Amicus Curiae Brief — Roe v. Wade
Supreme Court brief1973
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M.D., Ph.D.
F aiversty Y Bebo! of Medicine
t of Pediatrics
M.
er of Paychiatry
wy of California
Angeles
3 E. McLENNAN, M.D.
of Gynecology and Obstetrics
University
‘W, OVERSTREET, M.D.
of Obstetrics and Gynecology
ty of California
D B. SHAW, M.D.
of Pediatrics, Emeritus
sit) rot Califo -nia School of Medicine
9B 8. HARRIS, M.D.
¢. Clinical Prof. of
trices & Gynecology
ol of Medicine
(BERT E. LONG, M.D.
te Clinical Professor of
i ries and Gynecology
niver ity of California, San Francisco
CoLORADO
a. WHITTINGTON, M.D.
tor of Psychiatry
of Health and Hospitals
te — of Health
ID W. TALMAGE, M.D.
et m, Shoo! of Medicine
os Professor of Microbiology
and Medicine
iivetsity of Colorado Medical Center
C. HENRY KEMPE, M.D.
Professor and Chairman
Department of Pediatrics
University of Colorado Medical Center
Denver
E. STEWART TAYLOR, M.D.
Professor and Chairman
Department of Obstetrics and Gynecology
University of Colorado
Denver
CONRAD M. RILEY, M.D.
Professor
Departments of Pediatrics
and Preventive Medicine
University of Colorado Medical Center
Denver
3
CoNNECTICUT
NATHAN KASE, M.D.
Professor and Chairman
Department of Obstetrics and Gynecology
Yale University School of Medicine
New Haven
CLARENCE D. DAVIS, M.D.
Professor of Obstetrics and Gynecology
Yale University School of Medicine
New Haven
District OF COLUMBIA
JOHN F. J. CLARK, M.D.
Professor and Chairman
Department of Obstetrics and Gynecology
Howard University and
Freedmen’s Hospital
Washington
ROBERT H. BARTER, M.D.
Professor, Obstetrics and Gynecology
George Washington University
2141 K Street, Northwest
Washington
FLoripa
E. M. PAPPER, M.D.
Vice President and Dean
School of Medicine
University of Miami
Miami
WILLIAM A. LITTLE, M.D.
Professor and Chairman
Department of Obstetrics and Gynecology
University of Miami School of Medicine
HARRY PRYSTOWSKY, M.D.
Professor and Chairman
Department of Obstetrics and Gynecology
University of Florida College of Medicine
Gainesville
Hawa
WINDSOR C. CUTTING, M.D.
renege: Me agg
University o
Honolulu
ILLINOIS
WILLIAM J. GROVE, M.D.
tive Dean
execursity of Llinois College of Medicine
Chieago
ROBERT B. LAWSON, M.D.
Vice President for Health
Northwestern University
Chicago
D. N. DANFORTH, Ph.D., M.D.
f and Chairman
Simard of Obstetrics & Sreseiee?
Northwestern University Medical School
Chicago
ROBERT ©. STEPTO, M.D.
Chairman, t of
FREDERICK ZUSPAN, M.D.
John Bolivar DeLee dcp and Chairman
t of Obstetrics and Gynecology
The Chicago Lying-In Hospital
The University of Chicago
Chicago
CHARLES cova M.D.
Clinical Professor
Department of Obstetrics and Gynecology
Mount Sinai Hospital
Chicago
ALBERT DORFMAN, M.D.
Richard T. Crane Distinguished Service
Professor of Pediatrics
University of Chicago
Chicago
InDIANA
CARL P. HUBER, M.D.
Coleman Professor
Obstetrics and Gynecology
Indiana University Medical Center
Indianapolis
Iowa
ROBERT C. HARDIN, M.D.
Viee Provost and Dean
Health Affairs
University of Iowa
Iowa City
Kansas
KERMIT E. KRANTZ, M.D., Litt),
Professor and Chairman
Department of Gynecology and Ob
Professor of Anatomy
University of Kansas Medical Center
Kansas City
KENTUCKY
DOUGLAS M. HAYNES, M.D.
Dean and Professor of Obstetrics
and Gynecology
University of Louisville School of
Health Sciences Center
Louisville
W. 8. JORDAN, JE., M.D.
Dean
University of Kentucky
College of Medicine
Lexington
TOM F. WHAYNE, M.D.
Associate Dean
University of Kentucky
College of Medicine
Lexington
Professor and
University of Kentucky Medi
versity of Kentu ical Center
Lexington
JOHN W. GREENE, JR., MD.
Chairman
WARREN E. WHEELER, M.D.
Professor and Chairman
Department of Pediatrics
University of Kentucky
Medical Center
Lexington
LOUISIANA
RICHARD L. FOWLER, M.D.
Professor and Head
Department of Pediatrics
Louisiana State University
School of Medicine
New Orleans
MarYLAND
DAVID E. BOG M.D.
Medical Faculty
ne ine University School of
asticl
: logy
ms s Hopkins University School of |
Medicine
KINS, M.D.
se “pr Obstetrics and Gynecology
Tniversity of Maryland Hospital
Baltimore
AVIN M. CUSHNER, M.D.
Rye Genter for Social Studies in
roduction
oor Scones of Obstetrics and
jynecolo
Bix Hopkins University School of
Medicine
SADORE A. SIEGEL, M.D.
“meritus Professor of Obstetrics and
mheerghy of Maryland Medical School
Baltimore
HELEN B. TAUSSIG, M.D.
Professor Emeritus of Pediatrics —
The Johns Hopkins School of Medicine
‘ H COUDON, M.D.
od Atlantic Association of Obstetrics
and Gynecology
Diplomate, American Board of Obstetrics
and Gynecology
Pe ile
MASSACHUSETTS
20BERT H. EBERT, M.D.
Dean of the Faculty of Medicine
Medical School
BEORGE V. SMITH, M.D.
Wm. H. Baker Professor of Gynecology,
‘University of Minnesota School of Medicine
DAVID CHARLES, M.D.
Director, Department of Obstetrics and
Gynecol =
Boston City Hospital c
Boston
MICHIGAN
T. N. EVANS, M.D.
Acting Dean and
Chairman, Department of Gynecology and
Obstetrics
Wayne State University
Detroit
ANDREW D. HUNT, JR., M.D.
Dean
Coll of Human Medicine
Michigan State Universit
East Lansing :
WILLIAM B. WEIL, JR., M.D.
Professor and Chairman
Department of Human Development
a University
East ing
MINNESOTA
DAVID G. DECKER, M.D.
hoo and owen
epartment of trics and Gynecolo
Mayo Clinic rr
Rochester
JOSEPH H. PRATT, M.D.
Professor of Surge
MARY E. MUSSEY, M.D.
Consultant in Gynecology
Department of Obstetrics and Gynecol
Mayo Clinic ey
Rochester
H. MEAD CAVERT, M.D.
Associate Dean
Minneapolis
JOHN J. SCIARRA, M.D.
Professor and Head
rtment of Obstetrics and Gynecology
University of Minnesota Hospitals
Minnenpetie
HARRY FOREMAN, M.D.
Director, Center for Population Studies
University of Minnesota
Mayo Memorial Hospital
Minneapolis
FRANK W. QUATTLEBAUM, M.D.
Associate Professor of Surgery
School of Medicine
University of Minnesota
Minneapoli
JANE E. HODGSON, M.D.
Assistant Clinical Professor of
Obstetrics and Gynecology
School of Medicine
University of Minnesota
Minneapolis
HAROLD G. RAVITS, M.D.
President, Ramsey County Medical Society
Chairman, and Clinical Professor
Department of Dermatology
University of Minnesota School of Medicine
St. Paul
DWIGHT MARTIN, M.D.
President-elect, Ramsey County Medical
Society
Clinical Assistant Professor
Department of Medicine
ag oral of Minnesota School of Medicine
t.
DAVID M. CRAIG, M.D.
pe resident, Ramsey County Medical
Clinical Associate Professor
De ment of Medicine
University of Minnesota School of Medicine
St. Paul
CARL RICE, M.D.
Editor, Minnesota Medicine
Clinical Associate Professor
University Of Minnesota School of Medicine
ERICK Y. HAKANSON, M.D.
Chairman and Associate Prof
Chairman and Associate Professor
THEODORE T. WATSON, M.D,
Clinical Assistant Professor
Department of Obstetrics and G
University of Minnesota School of
Minneapolis
FRED A. LYON, M.D.
Clinical Assistant Professor
Department of Obstetrics and G
University of Minnesota School of Met
Minneapolis
MELVIN T. BAKEN, JR., M.D.
Clinical Assistant Professor
Department of Obstetrics and G
University of Minnesota School of Mot
Minneapolis
JOHN F. PERRY, M.D.
Professor of Surgery
University of Minnesota School of Mois,
Minneapolis
WILLIAM BERNSTEIN, M.D.
Clinical Professor of Surgery
University of Minnesota School of
Minneapolis
SAMUEL W. HUNTER, M.D.
Clinical Associate Professor of Sx
University of Minnesota School of Medi
Minneapolis
MILTON M. HURWITZ, M.D.
Clinical Professor of Medicine
University of Minnesota School of
Minneapolis
ROBERT B. BENJAMIN, M.D.
Clinical Associate Professor of Sw
University of Minnesota School of Mots
Minneapolis
_"
/ Mississippr
ROBERT E. BLOUNT, M.D.
Director and Dean
University of Mississippi School of
Medicine
Jackson
Si Missouri
JAMES C. WARREN, M.D.
Professor and Head, Designate
Department of Obstetrics and Gynecology
Washington University Medical School
St. Louis
NEBRASKA
ROBERT B. KUGEL, M.D.
Dean, College of Medicine
The University of Nebraska
Omaha
H. PEARSE, M.D.
dorwr-oh Professor and Chairman
renartment of Obstetrics and Gynecology
sniversity of Nebraska Medical Center
ond and Dewey Streets
New HAMPSHIRE
ETON B. CHAPMAN, Dean
Seek Meties) School ”
Hanover
New MEXIco
ROBERT A. MUNSICK, M.D., Ph.D.
Professor and Chairman
Nenartment of Obstetrics and Gynecology
Vniversity of New Mexico School of
Medicine
Albuquerque
New YorkK
AN F. GUTTMACHER, M.D.
President, Planned Parenthood/World
Population
ew York
OUIS M. HELLMAN, M.D.
Professor Emeritus of Obstetrics and
Gynecolo
Btate University of New York
Down tate Medical Center
Brooklyn
REORGE JAMES, M.D.
ident
count Sinai Medical Center
lew York !
HAROLD C. WIGGERS, M.D.
Executive Vice President and Dean
Albany Medical College
Dany
RITZ FUCHS, M.D.
Fiven Foundation Professor and Chairman
Department of Obstetrics and Gynecology
ornell University Medical College
New York
k. B. GUSBERG, M.D., D.Sc.
Professor and Chairman of Obstetrics and
Gynecolo
t. Sinai School of Medicine
of the City University of New York
New York :
ROBERT J. HAGGERTY,.M.D.
Professor and Chairman J
Department of Pediatrics
University of Rochester School of
Medicine and Dentistry
SAUL KRUGMAN, M.D.
Professor and Chairman
Department of Pediatrics
New York University Medical Center
New York
JONATHAN T. LANMAN
Professor and Chairman
Department of Pediatrics
Downstate Medical Center
Brooklyn
CURTIS J. LUND, M.D.
Hon. sod orale mote :
epartment o trics-Gynecology
University of Rochester School of
Medicine and Dentistry
Rochester
JAMES H. NELSON, JR., M.D.
Professor and Chairman
Department of Obstetrics and Gynecology
State University of New York
Downstate Medical Center
Brooklyn
ROBERT E. L, NESBITT, JR., M.D.
nepering oof Obetetrice dG 1
partment o tet: and Gynecolo,
State University of New York zi
Upstate Medical Center
Syracuse
SEYMOUR L. ROMNEY, M.D.
Professor and Chairman
Albert Einstein College of Medicine
Bronx Municipal Hospital Center
Pelham Parkway and\Eastchester Road
ee of logy and Obstetrics
ronx
DONALD. P. SWARTZ, M.D.
Director, Department of Obstetrics and
G 1
Harlem Hospital Center
HAROLD M. M. TOVELL, M.D.
Professor of Obstetrics and Gynecology
College of Physicians and Surgeons
Columbia University
New York
RAYMOND L. VANDE WIELE, M.D.
Der roe wa Obstet 7 d Gynecol
partment o rics an
Director of the Ob-Gyn Service Sed
Columbia-Presbyterian Medical Center
New York
JEAN A. CORTNER, M.D.
Professor of Pediatrics
State University of New York
Buffalo
EDWARD C. CURNEN, JB., M.D.
Professor of Obstetrics and ~ oe
New York University School o Medicine
New York
HABRY H. GORDON, M_D.
Professor of
Albert Einstein College of Medicine
Bronx
RICHARD L. DAY, M.D
Emeritus Professor of Pediatrics
Mount Sinai School of Medicine
New York
HERBERT G. WINSTON, M.D.
Clinical Professor of Obstetrics and
Albert Einstein College of Medicine
Bronx
NortH CaRoLina
W. G. ANLYAN, M.D.
Professor of Surgery and
Vice President for Health Affairs
Duke University Medical Center
Durham
MANSON M.D.
Vice President for Medical Affairs and
Dean
The Bowman Gray School of Medicine
Winston-Salem
RICHARD L. BURT, M.D.
Professor and Chairman
Bowman Gray School of Medicine
Winston-Salem :
ROY T. PAR M.D.
F. Bayard Carter fessor and
i Department of Obstetrics and
Duke Medical Center
Durham
NortH Dakota
WALLACE W. NELSON, M.D.
Assistant Dean, Student Affairs
School of Medicine
University of North Dakota
Grand Forks
Oro
— G. GRULEE, JR., M.D.
Oaege of Cincinnati
ry
Cincinnati
FREDERICK C. ROBBINS, M.D.
Dean, School of Medicine
Case Western Reserve University
Cleveland
M. A. AYERS, M.D.
pera homer f Obstetrics and
° Gynecolegy
——— as
0
ROBERT G. PAGE, M.D.
Dean and Professor of Medicine and
Pharmacology
Medical College of Ohio
Toledo
E. L. PRATT, M.D.
Director, t of Pediatrics
University of Clactanatt
College of Medicine
Children’s Hospital
Cincinnati
RICHARD W. STANDER, M.D.
FRANK FALKNER, M_D., M.B.C.P.
Cubentpat ccm a
versity 0:
of Medicine ~
Cincinnati
OKLAHOMA
JAMES A. MERRILL, M.D.
Professor and Head
t. of Gynecology and Obstetrics
University of Oklahoma
School of Medicine
Oklahoma City
HARRIS D. RILEY, JR., M.D.
Professor of Pediatrics
Children’s Hospital
University of Oklahoma
Oklahoma City .
OREGON
RALPH C. BENSON, M.D.
Professor and Chairman
rtment of Obstetrics and Gynecology
University of goes
Medical School, ospitals and Clinics
Portland
DONALD N. MEDEARIS, JB., M.D.
Professor of Pediatrics
Dean, School of Medicine
nett ee of Pittsburgh
Pittsburg
WILLIAM G. SLATE, M.B., Ch.B., M.S.
Temple University School of
iy er Division of Soames and
sent Binsteia Medical Center
Philadelphia
VICTOR C. VAUGHAN ITI, M.D.
Professor and Chairman
t of Pediatrics
Temple University School of Medicine
Philadelphia
tEeoKn THR COLIGH
South CAROLINA
LAWRENCE L. HESTER, JBR., M.D.
Professor and Chairman
mt of Obstetrics and Gynecology
Medical University of South Carolina
Charleston
D. STROTHER | POP x
Secretary, e'
Past: President (1966)
Gpamagieal Sole
a
pre e a -
South DaxoTa
GEORGE -W. KNABE, JR., M.D.
Dean
School of Medicine
University of South Dakota
Vermillion
TENNESSEE
STEWART A. FISH, M.D.
Professor and Chairman
University of Obstetrics and > aid
aed of Tennessee College of
cw a
DONALD A. GOSS, M.D.
Professor and Chairman
Department of Obstetrics and Gynecology
Vanderbilt University School of Medicine
Nashville
W. F. BERNELL So dre M.D.
ame and Chairman
rtment of Obstetrics and Gynecology
el Medical College
TEXas
CHARLES E. GIBBS, M.D.
President
Texas Association of Obstetricians and
Anson eet Department of
te essor, mt 0
Obstetrics and G sag
The University of edical School
at San Antonio
HUGH —— M.D.
exas Medical Association
Committee re > Study Abortion Laws in Texas
Fort Worth
JOSEPH M. WHITE, M.D.
Vice-President for Academic Affairsand ™
- Dean of Medicine
The University of Texas Medical Branch
Galveston
AIM DAME AIIAARE
ARLES WILLIAM DAESCHNER, JR.,
Chairman
nt of Pediatrics
The University of Texas Medical Branch
Galveston
HEINZ F. EICHENWALD, M.D.
