Scott v.

McPheeters, 33 Cal.App.2d 629, 92 P.2d 678 (1939); Tursi v. New

England Windsor Co., 19 Conn. Supp. 242, 111 A.2d 14 (1955); Dama-

siewicz v. Gorsuch, 197 Md. 417, 79 A.2d 550 (1951); Keyes v. Constr.

32

and more in accord with the medical facts, however, has been

to reject any distinction based on viability and to allow re-

covery whenever the injury was received, provided that the

elements of causation are properly established.>?

The District of Columbia repudiated the notion that an

unborn child must be considered as part of his mother and

unable to sue for pre-natal injuries in Bonbrest v. Kotz, 65

F. Supp. 138 (D. D.C., 1946). Judge McGuire pointed out in

that case that under the civil law and the common law of real

property a child en ventre sa mere is regarded “‘as a human

being . . . from the moment of conception—which it is in

fact.” Referring to the state of medical knowledge in 1946

and noting the resilient, unstatic features of the common law

of torts, he found no difficulty in upholding the right of an

unborn child to sue for damages in tort. 65 F. Supp. at 142.33

Kelly v. Gregory, 282 App. Div. 542, 125 N.Y.S. 2d 696,

contains language which summarizes precisely the basis of

the rejection on the part of modern tort law of the anti-

Serv., Inc., 340 Mass. 633, 165 N.E.2d 912 (1960); Williams v. Marion

Rapid Transit, Inc., 1S2 Ohio 144, 87 N.E.2d 334 (1949); Mallison v.

Pomeroy, 205 Ore. 690, 291 P.2d 225 (1955); Seattle-First Nat'l Bank

v. Rankin, S9 Wash.2d 288, 367 P.2d 835 (1962).

32 Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d

727 (1956); Daley v. Meier, 33 Il. App.2d 218, 178 N.E.2d 691 (1961);

Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108 (1958); Smith v. Bren-

nan, 31 N.J. 353, 157 A.2d 497 (1960); Kelly v. Gregory, 282 App.

Div. 542, 125 N.Y.S.2d 696 (1953); Sinkler v. Kneale, 401 Pa. 267,

164 A.2d 93 (1960); Sylvia v. Gobeille, 101 R.I. 76, 220 A.2d 222,

223-24 (1966). “Viability” of a fetus is not a constant but depends

on the anatomical and functional development of the particular baby.

J. Morison, Foetal and Neonatal Pathology 99-100 (1963). The weight

and length of the fetus are better guides than age to the state of fetal

development, and weight and length vary with the individual. Gruen-

wald, Growth of the Human Fetus, 94 Am. J. Obstetrics and Gynecol-

ogy 1112 (1966).

33“The battle in jurisprudence is almost over. Development of the

infant’s right of action has illustrated the inherent capacity of legal

systems to adjust to new situations.” Gordon, supra at 627.

33

quated notion of the common law that an unborn child is

merely part of his mother’s body:

“We ought to be safe in this respect in saying that legal

separability should begin where there is biological sep-

arability. We know something more than the actual

process of conception and foetal development now

than when some of the common law cases were de-

cided; and what we know makes it possible to demon-

strate clearly that 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 remains so

throughout its life. That it may not live if its protec-

tion and nourishment are cut off earlier than the via-

ble stage of its development is not to destroy its sep-

arability; it is rather to describe the conditions under

which life will not continue.” (Emphasis supplied.)*

The emergence of the rights in tort of unborn children is

taken as a prime example of the effect of scientific develop-

ment on law in the instructive book of Professor Patterson of

the Columbia Law School — Law In a Scientific Age (1963).

He concludes: “‘that the meaning and scope of even such a

basic term as‘ ‘legal person’ can be modified by reason of

changes in scientific facts—the unborn child has been recog-

nized as a legal person, even in the law of torts.”>5

The revolution in tort law has thus, by the majority rule,

recognized rights in the fetus at every stage of life and has re-

fused to condition recovery on survivorship. The dean of

authorities on tort law notes that all writers on the subject

have maintained “that the unborn child in the path of an

automobile is as much a person in the street as the mother.”

Prosser on Torts, Sec. 56. Can such a child become less a per-

son when, instead of an automobile, another agency is di-

rected to his destruction? If the state may protect this pe

by court action awarding damages for tort, a fortio

34125 N.Y.S.2d at 697.

357d. at 5.

34

state cannot be impotent to protect the same living being by

criminal sanctions.

D. The Law’s Recognition of an Unborn Child’s Right To

Support. It is now established that the law will recognize an

unborn child’s right to support by his parents. Kyne v. Kyne,

38 Cal. App.2d 122, 100 P.2d 806 (1940), involved a suit

brought by the guardian ad litem of a fetus against the

natural father. At the time the suit was instituted, the unborn

child was less than six months old. The court held that both

the father and mother of such a child owed him the duty of

support. See also People v. Yates, 114 Cal. App. Supp. 782,

298 P. 961 (1931). And see People v. Estergard, ___. Colo.

___. 457 P.2d at 698, 699 (1969).

If the law holds that a state has a sufficient justification to

require a father to support an unborn child which he may not

want, can it be fairly maintained that the state has no justi-

fiable interest in protecting that child from extinction as a

living being because his mother may not want him?

