Amicus Curiae Brief — Roe v. Wade
Supreme Court brief1973
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SUBJECT INDEX
Page
Motion for Leave to File Brief Amici Curiae in
Support of Appellants ................-.--sssssssssseseeeee:
Brief of Amici Curiae ........ FAECES Paar ON SSC T
Summary of Argument ................--------ss-+s-eeeeee0
I
The Georgia Abortion Law Infringes Upon the
Right to Marital and Individual Privacy With-
out a Compelling State Interest
A. The Statute Infringes Upon the Right to
Privacy
Do IEE INI, aloes ccukadsdodereasniocese
2. The Right of Privacy of the Indi-
vidual Woman
The Statute Infringes Upon Fundamental
Constitutional Rights Without Serving
Any Compelling State Interest ..............
1. The Statute Serves No Health Inter-
est of the State; On the Contrary,
It Has Created a Severe Health
Problem i
a. The History of the Abortion
Statute .....
b. The Adverse Effect Upon
Health of the Georgia Law ......
2. The State Has No Valid Interest in
Indirectly Legislating Morality, and
the Statute Does Not Actually Serve
11
14
Page
3. The State Has No Interest in Increas-
ing Its Population; On the Contrary,
nie
4. The State Has No Interest in Requir-
ing That All Embryos Develop and
Be Born 19
a. The Law Has Never Restricted
Abortions for the Purpose of
Protecting the Embryo ......... .. 19
b. There Is No Legal Recognition
of the Fetus as a Person; Live
Birth Is Required Before Any
Rights Attach . 20
c. The View That “Human Life”
Commences With Conception Is
a Philosophical Conclusion Not
Supported by Scientific Evi-
dence 20
5. Conclusion 21
I.
The Application and Effect of Restrictive Abor-
tion Laws, Such as the Georgia Abortion Law,
Results in Discrimination Against Poor and
Non-White Women in Exercising Their Funda-
mental Interest in Marital and Individual Pri-
vacy, Denying to Them the Equal Protection
of the Laws 22
A. Factual Data Demonstrate Discrimination
Against the Poor and Non-White ............ 22
B. As a Result of the Disproportionate Un-
availability of Hospital Abortions to °
Them, the Poor and the Non-White Re-
sort to Unsafe Criminal Abortions Which
iii,
Page
Lead to High Mortality and Morbidity
Rates 29
C. Where Abortion Restrictions Have Been
Eliminated, the Poor and the Non-White
in Fact Receive Abortion Services in a
Non-Discriminatory Manner 31
D. The Impact of the Restrictive Abortion
Law Effectively Denies Equal Protection
to the Poor and Non-White .................... 32
Mil.
Where the State Has Permitted Abortions to Take
Place in Certain Hospitals Under Certain Con-
ditions, but Has Delegated Unreviewable Au-
thority Without Standards to a Private Body
to Decide in Which Hospitals Abortions May
Take Place, and Has Delegated Unreviewable
Authority to Physicians and Committees of
Physicians to Decide Under Which Conditions
Abortions May Take Place, and Said Physi-
cians Have Compelling Reasons to Skew Their
Decisions Against Granting Abortions, and
Where Such Delegations of Authority Are
Likely to Result and in Fact Result in Dis-
crimination in Obtaining Abortion Against the
Poor and Non-White, the State Has Denied
to the Poor and Non-White the x Protec-
tion of the Laws ...... 37
A. Restricting Lawful Abortions to Accred-
ited Hospitals Results in Discrimination
Against the Poor and Non-White ............ 37
B. Delegation of Authority to Physicians and
Their Committees to Approve Abortions
at Their Peril Results in Discrimination
Against the Poor and the Non-White .... 43
iv.
IV. Page
Georgia’s Statutory Option for Hospitals to Re-
ject Abortion Patients, to the Extent It Is Ex-
ercised by Public or Publicly-Subsidized Hos-
pitals, Sanctions a Denial of Equal Protection
to the Class of Patients Requiring Abortion,
Having a Particularly Severe Impact on the
Poor and Non-White ; .-- 48
V.
Conclusion . 52
bs
TABLE OF AUTHORITIES CITED
Cases Page
Babbitz v. McCann, 310 F. Supp. 293, app. dism. _
per cur., 400 US. 1 ne eeeeceecesseeeeeeseeee 13
Baired v. Eisenstadt, 429 F. 2d 1398, prob. juris.
401 US. 934 . 17, 18
Bates v. Little Rock, 361 US. 516 ES Re 14
Brooks Estate, In re, 32 Ill. 2d 361, 205 N.E. 2d
BSD cnncenscorecsennee 13
Carter v. Carter Coal Co., 298 U. Be BE ikieieieenens 38
Communist Party of U.S. v. SACB, 367 US. 1 .... 38
Dandridge v. Williams, 397 U.S. 471 ........ 36, 42, 49
Doe v. Gen. Hosp., 313 F. Supp. 1170, 434 F. 2d
rere ee rseanbinecemnegeenorennens 24
Dougiws v. California, 372 U.S. 353 ...............- 33, 34
Edwards v. California, 314 U.S. 160 ...................... 24
Epperson v. Arkansas, 393 U.S. 97 21
Erickson v. Dilgard, 44 Misc. 2d 27, 252 N.Y.S.
2d 705 aa 13
Gardner v. California, 393 U.S. 367 ....................-- 34
Gomillion v. Lightfoot, 364 U.S. 339 .................... 34
Griffin v. County School Board of Prince Edward
ee a! Sg 3 | REEERRR Sie neenno ee 51
NI ©, SOONG, FOR BOI BO nreceieesee 33, 42
Griswold v. Connecticut, 381 U.S. 479 ....8, 9, 10
ser Cosy eee 11, 18, 52
Harper v. Virginia Bd. of Elections, 383 U.S. 663
ss daca ethane dclesaacdll tei tonicoiaini.n baamoesesnninsneny 33, 42
Hobson v. Hansen, 269 F. Supp. 401, omseglindiasewouanavs 34
Jackson v. Denno, 378 U.S. 368 ............:cepeeceeeee- 46
Jacobson v. Massachusetts, 197 U.S. 11 13
James v. Valtierra, 91 S. Ct. 1331 51,52
Long v. District Court of Iowa, 385 U.S. 192 0.00.34
9
46
Loving v. Virginia, 388 U.S. 1
Mayberry v. Pennsylvania, 400 U.S. 455
McGautha v. California, 91 S. Ct. 1454 38, 39, 41
Meyer v. Nebraska, 262 U.S. 390
Murchison, In re, 349 U.S. 133
NAACP v. Alabama, 377 U.S. 288 ..
Olmstead v. United States, 277 U.S. 438
Patton v. Mississippi, 332 U.S. 463 .
People v. Belous, 71 Cal. 2d 954, cert. denied, 397
US. 915 12, 16, 20, 30, 46
Pierce v. Society of Sisters, 268 U.S. 510
Pres. & Directors of Georgetown College, Inc. v.
Jones, 231 F. 2d 1000, cert. denied, 377 US.
978
Red Lion Broadcasting Co. v. FCC, 399 U.S. 367
Reitman v. Mulkey, 387 U.S. 369
Rinaldi v. Yeager, 384 U.S. 305
Sams v. Ohio Valley Gen’l Hosp. Assn., 413 F. 2d
826 ,
Schecter Poultry Corp. v. U.S., 295 U.S. 495
Shapiro v. Thompson, 394 U.S. 618 ....33, 36, 42, 50
Simkins v. Moses H. Cone Memorial Hosp., 323
F. 2d 959, cert. denied, 376 U.S. 938
Skinner v. Oklahoma, 316 U.S. 535
Smith v. Texas, 311 U.S. 128 ..
: Page
smuck v. Hobson, 408 F. 2d 175 . 34
State v. Murphy, 27 N.J.L. 112 ........... 15
Terry v. Ohio, 393 US. 1 ..... 11
Thornhill v. Alabama, 310 U.S. 88 41
Tumey v. Ohio, 273. U.S. 510 aa cua es 46
United States v. George, 239 F. Supp. 752 .......... 14
United States v. Grimaud, 220 U.S. 504 .............. 39
United States v. Rock-Royal Co-Op., 307 U.S. 533 .. 38
United States v. Vuitch, 91 S. Ct. 1294 ........ 44, 45
Williams v. Oklahoma City, 395 U.S. 458
Yick Wo v. Hopkins, 118 U.S. 356 ......... .33, 41, 42
Miscellaneous
New York Times (June 26, 1970), p. 1 ................ 35
United States Department of Health, Education,
Welfare, Hill-Burton Project Register (1969),
pp. 80-92 49
Statutes
Code of Federal Regulations, Title 45, Sec. 220.20.. 19
Code of Federal Regulations, Title 45, Sec. 220.21
Georgia Code Annotated, Sec. 26-1201
Georgia Code Annotated, Sec. 26-1202(a) ............ 43
Georgia Code Annotated, Sec. 26-1202(b)
Georgia Code Annotated, Sec. 26-1202(b)(3) ....
29, 43
Georgia Code Annotated, Sec. 26-1202(b)(4) ....
Be eth beabbacibevlitestersiciecaisidectte 29, 37, 38, 49, 40
Georgia Code Annotated, Sec. 26-1202(b)(5) ....
Viii.
Georgie Code Annotated, Sec. 26-1202(b)(6) 29
Georgia Code Annotated, Sec. 26-1202(¢) -.....2..)99
Georgia Code Annotated, Sec. 26-1202 (€) .2.-.<.2:48
Georgia Code Annotated, Sec.’ 26-1203
United States Code, Title 42, Sec. 291 20.0.1... 2&8
United States “Code, Title 42, Sec. 291c(e)
United States Code, Title 42, Sec. 705(a)(12)...17
United ‘States’ Code, Title 42, Sec. 1396 ....36, 48, 49
United States Code, Title 42, Sec. 1396a(a)(2)... 50
United States Constitution, Fourteenth Amendment /
7, 9, 41, 53
Textbooks
American College of Obstetrics & Gynecology, .
Policy on Abortion, Medical Tribune (Oct. 12,
1970), p. 1 (35
15 American Law Reports 3d (1967), p. 992 ....-20
American Medical News (July 12, 1971), p. 9 .... 32
Bumpass.and Westoff, The Perfect Contraceptive .
Population, 169 Science (1970), pp. 1177, 1179
4 ig
Clark, Religion, Morality and Abortion: A Consti-
tutional Appraisal, 2 Loyola University (Los ,An-
geles) Law Review (Apr. 1969), p. 1
Clark, Religion, Morality and Abortion: A Con- »
stitutional Appraisal, 2 Loyola University (Los
Angeles) Law Review (1969), p. 7
Clark, Religion, Morality and Abortion: A Constitu-
tional Appraisal, 2 Loyola University (Los An-
geles) Law Review (Apr. 1969), p. 9
-3 Coke on Institutes (1648), p. 50
RI EEN THR COIGH
ix.