Professor and Chairman
Department of Pediatrics
The University of Texas Southwestern
Medical School
Dallas
HAMILTON FORD, M.D.
’ Professor and Chairman
Department of Neurology and Psychiatry
The University of Texas Medical Branch
Galveston
RAYMOND H. KAUFMAN, M.D.
Professor and Chairman
ent of Obstetrics and Gynecology
Baylor University College of Medicine
Houston
PAUL MacDONALD, M.D.
Professor and Chairman
t of Obstetrics and Gynecology
The University of Texas Southwestern
Medical School
Dallas
WILLIAM J. McGANITY, M.D.
Professor and Chairman
t of Obstetrics and Gynecolo
The University of Texas Medical Bran
Galveston
JACK PRITCHARD, M.D.
Professor and former Chairman
t of Obstetrics and Gynecology
The University of Texas Southwestern
Medical School
Dallas
JOSEPH SEITCHIK, M.D.
Professor and Chairman
Department of Obstetrics and Gynecol
The University of Texas Medical £ School”
at San Antonio
ROBERT H. BARNES, M.D.
Professor, Department of Psychiatry
The University of Texas Medical School
at San Antonio
HERMAN L. GARDNER, M.D.
Clinical Professor
Department of Obstetrics and Gynecology
Baylor University College of Medicine
Houston
ROBERT 8. GLEN, M.D.
Professor, Department of Psychiatry é‘
The University of Texas Southwester,
Medical School "
Dallas
WILLIAM C. LEVIN, M.D.
Professor
Department of Internal Medicine ood
The University of Texas Medical Brand
Galveston
L. CHARLES POWELL, M.D.
Amram f Obste ' b
partment o trics and G
The University of Texas Medical 1 Beat
Galveston ,
ROBERT L. ROESSLER, M.D.
Professor
Department of Psychiatry
Baylor University College of Medicine
Houston
PEGGY JOYCE WHALLEY, MD.
Depertasent of Obstetrion and Gyaceda
partment o and
The University of Texas Southwestera
Medical School
Dallas
ROBERT B. WHITE, M.D.
Professor
Department of Neurology and
The University of Texas Medical Branch
Galveston
=)
:
ni’
]
in
0
ni
y
UTan
THOMAS C. KING, M.D.
Provost
University of Utah
School of Medicine
Salt Lake City
VERMONT
WILLIAM H. LUGINBUHL, M.D.
Dean
University of Vermont
College of Medicine
Burlington
JOHN VAN 8. MAECK, M.D.
at and ee
artment of Obstetrics and Gynecology
Chief of Service wi
University of Vermont College of Medici
Burlington
VimcInia
10 J. DUNN, -M.D.
and Chairman
sancti of Obstetrics and Gynecology
dical College of Virginia
, ch Science Division
Seoeannestth University
“ ond
G. THURMAN, M.D.
: of Pediatrics
— t of Pediatrics
iversity of Virginia School of Medicine
ottesville
NORMAN THORNTON, JR., M.D.
partment of Obstetrics and Gynecology
BBniversity of Virginia School of Medicine
parlottesville
WasHINGTON
RNARD GOMBERG, M.D.
inical Assistant Professor of
Obstetrics and Gynecology
niversity of W
Medicine
School of
RALPH J. WEDGWOOD, M.D.
Professor and Chairman Department of
Pediatrics
University of Washington School of
Medicine
Seattle
WEst VIRGINIA
WALTER A. BONNEY, M.D.
Professor and rman Department of
Obstetrics and Rinaaiees
West Virginia University School of
Medicine
Morgantown
WILLIAM G. KLINGBERG, M.D.
Professor and Chairman Department of
Pediatrics
West Virginia University School of
WISCONSIN
BEN M. PECKHAM, M.D.
Chairman, Department of Gynecology and
Obstetrics
te Clinical Affairs
University of Wisconsin Medical School
Madison
In THE
Supreme Court of the United States
No. 70-40, 1971 Term
>
Mary Dog, e¢ al.,
Appellants,
—V.—
Agrnur K. Botton, Attorney General
. of the State of Georgia, et al.,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
-_
MOTION FOR LEAVE TO FILE A BRIEF AS AMICI CURIAE
FOR THE AMERICAN COLLEGE OF OBSTETRICIANS
AND GYNECOLOGISTS, AMERICAN MEDICAL WOMEN’S
ASSOCIATION, AMERICAN PSYCHIATRIC ASSOCIATION,
NEW YORK ACADEMY OF MEDICINE, MEDICAL SCHOOL
DEANS AND PROFESSORS, AND CERTAIN INDIVIDUAL
PHYSICIANS
Pursuant to Rule 42(3) of this Court, the organizations
and physicians named on the cover and initial pages of
this Motion, respectfully ask leave to file the annexed brief
as Amici Curiae in the above-styled case.
Counsel for appellant have not responded to the request
for leave to file a brief. Counsel for appellee asked Amici
to seek the leave of this Court.
Interest of Amici Curiae
Amici are organizations and individuals from the medi-
eal profession generally, as well as particular specialties.
Amicus American College of Obstetricians and Gynecolo-
gists was founded in 1951 and has 13,400 Fellows and
Junior Fellows. ACOG was organized in part to “establish
and maintain the highest possible standards for obstetric
and gynecologic education in medical schools and hospitals,
2
obstetric and gynecologic practice and research” and to
“maintain the dignity and efficiency of obstetric and gyne.
cologic practice in its relationship to public welfare.” The
ACOG “Policy on Abortion” recognizes that “abortion
may be performed at a patient’s request, or upon a
physician’s recommendation.” (For complete text of policy
statement, see Appendix A.)
Amicus American Medical Women’s Association, which
was organized over 56 years ago, is composed of some 2,000
women physicians and women medical students throughout
the United States and territories. AMWA has supported
liberalization of abortion laws “for those who, for family
planning or health reasons, wish it, and that this be done
with the approval of their physicians.”
Amicus American Psychiatric Association is a scientific
and educational medical organization, composed of 18,783
qualified doctors of medicine who specialize as psychiatrists
in the diagnosis, care and treatment of mental diseases
and defects of the mind. It is the second largest medical
specialty organization in the United States. Abortions
are a prime interest to psychiatrists because pregnancy,
child-bearing, birth and abortion can have material effects
upon the mental processes of patients requiring psychiatric
diagnosis, evaluation and care. The Board of Trustees of «
the APA on Dec. 12-13, 1969, upon the recommendation of
the Committee on Psychiatry and Law, approved the
following:
“Position Statement on Abortion”
“A decision to perform an abortion should be re-
garded as strictly a medical decision and a medical
responsibility. It should be removed entirely from the
jurisdiction of criminal law. Criminal penalties should
be reserved for persons who perform abortions with-
out medical license or qualifications to do so. A medi-
cal decision to perform an abortion is based on the
careful and informed judgments of the physician and
the patient. Among other factors to be considered in
arriving at the decision is the motivation of the patient..
}
3
Often psychiatric consultation can help clarify moti-
vational problems and thereby contribute to the pa-
tient’s welfare.”
Composed of 3,118 Fellows, Amicus the New York Acad-
emy of Medicine was incorporated, by special act of the
_ Legislature of the State of New. York in 1851, for the ad-
vancement of science and medicine:
“The New York Academy of Medicine recommends
repeal of those sections of the criminal code referable
to the performance of abortion by qualified physicians
and further supports the legal changes that would
place abortion under the general provisions of the
medical practices act of all the various states.”
The individual Amici also include over 170 medical
school deans, departmental chairmen, and professors of
both obstetrics and gynecology and other branches of medi-
cine. z
Amici have a vital interest in overturning the jurisdic-
tional holding of the lower court. The panel found no “case
or controversy” posed by the sub-class of physician plain-
tiffs. Doe v. Bolton, 319 F. Supp. 1048, 1052-54 (N.D. Ga.
1970) (per curiam); J.S., at 4-a to 9-a. Although the dis-
trict court upheld the “standing” of the physician class,
the judges denied that physicians who “are not free to
perform or counsel the obtaining of abortions” may con-
test the law short of inviting criminal prosecution. Id.
This determination runs completely contrary to decisions
by this Court, e.g., Investment Co. Institute v. Camp, 401
US. 617, 620 (1971) ; LSCRRC v. Wadmond, 401 U.S. 154,
158-59 (1971) ; Epperson v. Arkansas, 393 U.S. 97, 101-02
(1968) ; Abbott Laboratories v. Gardner, 387 U.S. 136, 151-
53 (1967). It also asks the near impossible of physicians
and their patients. Either-a pregnant woman must file an
action and await lengthy judicial deliberations which risk
her very life and health (fifteen weeks intervened between
the April 16, 1970, filing date and the July 31 decision in
this case). Or, a physician must invite criminal prosecu-
tion, wheré nore is necessary to reveal the continuing im-
4
pact of the statute’s restrictions. Only two physicians in
Anglo-American history have had sufficient courage to
choose the latter route. See Rex v. Bourne [1939] 1 KB.
687 ; Hodgson v. Randall, 314 F. Supp. 32 (D. Minn. 1970), |
. aff'd mem., 402 U.S. —— (May 17, 1971).
Amici have a second important interest in the merits,
The Georgia law regulating the medical procedure of abor-
tion is patterned after analogous Model Penal Code pro-
visions. Similar laws are currently in force in twelve
states.? Amici include or represent physicians from each
of these additional jurisdictions. A decision on this appeal
will have the effect of settling, one way or another, objec
tions to those other eleven statutes. For this reason, Amici
have a legitimate claim to be heard.
. Equally important to the Amici is the need to present
medical data to the Court concerning the implementation
of this type of legislation. On a cumulative as well as state-
by-state basis, data have gradually become available from
public health authorities. These reveal discriminatory
variations in access to medical abortions, from county-to-
county, hospital-to-hospital, and state to state. All pur.
port to be operating under similar statutory language.
To the extent that these data have bearing upon the
constitutional questions before this Court, Amici have pre-
pared illustrative tables and charts. These appear in
Appendix B to the brief annexed hereto.
Amici Curiae, as physicians, also have data and argn-
ment in support of the contention that state law cannot
rationally differentiate the medical procedure of abortion
from all other procedures, by limiting the former to general
community hospitals accredited by the Joint Commission
on Accreditation of Hospitals [JCAH]. The aforemen-
tioned tables and charts show the paucity of such fully
1 See Movet Pena Cove §230.3, at 189 (Proposed Official Draft,
1962); Id., §207.11, at 144 (Tent. Draft No. 9, 1959), both of
which follow almost verbatim from the fifteen year old 1955 draft.
*The twelve states are: Arkansas, California, Colorado, Dela-
ware, Kansas, Maryland, New Mexico, North Carolina, Oregon,
South Carolina, Virginia, and Georgia.
accredited hospitals in the affected states, such as Georgia, —
Arkansas, and another eight states with substantially the
game requi t. This lack of available facilities is ac-
centuated by the tendency for many accredited hospital
directorates to permit their physicians to perform few or
no medical abortions.
In some states, however, the laws permit specialized
abortion facilities. In others, data from abortion experi-
ence suggests that the limitation of this medical procedure
to fully accredited general community hospitals goes far
beyond legitimate public health demands. Amici have
assembled the most relevant and recent scientific findings.
These are discussed in the annexed brief.
In two respects the brief for Amici Curiae will supple-
ment the brief for appellants in a manner useful to the
Court. First, Amici will concentrate arguments primarily
on the interference of the statute with physicians, patients,
and the physician-patient relationship.
Second, Amici will present these arguments from a na-
tional perspective, by showing how the Georgia-type law
compares with laws in other states, both in terminology
and implementation at the statewide, county, and hospital
levels. ,
For the most part, the data materials are no more tech-
nical than the far more extensive records filed in antitrust,
patent, and food and drug litigation. Amici have prepared
the annexed brief and appendix to ensure that the Court
will not be without what Judge Learned Hand denominated
as “the aid of unpartisan and authoritative scientific assist-
ance in the administration of justice” in this case. See
Parke-Davis & Co. v. H. K. Mulford Co., 189 Fed. 95, 115
(C.C.S.D.N.Y. 1911) (L. Hand, J., referring to the need
for technical assistance in interpreting the patent on
“adrenalin.”).
For the reasons set forth, the Court should grant the
Motion of Amici and receive the annexed brief.
Respectfully submitted,
Roy Lvcas,
Attorney for Movant Amici Curiae.
In THE
Supreme Court of the United States
No. 7040, 1971 Term
>
Mary Doe, et al.,
Appellants,
Vie
Artuur K. Botton, Attorney General of the
State of Georgia, et al.,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF GEORGIA
~~ Sea
— Sanne
BRIEF AS AMICI CURIAE FOR THE AMERICAN COLLEGE
OF OBSTETRICIANS AND GYNECOLOGISTS, AMERICAN
MEDICAL WOMEN’S ASSOCIATION, AMERICAN PSYCHI- |
ATRIC ASSOCIATION, NEW YORK ACADEMY OF MEDI-
CINE, MEDICAL SCH DEANS AND PROFESSORS,
AND CERTAIN UAL PHYSICIANS
—~ Sain
a —
Roy Lucas
James Madison Constitutional Law
Institute, Inc.
Four Patchin Place
New York, N.Y. 10011
@el.: 212-691-2020
_ Attorney for Amici Curiae
oo
lit i toat aint ste saa
1 sii en RS
°C TS eae
5 A
INDEX
PAGE
Interest of Amici Curiae 1
Questions Presented 1
Statute Involved 3
Statement of the Case 7
I. Medical Aspects of Abortion 7
II. Incidence of Medically Induced Abortion .......... 13
III. Incidence and Sequelae of Nonmedical Abortion 15
IV. Abortion and Contraception 16
A. Contraceptive Failure 16
B. Lack of Access to Contraception .................... 18
ARGUMENT:
JURISDICTION :
I. The District Court had jurisdiction to grant
declaratory and injunctive relief to the class of
physicians 22
A. Physicians have standing to assert their
own fundamental personal rights, and those
of the class of their patients who seek medi-
cal advice and treatment, because enforce-
a
PAGE
ment of the statute in question is almost
solely against physicians, the physicians’ in-
terests are inextricably related to those of
~ their patients, and the rights of patients
cannot be adequately protected unless con-
sidered along with those of physicians ........ 22
1. Standing of Physicians 22
2. Physician’s Standing to Assert Patient’s
Right to Seek Medical Care ................... 23
B. The drastic regular and recurring impact of
the statute upon physicians and their pa-
tients poses a continuing case or contro-
versy, which is ripe for adjudication, be-
cause physicians are deterred and hampered
by the statute in advising and treating their
patients, and repeatedly compelled to refuse
to provide medical care out of a reasonable
fear of enforcement of the statute ................ 5
C. Injunctive relief was necessary to prevent
inevitable grave and immediate injury to
physicians and their patients, because de-
fense of criminal and/or administrative pro-
ceedings in a single case could not eliminate
the recurring controversy, and the mere fact
of such a state proceeding would drastically
invade the physician-patient relationship,
as well as exert an in terrorem effect upon
the profession 34
Tse MERITS:
Il. The provisions in Georgia Criminal Code $$26-
1201, -1202(a)(1)-(3), -1202(b)(1)-(9), -1202
(ce), and -1202(e), which differentiate the medi-
cal procedures of therapeutic and elective in-
duced abortion from all other forms of health
care, deprive physicians of the fundamental
personal right to administer to their patients,
and patients of the right to seek medical care,
in violation of the Due Process and Equal Pro-
tection clauses of the Fourteenth Amendment ..
A. The rights of physicians to administer
health care, and of patients to seek medical
treatment, are fundamental personal inter-
ests recognized by national and interna-
tional standards of medical practice, and
protected by the First, Ninth, and Four-
teenth Amendments
1. Physicians Have a Fundamental Right
to Administer Health Care Without
Arbitrary State Interference ....................
2. Patients Have a Fundamental Right to
Seek Health Care Which Includes the
Treatment of Medical Abortion ..............
B. The Equal Protection and Due Process
clauses of the Fourteenth Amendment re-
quire that restrictive classifications in the
challenged statute be narrowly drawn and
supported by compelling state interests, in
37
41
iv
PAGE
order not to abridge fundamental personal
rights
. The Georgia law on medical abortion, and
similar laws in eleven other states, restrict
access to this medical procedure in a man-
ner which offends the Equal Protection
clause of the Fourteenth Amendment ........