E. The Right of a Fetus To Life Has Been Preferred to His

Parents’ Free Exercise of Religion Rights. Since this Court’s

decision in Board of Education v. Barnette, 319 U.S. 624

(1943), it has been firmly settled that the Free Exercise of

Religion rights guaranteed by the First Amendment (as incor-

porated in the Fourteenth Amendment) are “susceptible of

restriction only to prevent grave and immediate danger fo in-

terests which the state may lawfully protect.” 319 USS. at

639.%° Nevertheless, the right of an unborn child to life has

served in several recent instances to permit the state’s abridge-

ment of or interference with a mother’s religious convictions,

when necessary to save the life of an unborn child. One case

touching upon, but not deciding, the point recently was de-

cided in the District of Columbia. In Application of the

President and Directors of Georgetown College, Inc., 331

F.2d 1000 (C.A. D.C., 1964), cert. den., 377 U.S. 978

(1964), the Court of Appeals upheld an order of the District

Court authorizing a hospital to administer a blood transfusion

36Emphasis supplied. : é

35

to a woman patient who, on religious grounds, was unwilling

to consent to the transfusion and where the husband also was

unwilling to consent, where the transfusion was necessary to

save her life. The adamant mother had a seven months old

child at the time the terrible dilemma arose. In resolving this

Hobson’s choice, Judge Wright said:

“The child cases point up another consideration.

The patient, 25 years old, was the mother of a seven-

month-old ‘child. The state, as parens patriae, will not

allow a parent to abandon a child, and so it should

not allow this most ultimate of voluntary abandon-

ment. The Patient had a responsibility to the com-

munity to care for her infant. Thus the people had

an interest in preserving the life of this mother.””?”

More precisely in point is Raleigh Fitkin-Paul Morgan

Memorial Hospital v. Anderson, 42 N.J. 421, 201 A.2d 537

(1964), cert. den., 377 US. 985 (1964). There, a court was

asked to decide whether the rights of a child in the mother’s

womb were violated by her refusal, on religious grounds, to

submit to a blood transfusion necessary to preserve the lives

of both. The New Jersey court found it unnecessary to decide

whether an adult may be compelled to submit to medical

treatment necessary to save his own life. However, the court

had no difficulty, after finding a parity of rights possessed by

both unborn and after born children, in deciding that the un-

born child was entitled to the law’s protection and ordering

the transfusion. In sustaining the unborn child’s right to life,

even over his mother’s right to practice her religion, the court

said:

“In State v. Perricone, 37 N.J. 463, 181 A.2d 751

(1963), we held that the State’s concern for the wel-

fare of an infant justified blood transfusions not with-

standing the objection of its parents who were also

Jehovah’s Witnesses, and in Smith v. Brennan, 31 N.J.

353, 157 A.2d 497 (1960), we held that a child could

sue for injuries inflicted upon it prior to birth. We are

satisfied that the unborn child is entitled to the law ’s

37331 F.2d at 1008.

36

protection and that an appropriate order should be

made to insure blood transfusions to the mother’

_ in the event that they are necessary in the opinion

of the physician in charge at the time.” (Emphasis

supplied).**

Also worthy of relevant note in the context of a claim of a

mother’s right to freedom over the use of her body is Gleit.

man v. Cosgrove, 49 N.J. 27, 227 A.2d 689 (1967). In that

case, the plaintiffs sought damages against doctors who had

attended the mother during pregnancy. They alleged their

child had been born with birth defects and that the defen-

dants had negligently failed to warn the child’s mother and

father that an attack of German measles which she suffered

during pregnancy might result in such defects. The failure to

give the warning, it was alleged, deprived the parties of the

opportunity of terminating the pregnancy. In affirming the

trial court’s dismissal of the complaint, the majority of the

New Jersey Supreme Court emphasized the child’s right not

to be aborted, saying:

“The right to life is inalienable in our society ...

We are not faced here with the necessity of balancing

the mother’s life against that of her child. The

sanctity of the single human life is the decisive factor

in this suit in tort. Eugenic considerations are not

controlling. We are not talking here about the breed-

ing of prize cattle. /t may have been easier for the

mother and less expensive for the father to have ter-

minated the life of their child while he was an

embryo, but these alleged detriments cannot stand

against the preciousness of a single human life to sup-

port a remedy in tort. Cf. Jonathan Swift. ‘A Modest

Proposal’ in Gulliver’s Travels and Other Writings,

488-496 (Modern Library ed. 1958).