Page
Gold, et al., Therapeutic Abortions in New York
City: A 20-Year Review, 55 American Journal
of Public Health (1965), pp. 964, 966 26
Guttmacher, “The Shrinking Non-Psychiatric In-
dications for Therapeutic Abortion (Rosen ed.),
Therapeutic Abortion (1954), p. 12 27
Hall, Abortion in American Hospitals, 57 American
Journal of Public Health (1967), p. 1933 ..16, 17, 25
Hall, Abortion in icam Hospitals, 57 American
Journal of Public Health (1967), p. 1934
16, 17, 25, 30
Hall, Abortion Laws: A Call for Reform, 18 De-
Paul Law Review (1969), pp. 584, 585 16
Hall, Therapeutic Abortion, Sterlization and Con-
traception, 91 American Journal of Obstetrics
and Gynecology (1965), pp. 518, 519 25, 28
Hall, Therapeutic Abortion, Sterilization and Con-
traception, 91 American Journal of Obstetrics
and Gynecology (1965), p. 522 28
92 Harvard Law Review (1969), pp. 1065, 1130
82 Harvard Law Review (1969), p. 1178
Kauper, Penumbras, Peripheries, Emanations, Things
Fundamental and Things Forgotten: The Gris-
wold Case, 64 Michigan Law Review (1958), pp.
235, 258 ee
Kleegman, Planned Parenthood: Its Influence on
Public Health and Family Welfare (Rosen ed),
Abortion in America (1967), pp. 254, 256
Page
Kummer, A Psychiatrist Views Our Abortion Enigma,
The Case for Legalized Abortion Now (Gutt.
macher ed. 1967), p. 114 tat
Lader on Abortion (1966), pp. 29-30 .. 47
Leavy & Kummer, Criminal Abortion: Human
Hardship and Unyielding Laws, 35 Southern Cali-
fornia Law Review (1962), p. 123 .................. 30
Mandy, Reflections of a Gynecologist (Rosen ed.),
Abortion in America (1967), pp. 288-289. 27
Means, The Law of New York Concerning Abor-
tion and the Status of the Foetus, 1664-1968:
A Case of Cessation of Constitutionality, 14
” New York Law File (1968), pp. 411, 420, 453 .. 19
Moritz & Thompson, Septic Abortion, 95 American
Journal of Obstetrics and Gynecology (1966),
p. 46 17
New York Penal Law (McKinney Supp. 1970),
Sec. 125.05 ......... 31
Niswander, Medical Abortion Practices in the
United States, in Smith (ed), Abortion and the
Law (1967), p. 53 25
Packer, The Limits of the Criminal Sanction (1968),
p. 344 29
Prosser on Law of Torts (4th ed. 1971), p. 336 .. 20
Rosen, A Case Study in Social Hypocrisy (Rosen
ed.), Abortion in America (1967), pp. 299,
306-307 28
Rosen, Psychiatric Implications of Abortion: A
Case Study in Social Hypocrisy, 17 Wisconsin
Res. Law Review (1965), pp. 435, 450 ............ 30
—
Page
silver & Worthington, Regulation of Quality of
Care in Hospitals, 35 Law & Contemp. Problems
lems (1970), pp. 305, 310-311 . 38
Silver & Worthington, Regulation of Quality of
Care in Hospitals, 35 Law & Contemp. Problems
SE i Be pesercemmcoreterneensone 40
Tietz, Morality With Contraception and Induced
Abortions, 45 Studies in Family Planning (Sept.
1969), p. 6 16
Tietze, Therapeutic Abortions in the United States,
101 American Journal of Obstetrics and Gyne-
cology (1968), pp. 784, 786 ..........---.--------105- 26
Williams, The Sanctity of Life and the Criminal
fgg RN NG | f smeeeetseeien aterm ee |
- Supreme Court of the United States
October Term, 1971
No. 70-40
Mary Dog, et al., etc.,
Appellants,
vs.
ArTHuR K. BoLToNn, Attorney General of the State of
Georgia, et al., etc.,
On Appeal From the United States District Court for the
Northern District of Georgia.
A ppellees.
Motion for Leave to File Brief Amici Curiae
in Support of Appellants.
The Nafional Legal Program on Health Problems of
the Poor, the National Welfare Rights Organization
and the American Public Health Association” hereby
respectfully move the Court for leave to file their at-
tached brief amici curiae in support of appellants in
the above-entitled matter.
The National Legal Program on Health Problems of
the Poor is a law reform center funded by the U.S.
Office of Economie Opportunity to provide support for
OEO Legal Services programs across the country in
iain
cases involving health problems of the poor, and ty
provide, through education, research and legal repr.
sentation, assistance in the preparation of important —
litigation in health law. In that capacity, the Program
participated as amicus curiae in this case in the cour
below. The Program is based at UCLA School of
Law.
The National Welfare Rights Organization is a yo}.
untary association with 125,000 members in 50 states
organized to represent the interests of low income peo
ple and welfare recipients with regard to redress of
legal grievances, to act as a spokesman for such people
and to educate and inform them of their legal rights.
The American Public Health Association is a volun
tary association of professionals and others in the field
of health care who are concerned about improving the
quality and the means of providing for the health care
of the American people. The APHA works to identify
and study these problems, and to communicate its con-
cerns to the government and the public.
These organizations share the view that restrictive
state abortion laws, such as the Georgia statute here
under review, have a negative effect on the health and
well-being of American women, and have a particular-
ly severe impact on the nation’s poor and non-white
populations. It is the poor and non-white who suffer
most from limited access to legal abortion, and it is
they who incur greatly disproportionate numbers of
deaths and crippling injuries as a result of being forced
to seek criminal abortion.
a
3
There are a number of grounds for constitutional
challenge to the abortion law here under review. Amici
request leave to file this brief at the invitation of coun-
sel for appellants, in order to present in some depth the
argument that the discriminatory application and effect
of the abortion law denies to the poor and non-white
the equal protection of the law.
It is the understanding and belief of amici that this
argument will not be developed in any detail in the
principal briefs for appellants, and that appellants rely
on the within brief for this purpose. Therefore, the
equal protection analysis and issues raised in this brief
will not be repetitious of other arguments.
Respectfully submitted,
ALAN F. CHARLES,
National Legal Program on
Health Problems of the Poor,
UCLA School of Law,
Los Angeles, Calif. 90024,
: SUSAN GROSSMAN ALEXANDER,
National Legal Program on
‘ Health Problems of the Poor,
UCLA School of Law,
Los Angeles, Calif. 90024,
Attorneys for Amici Curiae.
incall
BRIEF OF AMICI CURIAE.
Summary of Argument.
A woman who seeks an abortion is asserting certain
fundamental rights which are protected by the Consti-
tution. Among these are the rights to marital and fami-
ly privacy, to individual and sexual privacy; in sum,
the right to choose whether to bear children or not.
These rights are abridged by the state’s restriction of
abortions to limited circumstances. To justify such an
abridgment, the state must demonstrate a compelling
interest; no such compelling interest exists to save the
Georgia abortion law.
The state’s interest in protecting the woman’s health
no longer supports the restrictions on abortion set forth
in the Georgia statute. Medical science now performs
abortions more safely than it brings a woman through
pregnancy and childbirth. Any state interest in discour-
aging non-marital sexual relationships must be served
by laws penalizing these relationships, and not by an
indirect, overly broad prohibition on abortion. There
is no evidence, in any case, that abortion laws deter
such sexual relationships. The state’s purported interest
in expanding the population lacks any viability today;
government policy in every other area is now squarely
against it. And any purported interest in permitting all
embryos to develop and be born is not supported any-
where in the Constitution or any other body of law.
Because of its restrictions, the Georgia statute de-
nies to poor and non-white women equal access to le-
gal abortions. It is an undeniable fact that abortion
in Georgia and in virtually every other state in the
United States is far more readily available to the white,
sida
paying patient than to the poor and the non-white
Studies by physicians, sociologists, public health ex:
perts, and lawyers all reach this same conclusion. The
reasons for it are not purely economic, i.e., that be
cause abortion is an expensive commodity to obtain
on the medical marketplace, it is therefore to be ex.
pected that the rich will have greater access to it. It is
also because in the facilities which provide health care
' to the poor, abortion is simply not made available to
the poor and non-white on the same conditions as it
is to paying patients. As a result, the poor resort to
criminal abortion, with its high toll of infection and
death, in vastly disproportionate numbers.
Largely to blame are restrictive abortion laws, such
as the Georgia statute, in which the legislature has
made lay judgments about what conditions must exist
before abortions can be legally performed, and has dele-
gated the authority to make such decisions to physi-
cians and committees of physicians with the threat of
felony punishment if they err on the side of granting
abortion. Unlike more privileged women, poor and non-
white women are unable to shop for physicians and
hospitals sympathetic to their applications, cannot af-
ford the necessary consultations to establish that their
conditions qualify them for treatment, and must large-
ly depend on public hospitals and physicians with
whom they have no personal relationship, and who
operate under the government’s eye, for the relief they
seek. The resulting discrimination is easily dem-
ll
—
The state has confounded the unequal treatment of
the poor and non-white by requiring that abortions
may only be performed in hospitals accredited by the
Joint Commission on Accreditation of Hospitals, thus
severely limiting the number of hospitals to which the
poor and non-white may have access, without any legiti-
mate state purpose for doing so. The state has also
worsened the discriminatory treatment of the poor and
non-white by permitting all hospitals to arbitrarily re-
ject abortion patients, including hospitals which have
federal constitutional responsibilities not to discriminate
by virtue of their public or publicly-subsidized status.
In the absence of any compelling state interest, the
harsh discriminatory effect on the poor and the non-
white resulting from the operation of the Georgia abor-
tion law denies to poor and non-white women the
equal protection of the laws in violation of the Equal
Protection Clause of the Fourteenth Amendment.
Scie
ARGUMENT.
THE GEORGIA ABORTION LAW INFRINGES UPON THE
RIGHT TO MARITAL AND INDIVIDUAL PRIVACY
WITHOUT A COMPELLING STATE INTEREST,
A. The Statute Infringes Upon the Right to Privacy,
The right to privacy has been recognized as a cop.
stitutionally protected right. The Georgia abortion stat.
ute infringes on the right to marital privacy and the
woman’s right to individual privacy.
1. Marital Privacy.
In Griswold v. Connecticut, 381 U.S. 479, this Court
recognized the right to marital privacy when the Court
voided a state statute prohibiting dissemination of con-
traceptive information and devices. The Court defined
the right to privacy in terms of the right to personal
solitude and autonomy and applied it to a “zone of
privacy in marriage,” thereby setting forth a right that
may not be disturbed by the state without a compelling
and valid interest.