1. The “Health” Clause Is Interpreted Dif-
ferently in Every State, Community, and
Hospital, and Has Been Demonstrated
to Be Without a Reasonably Specific
Meaning
2. Widespread Discrimination on the Basis
of a Patient’s Place of Abode Has Re-
sulted From the Statute and Its Uneven
Administration
. The provisions in Georgia Criminal Code
§§26-1201, -1202(a) (1)-(3), -1202(b)(1)-(9),
-1202(c), and -1202(e) are not narrowly
drawn and do not advance a compelling
state interest
1. The Limitation of Medical Justifications
to Cases in Which: (1) Continuation of
Pregnancy Would “Endanger the Life”
of the Woman, or “Seriously and Per-
manently Injure Her Health,” or (2)
“(t]he Fetus Would Very Likely Be Born
With a Grave, Permanent, and Irreme-
45
PAGE
dial Mental or Physical Defect,” or (3)
“Tt]he Pregnancy Resulted From Forci-
ble or Statutory Rape,” Is Neither Nar-
rowly Drawn Nor Supported by Any
Compelling State Interests -................----- 69
a. The limiting provisions are not ra-
tionally related to a public health in-
terest 70
b. The provisions advance no legitimate
interest in protecting human life -....... 72
c. The provisions do not advance any
rational moral value 73
2. The Requirement That Patients Bequest-
ing a Therapeutic or Elective Abortion
Be Examined and Certified by Three
Physicians, and That Certifications Be
Approved Further by a Hospital Com-
mittee of Three or More Physicians, Is
Neither Narrowly Drawn Nor Suppor-
tive of a Compelling State Interest -....... 74
a. The consulting requirement pre-
cludes a clinical relationship by cre-
ating an adversarial one, which
‘serves no medical purpose ................ 74
b. Multiple physician consultations have
no rational justification where the pa-
tient has no specialized medical prob-
lem which could complicate the in-
duced abortion procedure ................---- 76
PAGE
ce. The committee process is devoid of
procedures which remotely resemble
those required by the due process
clause
. The requirement that the medical pro-
cedure of abortion be undertaken only in
hospitals accredited by the Joint Com-
mission on Accreditation of Hospitals
unjustifiably discriminates against a
single medical procedure, and seriously
limits the availability of medical facili-
ties for abortion, without advancing any
compelling state interest
a. The JCAH itself does not advocate
that medical procedures be confined
to a given type of facility or limited
to particular patient circumstances ..
b. No public health justification can be
advanced for confining the medical
procedure of abortion to those lim-
ited institutions which are JCAH-
accredited
. The prohibition further limiting access
to the medical procedure of induced
abortion to the single class of patients
who are “bona fide- legal resident[s] of
the State of Georgia” violates the Privi-
leges and Immunities clause of Article
IV, §2, and the Equal Protection clause
78
82
PAGE
of the Fourteenth Amendment by ex-
cluding non-resident patients for rea-
sons which are neither narrowly drawn
nor supportive of any legitimate, com-
pelling state interest 90
CoNCLUSIONS 96
AppenDIx A A-1
Appenpix B . B-1
TABLE OF AUTHORITIES
Constitutional Provisions:
United States Constitution—
Amendment I 22, 38, 40
Amendment VIII 48
Amendment IX 38
Amendment XIV passim
Article IV, §2 90, 92, 94, 95
Statutes :
Georgia Statutes—
Georgia Criminal Code §26-1201 (1969) -..... a 8
37, 68
Georgia Criminal Code §26-1202 (1969) passim
Georgia Criminal Code §26-1203 (1969) ........ 3,6
PAGE
Other Statutes and Rules:
Abortion Services, N.Y.C. Heattu Cope tit. ITI, Art.
42, 98 Crry Recorp 6313-6315 (Oct. 23, 1970) ............ 89
Family Planning Services and Population Research
Act of 1970, Pub. L. No. 91-572 (Dec. 24, 1970) ............ 18
40A Minn. Strat. Ann. §617.19, at 286 (1964) ................ 49
Public Law, U.S. Congress 89-749 42
2A Texas Penat Cone, Art. 1196, at 436 (1961) ............ 49
Cases:
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) ..30, 36
Alabama State Teachers Ass’n v. Lowndes County Bd.
of Education, 289 F. Supp. 300 (M.D. Ala. 1968) ........ 66
American Commuters Ass’n v. Levitt, 279 F. Supp. 40
(S.D.N.Y. 1967) 9%
Application of Georgetown College, Inc., 331 F.2d 1010
(D.C. Cir.) (en banc), cert. denied, 377 U.S. 978
(1964)
Avery v. Midland County, 390 U.S. 474 (1967) ............
RF
Baggett v. Bullitt, 377 U.S. 360 (1964)
Baker v. Carr, 369 U.S. 186 (1962)
Baldwin v. Hale, 68 U.S. (1 Wall.) 223 (1864) —........... a.
Barrows v. Jackson, 346 U.S. 249 (1953)
Baxtrom v. Herold, 383 U.S. 107 (1966)
Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966) ........
Blake v. McClung, 172 U.S. 239 (1898)
Boddie v. Connecticut, 401 U.S. 371 (1971) -..............passim
Brockington v. Rhodes, 396 U.S. 41 (1969) (per
curiam) 0
SBRBSRSBRS
PAGE
Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966) ............... ae,
Brotherhood of Railway Trainmen v. Virginia, 377 U.S.
1 (1964) 40
California v. Belous, 71 Cal.2d 954, 458 P.2d 194, 80
Cal. Rptr. 354 (Sept. 5, 1969), cert. denied, 397 U.S.
915 (1970) passim
Canale v. Stevenson, —— Tenn. ——, 458 S.W.2d 797
(1970) 66
Clayton v. North Carolina State Bd. of Elections, 317
F. Supp. 915 (E.D.N.C. 1970) 65
Corfield v. Coryell, 6 Fed. Cas. 546 (C.C.E.D. Pa.,
1832) (No. 3,230) 92
Corkey v. Edwards, 322 F. Supp. 1248 (W.D.N.C.),
appeal docketed, 40 U.S.L.W. 3048 (U.S. July 17,
1971) (No. 71-92, 1971 Term) 29, 90
Crossen v. Breckenridge, —— F.2d ——, No. 20852 (6th
Cir. June 23, 1971) %
Dent v. West Virginia, 129 U.S. 114 (1889) .......27, 38, 39, 51
Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga. 1970) (per
curiam), juris. postponed, 402 U.S. —— (May 3,
1971) (No. 7040, 1971 Term) passim
Doe v. Dunbar, 320 F. Supp. 1297 (D. Colo. 1970) ........ 29
Doe v. Randall, 314 F. Supp. 32 (1970) 26
Doe v. Scott, 321 F. Supp. 1385 (N.D. Ill.) appeal dock-
eted sub nom. Hanrahan v. Doe, 39 U.S.L.W. 3438
(U.S. Mar. 29, 1971) (No. 70-105, 1971 Term) ............ 29
Eisenstadt v. Baird, 429 F.2d 1398 (1st Cir. 1970), prob.
juris. noted, 401 U.S. 934 (1971) (No. 70-17, 1971
. Term) 73
Elfbrandt v. Russell, 384 U.S. 11 (1966)
Epperson v. Arkansas, 393 U.S. 97 (1968)
Goldberg v. Kelly, 397 U.S. 254 (1970)
Golden v. Zwickler, 394 U.S. 103 (1969)
Graham v. Richardson, 402 U.S. —— (June 14,
1971) 45, 46, 95
Gray v. Sanders, 372 U.S. 363 (1963) 61
Greene v. McElroy, 360 U.S. 474 (1959) 22, 79-80
Griffin v. County School Board, 377 U.S. 218
(1964) 64, 65, 67
Griswold v. Connecticut, 381 U.S. 479 (1965) ............ passim
Hall v. Beals, 396 U.S. 45 (1969) 30
Harper v. Virginia Board of Elections, 383 U.S. 663
(1966) 61
Hawkins v. Town of Shaw, Mississippi, 437 F.2d 1286
(5th Cir. 1971) 62, 65
Hodgson v. Randall, 314 F. Supp. 32 (D. Minn. 1970)
aff’d mem., 402 U.S. —— (May 17, 1971) 29-30
Towa Nat'l Bank v. Stewart, 214 Iowa 1229, 232 N.W.
445 (1930) 34
Jacobson v. Massachusetts, 197 U.S. 11 (1904) ............ 43, 48
Kennan v. Nichol, —— F. Supp. ——, 71-C-118 (W.D.
Wis. Apr. 27, May 5, 6, 1971) 35
King v. Smith, 392 U.S. 309 (1968) 73
Lane v. Wilson, 307 U.S. 268 (1939) 66, 67
Long v. Robinson, 316 F. Supp. 22 (D.Md. 1970), aff’d,
436 F.2d 1116 (4th Cir. 1971) 65
Loving v. Commonwealth, 388 U.S. 1 (1967)
LSCRRC v. Wadmond, 401 U.S. 154 (1971) .................---
McCann v. Babbitz, 310 F. Supp. 293 (E.D. Wis. Mar.
5, 1970) (per curiam) appeal dismissed, 400 U.S. 1
(1970) (per curiam) Ss seoeaclllty SD
McCann v. Babbitz, 320 F. Supp. 219 (E.D. Wis. 1970)
(per curiam), vacated for consideration, 402 U.S.
903 (1971) 35
McCready v. Virginia, 94 U-S. 391 (1877) 95
Morey v. Doud, 354 U.S. 457 (1957) 46, 69, 84
Mullaney v. Anderson, 342 U.S. 415 (1952) .........--.c0-0- 95
NAACP v. Alabama, 357 U.S. 449 (1958) 20...........eceececeees 40
NAACP v. Button, 371 U.S. 415 (1963)
Norwalk CORE v. Norwalk Redevelopment Agency,
395 F.2d 920 (2d Cir. 1968)
Olmstead v. United States, 277 U.S. 438 (1928) ............ 44
Orr v. Thorp, 308 F. Supp. 1369 (S.D. Fla. 1969) ............ 66
Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869) .......... 92-93
People v. Barksdale, —— Cal. App. 3d ——, —— Cal.
Rptr: ——, 1 Crim. 9526 (Calif. Dist. Ct. App. July
22, 1971) 90
Perez v. Ledesma, 401 U.S. 82 (1971) 36
Pierce v. Society of Sisters, 268 U.S. 510 (1925) ........ 24, 32,
33, 44
Poe v. Ullman, 367 U.S. 497 (1961) ................-.-- 30, 31, 32, 33
Rex v. Bourne [1938] 3 All Eng. Rep. 615 [1939] 1
K.B. 687 29
Reynolds v. Sims, 377 U.S. 583 (1964) ooo... 61, 65, 67
PAGE
Richards v. Townsend, 303 F. Supp. 793 (N.D. Calif.
1969) 66
Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970) (per
curiam), juris. postponed, 402 U.S. —— (May 3,
1971) (No. 70-18, 1971 Term) passim
Ruffalo, In Re, 390 U.S. 544 (1968) 79
Sams v. Ohio Valley General Hospital Ass’n, 413 F.2d
826 (4th Cir. 1969) 65
Schware v. Board of Bar Examiners, 353 U.S. 232
(1957) 38
Shapiro v. Thompson, 394 U.S. 618 (1969) ................ 46, 9%
Shuttlesworth v. City of Birmingham, 394 U.S. 147 |
(1969) 8
Skinner v. Oklahoma, 316 U.S. 535 (1942) ........ 43-44, 47.48
Slochower v. Board of Higher Education, 350 U.S. 551
(1956) am |
Smith v. Texas, 233 U.S. 630 (1914) .... 38
Sniadach v. Family Finance Corp., 395 U.S. 337 (1969) 79
Southern Pacific Terminal Co. v: ICC, 219 U.S. 498 .... 30
Stanley v. Georgia, 394 U.S. 557 (1969) 44
State v. Coleman, 46 N.J. 16, 214 A.2d 393 (1965) ........ 34
State v. Fowler, 193 N.C. 290, 136 S.E. 709 (1927) ........ 66
State v. Swegori, 318 Mo. 998, 2 S.W.2d 747 (1924) ........ 66
Steinberg v. Brown, 321 F. Supp. 741 (N.D. Ohio
1970) eoeeeeD0, 29
Swain v. Alabama, 380 U.S. 202 (1965) 61
Terrace v. Thompson, 263 U.S. 197 (1923) .................... 33
Terry v. Ohio, 392 U.S. 1 (1968) 43
22
Tileston v. Ullman, 318 U.S. 44 (1943) (per curiam) ....
Toomer v. Witsell, 334 U.S. 385 (1948) -...........--.0+-+-
Truax v. Raich, 239 U.S. 33 (1915) ;
Union Pac. Ry. v. Botsford, 141 U.S..250 (1891) ........ 43, 48
United Mine Workers v. Illinois State Bar, 389 U.S.
217 (1967) 40
United States v. Freund, 290 Fed. 411 (D. Mont. 1923) 39
United States v. O’Brien, 391 U.S. 367 (1968) ................ 41
United States v. Vuitch, 305 F. Supp. 1035 (D.D.C.
Nov. 10, 1969), modified and reversed, 402 U.S. 62
(1971) passim
United Transportation Union v. State Bar of Michigan,
401 U.S. 576 (1971) 40
United States ex rel. Dr. Jesse Williams, II v. Zelker,
— F.2d —, No. 35381 (2d Cir. July 2, 1971)
(Tom C, Clark, J a 24
United States ex rel. Lawrence v. Woods, 432 F.2d 1072
(7th Cir. 1970), cert. denied, 402 U.S. —— (May 17,
1971) 34
Valle v. Stengel, 176 F.2d 697 (3d Cir. 1949) ................ 94
Ward v. Maryland, 79 U.S. 418 (1870) 93
West Virginia Board of Education v. Barnette, 319
U.S. 624 (1943) 33
Willner v. Committee on Character and Fitness, 373
U.S. 96 (1963) 22
Yick Wo v. Hopkins, 118 U.S. 356 (1886) 48
Young v. United States, 315 U.S. 257 (1942) ................ 27
Younger v. Harris, 401 U.S. 37 (1971)
xiv
PAGE
Mepicat LITERATURE AND COMMENTARY:
Aarons, Therapeutic Abortion and the Psychiatrist,
124 Am. J. Psycuiatry 745 (1967) 75
Abortion, Proceedings of the American Medical Ass’n
House of Delegates 47 (June, 1970)
Am. J. Osst. & Gyn. 694 (1969)
Anderson & Speroff, Prostaglandins, 171 Sctence 502
(1971)
Appendectomy Profile, 1968, 7 PAS Reporter No. 16,
at 1-4 (Dec. 22, 1969)
Arey, L., DEVELOPMENTAL Anatomy (7th ed. 1965) ........
Baird, D., The Obstetrician and Society, 60 Am. J.
Pusuic Heattx 628 (1970)
Basic DocuMENTs OF THE WorL”D HeattH OrGANiza-
TION 1 (Geneva 1969 ed.) 42
Bourne, et al., Surveillance of Legal Abortions in the
United States, 1970 (Proceedings, 9th Annual Meet-
ing, American Ass’n of Planned Parenthood Physi-
cians, Kansas City, Mo., April 5-6, 1971) -.....0......... 31
Bumpass & Westoff, The “Perfect Contraceptive”
Population, 169 Science 1177 (1970) .................... 14, 18, 20
CaLDERONE, M. (ed.), ABORTION IN THE UNITED STATES
(1958) * 14, 56
Chase, Abortions to Out-of-State Residents (June 29,
1971) (Report released by the Health Services Ad-
o& 8 &8
ministration, City of New York) 15, 31, 61
Cholecystectomy Mortality, 8 PAS Reporter No. 8,
at 1 (Apr. 20, 1970) lt
CuaPEsaTILE, H., THe Doctors Mayo (1941) ................ 42, 90
PAGE
Crowley & Laidlaw, Psychiatric Opinion Regarding
Abortion: Preliminary Report of a Survey, 124
Am. J. Psycuiatry 145 (1967)
Curran, The Right to Health in National and Inter-
national Law, 284 New Ena. J. or Mepicrne 1258
(1971)
Davis, L. E., FenLowsxip or Surcrons: A History oF
THE AMERICAN CoLLEGE oF Surceons (1960) ...............-
Droegemueller, Taylor & Drose, The First Year of Ex-
perience in Colorado with the New Abortion Law, 103
Dryfoos, et al., Eighteen Months Later: Family Plan-
ning Services in the United States, 1969, 3 Famity
PLANNING Perspectives No. 2, at 29 (Apr. 1971) ........
Fisher, Criminal Abortion, in ABoRTION IN AMERICA
3-6 (H. Rosen-ed. 1967)
Forssman & Fhuwe, One Hundred and Twenty Children
Born After Application for Therapeutic Abortion
Refused, 42 Acta Psycuiatric Scanpinavia 71-88
(1966) reprinted in ABORTION AND THE UNWANTED
Cup 123 (C. Reiterman ed. 1971)
GesuarD, P., et al., PreaNancy, BirtH AND ABORTION
(1958)
Goldsmith & Margolis, Aspiration Abortion Without
Cervical Dilation, 110 Am. J. Osstetrics & GyNe-
cotocy 580 (1971)
Group FOR THE ADVANCEMENT OF PSYCHIATRY, THE
Ricut To Aportion: A Psycuiatric View (Comm. on
Law & Psychiatry, 1970)
Hall, Abortion in American Hospitals, 57 Am. J. Pus.