38201 A.2d at 538. This Court has had no trouble in sustaining as

superior a state’s interest in, and authority with respect to, children over

their parents’ free exercise of religion rights, noting that the “right to

practice religion freely does not include liberty to expose .. . the

child . . . to ill health or death.” Prince v. Massachusetts, 321 US.

158, 166-67 (1943).

—_—_

37

“Though we sympathize with the unfortunate situa-

tion in which these parents find themselves, we firmly

believe the right of their child to live is greater than

and precludes their right not to endure emotional

and financial injury.” (Emphasis supplied).*?

The line of cases discussed in this section of amici’s briet,

all of which are based either impliedly or expressly on the

findings of modern medical science concerning the nature of

the fetus, are a recognition of the right of a child in the

womb to the protection of the law. From this, a learned

commentator has gone on to reason that:

« | it seems established by analogy that to remove

the protection of the criminal law from the child in

the womb would be itself an unconstitutional act.

The civil rights cases have established that for the

Government to fail to protect a class is itself an un-

constitutional denial of civil rights.”"“°

The Court need not go so far in upholding the District of

Columbia abortion statute against the appellee’s claim that it

unconstitutionally interferes with alleged rights of privacy

possessed by a woman. Nevertheless, the point has force. It

serves to emphasize that in evaluating the legitimacy of such

an alleged right of privacy the Court must take into counter-

vailing account the fundamental right of an unborn child to

be protected by the state from arbitrary and capricious des-

truction of its existence merely because it is unwanted.

F. Life Should Be Preferred Over Privacy in Any Rational

Hierarchy of Constitutional Values or Rights. In the section

of the brief which now follows we take up the judicial bal-

ancing that is necessarily involved in deciding whether or not

22 D.C. Code 201 is an unconstitutional invasion of privacy.

In deciding the relative priority which the Constitution

should afford, on the one hand, to a woman’s right to des-

39977 A.2d at 693.

40Noonan, Amendment to the Abortion Law: Relevant Data and

Judicial Opinion, 15 The Catholic Lawyer, No. 2 (Spring, 1969).

—————e

38

troy her unborn child and, on the other, to the right of that

child to live, certain relevant facts are beyond argument.

First, the medical evidence is unchallengeable—life begins at

conception, or within seven days thereafter, and the fetus

very early in its development has an animate existence, in-

cluding a heart and a brain, separate and independent from

his mother. Secondly, the common law has not been imper-

vious to the findings of modern science in changing and ad-

justing its concepts and rules regarding the legal rights pos-

sessed by a child in the womb.

We might also add at this point that the approach taken

by American law in recognizing important legal rights of an

unborn child is not some national aberration explained, per-

haps, by some latent puritanical instincts in American soci-

ety alone. For example, in 1959 the United Nations adopted

a “Declaration of the Rights of the Child” which supple-

mented the United Nations’ statement entitled the “Univer-

sal Declaration of Human Rights”. One reason for this sup-

plementary declaration, as stated in its Preamble, was be-

cause, “the child, by reason of his physical and mental im-

maturity, needs special safeguards and care, including appro-

priate legal protection, before as well as after birth”. Gen-

eral Assembly of the United Nations, “Declaration of the

Rights of the Child”, adopted unanimously in the plenary

meeting of November 20, 1959, Official Records of the Gen-

eral Assembly, 14th Session, pp. 19-20. Thus, the represen-

tatives of most of the civilized nations of the world rec-

ognized that the being before birth deserved recognition

as a “child”. They further recognized that a child, so de-

fined, needed special legal protection. The committee report

on this declaration noted that “representatives of the most

diametrically-opposed social systems find common ideals

in discussing the privileges of childhood”. Report of the

Third Committee of the General Assembly, Official Rec-

ords, 14th Session, p. 593. The committee thus underlined

that the rights asserted by the United Nations as applicable

to the fetus represented a commitment which had com-

mended itself to all of the various social systems represented

within that worldwide body. a

39

If, then, an unborn child can inherit by will and by intes-

tacy, be the beneficiary of a trust, be tortiously injured, be

represented by a guardian seeking present support from the

parent, be preferred to the religious liberties of his parents,

be protected by the criminal statutes on parental neglect,

and enjoy the specific concern of the United Nations’ Gen-

eral Assembly, are there not interests here which the state

may guard from intentional extinction?

Let us then address ourselves specifically to the question

of balancing the two rights which may appear to be in con-

flict in this case. That question must be: To what extent can

the state protect the right of an unborn infant to continue its

existence as a living being in the face of a claim of right of

privacy on the part of a woman to decide whether or not she

wishes to remain with child?