The explicit recognition in Griswold of a right of
marital privacy is but one decision in a line of deci-
sions, dating over fifty years, giving constitutional pro-
tection to various rights in the procreative, marital and
family context, none of which is explicitly enumerated
in the Bill of Rights. These decisions include Skinner
v. Oklahoma, 316 U.S. 535, 536 (“the right to have
offspring” is a constitutionally protected “human
right”); Pierce v. Society of Sisters, 268 U.S. 510,
534-35 (the right to send one’s children to private
school is derived from “the liberty of parents and guard-
ians to direct the upbringing and education of children
slain
under their control”); and Meyer v. Nebraska, 262
US. 390, 399 (the liberty guaranteed by the Four-
teenth Amendment denotes “the right of the individual
to. . . marry, establish a home and bring up chil-
dren”). More recently, Loving v. Virginia, 388 U.S.
1, 12, specifically held that the Due Process Clause
of the Fourteenth Amendmant protects “the freedom
to marry...as one of the vital personal rights es-
sential to the orderly pursuit of happiness by free men”.
Recognition of the right of privacy asserted in the
case now before the Court thus would not usher in a
vast increase in judicial power. What has been said
pertaining to Griswold applies here:
It required no judicial roving at large to reach
the conclusion that the freedom of the marital re-
lationship is a part of the bundle of rights asso-
ciated with home, family, and marriage—rights
supported by precedent, history and common un-
derstanding. ...In exercising its powers in Gris-
wold to protect a fundamental personal liberty,
the Court, far from advancing to a new mile-
post on the high road of judicial supremacy, was
treading a worn and familiar path. Kauper,
“Penumbras, Peripheries, Emanations, Things
idamental and Things Forgotten: The Griswold
Case,” 64 Mich. L. Rev. 235, 258 (1958).
This Court, in Griswold, endorsed the contention
that certain areas of one’s life are so personal that
they are nobody else’s business; that there is a right to
simply withdraw into personal intimacy without hin-
drance by the State, and a right to protection of this
private sphere. Without any ‘invasion’ of the marital
bedchamber, and without any attempt by the state to
niin
obtain incriminating evidence, the Court held the Cop,
necticut statute to be an invasion of the protected
“zone of marital privacy.” Surely, the State had no ip.
terest in invading the sanctity, or privacy, of any other
decisions involving family planning.
Griswold’s act was to prevent formation of the
fetus. This, the court found, was constitutionally
protected. If an individual may prevent concep.
tion, why can he not nullify that conception when
prevention has failed? Clark, “Religion, Morality
and Abortion: A Constitutional Appraisal,” 2
Loyola U, (L.A.) L. Rev. 1,9 (Apr. 1969).
The Georgia statute, by limiting the authorization
of abortions to certain situations, puts limits upon the
married couple’s»fundamental right to decide whether
or not to bear a child, at the instant when an ovum
is fertilized. Until that moment, the couple has com-
plete freedom of choice as to when, ‘whether, and how
often they shall produce children. But once fertilization
occurs, their freedom of choice ends and they may not
choose not to have a child. The state thus invades,
and even supersedes, a married couple’s constitutional
right to control the use of their procreative powers.
Under Griswold it is surely not the means of control,
but the power to control which is significant.
The existence and enforcement of this statute allows
the state to intrude into the very essence of the marital
relationship and indeed to affect the very course and
fate of the marriage itself. As did the Connecticut anti-
contraceptive statute, the Georgia abortion statute un-
constitutionally “operates directly on an intimate rela-
tion of husband and wife.” 381 U.S. at 483.
ie, ae
2. The Right of Privacy of the Individual Woman.
The right to privacy, to seclusion and autonomy, es-
tablished as to married couples in Griswold, supra, sure-
ly belongs to individuals as well.
The right of a woman to control her own body,
specifically whether or not to continue a pregnancy, is
inherent in the decision in Terry v. Ohio, 393 US.
1, 8-9, that “no right is more sacred ... than the right
of every individual to the possession and control of his
own person... .” See also Olmstead v. United States,
277 U.S. 438, 478 (Brandeis, J., dissenting).
The right of the woman to decide whether to ter-
minate an unwanted pregnancy follows inexorably
from the broad principle that she is entitled to be
“let alone” by the state and its agents. For a state to
adopt such provisions as the State of Georgia has done
in this statute represents an impermissible intrusion
iftto her right to her personal integrity and is a depriva-
tion of her personal liberty. By compelling her, against
her will, to continue a pregnancy, the woman may
be adversely affecting the essential direction and quality
of her own life (and perhaps the lives of others with
whom she lives and works, as well). If a woman is
viewed as an individual entity, and not as a vessel for
propagation, each time she determines whether to bear
a child or not, she is without doubt making a truly
fundamental choice of her life. Women are no longer
a vehicle for a determination by others that super-
vening social interests require their frequent childbearing
for the purpose of adding to the population. Through
the medium of the abortion law, however, they are
subject to the determination of society in general,
which (so far as the lawmaking process is concerned)
ee
is largely male, that no woman may make for herself
the decision not to complete a pregnancy to term whea
she does not desire to. As set out below, the state has
no compelling interest in demanding that a woman
should carry an unwanted child.
- Several courts have acknowledged that the woman's
right to her physical integrity requires that she be a}
lowed to make the decision as to the termination of
her pregnancy without hindrance by the state. . These
cases stand for the proposition that abortion statutes
are wholly inconsistent with the existence of a right s
fundamental in nature, and are, therefore, unconstity.
tional. In one of these cases was the state’s interest in
the policy expressed in the challenged abortion statute
considered to be of sufficiently compelling nature to
justify legislative efforts to circumscribe a woman’s
right to decide, after consultation with her physician,
to terminate her pregnancy.
In People v. Belous, 71 Cal. 2d 954 (1969), cert,
. denied, 397 U.S. 915, for example, the Supreme Court
of California, in striking down as unconstitutional the
pre-1967 abortion law of California, stated:
The rights involved in the instant case are the wo-
man’s right to life and to choose whether to bear
children. The woman’s right to life is involved be-
cause childbirth involves risks of death. |
The fundamental right of the woman to choose
whether to bear children follows from the Su-
preme Court’s and this Court’s repeated acknowl-
edgment of a “right of privacy” or “liberty” in mat:
ters related to marriage, family, and sex. 71 ‘Cal.
2d at 963 (footnotes and citations omitted).
siletaie
See also Babbitz v. McCann, 310 F. Supp. 293
(ED. Wis. 1970), appeal dismissed per curiam, 400
U.S. 1, where the court said:
The police power of the state does not . . . entitle
it to deny to a woman the basic right reserved to
her under the Ninth Amendment to decide whether
she should carry or reject an embryo which has
not quickened. 310 F. Supp. at 302.
The right “to be let alone” has, to be sure, been
in a few cases involving physical intrusion in-
to the body, but only where the state interest has been
compelling, that is, where the exercise of that right has
threatened the rights of other members of society. For
example, the power of the state to require vaccinations
and to quarantine persons suffering from contagious
diseases, although upheld, has been limited to situa-
tions involving “great dangers”, and “the safety of the
general public.” Jacobson v. Massachusetts, 197 U.S. 11,
29 (1904). In Jacobson, even so minor an infringe-
ment of liberty and of the individual's sovereignty over
his body as vaccination was held to require a strong
justification. a
Also supporting the individual’s right to control his
own body are recent cases which have upheld the in-
dividual’s right to refuse medical treatment, even though
such a refusal will clearly result in death. See e.g.,
Erickson v. Dilgard, 44 Misc. 2d 27, 252 N.Y.S. 2d
105 (Nassau County Sup. Ct. 1962); In re Brooks
Estate, 32 Ill. 2d 361, 205 N.E. 2d 435 (1965).
In a case where blood transfusions were permitted
without the patient’s consent, Pres. & Directors of
Georgetown College, Inc. v. Jones, 231 F. 2d 1000
(D.C. Cir. 1964), cert. denied, 377 U.S. 978, the
' —l4—
court based its order on two-grounds: (1) the state
had an interest in preserving the life of a woman whose
small child might become a public charge if she died;
and (2) the patient was too weak from loss of blood
to be capable of making a competent decision: This
case was followed in United States v. George,.239 F.
Supp. 752 (D. Conn. 1965), in which blood transfy.
sions were ordered while the patient was semiconscious,
but withdrawn several days later when the patient re.
gained consciousness.
These cases demonstrate that an individual has a
right to refuse medical treatment unless the state’s in.
terest is so great that the rest of society will be en.
dangered absent such treatment. Similarly, the state
has no right to prevent an individual woman from ob-
taining medical treatment she desires, where that treat-
ment represents no danger to the community as a whole,
B. The Statute Infringes Upon Fundamental Constity.
tional Rights Without abi Any Compelling
State Interest.
Where there is a significant encroachment upoa
personal liberty, the State may prevail only upon
showing a subordinating interest which is com-
pelling. Bates v. Little Rock, 361 U.S. 516, 524. °
compelling state interest to justify its infringement upoa
constitutionally protected rights. The statute does not
serve any valid health purpose; instead it causes a se
vere health problem. The state has no valid interest in
regulating morality-indirectly through an abortion stat-
ute. The state has no valid interest in increasing popv-
lation through an abortion statute. And .the state has
——
we Yaa
no interest in requiring that all embryos develop and be
born.
L The Statute Serves No Health Interest of the State; On the
Contrary, It Has Created a Severe Health Problem.
Because a state has a valid interest in protecting
the health of its citizens, one frequently-asserted justi-
fication for restrictive abortion laws has been the state’s
concern with preserving the health of the woman be-
cause of the medical dangers associated with abortion
in the past. Indeed, the history of abortion legislation
in the United States shows that such a concern was
a primacy, if not the sole, reason for the passage of
such restrictive laws during the nineteenth century. But
current medical knowledge and techniques have dras-
tically reduced the hazards of abortion, and any such
state interest has disappeared. Now, pregnancy itself
may be more harmful to woman’s health than an abor-
tion performed under medically approved conditions. :
a. The History of the Abortion Statute.
Abortion before “quickening” (’i.e., when the first
fetal movements are felt by the pregnant woman, usual-
ly about the fourth or fifth month) was not a crime
under the common law of England; even after quick-
ening, abortion was only a misdemeanor. 3 Coke, In-
stitutes 50 (1648). American law followed suit until
the nineteenth century, when legislation making abor-
tion prior to quickening a crime began to appear. These
new laws were designed to protect the health of the
woman, as State v. Murphy, 27 N.J.L. 112, 114 (Sup.
Ct. 1858) declared:
The design of the [abortion] statute was not to
prevent the procuring of abortions, so much as to
guard the health and life of the mother against
the consequences of such attempts.
