Amicus Curiae Brief — Roe v. Wade
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he NOS 70 - 18 and 70 = 40
IN THE
SUPREME COURT OF THE UNITED STATES
: "OCTOBER TERM, 1971
JANE ROE, et al.,
Appellants
VS.
HENRY WADE,
Appellee,
and
MARY DOE, et al.,
Appellants
VS.
:
:
:
ARTHUR K. BOLTON,
Appellee
MOTION FOR PERMISSION TO FILE BRIEF
AMICUS CURIAE AND TO PARTICIPATE IN
ORAL ARGUMENT ON BEHALF OF NEW
| -~WOMEN LAWYERS,WOMEN'S HEALTH AND
: ABORTION PROJECT, INC., and WOMEN'S
NATIONAL ABORTION ACTION COALITION
MOTION FOR PERMISSION TO FILE BRIEF
AMICUS CURIAE AND TO PARTICIPATE IN
ORAL ARGUMENT,
Amici, the New Women Lawyers, the Women's
Health and Abortion Project, Inc. and the Women's
ational Abortion Action Coalition, by their under-
d counsel hereby move this Court for permis-
ion to file the annexed Brief Amicus Curiae in the
poveecaptioned cases and to participate in oral ar-
ment.
Amici have requested permission of the at-
orneys Tor the parties to file the annexed brief
but have not yet received responses from all of them,
Amici have set forth the reasons why they
ek to Tile a brief amicus curiae and why they feel
heir brief would be of special assistance to the
ourt in the statement of interest, accompanying their
otion, Amici believe they have raised aspects of the
onstitutional issues before this court hitherto un-
xplored by the parties.
Any decision by this Court in the two
ases before it will deeply affect the lives of more
han half the citizens of this country. Amici are
ware that this Court has treated limited aspects of
he question of abortion before and recognize the com-
petence of the counsel in the above-captioned cases.
onetheless, given the gravity of the question of a
oman's right to abortion, aspects of which are being
aised de novo before this Court, and given the fact
hat some decisions of this Court have turned on ar-
puments raised by an amicus curiae, amici believe
heir participation in oral argument would be of as-
istance to this Court in determining the sensitive
nd complex issues before it.
Therefore amici respectfully urge this Court
0 grant their motion and permit them to file the re-
quested brief amicus and participate in the oral ar-
pument of the cases of Roe v. Wade and Doe v. Bolton.
@-1e
Respectfully submitted,
Nancy Stearns
c/o Center for Consti-
tutional Rights
588 Ninth Avenue
New York, New York
100 36
NOS. 70-18 and 70-40
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1971
JANE ROE, et al.,
V8.
HENRY WADE,
and
MARY DOE, et at.,
VB
ARTHUR K. BOLTON,
Appellants
Appellee,
Appellants
Appellee.
BRIEF AMICUS CURIAE ON BEHALF OF NEW
WOMEN LAWYERS, WOMEN'S HEALTH AND
ABORTION PROJECT, INC., NATIONAL
ABORTION ACTION COALITION
NANCY STEARNS
c/o Center for Constitu-
tional Rights
588 Ninth Avenue
New York, New York 10036
INDEX
STATEMENT OF INTEREST -----------------
SUMMARY OF ARGUMENT ---- ae
I.
II.
III.
IV.
V.
THE GEORGIA AND TEXAS STATUTES
RESTRICTING THE AVAILABILITY OF
ABORTION VIOLATE THE MOST BASIC
RIGHTS OF WOMEN TO LIFE, LIBERTY
AND PROPERTY GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE
CONSTITUTION --------------------
A. The Right to Life -----------
B. The Right to Liberty --------
THE GEORGIA AND TEXAS STATUTES
RESTRICTING THE AVAILABILITY
OF ABORTIONS DENY WOMEN THE
EQUAL PROTECTION OF THE LAWS
GUARANTEED TO THEM BY THE
FOURTEENTH AMENDMENT won --------
te,
ABORTION LAWS VIOLATE THE
CONSTITUTIONAL GUARANTEE
AGAINST THE IMPOSITION OF
CRUEL AND UNUSUAL PUNISHMENT ----
THERE IS NO COMPELLING STATE
INTEREST JUSTIFYING THE VIO-
LATION OF FUNDAMENTAL CONSTI-
TUTIONAL RIGHTS EFFECTED BY
THE CHALLENGED ABORTION LAWS ----
YOUNGER v. HARRIS DOES NOT
IMPAIR OR LESSEN THE JURIS-
DICTION, POWER OR RESPONSI-
BILITY OF THIS COURT TO GRANT
THE RELIEF REQUESTED a
CONCLUSION -----------~~----~~----------
10
14
25
34
aa
57
60
CASES CITED
Aberle v. Markel, Civ. Action
1 (D.Conn. Conn., May 14, 1971) ----
Abramowicz v. Lefkowitz, 67 Civ.
~-D.N.Y.) == yo
Abromowitz v. Kugler, 431-1970
Adams v. American Fastener Co.,
onn. Supp. 379 (1939) -----------
Allgeyer v. State of Louisiana,
ioe as. 578 (1897) ---------..-..-
Babbitz v. McCann, 310 F.Supp.
.D.Wise., 1970), remanded
400 U.S. 1 (1971) ------- eae,
Baker v. Carr, 369 U.S. 186
(1962) -------------~--------------
Bates v. City of Little Rock,
~~ 361 u.S. 516 (1960) ---------------
Beaver v. State, 256 S.W. 929
“(Cr .App.Tex., 1923) ---------------
Bey a v. Landry, e S.Ct. 958
> A cnquartnnsieaeninpenSbibabdihenthinilidntpihen enn ailicanip
Breen v. Kahl, 296 F.Supp. 702
(W.D.Wisc., 1969), aff'd 419
F.2d 1034 (7th Cir., 1969) --------
Brown v. Board of Education,
347 U.S. 483 (1958) ----- penanenendimnunaodiis
wtie
Cases Cited (Cont'd)
rnia v. Belous, 80 Cal.
2-48 ( cert denied,
97 U.S. 915 (1970). en enwianaiesenanenticaseninen
lifornia v. Robb #14 ,005
un.ct. Orange Co., Cal.,
anuary 9, 1970) -----------------
ani v. Danaher, 13 Conn.Sup.
feelin. , 1943) +---=--+--------
911 v.Skloff, 415 Pa. 47,
U A.2d 9 F2964) Se Oe we ee ew ee ee
ty of New York v. Wyman,
aw Journa ay 19,
hen v. Chesterfield County
hool Board, Civ. Action
R (E.D.Va., May 17,
> vy. Dunbar, Civ. Action
BME (0, 0010.) meencennendencee
ev. Scott, Civ. Action
0 ; 395 (E. D.Ill., January 29,
971) -----------------—--- -
uglas v. California, 372 U.S.
963) <2 een een wen ne
rham v. Pulsiter, 312 F.Supp.
! D.Vt., 1970) eR Se SP SS he Se ah as eee
-iii-
—h Gena Gepe, seedle Gee 4 Oe eee oo
19
48
18 ,26,27-8
45
25
16
Cases Cited (Cont'd)
Dyson v. Stein, 91 S.Ct. 769 (1971) ---- *.
Endresz v. Friedberg, 24 N.Y.2d
U78, 301 N. 7 . 5 (1969) See 222 22e2ee
Everson v. Board of Education,
eSe 1 BP OOOO OOOO O2OOEODO2OEO
Ex Parte Young, 209 U.S. 123 -=----
Fletcher v. State, 362 S.W.2d 845
(Cr. App-Tex., 1962) -------------------
Graf v. Taggart, 43 N.J. 303,
“S08 Ao Tt0 Ti96h) —------~-----------
Grape v. Brown, 231 So.2d 663
~App.La., 1970) --------------------
Gomillion v. Lightfoot, 364 U.S.
339 (1960)
Griffin v. Tatum, 300 F.Supp. 60
(M.D-Ala., 1909) ---------------------=
Griswold v. Connecticut, 381 U.S.
"79 (1965)
Br EGS ren. acca
Hargrove v. Ltoyss Casuarit reese
° ew York > e sau =e Lteeows een
-iv-
- Cases Cited (Cont'd)
iemans v. United States , 163
F.ca 228 (6th Cir, 19 7) we re 38
lernandez v. Texas, 347 U.S. 475 Ate
91 s.ct. 1656 (1971) sacarenuonnuena net as 2
jome of Holy Infancy v. Kaska
. . ex., 1565) — “Oe 29
mre Carl, 174 Misc. 955, 22
V.¥.S.cd 782 (Dom.Rel., 1940) ---- 39
iodgson v. Randall, 7 Cr.L. 2186
an
in re Roe, 92 N.Y.S.2d 882, 883,
196 Misc. 830 (Dom.Rel.Ct.,
lanello v. Administrator Unem-
loyment Compensation Act, 178
wer 202, O35 conn.sup. 155
(Conin., 1961) -qa----------------= 18
fennan v. Nichol, 71-C-118
TW.D.Wise.) ---------------------- 2
feyes v. Construction Service,
HO Mass. 633, 165 NE.2d O12
(1960) qnncnnnnn nn nnnnnnnn nnn nn = 48
and Visitors
of Virginia,
-D.Va.,; 0)---
91 S.Ct. 1017
of Education, Civ. Action
-D.Ohio, May 27,
oa-_ 6¢ oe oe ean ete oo ee © 45e@ «
Cases Cited (Cont'd)
Lane v. Phillips, 6 S.W.2a 208
(Tex., 1965) -------------------=--
Lenz v. Admistrator Un loyment
Compensation Act, 16 Conn. sare.
482 (Super. Ct., 1951) ------------
Lukienchuk v. Administrator Unem-
loyment Compensation Act, 176 a
wer 892, 23 Conn.supp. 55 (Supp. “id
Cte, 1961) ---- ae
Madera v. Board of Education of
the City of New York, 3060 F.2d ise
778 (ea Cir., 1967) pe
Mengelkoch v. Industrial Welfare me)
Commission, 437 F.cd 563 (9th
Cir., 1971) ----------------------- z.
Meyer v. Nebraska, 262 U.S. 390 74
3) eae enn nn nnn anna nna a
2
Mississippi Employment Securit
Soenteetee Vv. eorts > 148 So. 2a
ss., 19 - ¥
Muller v. Oregon, 208 U.S. 412 q
Norman v. Murphy, 124 Cal.App.2d '
“32 768 P.2a 178 (Dis.ct.App.» :
195 = ------
-vi-
Cases Cited (Cont'd)
ple v. Edwards, 42 Misc.2d
BO, 249 N.Y.S.cd 325 (1964) ---- 29
ple vy. Robb, #149005 and
E9061, Munic.Ct. Orange Co.,
1. (January 9, 1970) ---------- 2,56
Jman v. United States, 247
. (1915) SS See Sows eee eoeere 58
y vy. Grenada Municipal
pparate Schoo strict, 300
Upp» : N.D.F 88., 1969) senedtmedeewst el
llips v. Martin Marietta,
Feed 1 (5t P.j ;
manded, 91 S.Ct. 496 (1971) --- 20,28,30
) een nnn nnn nnn = 45
vy. Ullman, 367 U.S. 497 (1961)- 15
ers v. City of Tro 4 Mich.
>. 72, Tie N.W.2a~ 2a 418 (1966) -- 48
chenberg v. Nelson, 310 F.
pp. 40 (D.Nebr. . 1970) spies ugh ecg tpane eget 16
I Acer: = EBC a RE LO 31
a 0: 2 SS A 54
Cases Cited (Cont 'd)
Vv. 370 iia
3. seep "
v. Wade, 324 F.Supp. 1217 a
rb. ;, 1970
) jurisdiction 23
noted, 91 8.Ct. 1610 (1971) ------ 8
8 v. Civ Action *
‘ 3eonr (We tise.) 2
Rosen v. Louis State Board of ost
“Wedic popee sane 310 F.Supp. 3
Set ‘er Inn v. Kirby, #29811
Ct. ‘ff. 27, 1971) -----
eres v. Texas Employment
ssion, Civ. aston
No. A-70-Ca-75 (W.D.Tex.,
February 25, 1971 and April 16,
1971) aie
Seidenberg v. McSorely's Old Ale a
ouse, inc., 317 F.Supp. 593 “4
970) -—- ~ --- z.)
>
eDeMelkeos &
Shapers v. Thompson, 394 U.S. 618
Skinner v. Oklahoma, 316 U.S. 535
met: ya)
Smith v. Hill, 285 F.Supp. 556
“TD.N.C., 1908) ers
ogg
Cases Cited (Cont'd)
Page
ith v. Texas, 233 U.S. 630 (1914) -- 14
ith v- Peters, 339 U.S. 276 (1950)-- 45
th Dakota v. Munson, Circuit
ngton Cty. (S.D.
fil 20, 1070) --------------------- 2,18,55
ite v. Hunter, 300 P.2d 445,
W ore. o8c (Ore., 1956) ----------- 31
sinberg v. Rhodes, C-70-289
-p.Ohio
oon oars er Zz.
rahashi v. Fish and Game
mmission, 334 U.S. 410 (1945) ----- 25
ype v. Housi Authority, 393
(OOS, ot recount 23
p v. Dulles, 356 U.S. 86 (1958)---- 36,42,43
man v. Ullman, 151 A.D. 419,
5 N.Y.S. 80 (1912) =---- 39
ited States ex rel. Robinson v.
wk, O01 F.Supp. 6 (D.Conn.,
08} --------~---~------------------ 25
ited States v. Vuitch,
5 F.Supp. 1032 (D.D.C., 1969)
wersed on other grounds 91 S.Ct.