Amici will assume arguendo that the Constitution protects

certain rights of privacy on the part of a woman arising

from the marital relationship which cannot be unjustifiably

interfered with by the state. They also believe that the

genesis of such rights, to the extent such rights may exist,

must be found among the “penumbral” personal liberties

protected by the Due Process Clause of the Fifth Amend-

ment. Yet equally unchallengeable is the proposition that

an unborn child’s right not to “be deprived of life”, to

quote the words of the Due Process Clause itself, is also a

fundamental personal right or liberty protected by that

same amendment and entitled to the traditional searching

judicial scrutiny and review which is afforded when basic

personal liberties are threatened by state action, whether

legislative or judicial in character. Therefore, it is very clear

that this case is not one, as the appellee would portray it,

which involves merely the balancing of a right of personal lib-

erty (i.e., a married woman's privacy) against some competing

state interest of lower priority or concern in an enlightened

scheme of constitutional values, such as the state’s police

power, its authority to promulgate and enforce the criminal

law, its right to protect the public health, etc. Rather, the

choice here is between a nebulous, and as yet unrecognized,

legal “right” of privacy on the part of a woman with respect

to the use of her body and the state’s right to prevent the

unjustifiable destruction of a human life. Accordingly, the

appellee’s complaint of the alleged “‘over breadth” of the

District of Columbia abortion statute has no relevancy to

the decision. The issue is purely a determination as to

which of two personal rights or liberties the state has elected

to prefer in particular circumstances where those rights come

into conflict and if, under such circumstances, that judg

ment is a prohibited exercise of legislative power.

There would be no question of the answer, of course,

if the choice were between a woman’s “right to privacy”

and the destruction of an unwanted after born child. Yet

there is a point at which abortion may approach infanti-

cide. The recent findings of medical science now suggest

that this -peint is reached, at least from a medical, if not

a legal, point of view, very early in a woman’s pregnancy

and in the life of the unborn child within the womb. Act-

ing in this troublesome area, Congress has chosen, in the

words of Judge Arnold, to effect “a compromise between

morals and hygiene far in advance of the law in most juris-

dictions”, a majority of which still permit abortion only to

save the life of the mother. Williams v. United States, 138

F.2d at 83. Contrary to the appellee’s assumption, the

state’s interest in regulating abortion, as it has done in 22

D.C. Code 201, is not bottomed exclusively on concern for

the health of the mother, a concern which admittedly would

be of less than persuasive effect, since it cannot be success-

fully established that abortions during the early period of

pregnancy performed by competent physicians in hospital

surroundings represent a substantially high medical risk to

the life and health of the mother.*! The state interest which

*! Amici have one grave reservation here, however. Evolving research

into the complications that may follow abortion indicate a 2% sterility

rate with an approximate 10% rate of moderate or severe psychic

sequelae. Hellegers, Abortion, the Law, and the Common Good,

3 Medical Opinion and Review, No. 5 (May 1967). Indeed, respect-

41

justifies what the Congress has done rests on a concern for

human life, even though that life be within the womb of

the mother. The separate, early and independent existence

of such life has now been proven by medical science. While

it may be impossible for the state to insist on the protection

of such a life under all circumstances, can it seriously be

maintained that the government is powerless to insist on

protecting it from intentional destruction, absent danger to

the mother’s life or health?

The exception which the D.C. statute permits for the

preservation of the mother’s life is a reasonable considera-

tion which justifies the state in permitting abortion for this

purpose. “In the rare case where choice must be made be-

tween them, reason cannot demand that the mother must

prefer her unborn child’s life to her own.” Noonan, The

Constitutionality of Regulation of Abortion, 21 Hastings

LJ. 51, 60 (1969). The second exception authorized by

the D.C. Code in the interests of preserving the health of

the mother is more difficult to defend in the light of amici's

major medical premise, i.¢., that an unborn child is a living

human being separate and apart from his mother. Yet,

here also there is analogy to be found in the usual rule of

criminal law which treats as justifiable homicide, killing done

to repel a threat of substantial bodily injury. Thus, where

a pregnancy constitutes a threat to the duration of the life

of a mother by grave impairment of her health, there is a

conflict between her interests in being free of such impair-

ment and the fetus’ interest in life. The statutory resolution

of that conflict is not clearly unreasonable.*? At any rate,

no such conflict is presented by the record here, nor is the

reasonableness of the statute in resolving it an issue in this

case.

able studies raise the question of whether the guilt complex evoked

by an abortion may itself constitute a more severe psychiatric prob-

lem than any pre-existing mental health problem serving to justify the .

abortion in the first instance. Rosen, Therapeutic Abortion, Medical,

Psychiatric, Anthropological and Legal Considerations (1954).

42Noonan, supra at 61.

4)

Under the analysis set out above, the appellee’s argument

in support of a woman’s “sovereignty . . . over the use of

her body” quickly withers. Either (1) it means that she

has a “private right”’ or personal freedom which permits her

to decide, for any reason whatsoever, whether to sustain and

support, or whether to eliminate, a life which she alone may

decide is unwanted; or (2) it means that she has some kind

of right to bodily integrity which permits her and her alone

to decide under all circumstances whether either to retain, or

permit to be destroyed, a function or organism contained

within her own body.