Heattu 1933 (1967)
56
42
81
19
14
14
87
57
PAGE
Hetiman, L., & Prircuarp, J.,. WiiLiams ORSTETRICS
(14th ed. 1971) 4, 9,
Huntingford, Mortality and Morbidity of Abortion,
Tue Lancet 1012 (May 15, 1971) 86
Hook, Refused Abortion, 37 Acta Psycuiat 203 (1961) 5%
Israel & Mazer, Safety and Advantage of Office
Curettage, 36 Am. J. Osstetrics & GynecoLocy 445
(1938) 88
Margolis & Overstreet, Legal Abortion Without Hospi-
talization, 36 Osstetrics & GynecoLocy 479 (1970) .... 8
Need For Subsidized Family Planning Services:
United States, Each State and County, 1968 Table I,
p. 92 (Office of Economic Opportunity, 1968) —.......... 19
Novak, E., et al., TextBook or GyNnecoLocy (8th ed.
1970) 16
Overstreet, Abortion and Obstetrics, in II Aportion In
A Cuanoina Worp 74 (R. Hall ed. 1970) -................... 55
PAS Hospitals, 8 PAS Reporter No. 1, at 1 (Jan. 12,
1970) 10, 11
Patten, B., Human Emsryowocy (3d ed. 1968) ............ 9
Peet, J., & Ports, M., Contraceptive Practice (1969) 17
Penfield, Abortion Under Paracervical Block, 71 N. Y.
Strate J. or Mepicine 1185 (1971) 87
Pike, Therapeutic Abortion and Mental Health, 111
Cauir. Mepicrnez, 318 (1969) 56,58
Potts, Posiconceptive Control of Fertility, 8 Intsr-
NATIONAL J. OF GynEcoLocy & OssTetrics 957 (1970)..8, 12
Regine, A Study of Pregnancy Wastage, 13 MiBank
Mem. Funp Quart. No. 4, at 347-65 (1935) -................. 14
xvii
PAGE
Rochat, et al., An Epidemiological Analysis of Abor-
tion in Georgia, 61 Am. J. Pusiic Heatto 543
(1971) 16, 60, 64, 71
Russell & Jackson, Therapeutic Abortions in Cali-
fornia, 105 Am. J. Osst. & Gyn. 757 (1969) ............-.-- 57
Ryan, Humane Abortion Laws and the Health Needs
of Society, 17 W. Res. L. Rev. 424 (1965) -....... 10, 58, 73
Scuwarz, R. H., Sepric Aportion (1968) ..............------ 15, 57
Speroff & Ramwell, Prostaglandins in Reproductive
Physiology, 107 Am. J. Oxssterrics & GYNECOLOGY
1111 (1970) 88
T é A Profile, 8 PAS Reporter No. 5 (Mar. 9, 1970) .... 11
Taussic, F., ABortion: SponTaNzous AND INDUCED
(1936) 14
Thompson, Cowen & Berris, Therapeutic Abortion:
A Two-Year Experience in One Hospital, 213 J. A.
Mepicat Ass’n. 991 (1970) 59
Tietze, Abortion Laws and Abortion Practices im
Europe, in V ADVANCES IN PLANNED PareNTHOOD 194
(1969) (Proceedings of the Seventh Annual Meeting
of the American Ass’n of Planned Parenthood
Physicians) 13, 71
Tietze, United States: Therapeutic Abortions, 1963-
1968, 59 Srupres 1s Famiiy Piawyine 5 (1970) -....passim
Tietze, et al., Teaching of Fertility Regulation im
Medical Schools, 196 J. AmMenican Mepicau Ass’n 20
(1966) 19
Walter, Psychologic and Emotional Consequences of
Elective Abortion, 36 Ossterrics & GyNnEcoLocy 482
(1970) 50
—
PAGE
White, Induced Abortions: A Survey of their Psychi-
atric Implications, Complications, and Indications,
24 Tex. Reps. or Biotocy & Mepicine 531 (1966) -...57, 58
Willson, Abortion—A Medical Responsibility?, 30 Os-
sTeTRIcs & GyNEcOLOGY 294 (1967) 51
Willson, e¢ al., OpstETRICS AND GyNEcoLOGY 178 (4th
ed. 1971) 7
LecaL COMMENTARY:
Bicxet, A., THE Least Dancerous Brancu (1962) ....32, 34
Clark, Religion, Morality, and Abortion: A Constitu-
tional Appraisal, 2 Loyota Univ. (L.A.) L. Rev. 1
(1969) passim
Comment, 50 Cauir. L. Rev. 137 (1962) 32
Declaratory Relief in the Criminal Law, Note, 80 Harv.
L. Rev. 1940 (1967) 32
Louisell, Abortion, the Practice of Medicine and the
Due Process of Law, 16 U.C.L.A.L. Rev. 233 (1969) 5
Louisell & Noonan, Constitutional Balance, in Tue
Moratity oF ABportTion 249 (Noonan ed. 1970) ......... a
Moyers, Abortion Laws: A Study in Social Change, 7
San Dreco L. Rev. 237 (1970) 59
Overstreet, in Sympostum—Pregnancy Termination:
The Impact of New Laws, 6 J. Repropuctive MeEpi-
cing 274 (June 1971) 77
Packer & Gampell, Therapeutic Abortion: A Problem
in Law and Medicine, 11 Stan. L. Rev. 417 (1959) _. 57 _
PAGE
Roemer, Abortion Law Reform and Repeal: Legislative
and Judicial Developments, 61 Am. J. Pustic
HeattH 500 (1971)
Schwartz, Moral Offenses and the Model Penal Code,
63 Cotum. L. Rev. 669 (1963)
Sedler, Standing to Assert Constitutional Jus Tertit,
71 Yate L.J. 599 (1962)
Smith, et al., Report to the Legislature: State of
Hawati—Hawaii’s Abortion Law 15 (Apr. 20, 1971)
Wis, G., THe Sanctity oF LIFE AND THE CRIMINAL
Law (1966)
OrHER AUTHORITIES:
Abortion Regulations Adopted by the Washington
State Board of Health (Dec. 10, 1970)
Accreditation Manual for Hospitals 1 (JCAH 1970) ..
Bulletin No. 42, JCAH (Aug. 1966)
Chase, Abortions to Out-of-State Residents (June 29,
1971) (Report by Health Services Administration,
City of New York)
Constitution of the World Health Organization, in
Basic DocUMENTS OF THE WorLD HEALTH ORGANIZA-
tion 1 (Geneva 1969 ed.)
Hospitals, 44 J. Am. Hosprrat Ass’n 1 (1970) (Guide
Issue)
Jain & Sinding, North Carolina Abortion Law 1967
(Carolina Population Center 1968)
91
91
59
PAGE
Mopezt Pena Cope §207.11, Comments (Tent. Draft
No. 9, 1959) 52, 81
Model Penal Code $230.3(2) (Proposed Official Draft,
1962) ; 14
Policy on Abortion, American College of Obstetricians
and Gynecologists (Aug. 1970) 52
Recommended Standards for Abortion Services
(APHA 1970) 89
Statement by John I. Brewer, M.D., Commissioner
JCAH (July 9, 1971) 82, 83
Untrorm Axsortion Act (2d Tent. Draft 1970) -.......52,8
1 U.S. Bureau of the Census, Census of Population
ch. a (1960) 62
U.S. Bureau of the Census: Statistical Abstracts of
the United States: 1970, Table 69, at 55 (91st ed.) ..10, 20
In THE
Supreme Court of the United States
No. 70-40, 1971 Term
<>
Mary Dog, e¢ al.,
Appellants,
—Y,—
ArtHour K. Botton, Attorney General
of the State of Georgia, e¢ al.,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
-_
BRIEF FOR THE AMERICAN COLLEGE OF OBSTETRICIANS
AND GYNECOLOGISTS, AMERICAN MEDICAL WOMEN’S
ASSOCIATION, AMERICAN PSYCHIATRIC ASSOCIATION,
NEW YORK ACADEMY OF MEDICINE, MEDICAL SCHOOL
DEANS AND PROFESSORS, AND CERTAIN INDIVIDUAL
PHYSICIANS AS AMICI CURIAE
Interest of Amici Curiae
The professional and personal interests of the Amici
Curiae in the subject matter of this case are described in
the Motion for leave to file this brief, supra.
Questions Presented
I. Whether the district court should have granted both
declaratory and injunctive relief to the class of physician
plaintiffs, to prevent continuing drastic and irreparable
2
injury caused by the statute in question, which sharply
curtails access to the medical procedure of induced abortion,
II. Whether the classifications in Georgia Criminal Code
§§26-1201, -1202(a)(1)-(3), -1202(b)(1)-(9), -1202(c), and
-1202(e), which differentiate the medical procedure of in.
duced abortion from all other forms of therapeutic and
elective health care, by:
[Aj confining the procedure to the limited number of
hospitals both accredited by the Joint Commission on
Accreditation of Hospitals [JCAH] and licensed as
hospitals by the Georgia State Board of Health; and
{B] requiring that the patient’s chosen physician obtain
the approval of (1) two additional examining physi-
cians, and (2) a hospital committee of three or more
physicians before performing a medical abortion;
and
(C] limiting the medical justifications for the procedure
to instances certified by all of the above physicians
wherein: (1) continuation of pregnancy would “en-
danger the life” of the woman, or “seriously and per-
manently injure her health,” or (2) “[t]he fetus
would very likely be born with a grave, permanent,
and irremedial mental or physical defect,” or (3)
“(t]he pregaancy resulted from forcible or statutory
rape;” and further
[D] restricting access to the medical procedure of in-
duced abortion to the single class of patients who
are “bona fide legal resident[s] of the State of
Georgia,” ,
violate the Equal Protection and Due Process clauses of the
Fourteenth Amendment by unjustifiably abridging the fun-
damental persongl rights to administer and seek medical
care.
>
:
:
3
Statute Involved
Georcia CriminaL Cope $§26-1201, through -1203, at 85-
89 (1969) provides:
26-1201. Criminal abortion.—Except as otherwise
provided in section 26-1202, a person commits criminal
abortion when he administers any medicine, drug or
other substance whatever to any woman or when he
uses any instrument or other means whatever upon any
woman with intent to produce a miscarriage or abor-
tion. |
26-1202. Exception.—(a) Section 26-1201 shall not
apply to an abortion performed by a physician duly li-
censed to practice medicine and surgery pursuant to
Chapter 84-9 or 84-12 of the Code of Georgia of 1933,
as amended, based upon his best clinical judgment that
an abortion is necessary because:
(1) A continuation of the pregnancy would endanger '
the life of the pregnant woman or would seriously and
permanently injure her health; or
(2) The fetus would very likely be born with a grave,
permanent, and irremedial mental or physical defect;
or
(3) The pregnancy resulted from forcible or statu-
tory rape.
(b) No abortion is authorized or shall be performed
under this section unless each of the following condi-
tions is met:
(1) The pregnant woman requesting the abortion
certifies in writing under oath and subject to the penal-
4
ties of false swearing to the physician who proposes to
perform the abortion that she is a bona fide legal resi-
dent of the State of Georgia.
(2) The physician certifies that he believes the
woman is a bona fide resident of this State and that
he has no information which should lead him to believe
otherwise.
(3) Such physician’s judgment is reduced to writing
and concurred in by at least two other physicians duly
licensed to practice medicine and surgery pursuant to
Chapter 84-9 of the Code of Georgia of 1933, as
amended, who certify in writing that based upon their
separate personal medical examinations of the preg-
nant woman, the abortion is, in their judgment, neces-
sary because of one or more of the reasons enumerated
above.
(4) Such abortion is performed in a hospital licensed
by the State Board of Health and accredited by the
Joint Commission on Accreditation of Hospitals.
(5) The performance of the abortion has been ap-
proved in advance by a committee of the medical staff
of the hospital in which the operation is to be per-
formed. This committee must be one established and
maintained in accordance with the standards promul-
gated by the Joint Commission on the Accreditation
of Hospitals, and its approval must be by a majority
vote of a membership of not less than three members of
the hospital’s staff ; the physician proposing to perform
the operation may not be counted as a member of the
committee for this purpose.
g
r——
5
(6) If the proposed abortion is considered necessary
because the woman has been raped, the woman makes a
written statement under oath, and subject to the penal-
ties of false swearing, of the date, time and place of the
rape and the name of the rapist, if known. There must
be attached to this statement a certified copy of any
report of the rape made by any law enforcement officer
or agency and a statement by the solicitor general of
the judicial circuit where the rape occurred or allegedly
occurred that, according to his best information, there
is probable cause to believe that the rape did occur.
(7) Such written opinions, statements, certificates,
and concurrences are maintained in the permanent files
of such hospital and are available at all reasonable
times to the solicitor general of the judicial circuit in
which the hospital is located.
(8) A copy of such written opinions, statements, cer-
tificates, and concurrences is filed with the Director of
the State Department of Public Health within 10 days
after such operation is performed.
(9) All written opinions, statements, certificates, and
concurrences filed and maintained pursuant to para-
‘graphs (7) and (8) of this subsection shall be con-
fidential records and shall not be made available for
public inspection at any time.
(ec) Any solicitor general of the judicial circuit in
which an abortion is to be performed under this sec-
tion, or any person who would be a relative of the
child within the second degree of consanguinity, may
petition the superior court of the county in which the
abortion is to be performed for a declaratory judgment
Se
6
whether the performance of such abortion would vio.
late any constitutional or other legal rights of the fetus,
Such solicitor general may also petition such court for
the purpose of taking issue with compliance with the re.
quirements of this section. The physician who pro-
poses to perform the abortion and the pregnant woman
shall be respondents. The petition shall be heard ex.
peditiously and if the court adjudges that such abor-
tion would violate "the constitutional or other legal
rights of the fetus, the court shall so declare and shall
restrain the physician from performing the abortion.
(d) If an abortion is performed in compliance with
this section, the death of the fetus shall not give rise to
any claim for wrongful death.
(e) Nothing in this section shall require a hospital to
admit any patient under the provisions hereof for the
purpose of performing an abortion, nor shall any hos-
pital be required to appoint a committee such as con-
templated under subsection (b) (5). A physician, or
any other person who is a member of or associated
with the staff of a Hospital, or any employee of a hos-
pital in which an abortion has been authorized, who
shall state in writing an objection to such abortion on
moral or religious grounds shall not be required to par-
ticipate in the medical procedures which will result in
the abortion, and the refusal of any such person to par-
ticipate therein shall not form the basis of any claim
for damages on account of such refusal or for any dis-
ciplinary or recriminatory action against such person.
26-1203. Punishment.—A person convicted of crimi-
nal abortion shall be punished by imprisonment for not
less than one nor more than 10 years.
>
S—X—-”7"
Statement of the Case
The specific facts which gave rise to this action and ap-
peal are fully set out in appellants’ brief. Amici will ac-
cordingly not repeat those matters, but will concentrate
instead upon the broader national impact of the Court’s
decision in this case, and background data which may aid the
Court in its deliberations.
L Medical Aspects of Abortion
The standard text on obstetrics and gynecology, co-
authored by the dean of American gynecology, now Deputy
Assistant Secretary for Population Affairs, HEW, Louis
M. Hellman, M.D., defines abortion, both spontaneous and
induced, as follows:
“Abortion is the termination of a pregnancy at any
time before the fetus Has attained a stage of via-
bility. Interpretations of the word ‘viability’ have
varied between fetal weights of 400g (about 20 weeks
of gestation) and 1,000 g (about 28 weeks of gestation)
.... Although our smallest surviving infant weighed
540 g at birth, survival even at 700 or 800 g is unusual.”
L. Hettman & J. Prircuarp, Wiuiams OsstTetrics 493
(14th ed. 1971).
The procedure of induced abortion differs from spon-
taneous not in the result, nor in the underlying reason for
the abortion but primarily in its being conscious and voli-
tional. For example, a patient infected with rubella (Ger-
man measles) may abort spontaneously, because her body
rejects a badly damaged embryo. Another similarly situ-
ated patient may ‘seek an induced abortion as part of a
reasoned mental judgment in order to reject a damaged
embryo in favor of a subsequent normal pregnancy. From
.
8
this perspective, “spontaneous abortion can be regarded:
as an important biologic mechanism which has evolved in
viviparous animals to deal with the numerous embryologic
errors arising during development.” Potts, Postconceptive
Control of Fertility, 8 InrTERNATIONAL J. oF GYNECOLOGY &
Osstetrics 957 (1970).
Spontaneous abortions cannot be brought about, under
current technology, solely by the will of the patient. Yet,
the bio-chemical systems of patients play an increasing
role in what had previously been regarded as an accidental
phenomenon. One recent study of spontaneously aborted
embryos showed that 38% “had a chromosomal abnor.
mality.” Carr, Chromosome Studies in Selected Spon.
taneous Abortions, 37 Osstetrics & GynEcoLocy 750 (1971),
Not only do fetal defects frequently cause spontaneous
abortion, but numerous other causes beyond the patient’s
control, and often working in her favor, appear to be
involved. In fact, “[w]hen pregnancy is defined as
beginning at fertilization or implantation, then the rate of
spontaneous wastage is even higher and may approach
50%.” Potts, supra.