94 (1971) ----------------- 8
\singham v. Florida, Case No. 40,210
aaa A., duly 42; 2971); 26-1 2,8-9,2!
35, >
et passim
ms v. United States, 217 U.S.
IY (1910) iii caantneni aon cskpiesansintieaietnei 35,36,40,
2
Cases Cited (Con
Westley v. Rossi, 305 F.Supp.
6 .Minn., 1969)
White v. Crook, 251 F.Supp. 401
(M.D.Ala. > 1566) aad
Women of Rhode Island v. Israel,
Ve ' c on TR.1. )------
Yick Wo v. Hopkins 118 U.S.
“356 (1886)
Yo ) er v. Harris, 91 S.Ct. 746
Zwickler v. Koota, 381 U.S.
AUTHORITIES CITED
American Women: Report of the
President's Commission on the
Status of Women, 1963 ----------
Cisler "Unfinished Business:
Birth Control and Women's
Liberation," Sisterhood is
Powerful, ed. Robin Morgan,
om House, 1970 ---
"Competitive Problems in the
‘Drug Industry", Subcommittee
on Monopoly of Senate Select
Committee on Small Business,
9lst Cong. 2nd Sess. <«<<--<----"
-X=-
CARY ROLIND T00 CLOSE IN CENTER
Authorities Cited (Cont 'd)
Robert F., S-J-, "The
vality of Abortion Laws,"
, Rabbi David M., Birth
pntrol in Jewish Law, New
iniversity Press, 1967)-----
, Ernest, A Special Report:
irth Control, Time-Life Inc.,
yw York (1967): seee-eesenn nnn
ifer, The Battered Child,
niversity of Chicago Press
as, Roy, "Federal Constitu-
4onal Limitations of the En-
orcement and Administration
¢ State Abortion Statutes,
v N.C.L. Rev. 732 (June
968) ---------- wee ee ee ee een
ns, Cyril C., Jr-, "The Law
New York Concerning Abortion
nd the Status of the Fetus
664-68: A Case of Cessation of
onstitutionality, *; N.Y ial é
ore, Emily, Induced Abortion
nd Contraception, Workshop of
Development and National
stitute of Mental Health,
BLEED THROUGH
1P. '68 ------------------------
ational ins ute of Child Health
ber 15-16, 1969, p. 12 -------
Page
51
52,53
21
11
39
by, 52
qu
44 49,52
13
Authorities Cited (Cont'a)
New York Times, "Compromise Warning
Soe en Pill Announced," April 8,
19 --
New York Times, "Warning on Pill
Drafted by F.D.A." March 5, 1970 ---
Pratt, Rappaport & Barlow, Arch.
Gen. Psychiat. 20:408-414 (1969) ---
Rosen, Harold, M.D. “Psychiatric
Implications of Abortion,” A Case
Study of Social Hypocrisy, 17 Wes.
R.L. Rev. 454 -
Schulder & Kennedy, Abortion Rap,
McGraw Hill, 1971 ------------------
Sinclair, Andrew, The Emancipation
of the American Woman, per
Colophon Books, New York (1966) ----
Studies in Family Planning, 34:6-8
September 1969, Population Council,
New York os ll
Study of Employment of Women in
Federal Government, 1968; U.S.
Civil Service Commission, Man-
power Statistic Division,
Washington, D.C. “=
Tietze, Dr. Christopher, Legal
Abortion in Eastern Europe,
J.A.M.A., 175:1149 (1961) April ----
Victo How Women Won It, National
iaarteas Women Suffrage Associa-
tion, A Centennial Symposiun,
1840-1940, H.W. Wilson Co., 1940 ---
-xii-
4)
22
2,
)
2
STATUTES CITED
Page
Georgia Code Annotated 8 26-1201
et seq. a 3
Tex,Penal Code Articles
1191, 1192, 1193, 1194 & 1196 --- 3
-xtii-
STATEMENT OF INTEREST
During the past two years the question of the
onstitutionality of abortion laws - of the right of
to control her own body and life - has become
e of the most burning issues for women throughout
ne country. As women have become aware of the myriad
yels of unconstitutional discrimination they face
aily, they have become most acutely aware of the pri-
sry role which restrictions on abortions plays in
hat discrimination. As a result, women throughout
he country have become determined to free themselves
the crippling and unconstitutional restrictions on
weir lives. As a major part of their efforts, thou-
ands of women have sought and continue to seek the
4g of federal and state courts in their challenges
» abortion statutes. In New York State, more than
hundred persons, primarily women sued to have
neir state laws declared unconstituional. Abramo-
ez v. Lefkowitz, 69 Civ. 4469 (S.D.N.Y.), dismissed
3 moot on July 1, 1970 when the New York State Sta-
te went into effect permitting the performance of
bortions up to twenty-four weeks of pregnancy. In
w Jersey more than one thousand women sought the aid
f the federal courts. Abromowitz v. Kugler, 431-1970
.N.J, argued in December, 1970, and awaiting de-
4sion. In Pennsylvania again well over one thousand
rsons, most of whom were women, similarly sought the
dof the court in Ryan v. Spector, 70-2527, E.D.Pa.
e also Connecticut, where women sued in Aberle
. Markel, Civ. Action #14291 D.Conn. (May 14, I97I),
ismissed, presently on appeal; and Rhode Island,
here over one hundred took similar action in Women of
hode Island v. Israel, Civ. Action #4605 (D.R.I.) in
hich a three judge court has been convened.*
These actions by women are only a portion of the
eeping challenges on the abortion laws of this coun-
ry which have taken place in the last two years. The
ollowing is a partial list of such challenges. Cali-
ornia v. Belous, 80 Cal. Rptr. 354 (1969), cert.
(footnote continued following page)
aia
Similar efforts to challenge the aborti¢
laws of their states are being developed by
in other states throughout the country. These “ae
women have sought the assistance of the federal |
courts because of the degree to which restric
on the availability of abortion have crippled
even destroyed their own lives and lives of many”
other women,
“a
The organizations listed below share the, ;
concern of these thousands of women who have soughi
the assistance of the courts. Each of the groups
has a particular concern to see that these unconsti.
tutional burdens and restrictions on a woman's life
be removed. aes
» + aie ‘go
The issues raised by the Texas and osoreins
cases presently before this Court are not local
is ied
Tin. continued from preceding page) fe
denied, 397 U.S. " (1970) ;. Porn: Robb, fay
and 159061, Muniec.Ct ib posure. . (Jan. 9, 1
Babbits v. 293 (E.D.Wisc., } in
remanded an'8-tee 1375 (1971); Kennan v. Nichol,
71-C-118 (W.D.Wise.); n "y. Randall, T Ores
L,2186, affirmed, 91 ° ° ( no0dgson RS
Minnesota, cert. denied, 41 S.Ct. 1655 (19 3 Doe”
Vv. Scott, Civ. Action #70 C 395 (E.D.I11.); Rosen
v. Lou: na S (ee Board of Medical Examiners, jig:
F.Supp. fing the constitutionaliy
of the soukeienn senkase , Cassibry, J., dissenting
Rogers v. Danforth, Civ. Action No. 18360-2 W.D,
ssed September 10, 1970; Stei v. Rhodes,
C-70-289, W.D.Ohio; Doe v. Dun v. Action —
#C-2402, D.Colo.; South Dakota v. "Munson, Cireuitl:
Ct., Pennington cty. 5.D., April 20, I970; a
rer). Florida, No. 40,210 (Sup . ct. Pla., Ju y
put national issues. The problems raised by restric-
tive abortion laws are problems of millions of preg-
nant women, *
Therefore, Amici have drawn on cases and
statutes throughout “thé country in order to aid this
Court in deeply and fully understanding the problem
pefore it.
The New Women Lawyers is an unincorporated
neabership association of women lawyers and law
students in the New York City area.
Amongst its purposes is to work through the
courts to redress the discrimination and oppression
yhich women face under the law.
As women lawyers and law students amici are
poth members of the class whose interests are before
this Court and advocates for that class. Therefore,
amici have special insight into the problems and
Tisues presented in the two abortion cases which may
be of assistance to the Court.
The Women's Health and Abortion Project, Inc.,
is a non-profit corporation in the State of New York
which grew out of the challenge to the constitution-
ality of the former New York abortion statute.
Amongst the purposes of the Project is to counsel, and
provide information to women concerning family
planning and abortionwithout fee. Since the liberal-
ised New York abortion law went into effect on July l,
* There are three basic types of laws used though--
out the United States to prevent the performance of
abortion, laws permitting the performance of abor-
tion, a) only when necessary to save the life of
the woman, b) when necessary to preserve her life and
health and c) the "reform type law which permits
abortion for reasons of life and health, as well as
when the fetus resulted from rape, incest or when
(fn. continues on next page)
=§-
.1970,: the Project has counselled thousands /ogm)
desperate women.from across the country. who.é
to New York seeking abortions. The women's He
and Abortion Project therefore has particular 7»
eT ay for.and understanding of the problems gp
women in need of abortion and is particularly.
concerned with the infringement of women's right
by laws such as those of Georgia and Texas ‘res:
stricting the availability of abortion to we
The Women's National Abortion Action ..
Coalition is a coalition of women's groups and ~
individual women throughout the country who have.
united in efforts to eliminate. all abortion re
Many: of the individual women within the Coali-: i
tion are plaintiffs in class action litigation;;
challenging the constitutionality of the abortign
laws of their own states. Many others work with
pregnancy counseling groups and are members of ;..
women's groups whose prime concern is the elimin.
tion of diacrininatory laws such as ' abortion tm.
Therefore, the Coalition is particularly
concerned about the issues presented in the two
cases before this Court and well. suited to under.
stand and present to this Court, to the fullest,
extent, the tolls which these laws take on Cher
lives of women,
Amici believe that their special perspee-
tive on ti® Constitutional issues before this -
Court. will be of assistance to this Court in its
deliberations on one of today's most sensitive
issues -- an issue of overwhelming aay gsc to
Tin. continued from preceding page)
there is a likelihood of fetal deformity, oneis
In discussing the constitutional infirmities of
abortion laws, amici have not distinguished amongst
the different types of laws because regardless of
their wording their effect has all been the sane
-- to deny an abortion to nearly every woman who
wishes one.
-4.
more than 50% of the nation's population. Amici
have sought to present aspects ofthe issue in-
yolving the constitutional rights of women which
1 believe have not been treated by the parties
to this ye gn or by other amici such as the
manner in which the challenged Texas and Georgia
statutes deprive women of their rights to life,
liberty and the equal protection of the laws
ranteed by the Fourteenth Amendment and the
e to which they constitute cruel and usual
shment in violation of the Eighth Amendment
to the Constitution.
AmicL therefore, urge this Court to
accept their Brief Amicus in the hope that it
will be of assistance in unravelling the crucial
constitutional issues before this Court.
This is abrief in support of action
challenging the constitu fae lity of the abort
statutes of Georgia, Georgia Code Annotated § 2
1201 e A572 9); and Texas, Texas Penal
s 1192, 1193, 1194 and 1196. tm
Texas statute permits abortion only when nec
to preserve the life of the pregnant woman. '
the Georgia statute a woman may obtain an
only with the approval of a committee of doctos
where the abortion is necessary to preserve her
life or health, or when the pregnancy resulted.
from rape, or would result in a deformed ne
Amici have argued that both statutes are
void in that they violate the most basic consti
tional rights of women.
First, the Texas and Georgia statutes ani.
other statutes which restrict the availability of
abortion, deny to women their right to control ani
direct their lives and bodies as protected by the
Fourteenth Amendment's guarantees of life and
liberty. Amici have attempted to set corth ¢ for
this Court the manner in which the status of preg:
nancy and motherhood severely restricts the life
of a woman the way in which an unwanted pregnancy
can unalterably change and even destroy her life.
Amici have next shown that despite the fact
that both man and woman are responsible for any
pregnancy, it is the woman who bears the dispro-
portionate share of the de and cto bu de
and penalties of pregnantY, gnanty, “ehria oath
rearing. Thus, any statute which denies a come
the right to determine whether she will bear thos
burdens denies her the equal protection of the lm.
Carrying, giving birth to, and raising an
unwanted child can be one of the most painful and
longlasting punishments that a person can endure.
amici have argued that statutes which condemn wo-
pen to share their bodies with another organism
against their will, to be child breeders and
against their will, violate the Eighth
amendment 's proscription against cruel and unusual
punishment.
Finally, amici contend there is no con-
pelling state interest in forcing a woman to these
deprivations of her constitutional rights. For,
it is no longer possible to justify a ban on abor-
tions to protect a woman's health and such a ban
is a consitutionally unacceptable method to use to
establish a particular moral standard. Further-
more, the argument that the state must protect the
life of the fetus when examined closely is in
reality a codification of a particular religious
doctrine and therefore constitutionally insufficient.
In closing, amici have a that the doc-
trine of Younger v. Harris does not bar the Court
from aoc dae thie matter before it for in fact
Mary Doe in Doe v. Bolton and Jane Roe in Roe v.
Wade may not challenge the abortion statutes of
Georgia and Texas in state criminal proceedings as
envisioned in er and must turn to the Federal
Courts to safeguard their constitutional rights.