Ex ee
The risk of even hospital abortions in the 19th cep.
tury was formidable, but it is now safer for a woman to
have a hospital therapeutic abortion during the first
trimester than to bear a child. People v. Belous, supra
at 965.
“At the time the abortion laws were passed, the
laws made some medico-legal sense. But now, in
view of the progress of medical science, these
laws . . . make no sense whatsoever.” Hall, “Abor.
tion Laws: A Call for Reform,” 18 DePaul L. Rey.
584, 585 (1969). The rate of maternal mortality
from complications of or associated with pregnan.
cy and childbirth (excluding induced abortion) is
18 deaths per 100,000 live births, while the rate.
of mortality associated with legal abortions per.
formed in hospitals at an early stage of gestation
is three deaths per 100,000 abortions. Tietze,
“Mortality with Contraception and Induced Abor-
tions,” 45 Studies in Family a 6 (Sept.
1969).
There is no jonger any health interest served by
Georgia’s abortion statute.
b. The Adverse Effect Upon Health of the. Georgia
Law.
Present restrictive abortion laws, instead of protect-
ing the health of women, have produced a result in di-
rect conflict with that goal. When unable to obtain
competent medical treatment, meeting proper medical
standards, in appropriate medical facilities, women
commonly resort to abortions performed under “back-
alley” conditions which often lead to illness and death.
The law has thus created “a public health’ problem of
pandemic proportions.” Hall, “Abortion in American
—
BLEED THROUGH
po an
Hospitals,” 57 Am. J. Pub. Health 1933, 1934 (1967).
The number of criminal abortions performed annually
in the United States is not known but has been esti-
mated at from 200,000 upwards. The incidence of in-
fection and permanent physical damage is high, and
death is a constant threat. Recent studies reveal a high
_and increasing—incidence of infected abortions in
the hospitals studied (primarily large city hospitals)
and describe such septic abortions as a chief cause of
maternal deaths, See, e.g., Moritz & Thompson, “Sep-
tic Abortion,” 95 Am. J. Obst. & Gynec. 46 (1966).
It is thus clear that illegal abortions present a signifi-
cant health problem. By making abortion a crime (un-
less it comes within the categories of the existing law),
the state has succeeded in making highly dangerous a
form of conduct which serves a necessary function for
society and which can be performed safely under the
proper medical conditions. See Kummer, “A\ Psychiatrist
Views Our Abortion Enigma,” in The Case for Legalized
Abortion Now 114 (Guttmacher ed. 1967). The Georgia
statute is thus contrary to, rather than in furtherance of,
any state interest in protecting the health of its women.
2. The State Has No Valid Interest in Indirectly Legisiating
Morality, and the Statute Does Not Actually Serve Any
Moral Purpose.
It is sometimes asserted that the State has a moral
interest in prohibiting abortion because the availability
of abortions will tend to encourage promiscuity. If the
Georgia legislature is concerned with deterring fornica-
tion and adultery, it may enforce statutory prohibitions
of and penalties for those acts themselves. “It may not
do so, however, by making the penalty a personally,
and socially, undesired pregnancy.” Baird v. Eisenstadt,
a
429 F. 2d 1398, 1402 (1st Cir. 1970), prob. juris;
noted, 401 U.S. 934. a
Even if some state interest in circumscribing promis.
cuity could be shown, there is no evidence that pro
miscuity has been decreased or even affected by the
existence of abortion laws. If the prevention of such
conduct were indeed one purpose of the legislation
the statutory scheme is too indirect to accomplish the
legislative intent. Since married women who conceive
unwanted pregnancies by their husbands are equally
subject to the act, the method of control is not limited
to the “evil” sought to be regulated. The statute in.
volved here does not purport to distinguish between
married and unmarried women. Even where premarital
or extramarital relationships are banned, as in Con
necticut at the time of the Griswold opinion, a ban on
abortions by married couples in no way reinforces the
state’s ban on other sexual relationships. “At most
[such a] broad ban is of marginal utility to the de
clared objective.” Griswold v. Connecticut, supra at 506
(White, J., concurring).
3. The State Has No Interest in Increasing Its Population; Ox
the Contrary, Its Interest, if Any, Is in Limiting Populatics
'
In view of the increasing public concern over our
rapidly multiplying population, any supposed state in-
terest in increasing the number of lives in being can
hardly be raised as a justification for the prohibition
of abortion. Indeed, the growing emphasis of both fed-
eral and state agencies upon preplanning of families and
limitation of their size makes mainifestly inconsistent
treating the termination of pregnancy as a crime, while
BLEED ‘THROUGH
on
birth control devices are not merely permitted but are
promoted and encouraged by the government.
See, €.8:, 42 U.S.C. 705(a)(12); 45 C.F.R. 220.20,
220.21.
4 The State Has No Interest in Requiring That All Embryos
Develop and Be Born.
There is not now, nor has there ever been, a state
interest which requires that all embryos develop and
be born. |
a. The Law Has Never Restricted Abortions for the
Purpose of Protecting the Embryo.
The English common law, followed in this country
until the advent of statutory law, permitted abortion be-
fore quickening with the woman’s consent. The wo-
man’s right to abort her pre-quickened fetus was thus
“sn ancient common-law liberty” of which she was not
deprived until the nineteenth century. Means, “The
Law of New York Concerning Abortion and the
Status of the Foetus, 1664-1968: A Case of Cessation
of Constitutionality,” 14 N.Y.L.F. 411; 420, 453
(1968). Even under the current Georgia statute, the
woman is not prosecuted or punished for her complicity
in obtaining an illegal abortion or for aborting herself.
If anything, the historical development of the abor-
tion statutes reflects an interest in protecting the well-
being of the woman. “The new statutes were inspired
by reverence for life, to be sure; but the life they re-
vered was the pregnant woman’s, not that of the un-
quickened foetus.” Id. at 508.
' b. There Is No Legal: Recognition of the Fetus-q
-@ Person; Live Birth Is Required Before. “Ary
Rights Attach. =
All of the statutes and rules which are geectalljas
lied upon to show that an embryo or fetus is legally
equivalent to a born child “require a live birth or me
flect the interest of the parents.” People v. Belous,
supra at 968, 968 n. 12.
~ (1) No recovery is permitted for injuries negligently
inflicted upon a fetus by a third person unless the fetus
is born alive. Prosser, Law of Torts 336 (4th ed. 1971).
(2) No recovery whatsoever is permitted in many
states for wrongful death where there is a stillbirth,
Even in those jurisdictions which recognize such a Cause
of action, it is a recognition on behalf of the parents,
who have suffered a distressing wrong in the loss of
a child whose birth they desired. Id. at 337. Moreover,
every one of those cases requires that the injury have
occurred when the fetus was viable o—
“quick”). See 15. A.L.R. 3d 992 (1967).
(3) The fetus has no property rights; it must be
born alive to take property. See, e.g., People v. ~~
supra, at 968 n. 12.
c. The View That “Human Life’ Commences With
Conception Is a Philosophical Conclusion Not
Supported by Scientific Evidence.
The view that human life commences with concep
tion cannot be supported by any scientific evidence one
way or the other. At what point a fetus becomes a
“human being” is a subject more fitting for philosophi-
cal debate than for scientific judgment. Precisely be
cause human development is a continuum, any choice
RiIoeecn THR CYKIiGgkw
—21—
The Sanc
(1957).
The existence of a conceptus cannot be equated with
the life of a grown woman. This woman is—beyond
dispute—a human being. To equate her life and’ her
constitutional rights with those of a non-viable fetus is
to make a moral judgment. Any individual is entitled
to adopt such a moral judgment for guidance in his or
her private life, but it is surely a judgment which he
cannot enforce upon others through legislation. See ‘Ep-
person v. Arkansas, 393 U.S. 97.
5. Conclusion.
A single conclusion is dictated by all of the above:
the Georgia abortion statute serves no compelling state
interest. Because it fails to serve any compelling state
interest, its invasion of fundamental rights is in clear
violation of the Federal Constitution. bie
ee
I. 1%
THE APPLICATION AND EFFECT OF RESTRICTIVE
ABORTION LAWS, SUCH AS THE GEORGIA ARBOR,
TION LAW, RESULTS IN DISCRIMINATION AGAINST
POOR AND NON-WHITE WOMEN IN EXERCISING
THEIR FUNDAMENTAL INTEREST IN MARITAL
AND INDIVIDUAL PRIVACY, DENYING TO THEM
THE EQUAL PROTECTION OF THE LAWS.
While amici contend that to receive proper medical
care in the form of an abortion approved and per.
formed by a physician is, by itself, a fundamental ip.
terest protected by the Constitution (Part I, supra), it
is not necessary for abortion to be declared a consti-
tutional right to hold that its discriminatory denial vio.
lates guarantees of equal protection. Even when an ip
terest is not found to be fundamental under the Due
Process Clause, it may be deemed fundamental under
the Equal Protection Clause, and unequal treatment
with respect to that interest upheld only on a very
strong showing of justification. Note, “Developments in
the Law—Equal Protection,” 82 Harv. L. Rev., 1065,
1130 (1969).
A. Factual Data Demonstrate Discrimination Against
The State of Georgia has established a set of cate-
gories describing the circumstances under which women
may obtain abortions within the State. On their face,
these categories allow this treatment for all women who
are similarly situated with respect to those circum-
stances, and excludes from this treatment all others.
Presumably, therefore, those women who qualify for
a legal abortion according to the terms of the statute
should be able to obtain one, regardless of their race
BLEED THROUGH
=| oe
or socio-economic status. There is nothing demonstrable
in the differences of skin color or economic condition
which suggests that a substantially smaller proportion
of the poor or the non-white fall into these categories
than do the white and the non-poor, or that the poor
and non-white have a substantially different moral atti-
tude on abortion.
On the contrary, a recent study of births occurring
between 1960 and 1965 led investigators to conclude
that one-third of Negro (as contrasted with one-fifth of
white) births were unwanted. “This high level of un-
wanted births among Negroes indicates the magnitude
of the burden of unwanted dependents that is borne
by this population. . . .” Bumpass and Westoff, “The
Perfect ‘Contraceptive’ Population,” 169 Science, 1177,
1179 (1970). Unwanted births were in general more
than twice as high for families with incomes of less
than $3000 as for those with incomes of over $10,-
000; this differential was “particularly marked among
Negroes.” Id. The results indicated, in the view of the
investigators, that there is a “coincidence of poverty
- and unwanted births rather than a propensity of the
‘poor’ to have unwanted children.” Jd.
One explanation for this high level of unwanted
births among the poor and the non-white is surely the
fact that they do not have equal access to abortions.