In all fairness we doubt that the first is the correct under-

standing of the basis of the “private right of personal free

dom” for which appellee contends. For, were that principle

ever to be accepted as the law, there would have crept into

the Constitution a potentially terrifying principle that, with

very little more logic than the appellee has relied upon to

sustain his position in this case, would equally justify infanti-

cide and euthanasia, at least if the victims were those ina

relationship of dependence with the person or persons who

wished to destroy them. Nor would the laws which forbid

abandonment, failure of support, child neglect, efc., be im-

mune from attack. v4

However, we believe that the appellee means only to

maintain that a woman has a right to an integrity of her

body sufficient to permit her alone to decide, for whatever

reason, whether to terminate a pregnancy. There are no

decisions of this Court which suggest the existence of such

an unrestricted right of bodily integrity. For example, it

decided in Schmerber v. California, 384 U.S. 757 (1966),

that it was not unconstitutional to require the forcible ex-

traction of blood from a drunk driving suspect. Other

courts have upheld police-supervised forcible rectal examina-

tions, extraction of urine, and administration of emetics on

criminal suspects. Annotation, 16 Law Ed.2d 1332, 1338-43

(1967).*?

43See also the Georgetown College and Raleigh Fitkin cases dis-

cussed supra, pp. 34-36; cf. Babbitz v. McCann, 306 F. Supp. 400

(E.D. Wisc., 1969), app. pend., No. 297, October 1970 Term. r

43

We show in the next subsection of this brief that the one

decision on which appellee might rely, at least by attenuated

analogy, to support his claim of the unfettered right of a

married woman to terminate a pregnancy does not support

the proposition in whose behalf it is summoned. Apart

from that, however, we do not believe that it can successfully

be maintained that the District of Columbia abortion statute,

and the balancing between any alleged right of privacy and

the right of an unborn child to life which it attempts to

effect, can be struck down as unconstitutional. To reach

the contrary result would require this Court’s unabashed

return to the long-repudiated concept of substantive due

process which plagued its decisions for several generations,

albeit in another context, i.e., economic and social legislation.

The fact that a law might not impress the judiciary as a

good law, or might even appear on the silly side to them,

no longer can serve as a basis for its invalidation.“ There

is no doubt that many doctors, many women and many citi-

zens might regard the District of Columbia statute on abor-

tion as illiberal, outmoded and inconsistent with the law’s

emancipation of women. Such a view may enjoy significant

popular appeal, although a recent national poll on the sub-

ject indicates that it is not a majority view.*5 However, at

this stage of American constitutional development we don’t

have to remind the Court that the predilections of the popu-

lace, even those of its most enlightened members, much less

the individual preferences of judges, cannot serve as a basis

to strike down legislation within the competence of the

state to enact, especially where the legislation thus challenged

is aimed at protecting the most fundamental of personal

liberties protected by the Due Process Clause, i.e., the right

not to “‘be deprived of life’’.

“Compare Lochner v. New York, 198 U.S. 45 (1905), with Fer-

guson v. Skrupa, 372 U.S. 726, 730 (1963).

S“On an overall basis, the country is 50-40 percent opposed to

the passage of state laws ‘permitting abortion for almost any reason’.”

Washington Post, June 22, 1970, p. C-6.

G. No Precedents of This Court Afford a Basis for Pre-

ferring Privacy Above a Right to Life. Appellee states and

purports to rely on the undisputed proposition “that the

Constitution protects certain privacy and family interests

from government intrusion unless a compelling substantial

interest exists for the legislation."“© These amici have dem-

onstrated the medical basis which supports the “compelling

substantial interest” reflected in the District of Columbia

abortion statute. Beyond that, however, they dispute the

contention that a woman enjoys any right of privacy, as yet

recognized in American law, which vests in her alone author-

ity to terminate a pregnancy for any reason whatsoever.

Certainly, no precedents of this Court have gone so far.

Of the decisions relied on by the appellee, all but one are

manifestly insufficient to establish the existence of such a

formidable and unabridgeable alleged right of privacy. For

example, Loving v. Virginia, 388 U.S. 1 (1967), cited by the

appellee, held that a state anti-miscegenous marriage statute

violated the Equal Protection Clause of the Fourteenth

Amendment. 388 U.S. at 12. As a supporting ground for

its decision, the Court also found that such statutes deny

due process, since “the freedom of choice to marry [can] not

be restricted by invidious racial discrimination.” bid

Loving, therefore, is no precedent in support of the appellee’s

notion of the extreme scope of a woman’s constitutional

right of privacy. It is purely an invidious racial discrimina-

tion holding.

Other cases on which the appellee relies must similarly

fail in their role as alleged analogies for his position. Skinner

v. Oklahoma, 316 U.S. 535 (1942), decided that the com-

pulsory sterilization of some types of habitual criminals

and not others represented an invidious discrimination cor-

demned by the Fourteenth Amendment. Thus, Skinner is

most accurately read as a case prohibiting the imposition

of unreasonable impediments on the right to procreate and,

in any event, cannot logically be stretched to serve as any

“ appeliee’s Motion To Affirm, p. 26.