Z. THE GEORGIA AND TEXAS STATUTES RE- => |
STRICTING THE AVAILABILITY OF ABOR-- |
TION VIOLATE THE MOST BASIC RIGHTS :
OF WOMEN TO LIFE, LIBERTY AND PROj-
PERTY GUARANTEED BY THE FOURTEENTH . =
AMENDMENT TO THE CONSTITUTION. q
Under the Fourteenth Amendment to the
tution, no state shall "...deprive any -person of
liberty, or property without due process of law."
courts have not yet, however, begun to come to gr
with the fact that approximately one half of our is,
zenry is systematically being denied those guarantees.
of the Fourteenth Amendment. That is exactly © ag
the effect of the abortion laws of Texas and Ge
and nearly every other State in the United States,
Amici urge this Court not to shrink from redressin
the constitutional wrongs perpetrated on women,
—_
ts :
y x
5
For the first time, this Court has the.
tunity to give serious and full consideration to
degree to which laws such as those challenged
in denying women the control of their reproductive
violate their most basic constitukional rights. ©»
In the past two years, the Supreme Court.
the State of California, the United States Dist
Court for the District of Columbia below, and ‘the i
nicipal Court of Central Orange County, California,»
cognized that it is "the fundamental right of the wo-
man to choose whether to bear children..." Calif
v. Belous, 80 Cal. Rptr. 354, 359 (1969), Cert. Sa
397 U.S. 915 (1970). See also United States v.
305 F.Supp. 1032 (D.D.C., 19693 reversed on other
grounds, 91 S.Ct. 1294(1971); Roe v. Wade, 314 Supp.
1217 (N.D. Tex.,1970) jurisdiction noted, 91 S.Ct.16i!
(1971); Babbitz v. McCann, 310 F.Supp. 293 (E.D.Wise,
1970) remanded 400 U.S. 1 (1971); South Dakota —
v. Munson, 7th Jud'l District, Pennington Co., ScDak.
(1970); Doe v. Scott, #70 C 395 (N.D.I11.) Jan 29,
1971; California v. Robb, #140,005 Mun. Ct., Orange |
Co., Cal., Jan 9, 1970, and most recently, Walsinghar
-8—
Maes
=
porida, #40,210, Sup.Ct. Fla.,(July 12, 1971) which
<arned convictions of three men convicted of con-
to commit abortion and cast severe doubt on the
titutionality of the Florida statute,and City of
York v. ayn reported in full, New York Daw Jour-
fay 19; » invalidating state restrictions on
cade reimbursement for abortions. In Wyman, Justice
gel spoke of "... the fundamental nature of the
pt to terminate pregnancy" and stated that "a woman
The decision by a woran of whether and when
will bear children may be the most fundamental de-
on of her life because of its far-reaching signi-
nce, affecting almost every aspect of her life from
earliest days of her pregnancy. ‘
A. The Right to Life.
Persons seeking to uphold restrictive,
laws that the State has a compelling inteney
protect human life. Amici could not agree nae
But, we argue that the responsibility of the State
to persons who are living and that the State’ ry
maintain laws which effect the most serious iny,
of the constitutional rights of its citizens.:
From the very fact, as noted by the Calis
Supreme Court in Belous, that "childbirth involve
risk of death", California v. Bejous, 5 at °
should be most obvious that laws which force wo
bear every child she happens to conceive raises”
severe constitutional questions under the
Amendment. os
Nearly ten years ago a medical expert rey
that "the risk to life from an abortion, perfor
an experienced physician in a hospital on a health
woman in the first trimester of pregnancy is far
smaller than the risk ordinarily associated withp
nancy and childbirth. (Dr. Christopher Tietze
Abortion in Eastern Europe J.A.M.A. 175:1149 (1961
April). A recent study of the death rate from chi
birth in the United States revealed that there an
still 20 deaths per 100,000 pregnancies among Ane
women. Studies in Family Planning, 34:6-8 Septest
1969, ee teet ae Council, New York. The same s'
ported that the deatn rate due to legalized abort
performed in hospitals in Eastern Europe is 3 per}
000 pregnancies. And so, in the United States t
birth is nearly 7 times more dangerous thi
therapeutic abortion. ‘
Furthermore, if a woman truly believes #
should not continue an unwanted pregnancy and give
birth to and raise an unwanted child, she will nm
be deterred by the fact that an abortion in her ¢i
curmstances would be illegal. She will do this é@
spite the great hazards to her physical and mental
health -- and the great financial expense involvei
my ee
i ee ee ee eee a i ie
will do this even though she knows that under lo-
law she is performing a criminal act.
The very fact that legal abortion is unavail-
» for most women forces them into an additional ha-
4 to their health and life. Aware of the failure
of most contraceptives® and afraid of an acciden-
pregnancy which they will be unable to terminate,
ons of women daily expose themselves to the known
as yet unknown dangers of the pill®** even though
y would prefer notto.
mere is no such thing as a contraceptive device
*h is both 100% safe and 100% effective. Oral
septives, which have the highest degree of ef-
tiveness are the least safe. However, for a va-
ty of reasons, 15-28% of the women who use the pill
> taking it after two years. The interuterine de-
(I.U.D.) is not 100% effective though its fail-
pate has not yet been fully determined. However,
fate, 50% of the women who use the I.U.D. have it
pved within two years. Sheldon J. Segal, PhD,
tion Council, and Christopher Tietze, M.D. Pop-
on Council, "Contraceptive Technology, Current
Perfected Methods, Reports of Population Family
ming," issued by the Population Council and the
national Institute for the Study of Human Re-
tion, Columbia University, October, 1969, pp. 9
7.
he failure rate for the diaphragm is 12% (that is,
100 women using the diaphragm in a year, twelve
m will become sroweant The failure rate for the
is 14%. Ernest Havamann, Ed., Time-Life, Inc.
pecial Report: Birth Control, New York, 1967, p. 159.
Although there are not yet definitive conclusions
erning the dangers of oral contraceptives, their
tty and general effects on women are sufficiently
question to have warranted full-blown Senate hear-
by the Subcommittee on Monopoly of the Senate
ct Committee on Small Business which began in
(fn. continues on next page)
BLEED THR OUGH
The fear of accidental pregnancy is so great. ¢
even women who have medical histories that ing
cate that they should not take oral contrace
Tin. continued from preceding page)
January 1970, and continued in February and is
See “Competitive Problems in the Drug Industry.4
Subcommittee on Monopoly of Senate Select Commit
on Small Business, 9lst Cong. 2nd Sess. Al or "
there has been a conflict of medical and scienti-
fic opinion expressed at the hearings, the respe
of the government to the question seems to be
markedly casual in contrast with its swift actin,
on a somewhat related matter -- cyclamates. - It.
certainly leads women to believe that their gov
ment is less concerned with their health and
safety than with curbing population or with t
matters which also affect men. This concern on:
part of women was not eased when they observed th
action of the Food and Drug Administration with
respect to warnings about possible dangers of birt
control pills. Following the first part of the.
Senate hearings the F.D.A. ordered that a leafiet
lising in detail the dangers of oral contraceptir:
be enclosed in each package of pills. New Y
Times, "Warning on Pill Drafted by F. Doo Rath
T9570. Only one month later the Department of —
Health Education and Welfare announced that a.
“compromise” warning would be used. A we ng
"far shorter and less emphatic about dangers thi
{the} earlier version." The compromise ver
only eliminated nearly the entire list of potenti
hazards, merely noting there might be side effect
and further stated, without any basis in fact, »
"'These points were discussed with you when you”
chose this method of contraception.'" New York —
Times, "Compromise Warning on Birth Pil oun
April 8, 1970.
nan
PA sia
’
Aes
1 compelled to do so.®
Thus while governments profess their over-
‘ concern for human life, they force their
ale citizens into the intolerable dilemma of
posing between what in many instances would be a
tally irresponsible act of bearing and casting
or even "raising" an unwanted child or jeo-
jizing their life and health, both physical
4 mental, by obtaining an illegal abortion or
tempting to self-abort. What is more, this pro-
ed concern for life in fact results in hazards
yomen's lives, often forcing them into the hands
unskilled and unscrupulous persons directly in
face of the guarantees of the Fourteenth
ndment . :
It may be reassuring to note that a high use of
prtion is generally coupled with a high use of
mntraception. That is, women who use contracep-
ives have "a higher motivation toward fertility
ontrol. They are likely to resort to abortion when
ontraceptive efforts fail. The greater the expecta-
fon of avoiding pregnancy through contraception
greater the likelihood of an induced: abortion
ne cy occurs..." "What is more, liberali-
tion of abortion laws tends to accompany an in-
in the use of contraceptives." Induced Abor-
ion and Contraception, paper delivered by Emily
at Workshop of National Institute of Child
th and Human Development and National Institute
f Mental Health, December 15-16, 1969, p. 12.
SK
laren.
is court state
nave those children.
In Meyer v. Nebraska, 262 U.S. 390, 399 (1823)
Without doubt ‘liberty’ denotes not merely free-
dom from bodily restraint but also the right of
the individual to contract, to engage in any of
the common occupations of life, and acquire un-
due knowledge, to marry, establish and home and
pring up romper ys Migs worship God according to
the dictates of
own conscience, and general-
ly to enjoy those privileges long recognized at
common law as essential to the orderly pursuit
of happiness by free men.
should go without saying that the liberty to establish
and bring up children is nearly meaningless if it
es not include the liberty to decide when and whether
Of course, this right to control
timing of one's family is now express in Griswold v.
ticut, 381 U.S. 479 (1965).
e
ee?
Even this does not circumscribe the limits of
berty, however.
ssent in Poe v. Ulman, 367 U.S. 497, 516 (1961):
Though I believe that ‘due process' as used
in the Fourteenth Amendment includes all of
the first eight Amendments, I do not think
it is restricted and confined to them....
The right ‘to marry, establish a home and
bring up children’ was said in Meyer v. Ne-
braska «e. to come within the ‘Tiherty: or.
é person protected by the Due Process
Clause of the Fourteenth Amendment.... ‘Li-
berty’' is a conception that sometimes gains
content from the examinations of other spe-
cific guarantees... or from experience with
the requirements of a free society.
st recently the understanding of personal liberty has
we to include such matters as physical appearance --
p way in which a person presents himself or herself
ay a
As Justice Douglas expressed in his
to the world. In Breen v. Kahl ses F.Supp. 702, ee
(W.D.eWisc., 1969), art’d 415 F. 34 1034 (7th Cirge )
the court ordered the reinstatement of high school =
dents whose hair length did not conform to the.
board eer stating:
The freedom of an adult male or female to.
present himself or herself physically to tt
world in the manner of his or her own Le
is a highly protected fréedom....
For the state to impair this freedom, in
absence of a compelling subordinating inten ”
est in doing so, would offend a widely shang:
concept of human dignity, would assault pen
sonality and individuality, would undermine:
identity, and would invade human ‘being’,
would violate a basic value ‘implicit in the
concept of ordered liberty’. Palko v. Com
ticut, 302 U.S. 219, 325... :
It would deprive a man or woman of liberty
without due process of law in violation ot
the Fourteenth Amendment. See Griswold
U.S. at 499-500 (Harlan, J., concurring). % "
Accord, Griffin v. Tatum, 300 F.Supp. 60 (M.D. Ala...
1969)5 westteg ey v. Rossi, 305 F.Supp. 706 (D. aa
Durham V, Pulsiter, F.Supp. 411 (D. Ut., 1970);
bere ¥. v. NeIson, 310 F.Supp. 248 (D. Nebr., 1970),
The concept of the right to liberty is one ¥ whi
has developed from the right to contract in Allgeyer,
the right to raise a family in Meyer, to the right t
trol one's own appearance in Breen. Surely none of ¢
rights can be seen as more basic, fundamental or wor
of protection than a woman's right to control her body
and the nature, direction and quality of her oo ee
In light of this understanding of the neanii!
the guarantees of the Fourteenth Amendment, it is eve:
ay ae
ans mmettinm Sem et ACEH hs Co arTe pe
¢ critical that this Court carefully examine the ways
ynich women are systematically deprived of their rights
the abortion laws of Texas and Georgia as well as those
nearly every state in the nation.
It should be obvious that from the moment a wo-
n becomes pregnant her status in society changes as a
sult of both direct and indirect actions of the govern-
nt and because of social mores. Except in very rare
ses (primarily among the wealthy) she is certainly no
nger "free in the enjoyment of all [her] faculties; ...
ee to use them 4n all lawful ways; to live and work
ere [she] will; to earn {her] livelihood by any lawful
ling; to pursue any livelihood or avocation...". Ma-
ra v. Board of Education of the City of New York, su-
a at 783-4.
Pregnancy » from the moment of conception, severe-
, limits a woman s liberty. In many cases of both pub-
i¢ and private employment women are forced to temporar-
ly or permanent ly leave their employment when they become
pregnant « The employer has no duty to transfer a preg-
t woman to a less arduous job during any stage of preg-
(should the woman or her doctor consider this advi-
ble); nor is there any statutory duty to rehire the wo-
n after she gives birth. For example, under the New
nk State Civil Service Law, Rule 3, & female employee
st report her pregnancy to the appointing authority
>t later than the fourth month. The appointing au-
ty then may in his discretion ".eeplace the em-
oyee on leave at time when in its judgment the
nterest_ of sither the department or the employee
mld be best served. Lemphsis supp ied] There is
> indication that the employee's medical condition
the critical factor and there are no standards on
nich the decision in made. What is plain is that re-
jless of whether the woman wishes and/or needs to
mtinue working, regardless of whether she is physi-
ly capable of working, she may nonetheless be re-
red to stop working solely because of her pregnancy.
nmany if not most states women who are public em-
loyees are compelled to terminate their employment
t some arbitrary date during pregnancy regardless of
af.