Data demonstrate that the poor and the non-white do
not feceive this medical treatment on the same terms
as do others. They thus suffer a particularly harsh and
adverse effect from the operation of this statute, as they
do from that of the other restrictive abortion laws
which have existed and currently exist in the United
——y
States. Dr. Alan F. Guttmacher has summed up @
evidence:
Both in regard to incidence and iedlcations t
tween patients on private and clinic serviess —.°
voluntary and municipal hospitals . . . it has leg
been apparent . . . that municipal hospitals felisy
the letter of the law of the abortion statute med
more exactly than voluntary hospitals, and alo
that private patients are generally treated by a
more lenient interpretation of the law than service
patients. Guttmacher, “Abortion—Yesterday, To.
day and Tomorrow,” in Guttmacher (ed.), The
Case for Legalized Abortion Now (1967).
The additional burdens placed upon indigent women
by public hospitals before these women can obtain
abortions (obtainable with far greater ease elsewhere
by those who can pay) have been discussed by the two
federal courts» which examined the procedures at the
District of Columbia General Hospital, Doe v. Gen.
Hosp., 313 F. Supp. 1170 (D.D.C. 1970), 434 F, 2d
423 and 434 F. 2d 427 (D.C. Cir. 1970). Because
the poor rely primarily upon public hospitals for their
medical services, denials or delays at those institutions
are tantamount to a denial of prompt medical care sole-
ly because these women are without funds. “[T]he mere
state of being without funds is a neutral fact—consti-
tutionally an irrelevance, like race, creed, or color.” Ed-
wards v. California, 314 U.S. 160, 184 (Jackson, J.,
concurring). Yet that state has led to very different
medical treatment where restrictive abortion laws exist.
Dr. Robert E. Hall has collected and reported data
supporting this conclusion. In New York City, between —
1960 and 1962, Dr. Hall found that: :
BLEED THROUGH
seat ae
. . . the ratio of therapeutic abortions to live
births in the proprietary hospitals was 1:250; on
the private services of the voluntary hospitals, 1:
400; on the ward services of the same voluntary
hospitals, 1:1,400; and in the municipal hospitals,
1:10,000. ‘The same inequity pertains to ethnic
origin. The rate of therapeutic abortions per live
births among white women in New York is 1 per
380, among nonwhites 1 per 2,000, and among
Puerto Ricans 1 per 10,000. Hall, “Abortion in
American Hospitals,” 57 Am. J. Pub. Health
1933, 1934 (1967).
In a survey of 65 randomly selected major American
hospitals, Dr. Hall similarly discovered that the rate of
therapeutic abortions was 3.6 times higher on the pri-
vate services of these hospitals than on their ward
services. Hall, “Therapeutic Abortion, Sterilization and
Contraception,” 91 Am. J. Obst. & Gynec. 518, 519
(1965).
Kenneth R. Niswander has substantiated similar data
from a study of Buffalo, New York, hospitals. Niswand-
er, “Medical Abortion Practices in the United States,”
in Smith (ed.), Abortion and the Law 53 (1967).
Furthermore, he has written:
Hospitals vary greatly in their: abortion prac-
tices. At the Los Angeles County Hospital, which
treats only clinic patients . . . from 1946 to 1951
there was an incidence of one therapeutic abortion
per two thousand eight hundred sixty-four (2,864)
deliveries. At the opposite extreme, one finds repu-
table hospitals permitting abortion for one out of
every 35-40 deliveries. The variation in the hospi-
tals surveyed by [Robert E.] Hall extended from
sisi si
no abortions in 24,417 deliveries to one in 36 de.
liveries. It seems inconceivable that medical opip.
ion could vary so widely. Socioeconomic factors
must be playing a major role in the decision to
abort in certain institutions. Id. at 54-55 (emphe.
sis added).
Data collected from New York City by other investi.
gators for the period 1951-1962 revealed that:
Therapeutic abortion occur[red] most frequent.
ly among the white population by a considerable
margin. The white ratio [was] more than five
times that among the nonwhites and 26 times that
among the Puerto Ricans. (Well over 90 per cent
of all therapeutic abortions in New York City
[were] performed on white women.) Gold, et al,,
“Therapeutic Abortions in New York City: A 20
Year Review,” 55 Am. J. Pub. Health 964, 966
(1965) (emphasis added).
A nationwide survey of all short-term general hospi-
tals participating in the Professional Activities Survey
from 1963 to 1965 led to this conclusion:
. [T]he incidence of therapeutic abortion
was almost twice as high among white women as
among the nonwhite group. . . . Tietze, “Thera-
peutic Abortions in the United States,” 101 Am. J.
Obst. & Gynec. 784, 786 (1968).
Similar statistics and conclusions appear throughout
the literature in this area:
Perhaps the greatest injustice resulting from our
present policies is the creation of a double stand-
ard for private and indigent patients. . . . Almost
universally greater consideration is extended to the
BLEED THROUGH
—27)—
private patient for a multitude of reasons which,
not infrequently, include a recognition of their so-
cial and economic prestige. Mandy, “Reflections of
a Gynecologist,” in Rosen (ed.), Abortion in
America 288-89 (1967).
* * *
The rich and the poor, it should be noted, are
not treated alike: many ethical physicians, for in-
stance, are much more lenient in their application
of indications for therapeutic abortion to private
patients than to indigent patients on municipal
hospital services. It is the ‘private practice’ patient,
therefore, who can more readily obtain a thera-
peutic abortion. Kleegman, “Planned Parenthood:
Its Influence on Public Health and Family Wel-
fare,” in Rosen (ed.), Abortion in America 254,
256 (1967).
A partial explanation for the marked \ disparity in
these figures appears to lie in the far lower incidence
of abortions performed for psychiatric reasons among
and non-white women. In an era when non-
psychiatric medical reasons for abortions have stead-
ily decreased (Guttmacher, “The Shrinking Non-Psy-
chiatric Indications for Therapeutic Abortion” in
Rosen (ed.), Therapeutic Abortion 12 (1954)), a stead-
ily increasing number of abortions have been performed
for psychiatric reasons. Poor and non-white women
have not been the recipients of this treatment, however,
to the same extent as their white and wealthier
sisters. As Hall wrote in 1965, the discrepancy docu-
mented above
... may be attributed to the higher incidence of
abortions for psychiatric indications aaa pri-
vate patients. Whereas at Sloane Hospital: [for
Women, in New York City] one therapeutic abo,.
tion was performed for psychiatric reasons per
1,149. deliveries on the ward service, the com.
parable ratio for the private service was one per
104. . . . It would appear therefore that private
patients with unwanted pregnancies are more often
referred for primary psychiatric evaluation and/
or that psychiatric justification for abortion is
more easily obtained for private patients. . Hall,
“Therapeutic Abortion, Sterilization and Contra.
ception,” 91 Am. J. Obst. & Gynec. 518, 519, 522
(1965).
Dr. Hall’s survey of 65 major hospitals confirms the
- same wide discrepancy in granting peychistrically
related abortions. (Hall, op. cit. at 518.)
Why has this phenomenon occurred? Perhaps be
cause
. . . by the very nature of things, ward patients
are less likely to have the necessary consultations
requested, including the psychiatric, and to have
the necessary recommendations made and accept
ed by a hospital board, than are their well-to-do
sisters. Ethical and conscientious physicians de-
cry this fact, but nevertheless find it impossible
to controvert. . . . Rosen, “A Case Study in Social
Hyprocrisy,” in Rosen (ed.), Abortion in America
299, 306-07 (1967).
“Reform” legislation such as that in issue here is far
from a complete answer to this problem. As one writer
has noted:
.- [I]t must be recognized that moderate re-
form is essentially middle-class reform. It benefits
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—
iit
those who are sufficiently well-educated, well-
connected and well-financed to take advantage of
the liberalized law. Where will the ghetto dweller
find a psychiatrist to testify that she runs a grave
risk of emotional impairment if she is forced to
give birth to her nth baby? Packer, The Limits of
the Criminal Sanction 344 (1968).
The Georgia statute’s onerous requirements of con-
siltation and review, moreover, limit access to legal
abortion to those who can afford all the unnecessary
services mandated by the statute. See §§26-1202(b)-
(3), (4), (5) and (6), 26-1202(c), Ga. Code Ann.
These provisions require a woman to retain a physician
to approve her request, retain two other physicians to
review and concur in that approval, have access to a li-
censed and accredited hospital and a committee there-
in to further approve the application, and possibly be
prepared to defend her request in a court action
brought by relatives of the fetus to the second degree
(which may include persons who are total strangers
to her). Only the latter provision was struck down by
the court below. See Appellant’s Jurisdictional State-
ment herein, App. F., pp. 2f, 3f, 4f.
B. As a Result of the Disproportionate Unavailability
of Hospital Abortions to Them, the Poor and the
Non-White Resort to Unsafe Criminal Abortions
Which Lead to High Mortality and Morbidity
Rates.
While socioeconomic conditions never per se
legally warrant therapeutic abortion, socioeconomic
status nevertheless frequently determines whether
or not an abortion will be performed, and if per-
formed, whether that self-same abortion will be
aa ,
therapeutic or criminal. Rosen, “Psychiatric Im.
plications of Abortion: A Case Study in Sociaj
Hypocrisy,” 17 W. Res. L. Rev. 435, 450 (1965), ~
Criminal abortion has been described as the greatest
single cause of maternal mortality in the United
States; it is one of the greatest causes of disease, infec.
tion, and resulting sterilization as well. See Leavy &
Kummer, “Criminal Abortion: Human Hardship and
Unyielding Laws”, 35 So. Cal. L. Rev., 123 (1962);
see also People v. Belous, supra at 965-966. The poor.
and the non-white suffer disproportionately from the
“back-alley” abortionists, whose services they seek. out
in lieu of the medically safe hospital —
erally denied them.
California, the only state known to officially com.
pile such figures, in its most recent published report
notes that approximately 7 percent of that state's non-
white female population subjected themselves to crim-
inal abortion in 1968, as opposed to only 14% percent
of the state’s white female population. (California Dept
of Public Health, Third Annual Report on the Imple-
mentation of the California Therapeutic Abortion Act,
Tab. 4 (1970). |
The often tragic results of these’ abortions are also
documented. In their New York study, Drs. Gold, et al,
op. cit. at 970-71, noted that the ratio of criminal
abortion deaths per 1,000 live births was 4.0 for white
women and 16.2 for non-whites. Likewise, Dr. Hall's
1960-62 study led him to conclude that approximately
half of the puerperal deaths among New York’s Negroes
were due to criminal abortions as opposed to only a
quarter of the puerperal deaths among white women.
Hall, op. cit., 57 Am. J. Pub. Health at 1934.