No law requires that a patient seek or a physician pro-
vide treatment to prevent spontaneous abortion. Neither
nature nor the law values an embryo which the patient's
bio-chemical system rejects. In such cases the needs of
the patient, and the treatment provided by the physician
are committed by law in every state to the discretion of
the physician and patient, and accepted medical practice.
No hospital committees interfere with this relationship; no
government programs seek to promote confinement and
treatment in cases of threatened spontaneous abortion.
Indeed, spontaneous abortions before the fourth week of
pregnancy are “perceived by the patient as delayed men-
9
struation or may not be recognized at all.” L. Hettman &
J. Prrrcnarp, Wituiams Opsstetrics 496 (14th ed. 1971).
This is perhaps the case because in early pregnancy, when
the overwhelming number of all abortions take place,
embryonic development has scarcely begun. “The 4 weeks
old embryo measures 5 mm. [1/5 in.]. ...” Shettles,
) Fertilization and Early Development From the Inner Cell
Mass, in Screntiric Founpations oF OBSTETRICS AND
GynecoLocy 154 (KE. E. Philipp, e¢ al., eds. 1970). As noted
in standard embryology texts,
“during these early stages, the development of all mam-
mals is fundamentally the same. The specific char-
acteristics of any form emerge but slowly, and rela-
tively late.... The illustrations of sections of 5-mm
human embryos are quite applicable, for example, to
similarly located sections of 5-mm pig embryos. The
basic plan of early body structure is amazingly simi-
lar.” B. Parren, Human Emsryowoey 5 (3d ed. 1968).
The 5-mm embryo, for example, still has “a conspicuous
tail... .” L. Arey, DEvELOopMENTAL ANaToMy 98 (7th ed.
1965) (italics in original).
Neither the medical profession nor state health au-
thorities treat spontaneous or induced abortions prior to
20 weeks of development as events which in any way are
comparable to the loss of human life. As one prominent
physician recently stated:
“To the medical profession operating within its
present framework, the conceptus, prior to twenty
weeks of age, does not have the same legal status as
one after that time. Should there. be an untimely
birth before twenty weeks, the act is considered an
abortion, not a delivery, and is not listed on the
10
mother’s parity record. A birth or death certificate is
not required and the body is handled as a pathological
specimen without requiring legal interment.” Ryan,
Humane Abortion Laws and the Health Needs of
Society, 17 W. Res. L. Rev. 424, 427 (1965).
Induced abortion, in medical practice, is a relatively
minor surgical procedure, insofar as risks to the patient’s
physical or mental well-being are concerned. This excep.
tional safety consideration was noted by Dr. John McKel-
vey, former head of obstetrics and gynecology at the Uni-
versity of Minnesota:
“Under ideal circumstances, abortions can be done
with very little vital risk. The procedures which are
open to the poor on the contrary can be very risky
not only to the life of the individual but to her future
health.” McKelvey, The Abortion Problem, 50 Muxx.
Mep. 119, 124 (1967).
The degree of safety can be readily seen by comparing
patient mortality rates for induced abortion with those of
childbirth and other typical medical procedures.
The maternal mortality rate in the United States for
1967 averaged 28.0 deaths per 100,000 live births. For non-
whites the rate was almost three times as high, 69.5 deaths
per 100,000 live births. The comparable mortality rates
for various surgical procedures in the United States, per
100,000 operations, have been as follows:* Appendectomy'
?U.8. Bureau of the Census: Statistical Abstracts of the United
States: 1970, Table 69, at 55 (91st ed.).
* The data are derived from surveys by the Commission on Pr-
fessional and Hospital Activities, in Ann Arbor, Michigan, which
are published in the Professional Activities Survey (PAS) Re
11
—A400 per 100,000; Cholecystectomy‘ (gall bladder opera-
tion)—1,600 per 100,000; Tonsillectomy/adenoidectomy'—
5.2 per 100,000. ,
In the years 1963 to 1968, therapeutic abortions were
unavailable in the United States on any large scale. Most
patients had to show serious physical or mental disease
to obtain the procedure. Of the 9,722 therapeutic abortions
in the 1963-68 survey by the Commission on Professional
and Hospital Activities only a single death “unequivocally
resulted from the operation.”* This death represents
the equivalent of a mortality rate of 10.3 per 100,000
therapeutic abortions. Even this figure is misleadingly
high in that the abortion was induced by an abdominal
operation (hysterotomy) which poses substantial hazards
of its own. Nonetheless, a 10.3 rate is 2.7 times safer than
childbirth, 38.8 times safer than appendectomy, and 155
times safer than cholecystectomy, all other factors being
equal.
A more correct estimation of the surgical risks from
induced abortion can be made by examining the induced
abortion mortality rates from other jurisdictions, in which
abortion is available as an elective procedure in cases of
contraceptive failure.
porter. Over 1,200 hospitals provide the Commission with data
for more than 10 million patients per year. See PAS Hospitals, 8
PAS Reporter No. 1, at 1 (Jan. 12, 1970).
*Appendectomy Profile, 1968, 7 PAS Reporter No. 16, at 1-4
(Dee. 22, 1969).
- me Mortality, 8 PAS Reporrer No. 8, at 1 (Apr.
*T & A Profile, 8 PAS Reporter No: 5 (Mar. 9, 1970).
*Tietze, United States: Therapeutic Abortions, 1963-1968, 59
Srupies iv Famiy PLannine 5, 7 (1970).
12
In England and Wales, which only recently reformed
their 1803 abortion law, the 1968-1969 data showed g
total of 15 deaths from 54,000 legal abortions, a rate of
28.0 per 100,000.’ This included, however, “the many
surgeons within the N.H.S. [National Health Service]
who perform a few abortions each [and] have had a higher
death rate (36/100,000) than the few surgeons who do
many abortions in private practice (14.2/100,000).”*
Again, the British data do not begin to demonstrate the
safety of elective abortion in a sample wherein the
patients are healthy, the medical practitioners skilled, and
the procedures undertaken in very early pregnancy. This
circumstance, moreover, does not exist even in northem
Europe “where rates of about 40 per 100,000 have been
reported in recent years.”* There, higher mortality rates
resulted in large part from “the fact that a substantial
proportion of legal abortions is performed after the third
month of gestation.”*® Only in eastern Europe, where
“almost all legal abortions are performed in the first
trimester of pregnancy with the majority in the second
month,” * have mortality rates fallen to as few as 1.2 per
100,000 operations (Hungary: 1964-67, 9 deaths, 739,00
legal abortions).
The extent to which elective induced abortion for healthy
women is enormously safer than childbirth and variou
* Potts, Postconceptive Control of Fertility, 8 INTERNATIONAL
J. oF GynEcoiogy & Osstetrics 957, 967 (1970).
* Td.
* Tietze, Abortion Laws and Abortion Practices in Europe, in
V ADVANCES IN PLANNED PARENTHOOD 194, 208 (1969) (Proceed-
ings of the Seventh Annual Meeting of the American Ass’n of
Planned Parenthood Physicians).
10 Td.
11 Td,
_ —
13
other medical procedures can be seen by tabulating the
figures given above:
MORTALITY
MEDICAL PROCEDURE OR EVENT (per 100,000 procedures)
Elective induced abortion
(Hungary : 1964-67) 1.2
Tonsillectomy (U. S.: PAS 1969) 5.2
Therapeutic induced abortion
(U. S.: 1963-68) 10.3
Childbirth (U. S.: 1967) 28.0
Appendectomy (U. S.: PAS 1968) 400
Cholecystectomy (U. S.: PAS 1968) 1,600
From these figures, it should be abundantly clear that a
state must carry a heavy burden of persuasion to classify
induced abortion apart from other medical procedures in
terms of any public health or safety considerations.
In sum, the medical procedure of induced abortion,
which is severely restricted by the statute involved in this
ease, is potentially 23.3 (28/1.2) times as safe as the
process of going through ordinary childbirth. Numerous
lower state and federal courts have reviewed or taken judi-
cial notice of the facts set out in holding that no legitimate
public health rationale could justify restrictive abortion
legislation. See, e.g., California v. Belous, 71 Cal.2d 954,
965, 458 P.2d 194, 200, 80 Cal. Rptr. 354, 360 (1969), cert.
denied, 397 U.S. 915 (1970); McCann v. Babbitz, 310 F.
Supp. 293, 301 (E.D. Wis.) (per curiam), appeal dis-
missed, 400 U.S. 1 (1970) (per curiam).
IL. Incidence of Medically Induced Abortion
In the United States on the whole, induced abortion under
medical auspices was relatively restricted until 1967, when
the first of twelve states, Colorado, enacted the American
14
Law Institute abortion law proposal in the Model Peng)
Code.” Georgia followed in 1968.
Only 5,000 therapeutic abortions were estimated to have
been done in United States medical facilities in 1963,” as
contrasted with 200,000 to 1,000,000 unwanted pregnancies
thought to be terminated annually outside of the clinica)
setting.’* These are over and above the “nearly 20 percent
of all recent births [which] were unwanted,” according to
the “1965 National Fertility Study (NFS) ....” Bumpass
& Westoff, The “Perfect Contraceptive” Population, 169
Science 1177, 1180 (1970).
Since 1967, the incidence of abortions in medical facilities
has risen substantially, but only in the few states which
have removed virtually all restrictions that previously dif.
ferentiated abortion from other forms of medical treat-
ment.
In New York City alone, for example, nearly 165,00
abortions were performed between July 1, 1970, and May
12 MopEL Pena Cope §230.3(2) (Proposed Official Draft, 1962).
The Twelve states are Arkansas, California, Colorado, Delaware,
Georgia, Kansas, Maryland, New Mexico, North Carolina, Oregon,
South Carolina, and Virginia. See generally Roemer, Abortion
Law Reform and Repeal: Legislative and Judicial Developments,
61 Am. J. Pustic Heats 500 (1971).
18 Tietze, supra note 6.
14 Secret induced abortions are inherently incapable of quan-
tification. Nonetheless, one can be certain that the number is very
high. For estimates, see Fisher, Criminal Abortion, in ABortion
in America 3-6 (H. Rosen ed. 1967); M. CaLDERONE (ed.), ABOR
TION IN THE UNrTED States 180 (1958) ; P. GeBHarp et al., Pree
NANCY, BirTH AND ABORTION 136-37 (1958) ; F. Taussic, ABORTION:
SPONTANEOUS AND INDUCED 25 (1936); Regine, A Study of Preg-
nancy Wastage, 13 Mi.pankK Mem. Funp Quart. No. 4, at 347-65
(1935).
—
15
31, 1971." Nearly 40,500 of these women were not residents
of New York State!**
Ill. Incidence and Sequelae of Nonmedical Abortion
The problem of abortions induced by nonmedical per-
sonnel, in circumstances conducive to infection, psychic
trauma, and not infrequently death, remains with the
medical profession in most other states, however.
“[S]eptic abortion has become a leading cause of ma-
ternal deaths. “In Philadelphia over 50 percent of the
maternal deaths result from complications of abortion,
and this fact apparently holds true in other areas of
the country: Stevenson reports 57 percent in Michi-
gan; Hellman, 33 percent at the Kings County Hospital
in Brooklyn; and Fox, 28 percent in California.” R.
Scuwarz, Septic Aportion 7 (1968).
The booklength treatment by Dr. Schwarz of the University
of Pennsylvania School of Medicine could never have been
written but for the legal restrictions on abortion. The
chapters describe in detail the medical techniques of treat-
ing patients who are refused abortion by physicians and
then resort to incompetent, nonmedical practitioners.
These patients often return for treatment of complications
that can be traced back to statutes such as that in question
in this case.
Georgia remains among the states with an exceptionally
low number of medical abortions. Despite an ostensibly
more generous statute, Georgia has a serious continuing
public health problem in illegal abortions induced by un-
5 Chase, Abortions to Out-of-State Residents (June 29, 1971)
(Report released by the Health Services Administration, City of
New York).
16 Id.
16
trained practitioners in dangerous settings. For the 1968
1970 period Georgia was last in number of abortions per
1,000 births among the twelve states with Model Penal
Code-type therapeutic abortion acts. In Georgia the ratio
was 4.0, by contrast with California where a similar law
resulted in 194.2 abortions per 1,000 births for 1970 (Sez
Aprenpix B, infra, Table I-2, at B-5, 6, for data on all
twelve states). Only “5 percent of the practicing physicians }
in Georgia reported performing abortions in 14 percent of —
Georgia’s counties during 1968 and 1969.” Rochat, et al.,
An Epidemiological Analysis of Abortion in Georgia, 61
Am. J. Pusiic Hearts 543, 547 (1971).
IV. Abortion and Contraception
A. Contraceptive Failure:
Significant contraceptive failure rates, and widespread
lack of information about contraception, are two of the
many factors which must be understood in assessing the
impact of abortion laws on families and individuals in
Georgia, and the United States.
A wealth of medical evidence shows that the factual
basis for this position is sound.
The most effective contraceptive known, “the pill” or
oral contraceptive, has in practice produced side effects
“disagreeable enough to cause a 20 to 40 per cent drop-out
rate” among those patients who were informed of and chose
to use the method in the first place. E. Novak, et al., Texr-
BOOK oF GynecoLocy 647 (8th ed. 1970). The vast propor-
tion of the population not receiving family planning ser-
vices never reach that option, of course. Other methods
are less effective in practice than the 99% effective oral
contraceptive. Jd. These range from the intrauterine de-
vices, which pose problems of their own and vary in
__ ——
17
effectiveness, to abstention and rhythm, which are not
seriously regarded by the medical profession in this cen-
tury.”
The following chart illustrates the contraceptive failure
problem :
Failure Rates of Contraceptive Methods
Pregnancy rates for
100 woman-yeare
of uses
Method Tigh Low
No contraceptive 80 80
Aerosol foam _ 29
Foam tablets 43 12
Suppositories | 42 4
Jelly or cream 38 4
Douche 41 21
Diaphragm and jelly 35 4
Sponge and foam powder 35 28
Condom 28 7
Coitus interruptus 38 10
Rhythm 38 0
Lactation 26 24
Steroid contraception
(the “pill”) 2.7 0
Abortion 0 0
Intrauterine contraception (averages)
Lippes loop (large)
0-12 months 2.4
12-24 months 1.4
source: After Berelson et al., Family Planning and Pop-
ulation Programs, University of Chicago Press, 1966.
7 For discussion of contraceptive-techniques, effectiveness, and
the full range of complex factors involved, see generally J. PEEL
& M. Ports, CONTRACEPTIVE Practice (1969).
%* The factor of patient use, or non-use is always relevant. Highly
motivated, sophisticated users might have no failure with a amr a
ceptive foam, for example.
18
The number 80 in the first line indicates that among 10
women utilizing no contraception for one year, 80 will
become pregnant.
B. Lack of Access to Contraception:
All too frequently it is presumed that people have access
to and are able to use highly effective contraceptives, and
are themselves at fault in cases of unwanted or unplanned
pregnancy. This assumption could not be further from
medical reality. Contraception is not widely available in
the United States. In fact, Congress passed the Family
Planning Services and Population Research Act of 1970,
Pub. L. No. 91-572 (Dec. 24, 1970), with an overall appro-
priation exceeding $380 million “to assist in making com-
prehensive voluntary family planning services readily
available to all persons. ...” National studies on the mag-
nitude of unwanted births, such as data from HEW’s 1965
National Fertility Study, for example, showed:
“[In] the period 1960 to 1965 there were 4.7 million
births that would have been prevented by ‘perfect con-
traception.’ These births represent one fifth of all
births during the period. Approximately two million
of these births occurred among the poor and the near-
poor and half of these among Negro poor and near-
poor.” *
The most recent studies identify as a principal problem
the absence of adequate information and services for peo-
ple with a need to know about contraception, and when
1* Bumpass & Westoff, The “Perfect Contraceptive” Population,
169 Scrmence 1177, 1179 (1970).
7"
19
that fails, medically induced abortion. As late as the close
of 1969,
“some 4.3 million women in need of subsidized family
planning services were not receiving them insofar as
could be determined from reports of organized pro-
grams; no programs at all could be identified in 1,636
counties—53 percent of all counties—containing one-
fourth of the unmet need. Services continue to be con-
centrated in relatively few populous counties. .. .”*°
The basic 1968 study covered each State by county. In
Georgia a total of 179,932 medically indigent women in
need of family planning information were shown to be
unseryed. This amounted to 88% of such women.” These
individuals can hardly be thought to be able to protect their
marital and personal privacy through contraception, when :
that is altogether unavailable to them.
This deficiency is not confined to patients. Only a few
short years ago, a review of texts used in medical sehools
revealed that “[t]wo thirds of the texts (25 texts) con-
tained either no mention of contraception or only isolated
reference to it, with no complete discussion.” Tietze, et al.,
Teaching of Fertility Regulation in Medical Schools, 196
J. American Mepicat Ass’n 20, 23 (1966).
Patients have limited access to contraceptive methods
and information. Physicians have limited willingness to
*Dryfoos, et al., Eighteen Months Later: Family Planning
Services in the United States, 1969, 3 Fami.y PLANNING PERSPEC-
nives No. 2, at 29 (Apr. 1971).