BLEED THROUGH
Dea
, ~
ss
3s
SY
% os
whether they are capable of continuing work. See ¥,
example N Ve Chesterfield Count School Board-¢
Action No. TOK (E.0.Va. 571; Schatten
Ve eae tens see Civil Action No, My
CA=- eDet@Xe ruary 971; and LaFleur y,
Ve es ee Board of "Education, Civil Ketien
No. - e e Oy 2 e Se.
In Connecticut a directive from the Atto
General in 1938 stated that a pregnant woman could
be employed “during the four weeks previous to and ¢
lowing her confinement." This rule still exists, . a
fact, such employment is a criminal offense (directs,
‘against the employer). This denial of liberty in,
work is accompanied by an unconstitutional taking a
property, for Connecticut provides. no maternity }
fits. A woman is also denied unemployment comper
during her last two months of pregnancy, even when =
unemployment is due to some reason other than pr ;
CGST 31-236(5). Janello v. Administrator, Unem
Cc nsation Act T78 Ke2a 282, onn. Supp,
otal or partial unemployment is due toy
nancy," the woman is completely ineligible for ber
Janello,supra at 156, Even worse, the employer has
the absolu e, arbitrary right to fire a pregnant wo
when, in his estimation, her pregnancy would intees
with her work. Janello, supra at 157.
In Louisiana a recent amendment in 1968 of ty.
S.A.= R.S. 23:1601(6)(b) enables a woman who is force
to leave her employment either by contract or other
on account of pregnancy, to qualify for unemployment
compensation. But, as illustrated in the case of Grp
ve Brown, 231 So. 3a 663 (Ct. App. La., 1970) the
unemployment compensation in no way adequately com:
pensates either for the actual wages lost, or for th
denial of liberty which forces a woman to receive m
employment compensation. Mary Grape was employed as
a key punch operator by Southwestern Electric Power |
Co. When she became pregnant she was advised that th
company policy required that expectant mothers teral-
nate employment no later than the end of the 150th
-18-
mmm SPAITEIN STAM CT ACE ti CENTER
—
yy of pregnancy and that no leaves of absence would
» granted. Thus she was forced onto unemployment
yapensation and had lost her job.
Mississippi laws curtail even more severely
ne liberty of @ woman and her property. Sec. 7379(a),
iss, code 1942 Rec. states that a married woman who
as left work because of. pregnancy is considered to
ave voluntarily severed her employment without good
guse and therefore is not even entitled to unemploy-
ent compensation. See Mississippi Employment Secu=-
ity Commission v. Corley. Oe S8e, 3).
>» vne ne ye a her ed i aaiy ae OS
and is force © become economica ependen
ears The law 18 most harsh on cress eee
no are heads of households, and depended upon as
readwinners. Statistics show that a very high per-
ent of all working women are in this position, i.e.
hey must work to support themselves and/or their
hildren.
But restrictions on a woman's liberty and pro-
rty only begin with pregnancy. A woman worker with
omg considered "unavailable for work" (which
ans that she cannot qualify for unemployment com-
ensation), if she restricts her hours of availabil-
ty to late afternoon and night shifts so that she
way care for her children during the day. Connecticut
ourts have often held that "domestic responsibilities"
re "personal reasons unrelated to employment," Luk-
fenchuk v. Administrator, Unemp. Comp. Act, 176 K.2d
SS, ©3 Conn. Sup. 65 (Super. Cte, 1961) or “entirely
lisconnectied from any attribute of employment" Lenz
;, Administrator, Unemp. Comp. Act, 17 Conn. Sup. 315
Super. es e nm one decision the court said
that a woman had just five weeks to try to rearrange
ner life and her domestic responsibilities to try to
make herself “available for work" according to Con-
necticut standards (i.e. ready to work at all hours
ofthe day.) There is only one case that held that
a woman who restricted her availability for personal
reasons was entitled to unemployment compensation.
The woman had seven children. Carani v. Danaher, 13
Conn. Supp.109(Super. Ct. 21943 *
aG=
BLEED THROUGH
But the dominant belief is that a woman's”
sonal reasons" (in most cases, "domestic responsé
ties") for seeking work during specific hours saree:
relevant to employment. Thus, women with home regia’
sibilities (children or husband) =-- who need or wan.
to work @- are considered “unavailable for work,"
are denied the freedom "to live and work where thes
will, to earn their livelihood by any lawful caligme
Al er v. Louisiana, supra and "to engage in any
common occupations o fe" Meyer v. Nebraska.
ra <= freedoms that are implicit i the Fourteenth
Amendment's “concept of ordered liberty.” Palko y,¢
necticut, 302 U.S. 319(1937). It becomes clear fra
onnecticut decisions on pregnant working women that)
the State of Connecticut considers pregnancy a"malamys
Adams v. oe Fastener Co., 7 Conn. Supp. 379(igm
Under these circumstances, a case can well be r¥
the anti-abortion law, in compelling a pregnant wom.
to continue this condition against her wishes, ig:
merely a denial of liberty, but also an imposition
cruel and unusual punishment on the woman. See Se
III infra. "Confinement" well describes the situa
of the pregnant woman, or mother, who is denied woi
or restricted in her work because of an employer's
cision on her ability to work. *¢
Here we see how inextricably the rights to.
life and liberty are mixed and even more how laws re
stricting abortion deny women both. BENG
"Pea
Once a woman has given birth, according to tie:
Court of Appeals for the Fifth Circuit, she may stili”
be barred from employment as long as she has pre-scho!)
children. Phillips v. Martin Marietta Corp., 411 a
1 (5th Cir., ELSE See Section ll, intra, for a dis-
cussion of the treatment of Phillips by this Court.:
Furthermore, if she needs or merely wishes to work whik
she has pre-school children she cannot unless she is
fortunate enough to have family who will care for th
children or is wealthy enough to hire help. And,
though a housekeeper, nurse, or baby sitter is a netes-
sary expense enabling her to work, she may not deduct
the salary of that person from her income tax 26 U,S,¢,
_
mms emmiisim SAA Ft ACE th CE arre np
sand thua is normally left with little if any of
or pay acter those expenses are covered,
4% qhus as long as a woman has young children
he 4@ denied the right to obtain employment though
r to earn a living for [herself] and those
{her] is in the nature of personal
; a Smith v. Hill, 285 F.Supp. 556, 560 (D.N.C.,
A further denial of liberty results from the
that women are generally forced to arbitrarily end
education because of pregnancy. Until recently,
t were forced to drop out of
In New York City, Central
xample, Per.
et -SO0-F. Supp. 740 (H-D-Mise+, E569). Many
.
omen are also deprived of higher education because
f hl rules requiring that pregnant women leave
chool.
The importance of education in modern society
been stressed and restressed in recent years,
ince Chief Justice Warren stated in Brown Vv. Board
f Education, 347 U.S. 483, 493 (1954):
Today, education is perhaps the most im-
portant function of state and local govern-
mentSeee.e It is required in the perform-
ance of our most basic public responsibili-
ties..e. It is the very foundation of
good citizenship. Today it is a principal
instrument in awakening..cultural values,
in preparing...for later professional
training and in helping...to adjust norm
ally to his environment.
BLEED THROUGH
though "men and women aré equally in need of ém
tinuing education...at present women's opportu
ties are. more limited than men's." Can Wel
of Women, 1963, p. 11. Nonetheless, women ares.
robbed of their education and opportunity for ai:
Gevelopment and self~fulfillment; robbed of thet:
Pignhts to be “Bee in the enjoyment of all (theis |
faculties," Madera, supra, at 783-4, by chance @
unwanted pregnancy. &
The incursions on the liberty of an un~
married woman who becomes pregnant are even mm
severe. She too may be fired from her job and is
even more likely to be compelled to discontinue
her education. Unable to terminate her pregnang.
she is often forced into marriage against her q
and better judgment in an attempt to cope with ty
new economic and social realities of her life, Sw
marriages are forced on women despite the fact thy
the right to marry or not to may not be ine |
vont the state. Loving v. Virginia, 388 0,8, 1)
1967). ee
Of course, frequently, the man who
is responsible for the pregnancy re-
fuses to marry her. Then unable to support herself
she may be forced to become a welfare recipient,
become part of that cycle of poverty, and expose
herself to the personal humiliation, loss of per-
sonal liberty and inadequate income that entails,
To further add to her difficulties, the mere
# The reaction of forcing a pregnant girl or wom
into marriage as a “solution” to an unwanted out-of.
wedlock pregnancy is exemplified by the ruling of:
Maryland court in 1955, waiving the marriage age
requirments to permit a thirteen year old pregnant
girl to marry. Harold Rosen, M.D., Psychiatric Ip
paicattons of Abortion, A Case Stu Social
°
ypocrisy, es.R.L.Rev. 454, at 454.
ct of her out-of-wedlock pregnancy or child result-
from that pregnancy may be used as “some eviden-
gl or presumptive effect” to a decision to exclude
» pemove her from public housing. Thorpe v. Hous-
authorit r 393 U.S. 268, 271 (19 © hus,
een rorced to bear a child she did not want,
be deprived of her right and ability to pro-
for herself and her child either because of em-
joyer policies or because of her inability to leave
he child. Surviving on at least marginal income,
he who is most obviously in need of public housing
3 then deprived of decent shelter because of the
xistence of that very same child.
For a woman perhaps the most critical aspect
f liberty is the right to decide when and whether
he will have a child -- with all the burdens and
imitations on her freedom which that entails. But
nat has been robbed from her by men who make the
laws which govern her.
As early as 1848 women spoke out against the
wy in which men controlled their lives -- denied
vhem of any meaningful liberty. At the Women's Rights
‘onvention held in Seneca Falls, New York, on July 14,
1848, the women spoke of men as follows:
He has compelled her (woman) to submit to
laws in the formation of which she has no
yolceseee He has taken all her rights to
property, even to the wages she CarnSeceee
In the covenant of marriage...the law
(gives) him power to deprive her of her
liberty and to administer chastisementeces
He closes against her all the avenues of
wealth and distinction which he considers
most honorable to himself.... He has de=-
nied her the facilities for obtaining a
thorough educations... He has endeavored
in every way that he could to destroy her
confidence in her own powers, to lessen
her self-respect, and to make her willing ?
eee an abject life. Victo y, How We
It, National American Woman Suffrage gy.
age ation, A Centennial Symposium, LEN 9 n
H.W. Wilson Co., 1940, pp. 1525. Be Vag
Restrictive laws governing abortion uae as ti
of Texas and Georgia are a manifestation of the fag,
men are unable to see women in any role other than;
of mother and wife. Furthermore, ba
So long as he continues to think and write,
speak and act, as if maternity was the one gy
sole object of a woman's existence << so
as children are conceived in weariness and ¢
gust <-- you must not look for high-toned my
and women capable of accupl ishing any creat
and noble achievement. *
As recently as July 12, 1971 the Supreme ins
of the State of Florida reversed three convictions fo
conspiracy to commit abortion. In the concluding «
sentence of its opinion the Court stated: “In sum th
[abortion] statute intrudes into the area of personal
liberty of women and does it crudely in vague, uncer
tain, archaic language." Walsingham v. Florida,
slip opinion, p. 15, Ervin, J., Concurring. =
The Florida statute does not alone abridge a
woman's fundamental right to liberty. The statutes of
Georgia, Texas and nearly every other state in the
nation similarly deny to women throughout the c
their most precious right to control their lives and
bodies.
# Elizabeth Stanton to Gerrit Smith, December 2l,
1857, Stanton Papers, LC, quoted in Andrew Sinclair,
The Emancipation of the American Woman, Harper Colopha
Books, New York, 1900, p. O59.
-2h-
COPY BOUND TOO CLOSE IN CENTER
THE GEORGIA AND TEXAS STATUTES RESTRICTING
THE AVAILABILITY OF ABORTIONS DENY WOMEN
THE EQUAL PROTECTION OF THE LAWS GUARANTEED
TO THEM BY THE FOURTEENTH AMENDMENT.
The express guarantee of equal protection was
originally designed to protect black people. Since
that time, its protection has been rreatly extended.
pirst the courts extended equal protection to protect
chinese, Yick Wo v. Hopkins, 118 U.S. 356 (1886). More
recently it has been extended to protect aliens, Taka-
hashi ve Fish_and Game Commission 334 U.S. 410 (T9458);
——Wexican American, Hernandez v. Texas, 347 U.S. 475
(1954), and poor persons, Griffin v. Illinois, 351
U.S. 12 (1956); Douglas v. California, 372 U.S. 353
(1963), and Shapiro v. Thompson, 300 0.S. 618 (1969).
Most recently federal estate courts have berzun
to apply the guarantees of the equal vrotection of the
laws to prohibit discrimination against women.
In White v. Crook, 251 F. Supp. 401 (M.D. Ala.