BLEED THROUGH
oe
in Georgia itself, non-hospital abortions caused the
deaths of 205 residents between 1950 and 1969. Of
these 205 non-hospital abortion deaths, 143 (70%)
were of black women. Of the 25 Georgia women who
died as a consequence of legal abortions between 1965
and 1969, 22 (88%) were black. While the abortion
mortality rate for white Georgia women fell 80% from
1950-54 to 1965-69 (partially reflecting adopting of
the instant, “reform” law in 1968), abortion mortality
among black Georgia women declined by only 33%
between the same two five-year periods. “Non-hospital
abortion mortality in Georgia is primarily a black
health problem.” U.S. Dep’t of HEW, Public Health
Service, Center for Disease: Control, Abortion Surveil-
lance Report 10 (1970), citing Rochat, et al., Division
of Maternal Health, Georgia Dep’t of Public Health,
“An Epidemiological Analysis of Abortion in Geor-
gia” (1970).
C. Where Abortion Restrictions Have Been Elimi-
nated, the Poor and the Non-White in Fact Re-
ceive Abortion Services in a Non-Discriminatory
In sharp contrast to the above data has been the
experience in New York State since July 1, 1970, when
categorical restrictions on abortion were eliminated.
See N.Y. Pen. Law §125.05 (McKinney Supp. 1970).
On April 5, 1971, New York City health officials re-
ported that the city’s public hospitals, which restricted
abortions to city residents, were performing an average
of 511 a week, and the “vast majority” of those
women would be unable to afford abortions in private
hospitals. N.Y. Times, Apr. 6, 1971, at 25.
A later report, issued on June 29, 1971, ~~
more revealing:
fa i acd“ ees ncaa SE
Ricans, who had little access to legal abortions
prior to the law, received half the abortions done
on women in [New York City]. In the first nine
months, 31% of the city’s abortions done on state
residents were reimbursable under Medicaid,
American Medical Néws, July 12, 1971, at 9,
It is clear from this evidence that where the law has
eliminated restrictions on the obtaining of abortions,
the poor and non-white women who were previously
unble to exercise the financial and other kinds of lever.
age required to have a “therapeutic” abortion, are able
to obtain medically safe abortions on an equal basis
with’ all other women, and they do obtain them to at
least the same extent as their more privileged sisters,
One result has been a drop in the maternal mortality
rate: New York City hospitals now report treating far
fewer victims of “botched” illegal abortions than they
did in years past. “The maternal mortality rate—to
which criminal abortions have always contributed a
major portion—is now at a record low of 2.3 per each
10,000 live births, compared with 5.2 . . . at this
time last year.” Id. ©
D. The Impact of the Restrictive Abortion Law Et-
fectively Denies Equal Protection to the Poor and
Non- White.
It has been amply demonstrated above that poor
and non-white women are not treated equally with
other women in obtaining lawful abortions. However
BLEED THROU
sonia
geutral its facial appearance, and however unexception-
able its underlying intent, the practical effect of a
satute in denying equal treatment to classes of persons,
such as the poor or the non-white, must be measured
by the. Court.
Though the law itself be fair on its face and im-
partial in appearance, yet, if it is applied and
administered by public authority with an evil eye °
and an unequal hand, so as practically to make
unjust and illegal discriminations between per-
sons in similar circumstances, material to their
rights, the denial of equal justice is still within
the prohibition of the constitution. Yick Wo v.
Hopkins, 118 U.S. 356, 373-74.
The standard articulated in Yick Wo has been con-
sstently applied by this Court. Moreover, it has been
applied to statutes which have a natural discrimina-
tory effect, whether or not there is evidence of e4
“evil” public administration.
Where the class affected is the poor, see Griffin v.
Illinois, 351 U.S. 12 (state’s provision of criminal ap-
peal, but not of free transcript held to be an effective
denial of equal protection to poor defendants); Harper
y. Virginia Bd. of Elections, 383 U.S. 663 (state’s
exaction of a poll tax from all voters held to be an
effective denial of equal protection to poor voters);
Shapiro v. Thompson, 394 U.S. 618 (state’s refusal to
make welfare payments to residents of less than one
year held to be an effective denial of equal protection
to poor recent residents and to the foreign poor who
wish to travel to the state); Douglas v. California, 372
U.S. 353 (state's provision of criminal. appealciy
where appellate court decides in advance.of hearing
whether appointment of counsel for indigent would tp -
“helpful”, held to be an effective denial of equal pip,
tection to poor defendants). See also Williams’. Oli
homa City, 395 U.S. 458; Gardner v. California, 393
US. 367; Long v. District Court of Iowa,. 385, US,
192; Rinaldi v. Yeager, 384 U.S. 305; Hobson v.: Han.
sen, 269 F. Supp. 401 (D.D.C. 1967), affd sub-nom,
. Smuck v. Hobson, 408 F. 2d 175 (D.C. Cir, 1969).
Where the class affected is non-white, see Gomillion
v. Lightfoot, 364 U.S. 339 (state's drawing of voting
district lines which effectively excluded Negroes from a
city district held to be an effective denial of equal pro-
tection to Negroes); Patton v. Mississippi, 332. US,
463, and Smith v. Texas, 311 U.S. 128 (state's s facially
neutral system.of jury selection was administered, t
largely exclude Negroes held to be an effective denial
of equal protection to Negroes). ,
The impact of the cases cited immediately shone
that, while the state may not be bound to confer the
benefit at issue (here, the categorical exceptions to its
basic anti-abortion statute), if it chooses to do. 80 it
is obliged not to effectively preclude enjoyment of the
benefit to classes like the poor and non-white. Thus,
in Griffin v. Illinois, supra, the state was not obliged
by due process to provide appeals from criminal. con
victions, but since it had chosen to do so, it could
not provide them in a manner that effectively denied
poor persons access to the appeal process. tase
BLEED THROUC
—35—
» ‘The effect of the [Griffin] decision is to require
-»; Illinois to take account of economic inequities not
of its own creation. Note, “Developments in the
__Law—Equal Protection,” are achat Rev.
“at 1178.
ee hod fame ae eee
the. medical practice of abortion, the prevailing stand-
ards of medical practice in the United States today
yould sanction its performance without categorical re-
srictions. See AMA, Policy Regarding Abortion (Res-
olution of AMA House of Delegates, June 25, 1970)
discussed in “AMA Eases Abortion Rules,” N.Y.
Times, June 26, 1970, at 1; American College of Ob-
stetrics & Gynecology, Policy on Abortion, discussed in
Medical Tribune, Oct. 12, 1970, at 1. It is true that
the poor and non-white would still be limited in obtain-
ing treatment by the natural factors of inability to pay,
not having a family physician, and the limited number
of free or subsidized-care facilities in their communi-
fies. Nevertheless, it is clear that the state’s entry into
the field has aggravated the natural limitations of the
poor and the non-white by imposing artificial limita-
tions, as well as onerous and costly procedural require-
ments. The state has elected, first, to penalize the
provision of abortion services by everyone, including
physicians. It has then permitted physicians to provide
this treatment for certain. statutory categories of quali-
fied women. At the same time, the state has prescribed
necessary steps to secure qualification which are so
burdensome as to make it extremely difficult for the
JGH
—36—
poor and non-white to qualify. This results in an ¢
fective denial of equal protection to the poor and nop
white.
We have contended (Part I, supra) that abortion to
a woman is a fundamental interest, and it is being
restricted by the state without a compelling state inter.
est. The discrimination in the application and effect
of the statute likewise lacks a compelling state interest,
or even any rational connection to a legitimate state
purpose.
In sanctioning the vastly disproprotionate exclusion
of the poor and non-white from abortion services, the
state cannot assert that its purpose is to cut down the
number of abortions. Where abortion is otherwise law.
ful, and the poor or non-white woman legally qualifies,
the state has no interest in eliminating that which it
does not prohibit. The impact on the poor and non
white cannot be justified in terms of state budget-say-
ing, since restrictive abortion laws do not bear any
rational .relation to the allocation of state resources,
and they are clearly not a mere economic regulation.
See Dandridge v. Williams, 397 U.S. 471. Even were
budget-saving asserted, in that medical care for the
poor and non-white is often subsidized by public funds
(e.g., the Medicaid program, 42 U.S.C. 1396 et seq.),
it cannot be accomplished by arbitrarily selecting
classes to suffer the deprivation. Shapiro v. Thompson,
394 US. 618.
BLEED THROU
canis
IIL.
WHERE THE STATE HAS PERMITTED ABORTIONS TO
TAKE PLACE IN CERTAIN HOSPITALS UNDER CER-
TAIN CONDITIONS, BUT HAS DELEGATED UNRE-
~~ vIEWABLE AUTHORITY WITHOUT STANDARDS TO
A PRIVATE BODY TO DECIDE IN WHICH HOSPI-
TALS ABORTIONS MAY TAKE PLACE, AND HAS
DELEGATED UNREVIEWABLE AUTHORITY TO
PHYSICIANS AND COMMITTEES OF PHYSICIANS
TO DECIDE UNDER WHICH CONDITIONS ABOR-
TIONS MAY TAKE PLACE, AND SAID PHYSICIANS _
HAVE COMPELLING REASONS TO SKEW THEIR
DECISIONS AGAINST GRANTING ABORTIONS, AND
WHERE SUCH DELEGATIONS OF AUTHORITY ARE
LIKELY TO RESULT AND IN FACT RESULT IN
DISCRIMINATION IN OBTAINING ABORTION
AGAINST THE POOR AND NON-WHITE, THE STATE
HAS DENIED TO THE POOR AND NON-WHITE THE
EQUAL PROTECTION OF THE LAWS.
Two other aspects of the Georgia abortion law result
in an effective denial of equal protection to the poor
and the non-white. One is the requirement that abor-
tions, to be lawful, must be performed in a hospital
accredited by the Joint Commission on Accreditation
of Hospitals. The second is the provision that other
physicians must approve the procedure.
A. Restricting Lawful Abortions to Accredited Hospi-
tals Results in Discrimination Against the Poor and
Non- White.
§26-1202(b)(4), Ga. Code Ann., provides that
abortions can only be performed in state-licensed hos-
pitals which are also accredited by the Joint Commis-
sion on Accreditation of Hospitals (JCAH). Eighty-
three of 214 state-licensed hospitals in Georgia are so
aK ;
accredited, leaving 103 Georgia counties withow ag
accredited hospital. See Appellant’s Jurisdictional Seats.
ment herein, p. 18, App. G.
The JCAH is a private, voluntary national accredi.
ing body located in Chicago, Illinois. It surveys and
accredits only those hospitals which request this sevice.
See Silver & Worthington, “Regulation of Quality of
Care in. Hospitals,” 35 Law & Contemp. Problems,
305, 310-11 (1970).
The state has delegated to this private body the av
. thority to choose which Georgia hospitals may lawfully
perform abortions. It is instructive to compare this dele.
gation @f authority with the three broad areas of
delegation which have traditionally been upheld as
constitutionally valid. See McGautha v. California, ....
US. ....,.91 S. Ct. 1454, 1499-1504 (1971) (Bren
nan, J., dissenting).
