# Amicus Curiae Brief — Roe v. Wade

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0097%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1973
- **Citation:** 410 U.S. 113

## Text

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) 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. |
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
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 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 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, 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-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0097%3A11. Public record. Not legal advice.