1966) exclusion of women and Negroes from Alabama jur-
jes was held unconstitutional. In United States ex rel
Robinson v. York, 281 F. Supp. 8, (D. Conn. 1968)
erential sentences for men and women were struck
down as “invidious discrimination against {women] which
is repugnant to the equal protection of the laws guar-
anteed in the Fourteenth Amendment. In Kirstein v.
Rector and Visitors of the University of Virginia, 309
F, Supp. 105 (F.D. Va. 1070) a three judge court held
that the exclusion of women from the University of
Virginia violated their rights to the equal protection
of the laws. In 1970 a federal District Court in New
York held that a public tavern could not deny service
to a womah, Seidenberg v. McSorely's Ale House, Inc.,
317 F.Supp. 5 ‘ eDeNeYo, 1970).
More recently the Supreme Court of the state
of California rejected the ruling of this Court in
Muller v. Oreron, 208 U.S. 412 (1908) to find that
Taws restricting women from being bartenders except
in the most limited circumstances stand in violation
of the guarantees of the Fourteenth Amendment. Sail'ter
Inn v. Kirby, # 29811 Sup. Ct. Calif. May 27, 1971.
ae
BLEED THROUGH
Federal district courts have also looked to the gu
antees of equal protection to invalidate regulations
compelling female employees to take a leave of abs nee |
from work because of pregnancy. Cohen v. Chesterfieis’
County School Board, # 678-70-R (E.D.va.) (May 17, Tey
Schattman v. Texas Employment Commission, # A-70~Cas7.
(W.D. Tex.) (April 16, 1971) Order Denying Motion fop
Relief from Judgment. See also Menge lor v. Indus.
tria 437. F. Cir. Ty}
olding that plaint s' challenge to California pro. -
tective labor laws raised substantial constitutional,
questions. es
Despite the fact that women are entitled to
the equal protection of the laws, one major area in.
which they are daily denied that protection is in the
area of abortion. Exe.
Man and woman have equal responsibility for th
act of sexual intercourse. Should the woman accident.
ally become pregnant, against her will, however, she _
endures in many instances the entire burden or "punish.
ment.
In obtaining an abortion, the threats and
punishments fall on the woman. This happens even where
the decision to have an abortion has been a mutual one,
Only the woman is subjected to the variety of threats
which often accompany the painful search for abortion -
the threats of frightened or hostile doctors of giving
her name to the police - the threat of subpoena and/or
prosecution if the doctor who would help her is a
It is often said that if men could become
pregnant or if women sat in the legislatures there woul
no longer be laws prohibiting abortion. This is not:
said in jest. It reaches to the heart of the unequal
position of women with respect to the burdens of bear-
ing and raising children and the fact that they are
robbed of the ability to choose whether they wish to
bear those burdens.
And the woman carries an unequal and greater
share of the burden, not merely for nine months, but
<36—
for many years, all in violation of the equal protec-
jon of the laws, as we shall discuss below. The
abortion laws therefore present a rather unusual con-
stitutional situation. At first glance, it would
appear that the concept of equal protection of the
laws might not even apply to abortion since the laws
relate only to women. However, when we look beyond the
face of the laws to their effect, we see that the con-
stitutional test of equal protection must be applied.*
ror the effect of the laws is to force women, against
their will, into a position in which they will be sub-
jected to a whole range of de facto forms of discrimin-
ation based on the status of pregnancy end motherhood.
As we have discussed at length above, & woman
yho has a child is subject to a whole range of de jure
and de facto punishments, disabilities and limitations
to her freedom from the earliest stages of pregnancy.
In the most obvious sense she alone must bear the pains
and hazards of pregnancy and childbirth. She may be
suspended or expelled from school and thus robbed of
her opportunity for education and self-development.
She may be fired or suspended from her employment and
thereby denied the right to earn a living and, if
single and without independent income, forced into the
degrading position of living on welfare.
For example, many if not most employers
including public employers have policies requiring
pregnant women to take a leave of absense or other-
wise terminate their employment at a given stage of
pregnancy. Recently the case of LaFleur v. Cleve-
land Board of Education, # C-71-292 N.D. Ohio, May
12, 1971 upheld one such regulation. Contra, Cohen
* Here , of course, we are discussing not the secon-
dary effect of the laws on persons who perform abor-
tions and who might be men or women, but on the persons
vho feel the greatest impact of the laws, women.
=27=
Rieen Tup Cv Ie
ie
v. Chesterfield County School Board, supra, and.
Schattman v. Texas State Empl cenent Commission, §
she has pre-school age c ren, employers: may.
refuse to hire her despite the provisions of the *
Civil Rights Act of 1964 which states that it is 7%
unlawful for an employer "to fail or refuse to hing
or to discharge any individual ... because of such”
individual's sex...." 42 U.S.C. 200 e-2(a) (4) (empnm:
sis added), for, accarding to the Fifth Circuit, i¢)
is inconceivable that Congress intended to:
exclude absolutely any consideration of the
normal relationship of working father to ™
their pre-school age children and to re-
quire that an employer treat the two ex- |
actly alike in the administration of its
general hiring policies. Phillips v. a
Martin Marietta, supra, 411 F. a5 at 4, ©
ia
Only this winter this Gourt effectively affirmed that
court's ruling with Justice Marshall dissenting by =
holding that te
The existence of such conflicting family ~
ébligations, if demonstrably more relevant’
to job performance for a woman than for a=
man, could arguably be a basis for dis-.
tinction under 8703(@) of the [civil rights]
Act. Phillips v. Martin Marietta Corp. 91.
S. Ct. 496, 58 (1971). ay
In other words this court said if men refuse to share
equally in the care of their children then women may
be doubly burdened - they may be burdened with the.
responsibilities of child care and they may be de-
prived of employment opportunities as well.
If a woman is unmarried, unless she succeeds
in obtaining an abortion, she has no choice but to —
bear the child, while the man who shares responsibilit
for her pregnancy can, and often does, just walk away.
As a practical matter, the woman is then alon
with the problem of seeking and financing an abortion
-28-
and if that fails, she is alone paying the expenses
of pre-natal care and childbirth and raising and
rting the child. She could seek to establish
ternity of the father and therefore some measure
financial responsibility, However, to do this she
must expose herself to accusations by the father con-
ce her sexual behavior as part of his attempt to
avoid legal responsibility for the child. In some
states she would further be forced to admit the com-
mission of 4 erime, e.g. D.C. Code B 22-1002 (Crime
of Fornication). Furthermore, although in most areas
a parent has the legal responsibility to support his
or her child whether married or single, ©.f- D.C. Code
§22-903, in some of those same places a parent will
only be punished for neglect where married -- thus
the irresponsibility of the man who walks away from
the child he has helped to create is reinforced by the
rule of law. For example, under New York law the
mother is expressly liable for child support if the
father is unable to suoport the child or cannot be
found within the state. New York Family Court Act 6
414, ad
In Texas, a father of an out «of wedlock child
has neither the common law nor the statutory duty to
support» his child. Home of Holy Infancy v. Kaska,
1 S.W. 2a 208 (Tex. i ee also Lane v. Phillips
6 S.W. 610 (Tex. 1887), Beaver v. State, 256 S.W. 929 ;
(Cr, App. TeXe, 1923).
Having been forced to give birth to a child
she did not want, a woman may be subject to criminal
sanctions for child neglect, @-&-; D.C. Code $22-902,
if she does not care for the_child to the satisfaction
of the state. In some states even here the disabilities
for the woman are greater than for the man. The New
York courts seem to have found as a matter of law that
the mother has a greater responsibility for the child
than the father. In the case of People v. Edwards, 42
Misc. 20 930, 249 N.Y.S. 2d 325 (19 ,. though the
father and mother were jointly indicted for failure to
provide shelter and medical attention for their baby,
the court held that only the mother could be punished
for failing to bring the baby to a doctor when a con-
dition which began with a diaper rash resulted in the
child's death. Of course, again, if the woman is
-29-
unmarried and paternity was never legally establi
the woman bears these legal burdens alone.
The unwed mother may suffer additional di ya? *-
abilities by being denied employment because of her? ;
status. Courts are gradually recognizing the in- = )).
equities of so penalizing unwed mothers, Nonetheless;
not every woman is in a position to go to court to =
contest such discriminatory actions and many such
policies and practices still exist throughout the ~
country unchallenged.
Even where the father is present, the mother
rather than fatherwill be primarily responsible fop
raising the children. As long as “women, as a class
earn less than men." Gruenwald v. Gardner, 390 F.24 -
591 (2d-Cir., 1968), and women have less opportunity
for advancement®*, they, rather than the father, wil
remain at home to raise the family.
: The rulings of the Fifth Circuit and this Cour
in Phillips v. Martin Marietta, supra, further reinfore
this arbitrary role differentiation, forcing the preate
burden on child care on the mother. For in saying that
a mother of pre-school age children may constitutionally
be denied employment though a. father may not, the power
and authority of the courts is reinforcing the actions
of private employers and society to force a woman to
"stay at home and take care of the children' even if
she has otherwise provided for their care.
| If such a broad range of disabilities are
permitted to attach to the status of pregnancy and
* "In 1959, 1960 and 1961, median earnings for male
workers with taxable incomes was...approximately twice
the median earnings of females." Gruenwald v. Gardner,
supra, p. 592 n. 2.
## See, for example, Study of Employment of Women in
the Federal Government, 1568: U.S. STeit Service Conm-
mission, Manpower Statistics Division, Washington, D.C.
-30-
!
mer mmrithin SAM eT ACE thi CE ATs Re
motherhood, that status must be one of choice. And it
ig not sufficient to say that the women "chose" to have
sexual intercourse, for she did not choose to become
pre nt. As long as she is forced to bear such an
extraordinarily disproportionate share of the pains
and burdens of childrearing (including, of course, preg
nancy and childbirth), then, to deprive her of the
ultimate choice as to whether she will in fact bear
those burdens violates the most basic aspects of “our
american ideal of fairness" guaranteed and enshfined
in the Fourteenth Amendment. Bolling v. Sharpe, 347
y.s. 497 (1954).
There is yet another way in which women are
denied the equal protection of the laws. This Court
has shown great concern with the "conception of a
ical equality" Reynolds v. Sims, 377 U.S. 533, 55
(1964) pe particuairly with "questions of alleged
‘invidious discriminations # # # against groups or
types of individuals in violation of the constitutional
guaranty of just and equal laws.'" Reynolds v. Sims,
supra, 377 U.S. at 561 citing Skinner v. ahoma ,
*s. 535, 536 (1942). Because of this concern,
in a line of cases the court has sought to guarantee
that each citizen is fairly and equally represented
in the legislature which make laws governing his or
her life. See Baker v. Carr, 369 U.S. 186 (1962),
Reynolds v. Sims, supra, and their progeny. Neverthe-
less, in the instance of abortion laws one finds the
grossest. form of lack of representation.
This court can surely take judicial notice of
the fact that the state legislatures in Texas and
Georgia, like state legislatures throughout the
country are composed almost exclusively of men. AS
the supreme court of the state of Oregon stated in
State v. Hunter, 300 P. 2d 455,457-7, 208 Ore. 282
(Ore., 1956).
...We believe that we are justified in
taking judicial notice of the fact that
the membership of the legislative assembly
which enacted this statute was predomin-
ately masculine. That fact is important
Slo
=a Se — ., eer ree Ae eee
in determining what the legislature mighty.
have had in mind with respect to this pam.
ticular statute... + ie
nee
Therefore we have a situation in which persons are.
making laws which could never possibly effect then?
‘Se
These laws which are passed largely by men and only
affect women were first instituted many years prior
to the time that women even had the vote. The
statute was enacted in 1876, the Texas in 1907.
relationship between the legislators and the laws
are making is even more complex than it may appear op,
the surface. For laws such as the abortion laws pre-
sently before this court in fact insure that women-
never will be able to function fully in the society
in a manner that will enable them to participate as
equals with men in making the laws which control ang
govern their lives. For as long as women are unable
to control their reproductive lives they will be
forced to disrupt their education, forego their
career, and will never be a totally functioning part
of the government which determines her rights. Force
to remain at home with her children a woman has neither
the time, the money, nor the mobility to either organ. Bf
ize an effective lobby on her own behalf or to assert
her own rights as a direct participant in the legisis.
tive workings of government. The underrepresented :
city dweller could not realistically look to the rum
dominated legislature to rectify the inequality of
representation, nor could black people look to a
white controlled legislature to eliminate the gerry-
mandering which cheapened their votes. Gomillion vw,
aie eens 364 U.S. 339 (1960). Neither can women:
ally look to male controlled legislatures to
change laws which will return to them the control of
their lives and bodies and that may incidentally
a,
* It may be worth noting that the only other major
areas of law in which this occurs is with laws govern
ing children and incompetents; that alone may give
interesting insights into the views of legislators
towards women.
mms BAILII STAM CT ACE ti CENTER
e them to actively participate in those same legis-
tures. Therefore, if women are to have their rights
Mressea they can look only to the courts.*
Amici. have not addressed themselves to the economic
scrimination resulting from the application of the
portion laws off Texas and Georgia on the understanding
at the issue is being treated fully by other amici
d by parties to the litigation. Amici are deeply
oncerned, however about the{feconomic hardship and
latant economic discrimination effected by such laws
stricting the availability of legal abortion.