First, the Georgia legislature has not delegated this
power to select which of its hospitals may perform
abortions under reasonably fixed statutory standards.
McGautha v. California, supra, 91 S. Ct. at 1502, citing
Communist Party of U.S. v. SACB, 367 US. 1; US.
v. Rock-Royal Co-Op.,: 307 U.S. 533. The legislature
has provided no standards at all, and indeed the
JCAH would not be bound to accredit by state-fixed
standards. Nor has the state impliedly incorporated by
reference the fixed and existing standards of an expert
body. See, e.g., Schecter Poultry Corp. v. U.S., 295
U.S. 495; Carter v. Carter Coal Co., 298 US. 238.
The JCAH standards are subject to change, and have
in fact been changed since the adoption of §26-1202
(b)(4), Ga. Code Ann. See JCAH, Accreditation
Manual for Hospitals 1970 (1971), setting forth new
BLEED THROUG
=a
— os
gereditation standards which went into effect July 1,
1971.
Second, the Georgia legislature has not delegated a
rulemaking power to technical experts, under general-
ly declared policy goals, by which the rule-making proc-
ess itself serves to illuminate the policy decisions being
made and allows for meaningful legislative supervision
or review. McGautha v. California, supra, 91 S. Ct. at
1502-03, citing, e.g., U.S. v. Grimaud, 220 U.S. 504
(Dept. of Agriculture’s rule-making power to “im-
prove and protect” the national forests); Red Lion
Broadcasting Co. v. FCC, 399 U:S. 367 (the “fairness”
doctrine). Again, of course, the JCAH would not be
bound by state-fixed policy goals even if they were
declared in the statute, which they are not. If § 26-
1202(b) (4), Ga. Code Ann., may be read to support
an inference that the state is concerned about the quali-
ty or integrity of the facility performing abortions, this
concern would seem to be satisfied by the requirement
of state licensing. The legislature obviously has the pow-
er of supervision and review of its state licensing stand-
ards, which is a-critical reservation of legislative pow-
er in-4 valid delegation of authority. 91 S. Ct. at 1503.
The state has no such power of review over the rule-
making functions of JCAH, and indeed the rule-making
functions of JCAH are in no wise guided by any ex-
press or inferable purpose in the Georgia law.
~ Byen assuming an inferable and legitimate state pur-
pose in the quality and integrity of facilities performing
abortions which, arguendo, might not be satisfied by
state licensing requirements, the delegation of this au-
thority to JCAH would seem facially to be an irration-
al classification. The JCAH Accreditation Manual for
Hospitals, supra, contains no special provisions for
—
abortion services, nor does it even mention the word,
To the extent that the quality and integrity of th
facility are concerned, the JCAH accreditation require-
ment would also seem to be an irrational classification
for the performance of abortions because there is no
articulated nor understandable reason why abortion re-
quires a different quality or integrity of hospital or.
ganization than more difficult and dangerous forms of
medical treatment, such as neurosurgery, open heart sur-
gery or organ transplants. For all such medical services,
the people of Georgia may choose to enter a state
licensed or-a licensed and accredited hospital. For abor-
tion alone, the women of Georgia are not allowed to
enter a state-licensed hospital unless it is also accredited,
Third, the rule-making or adjudicative functions here
delegated by the Georgia legislature to JCAH (i.e; to
adopt standards for and to decide which hospitals
qualify to perform abortions) are not premised “upon
an explanation of both the findings and reasons for a
given decision”, establishing a body of precedent from
which general principles may be deduced. 91 S. Ct.
1503-04, again citing Red Lion Broadcasting Co. v.
FCC, supra. In fact, the “findings and reasons” for
JCAH accreditation decisions are treated by JCAH as
confidential, and are not even shown to the Secretary of
Health, Education and Welfare for Medicare certifica-
tion purposes, much less to the Georgia legislature. See
Silver & Worthington, opfcit., supra at 325.
For the foregoing reasons, amici contend that the
Georgia legislature, in §26-1202(b)(4), Ga. Code
—
Ann., has delegated its authority to select which hos-
pitals may perform legal abortions in Georgia in a
manner violative of the Due Process Clause of the Four-
teenth Amendment. McGautha v. California, supra, 91
5. Ct. at 1500, n. 22; Yick Wo v. Hopkins,:118 US.
356.
The impact of this invalid delegation of authority is
to create a Classification of hospitals which serves no
legitimate state purpose, and which has the practical
effect of denying abortion services to a significant num-
ber of poor persons in Georgia, denying to the poor
the equal protection of the laws under the Fourteenth
Amendment. |
We have already discussed the lack of a rational
connection between any legitimate state purpose con-
cerned with the quality and integrity of a hospital facili-
ty in the performance of abortion and the JCAH ac-
creditation requirement. Granting the legitimacy of such
a state concern, it cannot be accomplished through an
unconstitutional and arbitrary means (the unreviewable
delegation to JCAH), particularly when it might be ac-
complished properly, as through state licensing with ar-
ticulated or legislatively reviewable standards. Yick Wo
v. Hopkins, supra; McGautha v. California, supra
(Brennan, J., dissenting); See also NAACP v. Ala-
bama, 377 U.S. 288; Thornhill v. Alabama, 310 US.
88.
There would seem to be no legitimate state purpose
served in cutting down the number of abortions by lim-
iting the hospitals in which they can be performed (83
es
of 214 licensed hospitals, supra), in that the concer,
here is with abortions which are otherwise legal under
state law. There is obviously no legitimate purpose
served in prohibiting that which is lawful. .
- There. are 0 state economic, or tixdgetenvies. ous
poses served in the accreditation requirement per se
and there is no demonstrable connection between this
classification and a rational allocation of state re
sources. See Dandridge v. Williams, 397 U.S. 471.
On the other hand, the practical discriminatory ef.
fect of this irrational classification on the poor is clear.
A poor woman who resides in one of 103 Georgia
counties without a JCAH accredited hospital, but which
may have a ready, willing and able state-licensed hospi-
tal, and who qualifies for an abortion according to
law, bears a double burden. She must not only ob
tain the funds necessary to travel to another county,
she must also find another accredited hospital, able and
willing to perform the service free or through a pub
licly-subsidized program.
Even though the accreditation statute has no facial
discriminatory intent as to the poor, its practical effect
must be measured. Yick Wo v. Hopkins, supra. Proper
and lawful medical care must be viewed as fundamen-
tal-to the right to life. Where access to proper and law-
ful medical care is conditioned by the state by creation
of a classification, serving no legitimate or rational state
purpose, which has the effect of denying that care to
a particular group such as the poor, the effect of that
classification is to deny equal protection of the laws to
the poor. See Shapiro v. Thompson, 394 US. 618;
Harper v. Virginia Bd. of Elections, 383 U.S. 663; Grif
fin v. Illinois, 351 U.S. 12.
— one
B. Delegation of Authority to Physicians and Their
Committees to Approve Abortions at Their Peril
Results in Discrimination Against the Poor and the
Non-White.
The Georgia legislature has created certain protected
classes of women who may receive legal abortion: those
who would suffer life or permanent health threatening
consequences, those who are likely to bear defective
children, or those who have been the victims of sexual
assault. §26-1202(a), Ga. Code Ann. The court be-
low struck down the specification of these classes but
retained the general classification of women for whom
abortion is deemedf*necessary”. See Appellant's Juris-
dictional Statement Werein, App. F, p. 1-f.
The legislature has then delegated its authority to de-
termine who falls into these classes, and under what
circumstances, to physicians and hospital committees
made up of physicians. Two physicians other than the
woman's own must concur in the finding, and this con-
currence must in turn be approved by a committee of
at least three additional physicians in the accredited
hospital which is to perform the abortion. §26-1202(b)
(3) and (5). This statutory procedure was not in-
validated by the court below.
Abortion is otherwise criminal in Georgia, punish-
able by a one to ten year prison term. §§26-1201, 26-
1203, Ga. Code Ann.
Abortions performed outside of the Georgia abortion
law (§26-1201 et seq.) or performed in error under the
statute are criminal abortions. Physicians may clearly
be prosecuted even though excepted under the statute,
since a prosecutor and jury may not agree with the
physician as to the “necessity” of the abortion or the
—
presence of the life or health-threatening conditions
other circumstances specified in the law. The ‘burden
of going forward with the evidence to prove non-neces.
sity may be on the prosecution, but the decisions of
physicians are not immune from prosecution. See U.S.
v. Vuitch, .... U.S. ...., 91 S. Ct. 1294, 1298; but ef,
US. v. Vuitch, 91 S. Ct. 1294, 1311-12 (Stewart, J,
dissenting in part).
The Georgia legislature has assigned to these physi-
cians the task of determining whether a woman falls
into one of the specified categories at their peril. The
court below did not eliminate the peril, but merely lim.
ited the category for decision to the word “necessary.”
In either case, a prosecutor may choose to disagree with
the determination in favor of the woman, and a “sec
ond-guessing lay jury” may choose to convict. See U.S.
v. Vuitch, supra, 91 S. Ct. at 1312 (Stewart, J., dis
senting in part).
It must be noted here that so long as this second-
guessing of medical judgment is permitted, the mere ex-
istence of a moral temper adverse to abortion in the
prosecutor’s office or in the community may have a
heavy influence on the making of that judgment. The
majority in Vuitch suggest that this “danger exists in all
criminal cases, not merely those involving abortions.”
U.S. v. Vuitch, supra, 91 S. Ct. at 1299, n. 7. This is
not so. In virtually all criminal cases the factual issue
for the jury to decide is whether or not the defendant
committed the criminal act charged, the act and the
crime being one and the same. In abortion cases, com
_—_—e
_—
nission of the act of abortion by the physician, or its
sbetment by the committee, may be conceded. The crim-
inality of the act under the statute is, in every case, a
matter of qualitative judgment. This is not to say that
yir dire of jurors and the watchfulness of judges does
not help blunt the danger (U.S. v. Vuitch, id.) but it
does point up the danger to physicians in a hostile en-
vironment when it is not their commission or abetment
of the act which may be criminal, but the quality of
their expert judgment. This “danger” does not exist in
ail criminal cases. Mr. Justice Clark has added:
.. . [Doctors face an uncertain fate when per-
forming an abortion. This uncertainty will con-
tinue unless the legislatures or courts provide re-
lief from liability. Clark, “Religion, Morality and
Abortion: A Constitutional Appraisal”, 2 Loy. U.
(L.A.) L. Rev. 1, 7 (1969).