45

analogy for the unrestricted right to abort. Likewise missing

the mark as a supporting precedent is Pierce v. Society of

Sisters, 268 U.S. 510 (1925). This was the Court’s landmark

decision upholding, over the requirements of a state’s com-

school attendance law, the freedom of parents,

guaranteed by the Due Process Clause of the Fourteenth

Amendment, “to direct the upbringing and education of

[their] children . . . .” 268 U.S. at 534. Once more, the

liberty which was protected in the Pierce case was not a

“sight of privacy” and again the legislation which was struck

down had “no reasonable relation to some purpose within

the competency of the State.” 268 U.S. at 535.

When the obviously unanalogous authorities tendered by

the appellee are put aside, he is left only with Griswold v.

Connecticut, 381 U.S. 479 (1965), as the one slim reed of

alleged precedent to which he clings in arguing for the awe-

some right of privacy which he would have the Court enun-

ciate in this case. That decision, too, is insufficient to carry

such a heavy burden. The Griswold case produced a number

of opinions by the Justices of this Court, concurring and dis-

senting. The actual holding in the case, however, was that a

statute which forbad the use of contraceptives by married

couples violated a “penumbral” right of marital privacy,

older than the Bill of Rights and one falling within a “zone

of privacy created by several constitutional guarantees.” 381

U.S. at 485. Three of the Justices who decided that case,

two dissenting and one concurring, refused to recognize any

constitutionally protected right of privacy whatsoever. The

remaining six Justices agreed only that a law, the enforce-

ment of which would require the invasion of the marital

bedroom, transgressed on the intimacies of, and the right

of privacy inherent in, the marital relationship.

The particular aspect of the marital relation with which

the Connecticut statute at issue in Griswold interfered was

the sexual relationship. The state made it criminal for a

married couple to have sexual intercourse using contracep-

tives. Enforcement of the statute would have required actual

invasion of the marital bedchamber. The Connecticut law

46

challenged was more stringent and sweeping than any statute,

civil or ecclesiastical, iin the history of social efforts to con

trol contraception. Noonan, Contraception 491 (1965). In

contrast, 22 D.C. Codie 201 does not affect the sexual rela.

tions of husband and wife. Pregnancy does not interfere

with these relations except under some circumstances at

limited times; indeed some women are more desirous of inter.

Further, it is a distiortion of both the “penumbral” and

Ninth Amendment apjproaches relied on by the majority in

stricted right to abort is an “emanation” of any specific

guarantees of the Bill of Rights necessary to give them

“life and substance”. 381 U.S. at 484. Where, for example,

after considering the “traditions and [collective] conscience

of our people”, will tihis Court find the right to unrestricted

abortion a principle “wo rooted (there) . . . as to be ranked

as fundamental”? 381) U.S. at 493 (Goldberg, J. concurring).

Rather, in the words of a state court on the subject, the

tradition has been thet: “Unnecessary interruption of preg-

" nancy is universally megarded as highly offensive to public

morals and contrary tio public interest.” Miller v. Bennett,

190 Va. 162, 169, $6 S.E.2d 217 (1949).

In relying on the Giriswold case, the appellee never consid-

ers that in this case, as opposed to that decision, there is

another important intterest at stake, the life of an unbom

child. If, despite all tthe medical evidence on the point, the

unborn child is not tm be considered a juridical personality

with legally protectitple interests, then Griswold could be

regarded as a precedient for the result that the appellee

urges this Court to reach. On the other hand, if terminating

pregnancy is something different from preventing it, if abor-

tion is different from ‘cosmetic surgery, if the fetus is not in

the same class as the wart, and if we are dealing with some

thing other than an inhuman organism, then Griswold is

47

totally inapposite. Even if the fetus is not fully the equiva-

lent of the born child, the law, through centuries of judicial

decision and legislation, and following the lead supplied by

medical science, has raised the equivalency of that life to

such a status that the unborn child may not be deprived

of it, absent the demonstrated necessity of protecting a

reasonably equivalent interest on the part of the mother.

Griswold, of course, presented no such conflict and there-

fore is not controlling in this case.

Finally, we call the Court’s attention to the fact that at

common law abortion, at least after “quickening”, was a

form of homicide. 2 Bracton, De Legibus et Consuetudinibus

Angliae 278-79 (Twiss ed. 1879). The “quickening” require-

ment originated with Coke and was predicated on the limited,

inadequate and erroneous medical knowledge of his day.