-33-
eat OS ee ., ewer ree Ae e ee F
=
III. ABORTION LAWS VIOLATE THE CONSTITUTIONS.
GUARANTEE AGAINST THE IMPOSITION OF L:
AND UNUSUAL PUNISHMENT. aS
To understand what having an unwanted pre.
nancy and child means to a woman, it may be best to
consider the following analogy: a group of people ay
walking along the street. Half the group crosses; ¢
remainder are stopped by a red light. Those stopped
by the light are told the following: ie.
"From now on, for about nine months, you
are going to have to carry a twenty-five
pound pack on your back. Now, you wil]
have to endure it, whether you develop yl.
cers under the load whether your spine be.
comes deformed, no matter how exhausted yu
get, you and this are inseparable. .
Then, after nine months you may drop this
load, but from then on you are going to
have it tied to your wrist. So that, wh
ever you go this is going to be with you th
rest of your life and if, by some accident,
the rope is cut or the chain is cut, that
piece of rope is always going to be tied to
you to remind you of it."#
Of course, this analogy is. not complete. I
does not include the extreme, sometimes excruciating
pain and risk of death involved with the process of
transferring the pack from your back to your wrist,
does it fully describe the limitations placed on you
liberty by having that load chained to your wrist for
substantial portion, if not all of your life. Ita&
however, begin to give some picture of the pain and
den of pregnancy and motherhood when both are inyvo
tary. orcing a woman to bear a child against her ul
is indeed a form of punishment, a result of society's
bivalent attitude towards female sexuality.The ex
* Testimony of psychiatrist Natalie Shainess, in Schi
der & Kennedy, Abortion Rap, McGraw-Hill, 1971, p.!
=30.
mens emntsirm SArar et Meer 2 CR are fe
— ainien
sexual "double standard" has created the social
,onse that when @ woman becomes pregnant accident-
ghe must be "punished" for her transgression,
vticularly if she is single. This punishment falls
lely on the woman : she must face the physical burdens
, emotional strains of an unwanted pregnancy, the
raging experience of having an illegal abortion
in filthy motel rooms at the mercy of quacks who
, charging exhorbitant fees." Ervin, J. concurring,
singham v- Florida, Case No. 40,210 (S.Ct. Fla.,
, 1971); and if unable to get such an abortion,
e responsibilities and trauma involved in raising an
anted child. The man equally responsible for the
nancy faces no such punishment.
7
Those who seek to impose the punishment of forc-
»a woman to bear a child against her will could not
*sonsidering its scope and dimensions. Such a punish-
nt condemns a woman to severe physical burden, pain and
por not only during pregnancy, but also through the
th process and after the child is born, imposing on
years of toil and loss of freedom. To deny an un-
ied woman an abortion is even more obviously a
nishment and an act of greater cruelty as she is
tally alone, with all of the physical, financial and
beial burdens of raising a child.
The Eighth Amendment to the United States Consti-
ution protects all persons against the infliction of
ruel and unusual punishment." Amici contend that the
panding constitutional concern, as expressed by this
burt, with practices which “offend the dignity of man",
contrary to "the evolving standards of decency that
k the progress of a maturing society" and punishment
lisproportionate to the offense committed" as violative
the Eighth Amendment necessitates a finding that laws
stricting abortion are unconstitutional
In 1910, the Supreme Court in Weems v. United
tes, 217 U.S. 349 (1910), repudiated the nineteenth
fury assumption that the.punishments proscribed by the
shth Amendment were limited to the barbarous practices
-35-
BLEED THR OUGH
of seventeenth century England. "The Cruel
Unusual Bunishment Olause and The Substantive ©
Criminal Law" 79 Harv.L.Rev. 635, 636-7 (1966);05
The Court in invalidating a section of the:
Phillipine Pena e authorizing a sentence of-ic
years hard labor and concomitant forfeiture of aH
zenship rights noted that a “principle to be vit:
must be capable of wider application than the nig
chief which gave it birth," 217 U.S. at 373. ==)
Purther the Court held that the Eighth Amend 2
"ig not fastened to the obsolete but may acquire
meaning as public opinion becomes enlightened by
a humane justice." 217 U.S. at 367. Underlying
Court's holding was the concept of "proportional
punishment" as a “precept of the fundamental lay,"
Significantly, the Court considered the moral |
ma and mental anguish suffered as a result of
punishment to be of equal relevance as the purely
physical burden imposed. ie
In Trop v. Dulles, 356 U.S. 86 (1958), inv.
idating a ote Toheent of denaturalization for deser.
tion as unconstitutional in violation of the Eights
Amendment, the Court again emphasized the standan
of proportion, and the flexible, expansive nature
of the Eighth Amendment's ban, while declaring ther
willingness to apply the Eighth Amendment affirm.
tively to protect individual liberty. Noting that
the "traditional" punishment for desertion was
the court rejected the notion that "excessiveness'
alone was determinative of constitutional validity.
Instead, the Court asserted that "the question is
whether the punishment subjects the individual to
a fate forbidden by the principle of civilized ©
treatment guaranteed by the Eighth Amendment." 356
U.S. at 99. "The basic concept underlying the Eig
Amendment is nothing less than the dignity of man.’
356 U.S. at 100. The Amendment, the Court noted,
was not a static one; it "must draw its meaning f
evolving standards of decency that mark the progres
of a maturing society." 356 U.S. at 101. In setti_
a standard for the application of the Amendment, %
Court rejected, as well, an exclusive concern
the physical aspect of punishment, forbidding what
it characterized as "the total destruction of the
individual's status in organized society." 356 U.S.
at 101.
aa
This Court's most recent analysis of the flea
bility of the Eighth Amendment is found in Robinso'
=36-
yifornia, 370 U.S. 660 (1962). In that case, the
sid that a state law which made the "status" of
reotics addiction a criminal offense constituted
uel and unusual punishment" in violation of the
tees of the Eighth Amendment. For Justice Doug-
3 stated in his analysis of the constitutional de-
sjopment of the Eighth Amendment; Douglas, J. concur-
ing at 675:
The historic punishmentsthat were cruel and
unusual included "burning at the stake, cru-
ecifixion, breaking on the wheel" (In re Kemm-
ler, 136 U.S. 436, 446, 10 S.Ct. 930,
L.Ed. 519) quartering, the rack and the thumb-
screw (see Chambers v. Florida, 309 U.S. 227,
237, 60 S.ct. 472, 477, 84 L.Ed. 716) and in
some circumstances even solitary confinement
(See In re Medley, 134 U.S. 160, 167-8, 10
S.Ct. 304, 300, a3 L.Ed. 835). The question
presented in the earlier cases concerned the
degree of severity with which a particular
offense was punished or the element of cruel-
ty present. A punishment out of all propor-
tion to the offense may bring it within the
ban against "cruel and unusual punishment,"
See O'Neil v. Vermont, 144 U.S. 323, 331, 12
$.Ct. 603, 696, 30 L.Ed.450. So may the cru-
elty of the method of punishment as, for ex-
ample, disenbowdling a person alive. See Wil-
kerson v. Utah, 99 U.S. 130, 135, 25 L.Ed.
305. But the principle that would deny power
to exact capital punishment for a petty crime
would also deny power to punish a person by
fine or imprisonment for being sick.
The essence of the Eighth Amendment, as evolved
the cases discussed above, lies in its concern with
“disproportionate” nature of the punishment im-
, the moral anguish as well as physical burdens
punishment, the extent to which punishment is a re-
to an individual's 'status' and 14s measured by
standarcs of decency", &"d offersiveness to tre "dignity of
«37<
man." Laws which force women to. endure unwantedieas
nancy and motherhood against their will or to Beam
criminals and take the risks to physical and m@
health resulting from an illegal abortion are @j
portionate to the act for which they are being’ gs
--an act which, in many instances, is not even’
Purther, amici contend that abortions, in fact if.
in theory, punish women for private, sexual ty
for which only women bear the repercussions of pres
therefore punishing them for their status as womens»
potential child~bearers. fe
The pain and suffering associated with an m
wanted pregnancy or child, is not solely physical»
The emotional pain and scarring which accompanies a
unwanted pregnancy is an equally important and far
lasting form of pain which must be considered in th
context of guarantees of the Eighth Amendment, and tj
emphasis given to. mental anguish as a crucial compos
of “cruel and unusual punishment." According to ph,
Natalie Shainess, who has devoted the majority of he
25-year practice as a psychoanalyst and psychiatrist
the area of feminine psychology and particularly wit
experience of being a mother, a woman who does not.
her pregnancy suffers depression through nearly th
tire pregnancy and often that depression is extrenely
severe. Furthermore, according to Dr. Shainess tht
depression continues even after birth may even go in
psychotic states, and may result in permanent enotia
damage to the woman. a ee
Such potential permanent emotional damage,
risks to physical health and safety which may also:
sult in permanent physical harm, see Fletcher v. &t
362 S.W.2d 845 (Cr.App-Tex., 1962), and the burden
taking care of an unwanted child, constitute a@ font
long-term imprisonment. Such long term imprisonment,
"sould be so disproportionate to the offense as to
within the inhibition" of the Eighth Amendment. ‘im
v. United States, 163 F.2d 228 (6th Cir., 1947)...m
most women, bearing and raising an unwanted child is;
# Schulder and Kennedy, supra, p. 122.
=38~
COPY BOUND TOO CLOSE IN CENTER
ree, it is life-term imprisonment. For the woman, the
nancy may also carry with it the trauma of
rejected or mistreated by the man when he learns
pregnancy. Under such conditions, the child re-
eiae from the relationship would constitute a lasting
eanipresent ‘peminder of the suffering the woman ex-
the man. Such a life-long reminder is
of constant punishment that the woman should not
foreed to face. When she is forced into that situa-
» not only does she suffer emotionally,
her suffering is manifested in her relations with
. child. She may vent her anger by physically injur-
the child,® neglecting the child, or being extreme-
‘over protective, virtually "smothering" the child
optionally -
According to New York law as interpreted by its
uwts, a "child at tender age is entitled to have such
re, love and discipline as only a good and devoted
ther can usually give," Ullman v. Uliman, 151 A.D.
9, 135 N.Y.S. 80 (1912) Temphasis added); it is en-
tled to care which includes its “spiritual and moral
fe" In re Roe, 92 N.Y.S.2d 882, 883, 196 Misc. 830
m.Rel.ct., 1949). Nonetheless, the State, by its in-
tence on the right to life for the fetus, practically
ures that once born, the child will receive neither
» care, love, nor spiritual and moral life to which it
entitled. If indeed, the unwanted child is a hated
ild, in denying women the right to abortion Texas,
orgia, and all other states with laws which restrict
ortion are punishing not only the mother, but also
> very child they claim to protect. Furthermore, under
York law a mother is required to give "care, guid-
se, supervision, love and affection," In re Carl, 174
¢. 955, 22 N.¥.S.2a 782, 784 (Dom.Rel., 1940), to the
According to Ray E. Helfer, M.D., who has recently
ited a book called The Battered Child, University of
icago Press, 1968, and is an expert in the field, an
anted pregnancy may be a crisis situation in the three
ctor pattern which leads to physical abuse of children.
-39-
i on a —a ow Wie at Mle Pe ofa Oi
child she never wanted in the first place and ghey
pumished if she is unable to. St
By denying women the right to abortion the -
state is punishing her for her sexual activity wi
the equivalent of long-term imprisonment and giy
her an indeterminate sentence of life with an y
child.- Sentencing a woman to a full term pregnancy
and motherhood against her will is thus a clear yi.
lation of her right to be free from cruel and ums,
punishment. The words of this Court in Weems, sup
are most appropriate in describing such a “séntence!
{Her] prison bars and [some] chains are re.
moved, it is true after [nine months], but.
[she] goes from them to a perpetual limita-
tion of {her] liberty. [She] is forever
kept under the shadow of [her] crime....
..-CLShe] is subject to tormenting regulat-
tions that. if not so tangible as iron bars
and stone walls, oppress as much by their
continuity, and deprive of essential
liberty. It may be that even the cruelty
of pain is not omitted. [She] must beara
chain night and day. [She] is condemned
to en as well as hard labor. 30 S.Ct.
at 549. »
Even where the woman decides she cannot endur
the pains and penalties of pregnancy and motherhood,
which the law attempts to force on her, she is still
exposed to what may be the great physical and emoti
pain and the far greater danger of illegal abortion.
It has long been thought that abortion in and of it-:
self caused substantial destructive emotional effects
on women. More recently, however, a number of stuti
have shown that when abortions are legally obtained
women do not suffer psychological harm as a result
their experience, but rather in most cases their em
tional status improves and many report that they «-
perience emotional growth as a result of the abortia
-4o-
eee
xperience. Pratt, Rappaport & Barlow, Arch. Gen.
syoniat., 20:408-414 (1969). pe
It is no answer to suggest that the woman may
ways choose to minimize her pain by placing the child
or adoption following birth -- performing the function
of "commodity" or a “baby breeder".’ For as one woman
as movingly described: *
The kind of trauma of giving a baby up for
adoption leaves you with the feeling of --
at least I had my feeling about it as a
mother -- I was a mother who had abandoned
my child and I fought against this self-
concept.
I prepared to think of myself as a breeder,
I was just breeding babies for someone else
to take rather than think of myself as a
mother who abandoned her baby.
But the milt -- for months after I left the
home, I'd wake up in the night crying and
sort of rocking my pillow and this feeling
sometimes of deprivation but.... the guilt
was stronger than the feeling that someone
else had deprived, someone had ripped the
baby from my arms.