On the other hand, no prosecution or penalty ex-
ists for physicians who decide that the woman is not
qualified for an abortion. In considering the slanted
consequences of this kind of legislative delegation, the
California Supreme Court, in that state’s landmark
abortion case, said:
The inevitable effect of such delegation may be
to deprive a woman of an abortion when under
any definition [of the statutory categories] she
would be entitled to such an operation, because
the state, in delegating the power to decide when
an abortion is necessary, has skewed the penalties
in one direction: no criminal penalties are im-
posed where the doctor refuses to perform a neces-
sary operation, even if the woman should in fact
ii tad
die. . . . The pressures on a physician to decide
not to perform an absolutely necessary abortion are
... enormous. ... People v. Belous, supra at 973.
' Amici do not suggest that every physician faced
with the possibility of prosecution, and with having his
own medical judgment subjected to lay public review,
cannot nevertheless render a fair decision on the merits
of an application for abortion. But the risk to be rp
that the average physician will not be able “to hold th
balance nice, clear and true” is substantial, and its im
pact on Due Process plain. Tumey v. Ohio, 273 US,
510, 532. This kind of risk of a skewed decision by a
personally interested decision-maker has regularly been
held to be an invalid delegation of authority. See In re
v. Murchison, 349 U.S. 133; Mayberry v. Pennsyl
vania, 400 U.S. 455; Jackson v. Denno, 378 US. 368;
Tumey v. Ohio, supra.
Furthermore, the decision-making process under this
delegation of authority has all the aspects of a star
chamber proceeding. Time is obviously of the essence
in considering an application for abortion, and there is
no appeal from an abortion committee’s decision. Th
decision is made in private, with no provision for
personal appearance by the applicant. And in this
situation, the question to be decided may be one of
life or death, the most fundamental of all human
rights.
Where a poor, non-white woman is in need of abor-
tion, the delegation of this authority results in a denial
of equal protection, because the poor woman is fe
—4AT—
gricted by her economic circumstances to seeking abor-
fion in an accredited hospital willing or otherwise
to treat indigents. Nothing in the law or in
common medical practice prevents the affluent woman
from consulting with any physician and going to any
scoredited hospital most likely to provide the desired
treatment. The denial of abortion to a poor woman
under these circumstances has the effect of a decision
ves judicata. The more affluent woman may shop
among hospitals and doctors until she finds those who
will favor her application, even if it has been rejected
The most disastrous result of the abortion com-
mittee system has been the economic and social
discrimination against one group—the ward pa-
tients. In large cities the poor . . . are virtually
denied the same medical care as the privileged
few. Lader, Abortion 29-30 (1966).
The abortion practices of hospitals treating the poor,
as compared with the same practices respecting the af-
fluent (Part II, supra), reflect the discriminatory result
of this delegation of authority. Thus, in effect, a denial
of equal protection results when a statute conferring a
right to an abortion upon certain kinds of women op-
erates to confer decision-making authority as to the af-
fluent upon numerous abortion-providers, but in effect
results in limiting decision-making authority as to the
poor to one (or none) or a very few lawful abortion
providers with substantial and compelling interests im-
pairing their ability to decide impartially whether a
woman is entitled to an abortion.
acs
GEORGIA’S STATUTORY OPTION FOR HOSPITALS 79
REJECT ABORTION PATIENTS, TO THE EXTENT fr
BY PUBLIC OR PUBLICLY.sup.
HOSPITALS, SANCTIONS A DENIAL OF
EQUAL PROTECTION TO THE CLASS OF PATIENT;
REQUIRING ABORTION, HAVING A PARTICULAR.
LY SEVERE IMPACT ON THE POOR AND NON.
WHITE.
§26-1202(e), Ga. Code Ann., permits hospitals to
elect to refuse patients seeking abortion services.
Appellants and amici have no quarrel with the
notion that individual physicians with religious or mor-
al objections may choose not to perform abortions,
See Appellant’s Jurisdictional Statement herein, p. 22,
Hospitals, however, are fictitious entities, without re
ligious or moral scruples per se. Indeed, the statute
does not suggest religious or moral reasons as the
standard for hospitals in exercising this option; the
statute permits its exercise at whim.
Hospitals which are publicly owned or operated,
which are recipients of Hill-Burton federal construc
tion subsidies (42 U.S.C. 291 et seg.), or which par-
ticipate in the federal Medicaid program and receive
federal Medicaid funds (42 U.S.C. 1396 et seq.) have
sufficient public nexus to be engaged in state action,
prohibiting them from denying equal protection of the
law to irrationally selected classes of persons. When
these particular kinds of hospitals choose to deny serv- .
ices to a class of patients, the impact on the poor is
clear, since publicly owned hospitals largely serve the
poor, Hill-Burton hospitals have a statutory obligation
to provide service to the poor (42 U.S.C. 291c(e)) and
il
= wn
Medicaid funds are devoted exclusively to welfare recip-
ents or the medically indigent related to welfare cate-
gories (42 U.S. C. 1396).
Hospitals which have received Hill-Burton sobeidins
Have been held to be bound by constitutional equal pro-
iection requirements. The same public nexus analysis
would seem to apply to publicly owned hospitals and
those receiving federal Medicaid funds. See Simkins v.
Moses H. Cone Memorial Hosp., 323 F. 2d 959 (4th
Cir. 1963), cert. denied, 376 U.S. 938; Sams v. Ohio
Valley Gen'l Hosp. Assn., 413 F. 2d 826 eo Cir.
1969).
Simkins involved refusing admission of black doc-
tors and their patients to Hill-Burton funded private
hospitals. It was held that this amounted to state’ action
in violation of the equal protection clause. The finding
was perhaps made easier because the inherently suspect
classification of race was present. In Sams, however,
there was no inherently suspect class, but merely a
refusal by the Hill-Burton funded private hospital to
grant staff privileges to doctors whose offices were
located outside the county. Relying solely on the test of
‘a rational basis for the classification (see e.g., Dan-
dridge v. Williams, supra) the court could find none.
The court gave particular weight to the consequences
of the policy for a patient living in the county being
denied hospital service because his physician’s office
was across the county line. 413 F. 2d at 829.
The impact of the state-sanctioned policy under con-
sideration here, to turn away the class of patients who
require abortion service, is similar. Where those patients
1There are more than 190 Hill-Burton funded hospitals in
Georgia, which is about 75% of all its licensed hospitals. See
US. Dep't of HEW, Hill-Burton Project Register 80-92 (1969).
——§0—
are poor, it will have the tragic consequence of denying
them any treatment at all. Where a public, a Medicaid
or a Hill-Burton hospital, which otherwise cares for the
poor and is capable of rendering abortion service
(e.g., by having an obstetrical staff, etc.), and which
is the only conveniently located licensed and accredited
hospital for an indigent who legally qualifies for ap
abortion, and who has a ready, willing and able staff
physician to perform it, chooses to reject all abortiog
patients as a class, then that indigent abortion patient
is denied equal protection of the law.
There is no legitimate state purpose served in sano
tioning an elimination of abortion services in such a
hospital. One state purpose might be to cut down the
number of abortions. But where state law permits abor.
tion, and where the patient is eligible for the service
under state law, there would seem to be no legitimate
state purpose served in denying her the treatment.
Another such purpose might be to save state funds,
to the extent they are involved in supporting a public
hospital, or in the state matching funds under Medicaid
(42 US.C. 1396a(a)(2)). But state budget-saving is
not a legitimate state purpose when the class to suffer
the deprivation of the state funds is arbitrarily and
unreasonably selected. See Shapiro v. Thompson, supra.
Another such purpose might be religious or moral
objection to abortion. But no such standard is articu-
lated in the statute, perhaps in recognition of the fact
that hospitals cannot, as ficitious entities, have religious
or moral scruples. Without such an articulated
standard, however, the statute clearly permits public,
Hill-Burton and Medicaid hospitals to exclude abor-
' tion patients for any reason at all, which would seem
—si—
clearly offensive to the constitutional responsibilities of
those hospitals. Thus, abortion patients might be ex-
cluded from an otherwise nonsectarian public or pub-
licly-subsidized hospital solely because of the religious
objections of the current administrator, or medical di-
rector, or the currently sitting majority of the board of
directors. |
The state may assert that it has not dictated the
elimination of abortion services, but has only permitted
hospitals to choose not to render them. The issue here
is not what ‘the rights of the parties might be were the
state law silent on this subject, and an individual hos-
pital decided to discriminate against abortion patients.
The issue here takes for granted the legality of abortion
in Georgia, at least under specified circumstances, and
the state’s permission under express color of law for
hospitals to turn away. this class of patients. The state
should not be allowed to expressly permit by law an
arbitrary discrimination against a class, without a legit-
imate state purpose, where it could not compel the
same. See Griffin v. County School Board of Prince
Edward County, 377 U.S. 218 (state law permitted,
by local option, the closing of schools, where purpose
was to discriminate against the class of Negro students);
Reitman v. Mulkey, 387 U.S. 369 (state law permitted
the conveying of property to anyone the conveyor might
choose, where the purpose was to authorize discrim-
ination in housing).
It may be contended that this statutory
of “choice” to exclude abortion patients and thus to
effectively deny treatment to the poor and non-white
is more closely analogous to the situation in James v.
Valtierra, ........ Ma Miintsed , 91 S. Ct. 1331, where man-
. —52—
datory referenda for low-cost housing projects were up
held against a claim that they permitted voters to dig
criminate against the poor. But the Court, in James
placed heavy reliance on the procedure there involyed
{a “democratic” election) and on the legitimate public
purposes served thereby (giving the people a voice ip
approving huge expenditures of public funds and
consequent lowering of tax revenues, and a voice in
general community planning). 91 S. Ct. at 1334. Here,
as mentioned, the only procedure provided is the whim
of the hospital, and there is no such legitimate state
purpose served in excluding these patients.
v.
CONCLUSION.
‘The equal protection infirmity of a statute whose bur-
den is felt more acutely by the poor has been noted in
Mr. Justice White’s concurring opinion in Griswold y.
Connecticut, supra at 503:
{T]he clear effect of these statutes as enforced
! is to deny disadvantaged citizens of Connecticut,
+ those without either adequate knowledge or re
sources to obtain private counseling, access to
medical. assistance and up-to-date information in
respect to proper methods of birth control. ...
In my view, a statute with these effects bears a
substantial burden of justification when attacked
under the Fourteenth Amendment. Yick. Wo v.
Hopkins, 118 U.S. 356; Skinner v. Oklahoma, 316
U.S. 535; Schware v. Board of Bar Examiners,
353. U.S. 232; McLaughlin v. Florida, 379 US.
184, 192.
—53—
Because this Georgia statute, like all restrictive abor-
tion laws, has the clear effect of denying poor and non-
white citizens of Georgia equal access to safe hospital
abortions without any justification whatsoever, it vio-
lates the Equal Protection Clause of the Fourteenth
Amendment.
Respectfully submitted,
ALAN F. CHARLES,
National Legal Program on
Health Problems of the Poor,
SUSAN GROSSMAN ALEXANDER,
National Legal Program on
Health Problems of the Poor,
Attorneys for Amici Curiae.
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