2 Need for Subsidized Family Planning Services: United States,
oo State and County, 1968, Table I, p. 50, cols. 10 & 11 (OEO,
1968).
20
prescribe contraception. As if this were not enough, con.
traceptive devices, techniques, and use are far from effee.
tive as a means whereby a family can determine how many
children they will have and no more.
While a narrow concern is occasionally voiced that
“those who dance must pay the piper,’”** such an ap.
proach to judicial reasoning obscures the medical and legal
issues. In the first place, studies of unwanted fertility,
such as Bumpass & Westoff, supra, were of samples of —
married couples. This study did not evaluate the fact that |
339,200 illegitimate births occurred in 1968, which at that —
time were 9.7% of all births.”
In or out of wedlock, unwanted pregnancy can haya
damaging consequences, not only for the married couple,
or unmarried woman, but more so for the society which —
must face and deal with anti-social behavior, delinquency,
an@ crime brought about to some degree by unwantedness,
A detailed study of 120 children who were born after their
mothers’ applications for therapeutic abortions had been
turned down in Sweden casts light upon the social conse.
quences of restrictive abortion laws.* Among the “un-
wanted” group, by their twenty-first birthday, 28.3% had
received psychiatric care, 18.3% had been registered with
child welfare boards for delinquency, 8.3% were on the
penal register, and 14.2% had received public assistance.
The authors concluded:
22 Steinberg v. Brown, 321 F. Supp. 741, 747 (N.D. Ohio 1970).
78.8. Bureau of the Census, Statistical Abstract of the United
States: 1970, Table 58, at 50 (91st ed.).
*4 Forssman & Thuwe, One Hundred and Twenty Children Born
After Application for Therapeutic Abortion Refused, 42 Act&
PsYcHIATRIC SCANDINAVIA 71-88 (1966), reprinted in ABORTION AND
THE UNWANTED CuHitp 129(C. Reiterman ed. 1971).
———— nem —
21
“(TJhe very fact a woman applies for legal abortion
means that the prospective child runs a risk of having
to surmount greater social and mental handicaps than
its peers, even when the grounds for the application
are so slight that it is refused.” *
Amici have presented the above analysis and data to
introduce the medical and social context of this case. The
data and conclusions which follow therefrom, are not in-
tended to suggest that this Court, or any judicial body,
ought to weigh policy matters to determine questions of
constitutional law. Only when it is claimed that a statute
interferes with a litigant’s fundamental personal rights, is
it incumbent upon the Court to inquire into the case. Such
an inquiry must ask the nature of the rights asserted,
whether such rights are implicit or express in constitu-
tional doctrine, and whether a legislative body might jus-
tifiably abridge the rights asserted. The very nature of
the rights in this case necessitates an understanding of
contrateption, abortion, and associated phenomena. The
response to possible legislative justifications similarly re-
quires an examination of medical and social facts. In the
threshold treatment above, and in the arguments which
follow, Amici will concentrate on particularly relevant
medical data thought to be necessary to the Court’s ulti-
mate determination of law.
5 Id. at 143,
22
ARGUMENT
JURISDICTION
I.
The District Court had jurisdiction to grant declara.
tory and injunctive relief to the class of physicians.
A. Physicians have standing to assert their own fundamental
personal rights, and those of the class of their patients
who seek medical advice and treatment, because enforce.
ment of the statute in question is almost solely against
physicians, the physicians’ interests are inextricably related
to those of their patients, and the rights of patients cannot
be adequately protected unless considered along with those
of physicians.
1. Standing of Physicians
The sub-class of physicians alleged throughout that the
statute in question directly curtailed their own interests
in providing adequate medical advice and treatment for
patients. These interests are aspects of “liberty,” “prop.
erty,” and association directly protected by the First and
Fourteenth Amendments. There can no longer be doubt
that the opportunity to pursue one’s profession is encom-
passed within the concepts of “liberty” and “property.”
This has been the teaching of decisions involving members
of and aspirants to the bar, Willner v. Committee on Char-
acter and Fitness, 373 U.S. 96, 102-03 (1963); teachers,
Slochower v. Board of Higher Educ., 350 U.S. 551 (1956);
scientists, Greene v. McElroy, 360 U.S. 474, 492 (1959);
and physicians as well, Birnbaum v. Trussell, 371 F.2d 672
(2d Cir. 1966).
The present case, therefore, is wholly unlike Tileston v.
Ullman, 318 U.S. 44 (1943) (per curiam). There a physi-
a
23
cian, who claimed no rights whatsoever of his own, sought
declaratory relief against a statute which prohibited pa-
tients from using contraceptives. Here, physicians are
drastically affected by direct enforcement provisions of
the challenged statute. Tileston, however, had made “no
allegations asserting any claim under the Fourteenth
Amendment of infringement of [his] liberty or his prop-
erty rights.” 318 U.S. at 44. It is abundantly clear that
the physician sub-class
“alleged such a personal stake in the outcome of the
controversy as to. assure that concrete adverseness
which sharpens the presentation of issues upon which
the court so largely depends for illumination of diffi-
-eult constitutional questions.” Baker v. Carr, 369 U.S.
186, 204 (1962), quoted in Flast v. Cohen, 392 U.S.
83, 99 (1968).
2. Physician’s Standing to Assert Patient’s Right to
Seek Medical Care
The physicians also invoked the rights of their pres-
ent, past, and prospective patients. A pregnant woman is
generally in no position to undertake protracted litigation
to establish her right to an abortion, and none has ever
been prosecuted. Neither a physician’s rights, nor those
of his patients, should depend upon the ability to find a
cooperative martyr, to be indicted as a principal.
This case, then, is a close parallel to Griswold v. Con-
necticut, 381 U.S. 479 (1965), because
“(t]he rights of [patients] are likely to be diluted or
adversely affected unless those rights are considered
in a suit involving [physicians] who have this kind
of confidential relationship to them.” 381 U.S. at 479,
24
Similarly, it has been held in abortion prosecutions that
the physician may assert his patient’s rights, a proposi-
tion which the lower court correctly accepted, and Cali.
fornia v. Belous* considered so self-evident as to justify
no more than a footnote. In fact, each federal and state
court decision in recent months has concluded, without
the need for extensive discussion, that physicians in both
declaratory and defensive actions have standing to assert
the rights of patients. E.g., United States ex rel. Dr. Jesse
Wiliams, II v. Zelker, —— F.2d ——, No. 35381 (2d Cir,
July 2, 1971) (Tom C. Clark, J.); Crossen v. Breckenridge,
—— F.2d ——, No. 20852 (6th Cir. June 23, 1971) (Miller,
J.). See also Truax v. Raich, 239 U.S. 33 (1915); Pierce
v. Society of Sisters, 268 U.S. 510 (1925); see generally
Sedler, Standing to Assert Constitutional Jus Tertii, 71
Yaue L.J. 599 (1962).
Physicians, in light of their direct involvement in the
day to day effects and enforcement of the statute, are situ-
ated in much the same way as the defendant-covenantor
in Barrows v. Jackson, 346 U.S. 249 (1953), because here
as there “it would be difficult if not impossible for the
persons whose rights are asserted to present their griev-
ances before any court.” 346 U.S. at 257. In any medical
context it is meaningless to speak of physicians without
patients and patients without physicians. In law it would
be equally meaningless to hold that a physician may not
rely upon her or his patients’ rights. —
2671 Cal.2d 954, 963 n. 5, 458 P.2d 194, 199, 80 Cal. Rptr. 354,
359 (1969) (“Dr. Belous’ standing to raise this right is unchal-
lenged.”), cert. denied, 397 U.S. 915 (1970).
a —_
25
B. The drastic regular and recurring impact of the statute
upon physicians and their patients poses a continuing case
or controversy, which is ripe for adjudication, because
physicians are deterred and hampered by the statute in
advising and treating their patients, and repeatedly com-
pelled to refuse to provide medical care out of a reason-
able fear of enforcement of the statute.
“There can be little doubt that fear of the law is a deter-
mining factor in the policy adopted by hospitals and sur-
geons, both in the United States and in Great Britain.”
G. Was, THE Sancrity or Lire AND THE Criminal Law
168 (1966). Medical professionals, commendably, do not
habitually flout laws in order to contest their validity. This
Court, and lower courts, should not force such anti-social
conduct by taking an unduly narrow view of the Article III
ease or controversy requirement, as was done by the lower
court. Nothing in Article III, prior decisions by this Court,
or considerations of judicial management remotely suggests
that a physician must flout a statute and risk fines, impris-
onment, and license revocation in order to challenge a law
which poses concrete cases and controversies in the physi-
cian’s office day after day.
The nature of the recurring case or controversy produced
by the challenged statute is understandable, specific, and
fully manageable within sound judicial procedures. Physi-
cians do not simply “ ‘feel inhibited’” by the restrictions
on reasons and procedures for medical abortions in Georgia.
See Younger v. Harris, 401 U.S. 37, 42 (1971). They are
inhibited in a very serious, plainly demonstrable, concrete,
and specific manner.
Georgia, and to a similar degree eleven other states, —
have singled out for criminal sanctions the medical pro-
cedure of abortion, separating it from all other procedures,
26
This in itself is ‘a threat to physicians whose patients over
a period of time may include hundreds who request abor.
tions for valid personal reasons not covered by the law,
Georgia has enacted a special criminal statute which a
physician must obey when processing applications for medi.
cal abortion. Otherwise he risks license revocation, fines,
and imprisonment. These sanctions do not exist for other
medical procedures.
While it is not incorrect to state that “whether a particn.
lar operation is necessary for a patient’s physical or mental
health is a judgment that physicians are obviously called
upon to make routinely whenever surgery is considered,”
United States v. Vuitch, 402 U.S. 62, 72 (1971), this
does not terminate what must be a more searching inquiry.
A decision reached between Scylla and Charybdis, or “under
the Sword of Damocles,” Doe v. Randall, 314 F. Supp. 32, 36
(D. Minn. 1970) (Neville, J., concurring), is qualitatively
different from one of proceeding with a routine appendec.
tomy.
Performance of even the most perilous surgery does not
require approval by three examining physicians and e
parte rehearing de novo before a special hospital commit
tee. More importantly, in no other sphere of medical prac-
tice could a physician perform a medical procedure be-
lieved to be in the patient’s best interests and requested by
the patient, complete the treatment with total satisfaction
to himself and the patient, and nonetheless face license revo-
cation and ten years in state prison, indeed ten years per
patient.
The difference between routinely evaluating the need for
requested surgery, and applying the Georgia law on medi-
cally-induced abortion, lies in the wide-ranging and irree-
27
oncilable points of view among physicians as to when a
patient “deserves” an abortion, the novelty of the law, the
severe penalty provision, and the unique impact upon the
physician-patient relationship of such laws.
Traditionally, the medical profession has been subject
only to generalized limitations upon the scope of patient
treatment. First, the physician must undertake necessary
training and secure by license the right to practice his pro-
fession. This license is general in terms, and removes the
physician from scrutiny by the criminal law in his treat-
ment of patients.” State medical licensing laws are uni-
formly upheld, as in Dent v. West Virginia, 129 U.S. 114
(1889). The rationale for limited legislative intervention
in the complex sphere of medicine is reasonable and not
difficult to discern. As stated by Mr. Justice Field in Dent:
“Few professions require more careful preparation
by one who seeks to enter it than that of medicine.
It has to deal with all those subtle and mysterious in-
fluences upon which life and health depend, and re-
quires not only a knowledge of the properties of vege-
table and mineral substances, but of the human body
in all its complicated parts, and their relationship to
each other, as well as their influence upon the mind.”
129 U.S. at 122.
Even with respect to the dispensing of hard narcotics,
legislatures have never sought to prescribe the patient’s
symptoms which justify treatment and those which do not,
much less to require treatment only in a particular type
of medical facility. In fact, Young v. United States, 315
U.S. 257- (1942), construed the Harrison Narcotic Act to
7 An obvious exception would be wanton and reckless mis-
conduct.
28
exempt altogether “physicians administering to patients
whom they personally attend.” 315 U.S. at 259. No inquiry
was to be made into the complexities of diagnosis and
treatment.
With respect to the medical abortion procedure, hoy.
ever, physicians could reasonably anticipate criminal and
administrative sanctions if they engaged in the ordinary
practice of medicine. Normally a physician only seeks con.
sultation for specialized problems. For abortions, he must
call in an additional two examining physicians, and present
his patient’s case to a three or more member hospital abor.
tion committee. With other surgery:he would simply sched-
ule the operating room for a given hour.
In ordinary medical practice, some procedures are done
in the physician’s clinic, some perhaps as a yolunteer in
a public free clinic, and others in a hospital, which may
or may not be accredited by the Joint Commission on
Accreditation of Hospitals [hereinafter JCAH]. With
respect to medical abortion, however, the JCAH-accredited
hospital is the sole institution authorized by Georgia law
to permit abortions. The law further permits hospital
owners to refuse to allow any abortions at all, regardless
of the types of other comparable surgery normally under-
taken there.
The low rate and maldistribution of medical abortions
in Georgia, the very fact that this lawsuit was joined m
by a physician subclass, and the severity of penalties which
a physician might incur by violating the statute or hospital
rules, are evidence of “a specific live grievance.” Golden
v. Zwickler, 394 U.S. 103, 110 (1969). While the lower court
did not find a case or controversy between the physician
subclass and state officials, that conclusion was unaccom-
29
panied by explanation. By contrast, federal courts in Wis-
consin,* Texas,” Colorado,” Llinois,* North Carolina,”
and Ohio™ have faced the same questions of pre-indictment
case or controversy, and ruled in the manner suggested by
Amict.
It is not the province of a physicians’ brief for Amici
Curiae to undertake a lengthy review of this Court’s de-
cisions in the ripeness and case or controversy field. As
Amici, physicians note, however, that prospective lawyers
are not required to be disbarred or refused admission to
the bar in order to contest statutes which affect the conduct
of law students. LSCRRC v. Wadmond, 401 U.S. 154, 158-
59 (1971). The teachers in Epperson v. Arkansas, 393
US. 97 (1968), and Baggett v. Bullitt, 377 U.S. 360 (1964),
did not face a court-imposed dilemma forcing them to flout
an anti-evolution stajgte in the Scopes tradition, or risk
entanglement in a perjury prosecution which might follow
the signing of a loyalty oath. The Scopes trial was an
exciting event. Abortion prosecutions are another matter
altogether. Only two physicians in Anglo-American history
have had sufficient courage to choose the latter route. See
Rex v. Bourne [1939] 1 K.B. 687; Hodgson v. Randall,
McCann v. Babbitz, 310 F. Supp. 293 (E.D. Wis.) (per
curiam), appeal dismissed, 400 U.S. 1 (1970) (per curiam).
2?Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970) (per
curiam), juris. postponed to merits, 402 U.S. —— (May 3, 1971)
(No. 70-18, 1971 Term).
% Doe v. Dunbar, 320 F. Supp. 1297 (D. Colo. 1970).
* Doe v. Scott, 321 F. Supp. 1385 (N.D. Ill), appeal docketed
sub nom. Hanrahan v. Doe, 39 U.S.L.W. 3438 (U.4 Mar. 29, 1971)
(No. 70-105, 1971 Term).
* Corkey v. Edwards, 322 F. Supp. 1248 (W.D.N.C.), appeal
ee “ie 40 U.S.L.W. 3048 (U.S. July 17, 1971) (No. 71-92, 1971
erm).
%8 Steinberg v. Brown, 321 F. Supp. 741 (N.D. Ohio 1970).
30
314 F. Supp. 32 (D. Minn. 1970), aff'd mem., 402 U.S. —
(May 17, 1971). In neither instance was the recurring eq.
flict between the physician’s duty to the patient, and th
physician-citizen’s obligation to obey the law, resolved by
defense of criminal charges.
Similarly, the drug companies in Abbott Laboratorie
v. Gardner, 387 U.S. 136 (1967), were permitted by this
Court to make a broad attack on labelling regulations pro.
mulgated by the Commissioner of Food and Drugs. Phy.
sicians, even more than drug companies, “deal in a sensitive
[profession], in which public confidence,” 387 U.S. at 153,
is especially important.
Indeed, even the earlier “ripeness” cases which found
no controversy support the presence of a sufficient degree
of justiciable adversity on the facts presented here.”
A bare majority in Poe v. Ullman, 367 U.S. 497 (1961),
for example, found no controversy over the unenforeed
Connecticut law against the use of contraceptives. Justice
Frankfurter’s plurality opinion relied upon four factors:
(1) a history of non-enforcement of the statutes against
physicians and patients. 367 U.S. at 501-02; (2) the fact
* The present action recalls the election cases where judicial
review was sought too late, but underlying issues would recur again
and again. As the Court stated in Moore v. Ogilvie, 394 U.S. 814,
816 (1969), “[t]he problem is . . . ‘capable of repetition,
ing review,’ Southern Pacific Terminal Co. v. ICC, 219 US.