I would have been more comfortable that way
than what I did, because I actually signed
the papers and gave the baby up.
For this woman, and for many others, this experience
carries with it a further overwhelming sense of guilt
at having done something shameful -- a sense of guilt
which may haunt her for years after and which, in the
same person, will not develop in connection with an
abortion -- even an illegal abortion. Such mental
anguish, and the emotional harm which ultimately
! Schulder and Kennedy, Ibid., p. 23.
wbtc
no? Com LIE we tee
results is certainly disproportionate to the act’:
for which a woman is being punished, and constitute, -
cruel and unusual punishment for her. .
Finally, some might feel that whereas it
may be constitutionally impermissible to deny a ©
married woman an abortion, it is permissible to (7
force an unmarried woman to see her pregnancy and<*.
its consequences through as a "deterrent to her =
immorality." However, not only is such a position.
unconstitutional, it is irrational. Compared with
@ married woman, an unmarried woman is likely to.
experience even greater unconstitutional deprivation;
of her liberty, as a result of the greater pain ‘and.
suffering from being forced to bear and raise an —
unwanted child with no help from the man who is
equally responsible for the conception of that child,
Furthermore, both she and the child will become a ~
financial "burden" on the society if she is forced
to go on welfare. .
Millions of women are now becoming truly
conscious of the manifold forms of oppresion and
discrimination of their sex in our society. They are
beginning to publicly express their outrage at what
they have always known - that bearing and raising a
child that they do not want is indeed cruel and un-
usual punishment. Such punishment involves not only
an indeterminate sentence and a loss of citizenship
rights as an independent person as held. unconstitu-
tional in Weems, supra, great physical hardship and
emotional damage Filsccepactionate' to the "crime"
of participating equally in sexual activity with a
man, as held unconstitutional in Trop, supra, but
is punishment for her ‘status’ as a woman and a
potential child-bearer as held unconstitutional in’
Robinson, supra. As this Court in Trop so firmly
Stated, the concept underlying the th Amendment
is “hothing less than the dignity of man" 356 U.S. at
100 and “must draw its me from evolving standaré
of decency" at 101. Abortion laws reinforce the leg
legitimized indignities that women have already
-42-
suffered under for too long and bear witness to the
inferior position to which women are relegated.
The total destruction of a woman's status in society
results from compelling her to take sole responsibil-
ity for having the illegal abortion or bear the un-
wanted child, and suffer the physical hardship and
mental anguish whichever she chooses. Only the
yoman 18 punished by society for an act in which she
has participated equally, only. she is punished for
ner "status" as child-bearer. In light of "evolving
standards of decency that mark the progress of a
maturing society", the basis of the Eighth Amendment
as set forth in Trg, supra, the struggle of women
for full and meaningful equality in society over the
last hundred years indicates that it would indeed be
a sign of the immaturity of our social development if
these laws were upheld. White versons yhave had to
readjust their thinking and actions to question whe-
ther laws which discriminated against blacks were
unconstitutional.
Men (of whom the legislatures and courts are
almost exclusively composed) must now learn that they
may not constitutionally impose the cruel penalties
of unwanted pregnancy and motherhood on women, where
the penalties fall solely on them.
: es .
so
IV. THERE IS NO COMPELLING STATE INTEREST tp
JUSTIFYING THE VIOLATION OF FUNDAMENTAL
CONSTITUTIONAL RIGHTS EFFECTED BY THE
CHALLENGED ABORTION LAWS.
Historically under common law and in the early
years of American law, abortion was legally permigs.
ible before the fetus was “quick" inside the mother,
See generally, ie (ae S. Means, Jr., “The.Law of New
york Abortion and the Status oF the Fetus
» Fed. > an Oy Lucas, "Federal .
SR ae Limitations aon Ls Enforcement and
ra ae ° atutes oe
Ve ae auch on of laws regu-
lating (ana’ Slenat effectively plddtnetine) legal
abortion came about for a combination of three major
reasons, none of which can any longer constitution-
ally justify the extreme incursion into and violation
of protected rights effected by the challenged
abortion laws. The three reasons were: (a) "com-
pell uniform adherence to specified moral norms
eeeLby (1)egal bans on both contraception and all
aevekanson. Lucas, supra, p. 732, 1.e€., moral
norms regarding sexual relations; (b) protecting
the health of the mother from the dangers then ine
herent in any operation, Lucas, supra, p. 732;
Means, supra; and (c) enforcing the newly established
religious concept that the soul was present in the
body from the time of conception. Lawrence Lader,
Abortion, Beacon Press, Boston, 1966.
-
The operation and effect of the challenged
Georgia and Texas abortion laws directly violate
plaintiffs' constitutionally protected rights of life,
liberty, equal protection, personal privacy of asso-
ciations and others as well. As the Supreme Court of
California stated in California v. Belous, supra,
80 Cal.Rptr. at 360:
The critical issue is not whether such
rights exist, but whether the state has
a
a compelling interest in the regulation
of a subject which is within the police
powers of the state (Shapiro v. Thomp-
gon (1969), 394 U.S. 618, 89 S.Ct. 1322,
22 L.Ed.2d 600; Sherbert v. Verner,
(1903), 374 U.S. 398, 403, 83 S.Ct. 1790,
10 L.Ed.2da 965), whether the regulation
is "necessary *** to the accomplishment
of a permissible state policy” (McLaugh-
lin ve Florida (1964), 379 U.S. 184, 196,
85.S.Cte 283, 290, 13 L.Ed.2d 222; see
also, NAACP v. Button, 371 U.S. 415, 438,
83 S.Ct. 328, 9 L.Ed.2d 105; Bates v.
City of Little Rock (1960) 361 U.S. 516,
527, 80 S.Ct. 412, 4 L.Ed.2d 480; Huntley
vy, Public Util. Comm, 69 A.C. 62, 69 Cal.
Rptr. 605, 442 P.2d 685; Vogel v. County
™ of Los Angeles, 68 Cal.2d 18, 21, 64 Cal.
Rptr. 409, 434 P.2d 961; People v. Woody,
61 set 716, 718, 40 Cal.Rptr. 69, 39
P,2d $13.
The fact that the abortion laws may have been
yalid when first enacted does not resolve the ques—
tions concerning the present constitutionality of
the law. California v. Belous, supra, at 362. Com-
pare Gray V. Sanders, 372 U.S. 368-301 (1963) with
South ve Peters, 339 U.S. 276, 277 (1950); Baker
y, Carr, 309 Uses. 186, 237 (1962); with Colgpove v.
Green, 328 U.S. 549, 556 (1946); Brown Vv. Soard of
Faucation, supra, with Plessy v. Ferguson, To3 U.S.
537 (1890).
Most persons who seek to justify the constitu-
tionality of abortion laws would now concede that the
first two of the three justifications mentioned above
are no longer able to sustain abortion laws which
take such great tolls on the lives of women.
It is common knowledge that an aborticn no
longer entails the danger it did in the mid 1800's
and early 1900's when the Texas and Georgia abortion
tiga
laws as well as the laws of nearly all the other
states were first enacted. In fact, as pointed
out above, there is considerable evidence that
abortion now carries about the same, if not lesser
risks then childbirth. See p. 10, supra. There-
fore the medical rationalization to sustain abor.
tion restrictions can be easily dispensed with.
As for the use of abortion laws to ensure
the community standard of morality, it should be
clear from this Court's decision in Griswold v,
Connecticut, supra, 381 U.S. at 498, Justice Golam
rg, Warren and Brennan, concurring that such an
argument is not constitutionally sufficient. See
also Wals am v. Florida, supra, slip opinion,
p. 12, which notes that the abortion statutes thes
selves "...[do] not show a compelling state inte
in prohibiting premarital sexual intercourse (the
prelude to unwed mothers) since [they draw] no dis-
tinction between married and unmarried women." In
any case it is quite evident that the "community"
standard is at present a changing one. Furthermore,
we must consider just who is the community. For on
this particular issue there are at minimum two
communities -- the community of men and the community
of women, Normally, we cannot and should not con-
sider degisiation from such a perspective but in
is case we can and must. For, here we have legis
lation which is made by men [see Page 32-33,
supra] who are never directly affected by it (ex-
cept to the extent that they fear that they themselve;
might never Mave been born were there no abortion
law). It is women, who at best have an indirect voice
in the determination of these laws, who must suffer
from them, And it should be plain that the community
of women does not support these laws. For centuries
they have been seeking and obtaining abortions even
at substantial risk to themselves despite the voice
of the legislature.
It may well be said that the abortion laws
which the states seek to maintain in fact undermine
ants
a
the moral fabric of the community. For, it is
those laws which not only force countless women to
flagrantly violate the law each year, but forces
them into the sordid underworld of criminal abor-
tions. ®
However, even assuming the maintenance of a
particular standard of morality for men and women
re sufficient to sustain some legislation in the
area, that legislation could not be drawn in such
a way as to consistently place all of its weight
and burden on only one sex. For this is just the
sort of invidious discrimination prohibited by the
Fourteenth Amendment.
Thus we must look to the third rationale
, for abortion laws. Although it is generally dis-
cussed in terms of the “right to life," if we ana~
lyze it more closely, the third rationale is actua-
ally a means of enforcing the religious concept
that the soul is present in the body from the time
of conception and therefore must be saved. The use
of criminal statutes to enforce the views of one
or more particular religious groups is of course
proscribed by the First Amendment's Establishment
Clause.
Looking closer at the argument that the
state must guarantee to every fetus its right to
life, we must immediately be struck by tremendous
inconsistencies in the state's alleged concern for
life.
# Amici do not take either the position that women
who have abortions are "criminals" or that all per-
sons who are willing to aid women in terminating un-
wanted pregnancies are criminals. However, there
are many persons who unscrupulously profit from wo-
men's predicament and misery with little concern for
their health and safety.
om
In fact, claims of great concern for the
life of the fetus are at best questionable in ;
practice and turn sour when examined in light «
their consequences on the lives of women,
It is clear both from the application of the
abortion laws as well as from other areas of lay
that the concern of the state in the life of thieves: -
fetus is at best a qualified.concern. Firstly, <%
under the laws of many states the fetus has “no ok
legal nie eng ply Marek identity until aPeg the «
is t of pa Ae dresz v. Friedberg, N.Y.2d - “s
478, 301 N.Y¥.S.2d 605, 70 (1565), = x therefore,
an action for wrongful Beate of: a fetus os heer.
anetained. See also, Graf v. Taggart , 43 N.J, ~
303, 204 A.2a 140 (196%); Norman v. urphy, 124 a
Cal.App.2d 95, 268 P.2d i78 (Dis.Ct.App., 1954);
Keyes v. Construction Service, 340 Mass. 633, 1 si
d 912 (I960); Powers v. City of Troy,4 Mich;~ —
App. $72 145 N .W.2d 018 (1966); Carrol. v. Skates
415 Pa. h7, 202 A.2d 9 (1964), for similar rules ta
New Jersey, California, Massachusetts, Michigan “4
Pennsylvania.
What is more laws governing abortion in
Georgia as in several other states with supposed ~
"reform laws" show at best a qualified concern for
the life of a fetus. Those statutes permit the
abortion of a fetus resulting from rape or incest,
and in some states a fetus growing within the body
of an unmarried woman under the age of fourteen, ©)
fifteen or sixteen, or a woman with German Measles,
a eBee Colo. Rev. Stat. Ann. 8 40-2-50 et seq. aia
In other states, a pregnant woman may not be’
-4g-
executed if she is "quick with child". New York
code of Criminal Procedure, 68 501 et seg. Presum-
ably, a5 was true historically, a woman who is preg-
vant with am unquick fetus may be executed.* Of
course, in that case the fetus will die with her.
Furthermore, in no other way do the states
act to protect the fetus from dangers to its exist-
ence, There exist no intensive prenatal care
; for those expectant mothers who do not re-
ceive this necessary care. There exist no massive
education programs concerning diet, exercise, etc.,
for expectant mothers. There is no mandatory inno-
culation against rubella, a crippling disease for
a fetus to be affected by. Drugs harmful to the
fetus are allowed on the market even though alterna-
tive treatment could be utilized. In New York, for
example, the State Department of Social Services
does not provide additional money for the fetus until
the fourth month of pregnancy. Title 18, Codes,
Rules and Regulations of the State of New York,
§ 35302. Clearly, the states take no affirmative
action to care for the fetus in which they claim
such @ compelling interest. Nor do the governments
consistently protect the interest of the children who
are subsequently born. ** '
* Por further historical discussion of this distinc-
tion between the quick and unquick fetus in New York
law, see Means, supra, 14 N.Y.LeF. at pp. 441-3.
## If governments insist that there is a compelling
state interest in protecting human life and therefore
in outlawing abortions, why is it that these same
governments fail to protect the rights of illegiti-
mate children who are subsequently born. Although
vy V. Louisiana, 391U.S. 68 (968 ), stated that
a state cannot treat an illegitimate child differently
from legitimate offspring, in Labine v,. Vincent, 91
(fn, continues on next page
-49-
% In light of these facts we must look
at the argument that the state must protect ea
and every fetus which has been conceived, 4
to assert this view one must assume that every
is a human being equal in all respects to ever
living citizen from the moment of conception,
Stripped of any religious definitions of when
ingful human life begins, that is when the s m3
enters the human organism, the various nthe pio-!
cedures for terminating pregnancy that are cu:
illegal under the challenged laws are not signif:
cantly different from some current methods of t ra
control, *® 23
(in. continued from preceding page) mes A
S.Ct. 1017 (1971), this conet upheld a Louisiana. -
statute which prohibited illegitimate children, «
though duly acknowledged, from claiming and takin
property by interstate succession for their father’,
estate, There are cases in both the states of .