“Quickening” was the first manifestation of animate life

within the womb of which common law men could be cer-

tain. However, as early as 1803, when the first English stat-

ute on abortion was passed, the requirement of “quicken-

ing” was removed and all abortions were prohibited, although

the penalties were more severe if the abortion was performed

after the fetus had quickened. Miscarriage of Women Act

(1803), 43 Geo. 3 c. 58. Any proposition holding that, by

virtue of passage of the Ninth Amendment, there was re-

served to pregnant women a “penumbra!” constitutional

right to abort for any reason whatsoever on the ground that

such a “right” was a fundamental liberty, recognized before

the Bill of Rights, and retained by them is wi-hout any basis

in history or in either British or American constitutional

development. Far from considering it a “right”, the common

law treated abortion as a serious criminal act. And as soon

as medical science- had proved that an animate organism

existed in the womb prior to “quickening”, the Parliament

quickly adapted the findings of that science as the basis of

the abortion statute which it passed in 1803, supra.

Thus, on any fair analysis, the appellee’s alleged prece-

dents, including Griswold, furnish no support for his claim

that there is a constitutional basis for a woman’s right of

privacy in aborting, for any reason, an unborn child which

she does not want.

IV.

THE REMAINING ARGUMENTS ADVANCED BY

THE APPELLEE ARE WITHOUT MERIT

In addition to his major claim that the statute involves

a woman’s “right of privacy”, appellee argues that First

Amendment and Equal Protection considerations, as well as

concern for the public welfare, require invalidation of 22

D.C. Code 201. Amici deal briefly with these contentions

in this concluding section of their brief.

A. The Statute Does Not Abridge a Doctor's First and

Fifth Amendment Rights. Appellee makes a weak pass in

attempting to assert a First Amendment right in this case,

He argues that the “present action has Fi:st Amendment

implications, namely the right of a physician to provide

medical information, followed by treatment of his patients

.... "7 The dispositive answer to such a contention is that

the defendant was indicted not for speech, or even for giving

medical advice, but for the commission of a criminal act, an

abortion barred by the statute. If, as amici maintain, such

an abortion is one within the competency of the District of

Columbia to proscribe as criminal conduct, then the argu

ment is closed. A criminal act does not fall within the “free-

dom of speech” which the First Amendment protects. Gib-

oney v. Empire Storage and Ice Co., 336 U.S. 490, 498

(1949). On the other hand, if the amici are wrong and the

District of Columbia statute represents an unconstitutional

invasion of a woman’s right to privacy, the appellee’s free

speech argument becomes superfluous. Apart from that,

however, Dr. Vuitch cannot seriously argue that the District

of Columbia abortion statute is vulnerable on its face as

abridging his, or anyone else’s, right of free expression.

The identical rationale also answers the defendant’s claim

that his “general liberty under the Fifth Amendment to

“7 Appellee’s Motion To Affirm, p. 20.

practice his profession free from unconstitutional restraint”

is offended by the statute. Compare, ¢g., Konigsberg v.

State Bar of Cal, 366 U.S. 36, 44 (1961), with Willner v.

Committee on Character and Fitness, 373 U.S. 96, 102-03

(1963).

B. Nor Does the Statute Effect Any Invidious Discrimi-

nation Between Rich and Poor. \t does not appear that the

appellant complained below that the abortion statute vio-

lated the Equal Protection Clause of the Fourteenth Amend-

ment. Nevertheless, in his motion to affirm he argued that

the abortion statute, as interpreted, denies “abortions to the

poor, thus adding a gross factor of statutory discrimination

to those hardships which the government is otherwise trying

to correct. ’***

We doubt that this contention rises to the level of a con-

stitutional argument which must be dealt with in this case.

if it were necessary, we would point out that the statute on

its face applies to all persons committing the acts condemned

by the statute and that there is no suggestion that it seeks

to discriminate on any invidious basis, including that of in-

come. Of course, departing from the facts of the case, it

might be argued more generally that (1) the poor woman

finds it more difficult than a rich woman to leave the District

in order to get an abortion in a jurisdiction where it might

be legal, and (2) she cannot afford treatment by a private

physician who, some might say, would be more inclined to

find a legal reason for the abortion. Hence, it might be

argued that the statute bears unequally upon the poor. The

same theoretical argument could be made of many types

of conduct proscribed by the criminal law of the District of

Columbia. There are jurisdictions to which wealthy persons

may travel in order to indulge in the doubtful pleasures of

gambling at will, using narcotics without restraint, and enjoy-

ing a plurality of wives. Could this doubtful “advantage”

on the part of the rich be relied on as any basis to set aside

48 Appellee’s Motion To Affirm, p. 39.

50

the criminal statutes of the District of Columbia proscribing

such activities within the jurisdiction?

And even if it were assumed to be true that the rich ar

more likely than the poor to secure the services of a symps

thetic physician for purposes of terminating an unwanted

pregnancy, such a result, unintended by the statute, would

not rise to the level of a constitutional infirmity. “It is no

requirement of equal protection that all evils of the same

genus be eradicated or none at all.” Railway Express Agency

v. New York, 336 U.S. 106, 110 (1949). If the statute is

to fail, it must be shown that on its face it takes away a

right guaranteed to the poor by the Constitution. Fisch »,

General Motors Corp., 169 F.2d 266, 270 (C.A. 6, 1948),

No such showing is possible in this case.