498, 515. The need for its resolution thus reflects a continuing
controversy. ...” And so it is here. Physicians seek to challenge
the full ony Some on its face, and as applied in agi |
kinds of cases. The problem here is repeated on a scale far
— of recurring egg” end presidential elections. .
is not a case like Hall v. Beals, 396 U.S. 45 (1969) (per
curiam), where no continuing injury whatsoever was present.
is Brockington v. Rhodes, 396 U.S. 41 (1969) (per curiam), per-
tinent. There the relief sought was limited in nature and
impossible to grant by the passage of time.
31
that “contraceptives are commonly and notoriously sold in
Connecticut stores. Yet no prosecutions are recorded. .
367 U.S. at 502; (3) the absence of “real threat of ‘siteces:
ment,” 367 U.S. at 507; and (4) the failure to find “deter-
rent effect . . . grounded in a realistic fear of prosecution.”
367 U.S. at 508.
Each of these features is different in the present case,
and additional considerations make this case even more
appropriate for decision, on the merits.
(1) Physicians can easily document the fact that abor-
tion statutes are regularly enforced by criminal prosecu-
tions and license revocations. In addition, hospital com-
mittees in effect enforce the laws within their institutions.
Neither Poe nor Griswold indicated that hospital commit-
tees in Connecticut regulated the prescription of contra-
ceptives to patients.
(2) Abortions in Georgia’s hospitals are obviously not
“commonly and notoriously” available upon requést.
(3) There is more than “real threat of enforcement” of
Georgia’s abortion laws. There is frequent actual enforce-
ment at the administrative level of decision making.
Georgia residents from July to December, 1970, were
27th nationally in abortion-to-birth ratios. Approximately
67% were forced to leave the State for treatment. See
Aprenvix B, infra, Figure I-2, at B-7. From July 1, 1970 to
March 31, 1971, a total of 838 Georgia residents obtained
legal abortions in New York City. Chase, Abortions to Out-
of-State Residents (June 29, 1971) (report released by
Health Services Administration, City of New York).
The above analysis considers the Poe plurality opinion
in isolation and assumes the case was correctly decided.
32
However, Poe was handed down over persuasive dissents
by Justices Harlan and Douglas, and memorandum not.
tions of dissent from Justices Stewart and Black. Poe ha
been repeatedly criticized and suggestions made that it be
or was limited to its facts.” These criticisms largely derive
from the sentiment that no civilized legal system should
require an honest citizen to risk prison and disgrace to
test the constitutionality of a statute.”
Poe appears to be one of the exceedingly few decisions
which requires a litigant to invite and undergo criminal
prosecution. Ultimately, the physicians prevailed, seven.
to-two, four years later. Suppose they had not? The Poe
decision would have consigned them to accepting the pen.
alty. Other decisions, as Justices Harlan and Douglas
pointed out, dissenting in Poe, imposed no such Hobson's
choice.*’
Justice Harlan’s dissent in Poe undertook at length to
demonstrate that the majority was in substantial error.
367 U.S. at 522-39. The Justice placed chief reliance on
Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Tuas
v. Raich, 239 U.S. 33 (1915). Both permitted anticipatory
relief to avoid damage caused by the present effect of a
*5 See A. Bicken, THe Least Dancerous Brancu 143-55 (1962);
Note, 62 Cotum. L. Rev. 106 (1962) ; Comment, 50 Caui. L. Rav.
137 (1962). For an excellent general discussion of the “ripeness”
uestion in the context of criminal law, see Note, Declaratory
Relief én the Criminal Law, 80 Harv. L. Rev. 1490 (1967).
eA is the not infrequent condemnation of those who
flagrantly a law to test its validity.
*t After Thomas Hobson (1544-1631), of Cambridge, England,
who rented horses, but gave customers only the horse nearest the
door. Here the physician must.often choose between sending the
patient out the door, or being taken out himself by law enforcement
officers.
33
statute rather than imminence of enforcement. Signif-
icantly, in Pierce
“g Court which included Justices Holmes, Brandeis, and
Stone rejected a claim of prematureness and then
passed upon and held unconstitutional a state statute
whose sanctions were not even to become effective for
more than seventeen months after the time the case
was argued....” Poe v. Ullman, 367 U.S. 497, 538
(1961) (Harlan, J., dissenting).
See also West Virginia Board of EducatiSh v. Barnette, 319
U.S. 624 (1943) (students allowed to challenge possible
expulsions prior to actual dismissal, and prior to effective
date of rule which, if enforced, would have required expul-
sion); Terrace v. Thompson, 263 U.S. 197, 216 (1923)
(“They are not obliged to take the risk of prosecution,
fines and imprisonment and loss of property in order to
secure an adjudication of their rights”).
Moreover, Congress, in passing the Declaratory Judg-
ment Act, recognized the need to provide a federal antic-
ipatory remedy in lieu of defense to a criminal prosecu-
tion. A Senate Report reflected this specific concern:
“Jt is often necessary, in the absence of the declara-
tory judgment procedure, to violate or purport to vio-
late a statute in order to obtain a judicial determina-
tion of its meaning or validity.” S. Rep. No. 1005,
73d Cong., 2d Sess., at 2-3.
In the instant case, physicians positively refrain from
treating and advising patients for the reason that they
fear criminal prosecution, or administrative sanctions.
They are not uninterested citizens urging an academic
question, but are a class of citizens greatly affected
deterred by the challenged statutes. As Professor Bi
suggested, in a slightly different context, “it may be true
that by hypothesis no more suitable case can ever be cop.
structed, because those who are unjustifiably deterred will
never be prosecuted, and what deters them i is precisely the
prospect of litigation.” *
In light of the considerations set out above, the lower
court erred in dismissing claims of the physician subclass
for want of a case or controversy.
C. Injunctive relief was necessary to prevent inevitable grave
and immediate injury to physicians and their patients, be.
cause defense of criminal and/or administrative proceed.
ings in a single case could not eliminate the recurring con.
troversy, and the mere fact of such a state proceeding would
drastically invade the physician-patient relationship, as well
as exert an in terrorem effect upon the profession.
Amici, as physicians, can point to three substantial rea-
sons why the lower court should have issued an injunction
to enforce the extent of declaratory relief granted.
(1) First, the law is unclear on the extent to which state
law enforcement authorities are bound by federal declara-
tory judgments pending appeal. There is authority that
the Georgia courts would not have been bound by any
aspects of the lower court’s opinion, should officials have
determined to institute state court proceedings against a
physician. See United States ex rel. Lawrence v. Woods,
432 F.2d 1072. (7th Cir. 1970), cert. denied, 402 U.S. —
(May 17, 1971) ; State v. Coleman, 46 N.J. 16, 214 A.2d 393
(1965); Iowa Nat'l Bank v. Stewart; 214 Iowa 1229, 232
N.W. 445 (1930). Under such an interpretation, Georgia
8° A, BICKEL, THE Least DANGEROUS BRANCH 149-50 (1962).
a
authorities would have been free to proceed against any
physicians or hospitals that altered their practices.
, The suggested dilemma is not fanciful. Under similar
facts state officers in Wisconsin sought to ‘defy and cir-
cumvent judgments by federal courts in two different dis-
tricts of the state. See McCann v. Babbitz, 320 F. Supp.
919 (E.D. Wis. 1970) (per curiam), vacated for reconsid-
eration, 402 U.S. 903 (1971); Kennan v. Nichol, —— F.
Supp. —, 71-C-118 (W.D. Wis. Apr. 27, May 5, 6, 1971).
An injunctive order removes any doubt about the rights
of the respective parties, not only with respect to the
scope of permissible conduct, but also concerning which
party should appeal, and to what appellate court. The
parties in Wisconsin made one trip to this Court only to
learn that the attorney general had appealed to the wrong
forum, as had the physician. McCann v. Babbitz, 310 F.
Supp. 293 (E.D. Wis.) (per curiam), appeal dismissed,
400 U.S. 1 (1970) (per curiam).
(2) Where, as here, an injunction is needed to clarify
the effect of a declaratory judgment, the order serves to
avoid altogether the state-federal friction which might
otherwise ensue. In many respects a bare declaratory
judgment is an open invitation to state authorities to
ignore the federal court at their option. By contrast, an
injunction brings certainty and finality to the dispute, and
at least discourages state officials from threatening or
initiating any administrative or criminal proceedings or
investigations. More importantly, an injunction ab initio
obviates the possibility of a subsequent need to enjoin
state court judges and proceedings under one of the ex-
press exceptions to 28 U.S.C. 2283 (1964 ed.). In this
—
36
sense, the injunction at the outset is sensible preventive
medicine. »
(3) The third reason for initial injunctive relief is to
avoid the kind of grave irreparable injury which would
befall physicians and their patients should the declaratory
judgment be ignored at the administrative. or any other
level. There is no adequate remedy at law, or in the state
courts, for a woman who is compelled to continue a preg.
nancy against her will. What was not undone by contra.
ception, or by medical abortion in early pregnancy, or by
spontaneous abortion in many cases, cannot be recompensed
after birth. It is the unwilling mother Who must accept
the role of child-rearing for up to twenty years, not the
legislators, and not the judges of the lower court.
By the same token, defense of a single criminal charge
or license revocation proceeding would neither be an ade-
quate forum in which to resolve the “continuing contro
versy between [physicians] and the State . . . ,” Perez y,
Ledesma, 401 U.S. 82, 102 (1971) (Brennan, J., concurring),
nor an avenue that posed no threat of grave irreparable
injury. If Abbott Laboratories means anything, it is that
the mere fact of prosecution in a sensitive health-related
industry is presumed to have disastrous consequences.
Where, as in this case, the physicians present a straight-
forward legal issue, “the [statute] is directed at them in
particular; it requires them to make significant changes
in their everyday [professional] practices; if they fail to
observe the [statute] they are quite clearly exposed to the
imposition of strong sanctions,” 387 U.S. at 154, then in-
junctive relief is both necessary and proper. Even more 80
is this the case, when one recalls that Abbott Laboratories,
Inc., was a corporation asserting purely economic interests.
37
THE MERITS
Il.
The provisions in Georgia Criminal Code §§26-1201,
.1202(a) (1)-(3), -1202(b)(1)-(9), -1202(c), and
.1202(e), which differentiate the medical procedures
of therapeutic and elective induced abortion from all
other forms of health care, deprive physicians of the
_ fundamental personal right to administer to their pa-
tients, and patients of the right to seek medical care, in
violation of the Due Process and Equal Protection
clauses of the Fourteenth Amendment.
The statute in question undoubtedly restricts a physician
in the practice of his profession. It limits his right to exer-
cise his skills and apply his overall knowledge to the pa-
tient’s benefit. By the same token, the statute deprives the
patient of the right to seek health care in connection with
the medical procedure of induced abortion.
The magnitude of the restrictions imposed by statutes
such as the Model Penal Code-type abortion law is far
reaching. As the co-reporter to the Code observed in a
critical examination of its limitations, “[it] is not a ques-
tion of restricting the freedom of a few eccentrics to avoid «
inflicting great psychic injury on the bulk of the popula-
tion, but-of restricting the freedom of scores of millions
of citizens, having conflicting but equally respectable sensi-
bilities to be protected.” Schwartz, Morals Offenses, and
the Model Penal Code, 63 Corum. L. Rev. 669, 683 (1963).
The contention of Amici Curiae, in full support of the
Appellants in the case, is that the restrictions in the statute
——
40
as is necessary to preserve their health.” The Vuitch de-
cision went on-to construe the term health to encompass
“psychological as well as physical health,” and “ ‘the state
of being sound in body or mind.’” :
The present case also has First and Fourteenth Amend-
ment freedom of association implications, namely, the
right of the physician to provide medical information,
followed by treatment, for his patients, and the right of
the patient to receive same. The right of a competent
licensed physician to give medical advice can be charac-
terized as free expression alone, or when viewed as an
aspect of the physician-patient relationship, it becomes
part of the freedom of association between physician and
patient. The First Amendment has long been held to ac-
cord presumptive protection for the “freedom to associate
and privacy in one’s associations.” NAACP v. Alabama,
357 U.S. 449, 462 (1958). This has been the case with
the marital relationship,® and that of attorney and client.”
The relationship between physician and patient is no dif-
ferent; it promotes the fundamental purpose’ of maintain-
ing the health and well-being of the American people.
The advice aspect of medical practice is but one part of
claim, for medical treatment involving interruption of the
% See Griswold v. Connecticut, 381 U.S. 479, 486 (1965), de-
scribing the “marriage relationship” as
“an association that promotes a way of life, not causes; a har-
mony in living, not political faiths; a bilateral loyalty, not
commercial or social projects. Yet it is an association for as
noble a purpose as any involved in our prior decisions.”
*© See NAACP v. Button, 371 U.S. 415 (1963) ; Brotherhood of
Railway Trainmen v. Virginia, 377 U.S. 1 (1964); United Mine
Workers v. Illinois State Bar, 389 U.S. 217 (1967) ; United Trans-
portation Union v. State Bar of Michigan, 401 U.S. 576 (1971).
ss
41
unwanted pregnancy may be what the patient ultimately
requests, and the criminal statute proscribes.
“[WJhen ‘speech’ and ‘nonspeech’ elements are com-
bined in the same course of conduct, a sufficiently
important governmental interest ... must appear. ...”
United States v. O’Brien, 391 U.S. 367, 376 (1968).
The nature of this interest has been described by a
“variety of descriptive terms: compelling; substantial;
subordinating; paramount; cogent; strong.” 391 U.S. at
376-77 (citations omitted).
The interests of patients must also be considered before
examining the implementation of this law.
2. Patients Have a Fundamental Right to Seek Health Care
Which Includes the Treatment of Medical Abortion
United States v. Vuitch, 402 U.S. 62 (1971), took the
initial steps toward recognition of a right to seek medical
treatment as a fundamental personal right protected by the
Constitution. There this Court suggested a right of patients
to “such treatment as is necessary to preserve their health.”
While Vuitch had no need to hold, as a matter of con-
stitutional law, that the right of access to health care was
a fundamental personal right, such a holding in the pres-
ent case would be judicially ‘sound, and expressive of a
manageable judicial principle.
Some measure of the recognition which nations give to
the right of access to health care can be seen in the Con-
stitution of the World Health Organization:
“The enj.. ment of the highest attainable standard of
health is one of the fundamental rights of every human
being without distinction of race, religion, political
belief, economic or social condition.” *
Congress, in passing the Comprehensive Health Planning
Act of 1966, took a similar position:
“[T)he fulfillment of our national purpose depends on
promoting and assuring the highest level of health
attainable for every person, in an environment which
contributes positively to healthful individual and fam-
ily living... .”*
The text of the Constitution supports this position by
directly recognizing the rights to “life and liberty” in the
Fourteenth Amendment. The term “life,” in particular,
was used in the 19th century in the manner that “life and
health” are used today. As late as the 1880’s Sir Joseph
Lister’s surgical techniques were only beginning to be used
in the United States. “‘First Listerian operations’ were
still dotting the American surgical scene all through the
eighties.” H. Cuapesatrie, Tae Docrors Mayo 194 (1941).
Only after Listerism gained a firm position in American
surgery did non-emergency operations become feasible, not
simply as “a last desperate throw of the dice with death,
but a means of restoring health deliberately chosen in the
early, curable stages of disease.” Jd. at 269 (emphasis
added).
“1 Basic DocuMENTS OF THE WorRLD HEALTH ORGANIZATION 1
(Geneva 1969 ed.). See also Curran, The Right to Health in
National and International Law, 284 New Ena. J. or MEDICINE
1258 (1971).
* Public Law 89-749.
43
In addition to the decisions upholding rights associated
with access to health care (and marital privacy), an over-
lapping body of precedent extends significant constitutional
protection to the citizen’s sovereignty over his or her own
physical person.
As early as 1891 this Court stated:
“No right is more sacred, [nJor is more carefully
guarded .. . than the right of every individual to the
possession and control of his own person, free from
all restraint or interference of others unless by clear
and unquestionable authority of law. As well said by
Judge Cooley, ‘The right to one’s person may be said
to be a right of complete immunity: to be let alone.’ ”
Union Pac. Ry. v. Botsford, 141 U.S. 250, 251 (1891),
quoted in Terry v. Ohio, 392 U.S. 1, 8-9 (1968).
This right, like all rights, has limits, as illustrated by
Jacobson v. Massachusetts, 197 U.S. 11 (1904). There the
Court upheld a compulsory vaccination law, but only to
avoid “great dangers” and to protect “the safety of the
general public.” 197 U.S. at 29. The lengths to which
the Court went, however, to justify a shot in the arm,
point up the degree to which personal autonomy in health
matters is entitled to protection.
In family matters relating to child rearing and procre-
ation, the Court has recognized and sustained individual
rights on a constitutional plane. “The freedom to marry
... 5” Loving v. Commonwealth, 388 U.S. 1, 12 (1967) ;
“the right to have offspring,” Skinner v. Oklahoma, 316
‘8 Botsford involved government coercion in forcing a medical
examination.
S.