Georgia and Texas which reveal the same form of d,.
crimination. In Patterson v. Liberty Mutual
ance COs, 147 S.E.oa ba T1966); e ° a of
Appeals refused to allow a posthumous illegitimate
child who brought a proceeding to recover compensa.
tion for death of the Daag sc employee, the child’;
father, to recover, in ve Vv. Lioyds Cas
Company of New York, 6 66 ( 12s
° e an Pretend child could not re-
cover compensation for her father's death under
Workingman's Compensation Act. Thus there would -
seem to be a fundamental inconsistency in vn ea
protecting the right of the child to be born and
then denying that same child equal protection.
protection of the property of the father from the:
claims of his out-of-wedlock children may well be -
yet another factor to encourage men to desert the:
children they have fathered and the mothers of the ni
children,
* E.G., it is commonly accepted that the intra-
uterine device (IUD) acts as an abortive agent
rather than as a CS SreESs which prevent cone
ception.
-50-
ra
There is a great variation in positions as
, when the essential Semennete” which causes
to protect the life of its citizens actu- ©
ly develops. In fact, the final determination
3 a philosophical or religious one,
For example, one might consider that the
- of fertilization is the moment of creation
f a human being. Under that approach the develop- .
nt of that "life" could ‘not be interfered with
wm that moment of fertilization. In that case no
\U,D.'8 could be legally used by women though
ey are widely used throughout the country. Ac-
to Father Robert F, Drinan, former Dean of
poston College Law School, and now United States
ongressman,
There is no doubt whatever that countless
individuals and several opinion molding
ups in America are convinced that the
Catholic Church is using its persuasion,
its prestige and its political power to
fight any change in the abortion laws.
These individuals and-associations are
sometimes afraid to speak openly about the
role of the Church lest they deepen the
Church's antagonism to the causes they
espouse. Drinan, Robert Fe, Sede, "The
Morality of Abortion Laws," 14 Cath.
Lawyer ist; TO5 Summer (1968).
‘For that reason the political activities of the
atholic Church and its proponents in opposing even
beralization of abortion laws remains an open secret
which is d: cult if not impossible to “prove” in a
raditional legal sense. However, in reporting the
passage by the Hawaii legislature of a bill repealing
nat state's abortion law, the New York Times stated
nat "The Roman Catholic Church waged a long battle to
ry to keep the abortion bill from passing." New York
28, 2/25/70, 1:5. The Hawaiian experience is
a
plainly not an isolated experience.
: Significently, under the common law the
appears to have been no legal proscription agi
abortion before the fetus was quick within tf
mother -- and it was at that time that the s
was thought to enter the organism. Means, Mm Ta.
at 426-8, At approximately the time that’ the
of the Catholic Church shifted concerning th :
try of the soul, laws concerning abortion did®
-- both moving back to the time of conceptior
What is more, according to Rabbi Davie -
Feldman, Author of Birth Control in Jewish Law)
the position of the Catholic Church on the questi,
of abortion is doctrinal rather than a gene ;
moral position. The position stems in part
an ancient interpretation of the Hebrew Septug ag’ a
with respect to “ensoulment™ leading to the x <i.
scription of abortion of a "formed" fetus. Peli
Birth Control in oe Law, New York University
: ress » PP. 69. It further ste
from the position of ene Church on original sin
baptism, which leads to the conclusion that a
fetus is not permitted to develop to term so that
can be baptized at birth, it is "worse than murde
for then the fetus is doomed to limbo. Feldman,
In contrast with the Catholic approach to
abortion, under Jewish law, the welfare of the
woman -- her pain and suffering -- is paramount,
Feldman, Ibid., pp. 291-2. In Jewish law, the fet
does not become a person until the moment of birt
Feldman, Ibid., pp. and 273. The fetus, at
least in the early stages is considered part of
s
*## This was coupled with crusades in Calvinist
theology and New England Puritanism against sex a
a Lader, Lawrence, Abortion, Beacon
(1966). ee
snert's body, Feldman, Ibid., p. 265, and only
wen its head emerges is It inviolate. Feldman,
bide, Pe 27298 Therefore, in any number of situa-
tong in which abortion would be permissible
ger gewish law it would be forbidden under the
ys of Texas and Georgia and nearly every other
tate in the country as would be more consonant
th Catholic doctrine.
Abortion laws throughout the country are
pased on a religious definition of when
life begins. As a result, no woman may
y terminate an unwanted pregnancy except
ner the most limited circumstances, because to do
o would offend the religious precepts of others.
ne then, though forced to adopt certain beliefs,
1s her personal constitutional freedoms eroded by
which not only favor one religious. doctrine
ut actually enforce it. Thus, the Texas and
orgia a8 Well as most other abortion laws are in
ct conflict with constitutional rule that
[tJhe government is neutral, and while protecting
, it Lronbegtn — > oe it nie ag none."
school District o bington Township v. Soperee
PIT U5. CUS, JO5)6 8 8 ourt stated in
hat case:
The wholesome ‘neutrality’ of which this
Court's cases speak thus stems from a
recognition of the teachings of history
that powerful sects or groups might bring
about a fusion of governmental and reli-
gious functions or a concert or dependency
of one upon the other to the end that
official support of the State or Federal
Government would be placed behind the tenets
of one or all orthodoxies. 374 U.S. at 222.
Just such fusion deprives countless of women
pach year of the most basic control over their bodies
nd their lives in a way which will affect them for
he rest of their days, and all in violation of the
onstitutional proscription against the establishment
~53~
of religion. rare 1 ie
itis |
a . 4
ey
_. The pohehidasnenh. of religion’ clause
of the First Amendment means at least
this: Neither a state o~ Federal
Government can set up a church. Neither |
can pass laws which aid one religion, aid .
all religions, or prefer one religion . “a .
over another, Neither can force nor ites
fluence a person to go to or to remain ©
away from church against his will or >a
force him to profess a belief or table
in any religion. No person can be
punished for entertaining or professing _
religious beliefs or disbeliefs, for ‘4
church attendance or none-attendance. No .
tax in any amount, large or small, can be.
levied to support any religious activities
or institutions, whatever they may be
called, or whatever form they may adopt
to teach or practice religion. Neither a.
state nor ‘the Federal Government can,
openly or secretly, participate in the
affairs of any religious organizations or
groups and vice versa. In the words of
Jefferson, the clause against establish-
ment of religion by law was intended to
erect “a wall of separation between church
and state." Everson v. Board of Education
330 UsS. 1, 15-16 (1947), citing Reynolds”
Vv. United States, 98 U. Se 145, 1 ety.)
The Texas and Georgia laws governing abortion consti.
tute the most glaring example of the demolition of t
wall, Furthermore, insisting that a woman carry to
term each and every pregnancy which may occur the
state is not only enforcing a particular religious &
lief but developing a form of right unique in Ameri
law. For, in no other instance does the right to
live include the right to use another person's bod
his or her kidney, heart and lungs. Yet the denial:
athe
f
yomen the right to an abortion gives a fetus the
right to occupy an unwilling woman's body and use
not only her uterus but every other organ of her
pody without her consent.
Thus stripped of the remaining religions
justification for the prohibition of abortion,
there 18 no argument sufficient to sustain the
abridgment of a women’s rights effected by the
denial of abortion.
“Where there is a significant encroachment
upon personal liberty, the State may prevail only
by showing a subordinating interest which is com-
pelling." Griswold v. Connecticut, supra, 381
U.S. at 497, ¢ Bates v. City of le Rock
361 UsS. 510, 524 es 580s ——
Amici urge this Court to consider the
following questions:
Are the interests of society being
served by a law which exposed over a
million women last year to such risks
{as described above]? Are the inter-
ests of society being served by women
bearing unwanted children, subjected
to the pressures of an emotionally
and financially deprived existence?
Are the interests of society being
served by the population explosion we
are now witnessing? South Dakota v.
Munson, s » Slip opirion, p. 9.
Thus the real question is not “How can
we justify abortion"? but “How can we
justify compulsory childbearing?"
Cisler, "Unfinished Business: Birth
Control and Women's Liberation,” Sister-
hood is Powerful, ed., Robin Morgan,
Random House, 1970, p. 278.
iv
eat
This court must then conclude, as —
courts have across the nation, that,
Upon a balancing of relevant interest,
we hold that a woman's right to refuse
to carry an embryo during the early
months of pregnancy may not be invaded
by the state without a more compelling’
public necessity than is reflected in
the statute in question. Walsingham.
v. Florida, supra, slip opinion, p. 12,
citing Babbitz v. McCann, supra.
And further, that,
The Court can find no compelling inter.
est of the state and concludes that the
right to choose to bear or not to bear
children is a fundamental right of the
individual woman to be exercised in
manner she chooses and which may not in
any way be abridged by law. People v,
Robb, supra, slip opinion, p, 5
~56~
y. YOUNGER v. HARRIS DOES NOT IMPAIR
THE JURISDICTION, POWER
OR RESPONSIBILITY OF THIS COURT
TO GRANT THE RELIEF REQUESTED.
In Younger v. Harris, 91 S.Ct. 746 (1971),
and its companion cases this Court refused to rule
on the constitutionality of several state statutes
challenged on First Amendment grounds. The Court
neld that the constitutional objections could a
should be raised by the litigants in defense to a
criminal prosecution, and the litigants would not
pe irreparably harmed by raising their constitu-
tional rights in that forum. That is not the case
here however.
In the two cases before this Court the
primary plaintiffs are women in need of abortions.
Neither they, nor other women throughout the
country, who daily have their rights denied by the
Georgia, Texas and other abortion statutes, can turn
to the state criminal process for a determination of
their rights. For, the violation of their rights
does not stem primarily from the fact that they may
be prosecuted for having an abortion (though in
rare cases they are), but from the fact that a very
real threat of criminal prosecution of third parties
prevents them from obtaining the medical care they
require. As long as abortion laws such as those
of Georgia and Texas are in effect they will not be
able to obtain abortions. As the Supreme Court
of the State of California recognized in California
vy. Belous, supra, 80 Cal.Rptr. at 366, since the
doctor 18 risking his own freedom and professional
career in performing an abortion, "Rather than being
impartial, the physician has a ‘direct, personal,
substantial, pecuniary interest in reaching a con-
clusion' that the woman should not ‘have an abortion."
The situation of women barred from obtaining
-57-
abortions by unconstitutional laws is thereforg:..
distinguishable from that of appellees in Boyle
Ve Landr r 91° 8.Ct. 758 (1971). ‘This Col
that they were deterred from exercising their
constitutional rights only by their own "“imagi-
nary or speculative fears of prosecution." 9]
S.Ct. at 758. Furthermore, women are not re-
quired to entrust the protection of their consti.
tutional rights to a third party which has litte
interest in protecting those rights. Perlman y,.
Amici have attempted to show that to re->
quire a woman to carry, give birth to and raise
a child against her will is indeed irreparable ».
harm sufficient to satisfy the standard of -
v. Stein, 91 S.Ct. 769 (1971), decided with:
Younger v. Harris, supra, in which the Court
stator tnt
--.-federal intervention affecting pend-
ing state criminal prosecutions, either
by injunction or by declaratory judg-
ment is proper only where irreparable
injury is threatened. The existence
of such injury is a matter to be deter-
mined carefully under the facts of
each case.
The rights of women such as Mary Doe and
Jane Roe who are denied the abortions they seek
must not turn on whether some few medical personne)
are courageous enough to open themselves to prose-
cution by performing the needed abortions, and then
challenge the restrictive law in a criminal pro-
ceeding. This is too tenuous a thread for million
of women throughout the country to rest their con-
stitutional rights on. In Younger v. Harris, ree
91 S.Ct. at 751, this Court no that It has Ion
been considered appropriate for the federal courts
to rule on the constitutionality of state criminal
=58~
statutes where,
. The threat to the: plaintiffs
federally protected rights [is] one
that cannot eliminated by his de-
fense ta @ single criminal
. $3. parte Parte
voums, 203 0.8. ee
rat is “7. the situation before the Court.
vonen are having their lives and bodies mangled
and destroyed daily abortion laws such as
those Bn and and cannot look to the
state to rid themselves of the
ponds of theese This Court must, therefore,
exercise the “6 of the federal courts to hear
snd decide fed: ral constitutional claims, for
the federal courte ere the "...primary and power-
ful reliances for vindicat every right given
by the Conseetyssee: ° oo" Zwickler v. Koota, 381
-59-
and Texas Penal Code: articles 1191, 1192, 2105
1194 and 1196 violate the most fundamental rigy
of women guaranteed by the United States — e. &
Constitution.
oo Sg
Respectfully submit ¢
NANCY STEARNS
c/o Center for Constitye
tional Rights 41 :
588 Ninth Avenue aryed;
New York, New York 10036.
$e.
ape
The attorney for amici wishes to note with.
ciation the invaluable assistance of Eli
Schneider of New York University School and -Cheis
Stern of Brooklyn Law School in the te
of this Brief.
we
oe
-60-
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