Along with many others, these amici lament the fact that

Anatole France’s sardonic comment about the “majestic

equality” of the law much too often has proved to be true,

There is no question that many criminal laws in actual prac

tice bear with unequal severity upon the poor. It is they

who are more likely than the rich to be caught, to be un

able to post bail bond, to be prosecuted, to be unskillfully

defended, to be convicted and to be punished. However,

the remedy for these injustices of our society lies in the

elimination or mitigation of the conditions and causes of

poverty and in the reform of the administration of criminal

justice, not by the selective invalidation of otherwise lawfully

enacted criminal statutes. The District of Columbia abortion

statute is not directed against the poor, as o)posed to the

rich, but against practitioners of illegal abortion who perform

their invidious services for a substantial price. It would seem,

therefore, that the appellee is in as peculiarly unworthy a

position to assert alleged constitutional rights possessed by

the poor as he is to champion the alleged constitutional

rights of pregnant women in the District of Columbia.

C. Their Persuasiveness Apart, Appellee’s Common Good

Arguments Are Misplaced. At the finish the appellee argues,

unsurprisingly, that the statute is a bad one from the point

51

of view of the public welfare. He contends that the D.C.

abortion statute forces women often to go to non-medical

practitioners for the performance of abortions which are

not conducted under proper hygienic conditions.*? Next, he

calls attention to the grave problem of overpopulation, both

on a national and worldwide scale.5°

The efficacy of these arguments is very questionable, but,

in any case, their assertion here is misplaced. They should

be directed to the Congress, not to this Court. Certainly,

in recent years legislative bodies have not been hostile to

the idea of revising their abortion statutes. *!

Even if such arguments were addressed to a legislative

body, these amici would dispute their persuasiveness. For

example, Sweden, a country not unlike ours, and the nation

which has had the longest experience with state-regulated

abortions in Western Europe, has produced no evidence that

criminal abortions, estimated at 20,000 a year when the law

was passed in 1938, have been substantially reduced since

that time. Uhrus, Some Aspects of the Swedish Law Govern-

ing Termination of Pregnancy, The Lancet 1292 (1964).

Other studies confirm the belief that liberalization of abor-

tion laws effect no reduction in the rate of criminal abor-

tions and all that is done is to increase the total number of

abortions. “Thus it is not unlikely that liberalization may

increase rather than decrease maternal mortality.”” Cavanagh,

Reforming the Abortion Laws: A Doctor Looks at the Case,

America, April 18, 1970, p. 408. Secondly, so far as

4974. at 40. However, recent reliable statistics show a significant

annual decline, both nationwide and in the District of Columbia, of

deaths caused by abortion. Hellegers, supra at 90.

507g at 41.

S'For example, New York recently enacted an abortion statute

which permits abortion for any reason within 24 weeks from the

commencement of pregnancy. That act became effective on July 1,

1970. New York Times, July 2, 1970, p. 1. Laws almost, but not

quite, as liberal as the New York statute have recently been approved

in Alaska and Hawaii.

the problem of overpopulation is concerned, an abortion,

whether on the free demand of a woman or on the intimidat-

ing command of the state, appears to us as a completely

ineffective and, indeed, an extremely dangerous, way to

attempt to solve that problem, at least in the context of

values traditional to Western civilization. For instance, one

side effect of the repeal of abortion statutes and the foster-

ing of abortion through state auspices is that no group will

be more likely to feel the sting more bitingly than the

mothers of illegitimate children. Already, laws making the

birth of illegitimate children a crime suggest the squeeze to

which the poor mother might be subjected in an age of un

restricted, and state-sponsored, abortion.5*? However, this

Court is not the forum, and this case is not the occasion, to

determine whether unrestricted abortion would best serve

the general welfare of the people of the District of Columbia.

Such a debate, if it must come, will be for the Congress to

decide, not this Court.

S2Fg, La. Rev. Stat. Ann. § 14.79.2; see Noonan, Freedom To

Reproduce: Cautionary History, Present Invasions, Future Assurance,

Biennial Conference on the “Control of One’s Own Body”, New York

University, New York (1970). }

eee naan teenaapi th ALAS

53

CONCLUSION

For the reasons stated in their brief, the amici join the

United States in urging that the Court reverse the judgment

of the District Court and remand the cause for the reinstate-

ment of the indictments against the appellee.

Respectfully submitted,

ALFRED L. SCANLAN

_ 734 Fifteenth Street, N. W.

Washington, D.C. 20005

Of Counsel: THOMAS J. FORD

SHEA & GARDNER 117 Pennsylvania Avenue

734 Fifteenth Street, N.W. Brooklyn, New York 11207

Washington, D.C. 20005 JOSEPH V. GARTLAN, JR.

815 Connecticut Avenue

Washington, D.C. 20006

GARY R. ALEXANDER

4400 Stamp Road

Marlow Heights, Maryland 20031

Attorneys for the Amici Curiae

July 14, 1970