U.S. 535, 536 (1942) ; “the liberty of parents and guardians
to direct the upbringing and education of children under
their control,” Pierce v. Society of Sisters, 268 U.S. 510,
534-35 (1925); as well as the right, at least of a married
woman, to use contraceptives, Griswold v. Connecticut, 381
U.S. 479 (1965), are all protected constitutionally.
Most recently the Court reaffirmed the “fundamental
... Tight to be free, except in very limited circumstances,
from unwanted governmental intrusions into one’s pri-
vacy,” Stanley v. Georgia, 394 U.S. 557, 564 (1969)
(Marshall, J.), and embraced with approval Mr. Justice
Brandeis’ dissent in Olmstead v. United States:
44
“The makers of our Constitution undertook to secure
conditions favorable to the pursuit of happiness. They
recognized the significance of man’s spiritual nature,
of his feelings and of his intellect. They knew that
only a part of the pain, pleasure and satisfactions of
life are to be found in material things. They sought
to protect Americans in their beliefs, their thoughts,
their emotions ard their sensations. They conferred,
as against the Government, the right to be let alone—
the most comprehensive of rights and the right most
valued by civilized man.” 277 U.S. at 478.
Chief Justice, then Circuit Judge, Burger, in Application
of Georgetown College, Inc., 331 F.2d 1010, 1016-17 (D.C.
Cir.) (en banc), cert. denied, 377 U.S. 978 (1964), also
urged a right to be let alone, in the context of a religious
objection to blood transfusions, which could include “even
absurd ideas which do not conform, such as refusing medi-
cal treatment even at great risk.” 331 F.2d at 1017. If
refusing health care might be constitutionally protected,
oS an
45
surely the right to seek health care for sensible reasons
should enjoy equal or greater constitutional status.
Retired Justice Tom C. Clark has also suggested that
constitutional concepts should include control over family
planning beyond the stage of contraception. He wrote:
“fA]bortion falls within that sensitive area of privacy
_—the marital relation. One of the basic values of this
privacy is birth control, as evidenced by the Griswold
decision. Griswold’s act was found to prevent forma-
tion of the fetus. This, the Court found, was constitu-
tionally protected. If an individual may prevent con-
ception, why can he not nullify that conception when
prevention has failed?
B. The Equal Protection and Due Process clauses of the Four-
teenth Amendment require that restrictive classifications in
the challenged statute be narrowly drawn and supported
by compelling state interests, in order not to abridge funda-
mental personal rights.
Several basic considerations have been articulated for
the evaluation of competing interests in equal protection
cases. One, which applies in matters of unique local in-
terest involving taxes and business regulations, states:
“Under traditional equal protection principles, a
State retains broad discretion to classify as long as
its classification has a reasonable basis.” Blackmun, J.,
in Graham vy. Richardson, 402 U.S., ——, —— (June ¥
14, 1971).
-
“* Clark, Religion, Morality, and Abortion: A Constitutional
ef 2 Loyoxa Univ. (L.A.) L. Rev. 1, 9 (1969) [hereinafter
“Clark”}.
=e
46
However, a somewhat different technique is necessary
when a “suspect classification” appears or important fun-
damental personal rights are threatened. As stated with
respect to the fundamental personal right to travel in
Shapiro v. Thompson, 394 U.S. 618, 638 (1969) :
“(T]he traditional criteria do not apply in these cases,
Since the classification here touches upon [a] funda-
mental right . . . its constitutionality must be judged
by the stricter standard of whether it promotes a
compelling state interest.” (Emphasis by the Court.)
This is also the case with the “suspect classification”:
“The classifications . . . are inherently suspect and
are therefore subject to strict judicial scrutiny
whether or not a fundamental right is impaired.”
Graham v. Richardson, 402 U.S. ——, —— (June 14,
1971).
In all cases, moreover,
“a statutory discrimination must be based on differ-
ences that are reasonably related to the purposes of
the Act in which it is found.” Morey v. Doud, 354 US.
457, 465 (1957).
Stringent standards are more appropriate for the pres-
ent case. These standards apply because the Georgia
statute does more, far more, than regulate the medical
procedure of abortion in the same way it might regulate
some other medical practice, i.e., by requiring that all
clinics or hospitals obtain State licensure, or that all
physicians obtain a license to practice.
The Georgia Therapeutic Abortion Act touches heavily
upon the fundamental rights of physicians and patients.
-—
Its classifications specify State-imposed “conditions” which
a private physician and patient must satisfy to avoid
criminal responsibility.
47
These “conditions” have no parallel in other medical
procedures. They abridge the fundamental rights of some
individuals by altogether prohibiting abortions for them,
i.e. women whose physical or mental health would be
“seriously,” but not “permanently” impaired by con-
tinuation of pregnancy, or “healthy” women who had
contraceptive failure. The classifications make abortions
exceedingly difficult for others to obtain, 7.e., those women
in areas of Georgia where the only accredited hospitals
refuse to do any abortions, or those who lack the finan-
cial resources to obtain psychiatric certification and cover
hospitalization costs (barriers erected not by the patient,
but by the State). Because of the statute’s impact on
fundamental rights, its classifications cannot stand unless
supported by “a countervailing state interest of overriding
significance.” Boddie v. Connecticut, 401 U.S. 371, 377
(1971). Also, if any such compelling State interest is
promoted by a classification, the class must not be unnec-
| essarily restrictive. “‘Precision of regulation must be the
touchstone in an area so closely touching our most pre-
cious freedoms.’” Griswold v. Connecticut, 381 U.S. 479,
497, 498 (1965) (Atm iste Goldberg, concurring).
Here, a reading of the statute shows suspect classifica-
tions which impinge upon the marital relationship, as af-
fected by the timing and spacing of children, cf. Griswold
v. Connecticut, 381 U.S. 479 (1965); the personal interest
in access to medical care, cf. United States v. Vuitch, 402
U.S. 62 (1971); the “human right” [not] “to have off-
spring,” cf. Skinner v. Oklahoma, 316 U.S. 535, 536 (1942) ;
48
and the right announced as early as 1891 by Mr. Justice
Gray (within limits) “to the control and possession of his
{or her] own person, free from all restraint or interference
of others, unless by clear and unquestionable authority of
law.” Union Pac. Ry. v. Botsford, 141 U.S. 250, 251 (1891).
As to the latter, this Court only upheld the compulsory
vaccination laws to avoid “great dangers” and to protect
“the safety of the general public.” Jacobson vy. Massa-
chusetts, 197 U.S. 11, 29 (1904) (Harlan, J.).
The stringent standards of review apply not only to
the arbitrary features of the statute which appear on its
face, but also to applications and effects of the statute
which come about in practice.
C. The Georgia law on medical abortion, and similar laws in
eleven other states, restrict access to this medical pro-
cedure in a manner which offends the Equal Protection
clause of the Fourteenth Amendment.
It is settled that a law “applied and administered by
public authority with an evil eye and an unequal hand,
so as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to their
rights [constitutes] the denial of equal justice... .”
Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (Mat.
thews, J.). In several respects, the administration of the
statute in question has created a patchwork of invidious
discriminations.
49
1. The “Health” Clause Is Interpreted Differently in Every
State, Community, and Hospital, and Has Been Dem-
onstrated to Be Without a Reasonably Specific Meaning
Georgia’s restriction on reasons for medical abortion,
in words, is not so strict as the typical statute remaining
in thirty jurisdictions. The standard pre-1967 prohibition
forbade a woman to obtain an abortion “unless the same
is necessary to preserve her life, or that of the child
whereof she is pregnant... .” 40A Minn. Strat. Ann.
§617.19, at 286 (1964); accord, 2A Texas Penau Cope art.
1196, at 436 (1961). That is, a pregnancy may wreck a
woman’s physical health, create insuperable psychiatric
difficulties, and leave her bedridden in Minnesota and
Texas, but the laws require that she accept this burden,
unless she aborts spontaneously.
In Georgia the burden is almost as severe. The woman
and her physician must conclude that continued pregnancy
would “seriously and permanently injure her health... .”
Ga. Crim. Cope $26-1202(a) (1), at 85 (1969). If pregnancy
seriously injures her health, that'is not enough. If preg-
nancy permanently injures her health, that too is insuffi-
cient. Like the Eighth Amendment, the statute is in the
conjunctive, not the disjunctive. For actual wording of
the “health” justifications in the other eleven similar states,
. see Appenpix B, infra, Table I-1, at B-1.
To some physicians and laymen, “health” means “physi-
eal survival.” Permanent and serious injuries to “health”
to them may mean inevitable lifetime inyalidism, and noth-
ing less.
To other physicians and laymen, “health” means “a state
of complete physical, mental and social well-being and not
merely the absence of disease or infirmity.” Constitution
50
of the World Health Organization, in Bastc Documents
or THE WorLp HeattH Orcanization 1 (Geneva 1969 ed.),
A “physically healthy” woman with no classic “mental
health” problems such as neurosis, may nonetheless be-
come a victim of rape or contraceptive failure, and find
that termination of the pregnancy would enhance some
additional category of her “mental health.” Indeed, “for
the healthy woman with a happy marriage, abortion ig
most often truly therapeutic.” Walter, Psychologic and
Emotional Consequences of Elective Abortion, 36 Oxsrer-
rics & Gynecotoay 482, 487 (1970).
It is not so much what “health” can mean, as the way
such a term is used, whether as a reason for undertaking
surgery, or a reason for declining to do so. With ordinary
elective surgery, a physician seeks “health” reasons why
the procedure should be done, i.e., “indications,” as well
as “health” reasons why it should not, 1ie., “contra-
indications.” The two avenues of inquiry, moreover, may
not at all overlap and may be altogether unrelated. For
example, cosmetic surgery may be indicated as necessary
to alleviate irrational self-doubt. However, the procedure
may be contra-indicated in an unusual case by likelihood
of uncontrollable blood loss.
If valid “indications” for a procedure are found, and
these are not overcome by “contra-indications,” the surgeon
proceeds. The trouble with abortion statutes is that they
reveal an understandable, but nonetheless substantial ig-
norance of how medicine is practiced. As much could be
expected if physicians drafted statutes stipulating how
attorneys should practice law. Attorneys would be required
to do “justice” to their clients, particularly physician-
clients, and failure to do so would result in ten years’
imprisonment.
51
The practice of medicine is no more standardized than
the practice of law. An instrument as blunt as the criminal
law cannot begin to define and regulate “those subtle
and mysterious influences upon which life and health
depend... .” Dent v. West Virginia, 129 U.S. 114, 122
(1889).
Physicians differ widely in their evaluation of indica-
tions and contra-indications for medical abortion, prob-
ably more so than in any field of practice. Rather than
avoiding abortion practice altogether, however, physicians
with narrow concepts of indications remain on hospital
committees and other bodies which affect or control the
interpretation of abortion laws.”
A lawyer or judge, after reading the statute, can examine
the medical literature to assess how the statute affects med-
ical practice, and whether its implementation is arbitrary
or discriminatory. The literature presents an unending
array of scholarly medical analysis with careful explana-
tions of how arbitrary, indefinite, and standardless abortion
laws have been.
Retired Justice Tom C. Clark set a commendable medico-
legal example in his full treatment of the very question pre-
sented in this section. According to Justice Clark:
“The increasing number of abortions subjects physi-
cians to increased dangers of liability for incorrectly
interpreting a statute .... [DJoctors face an uncer-
tain fate when performing an abortion. This uncer-
45 Amicus Dr. J. Robert Willson, a former president of the Amer-
ican College of Obstetricians, spoke volumes when he stated: “After
all, legal abortion is controlled by individual hospitals, not by the
atate capitol.” Abortion—A Medical Responsibility?, 30 Oxnstet-
rics & GyNEcoLoey 294, 302 (1967).
52
tainty will continue unless the legislatures’ or courts
provide relief from liability.” *
Indeed, the commentators for the Model Penal Code pro-
vision on abortion, which in essence is under attack in this
case, foresaw that “[p]sychiatric justifications for abortion
are harder to classify and verify, and psychiatrists them-
selves have expressed concern at the shadowy line between
medical and social justification.” MopeL Prenat Cong
$207.11, Comments, at 153 (Tent. Draft No. 9, 1959). The
ALL had “no body of experience,” id. at 156, with reform
abortion laws at that time and took no position on the need
for further modifications of the Code. It appears that the
A.L.I. has since been inactive on this ‘subject.
The “body of experience” over the period from 1959 to
date has been catalogued in the medical journals with in-
creasing frequency and in growing volume. In response,
both the American Medical Association*’ and the American
College of Obstetricians and Gynecologists“ have found
Model Penal Code-type policies on abortion to be unwork-
able. In 1970 both organizations abandoned their previous
Code-type approach for policies permitting the physician
to consider the patient’s entire family setting (without fear
of reprimand for defining “health” more generously than
his department chairman). Similarly, in 1970, the Second
Tentative Draft of the Unirorm Asortion Act eliminated
previous listings of “health” reasons for abortion.*®
** Clark, supra note 44, at 7.
*? Abortion, Proceedings of the American Medical Ass’n House
of Delegates 47 (June, 1970) ; see 213 J. AMERiIcAN MEDIcaL Ass’N
1242 (1970).
“8 Policy on Abortion, American Céllege of Obstetricians and
- Gynecologists (Aug. 1970) ; Appendix A, infra, at A-1.
«© Unirorm AporTion Act (2d Tent. Draft, Aug. 1970).
53
One facet of experience has been to understand that con-
cepts such as “health,” “physical health,” “mental health,”
“social conditions,” and “patient’s environment,” are flex-
ible abstract constructs, -not a part of measurable scientific
matter. Not one or two factors enter into a physician’s
judgment in assessing the “health” justifications for a med-
ical abortion, but many ; indeed, more than could be resolved
in ten exercises of a state law remedy in state courts. Some
of the questions which are not illuminated by the language
and history of the Georgia statute are as follows:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
To what extent, if any, may “mental health” factors
be considered?
If only “physical health” factors are permissible,
what kinds of physical injuries are contemplated by
the statute?
Are the dangers of physical injury brought on by
mental response to unwanted pregnancy, %.e., at-
tempted suicide, self-mutilation, resort to quack or
self-abortion, sufficient under the law?
Must the pending physical injury be from a pre-
existing condition directly associated with the repro-
ductive organs?
If “mental health” factors are cognizable, must these
be diagnosed by one or more psychiatric specialists,
or is the private physician enough?
To what extent, if any, may the two extra examining
physicians rely upon the private physician’s evalua-
tion, as contrasted with their independent findings?
By the same token, to what degree must the hospital
committee conduct an independent evaluation?
54
(8) Is a history or pre-existing mental illness with con-
finement in an institution necessary?
(9) Is any history of prior psychological difficulty neces.
sary? .
These are not fine-spun, legalistic distinctions. The ex-
amples are taken from the lengthy medical literature on
difficulties of administering the twelve A.L.I.-style abortion
laws.
Illustrations from principal medical authorities and texte
show that hospitals, their committees, department heads,
and individual physicians interpret this type of statute in
an impermissibly fluctuating manner. The consequence has
been arbitrary and discriminatory implementation of ac.
cess to this medical procedure.
Louis M. Hellman, M.D., co-author of the definitive text
on obstetrics and gynecology, reviewed the recent experi-
ence as follows:
“Because concepts are changing rapidly, the definition
of therapeutic abortion laeks precision. The word
‘health’ in particular is variously interpreted. . . .
In a time of rapidly changing laws, concepts, and
mores, therapeutic abortion cannot be defined nor can
the listing of its indications carry any degree of ac-
eee?
curacy or permanence.
The reform of abortion laws along the guidelines
drawn by the American Law Institute has not worked
well. Although the number of abortions has increased
markedly, the poor still find it difficult to obtain abor-
tions even in situations of obvious merit.” L. HELLMaN
55
& J. Prircnarp, Wituiams Osstetrics 1085, 1087 (14th
ed. 1971).
The then-Chairman of the Department of Obstetrics and
Gynecology at the University of California School of Medi-
cine, San Francisco, Edmund W. Overstreet, M.D., related
a similar experience under the California therapeutic abor-
tion law, which also is of the Model Penal Code variety:
“[P]sychiatrists will vary greatly in their diagnosis of
mental illness and the nonpsychiatric physician finds
it even more difficult to decide whether or not a patient
has mental illness to the point of [legally, not medi-
cally] justifying therapeutic abortion. . . .
“(T]he adjudication of therapeutic abortion, especially
the mental illness area (and that is 88 per cent of our
cases at the present time), is uneven, inequitable, and
discriminatory. No one is happy about it in California.
No satisfactory guidelines are developing as to how
approach candidates for therapeutic abortion. Several
studies going on now in California, and some of the
Swedish results, suggest that forcing a woman to carry
an unwanted pregnancy to term against her will always
. impairs her mental health.” Overstreet, Abortion and
Obstetrics (Panel), in II Asortion 1n A CHANGING
Wortp 74-75 (R. Hall ed. 1970).
The intimation by Dr. Overstreet that deeply unwanted
pregnancy per se in a “physically” healthy woman might
impair her “mental” health has become the focal point of
further studies which verify his suggestion. Today, much
of the medical literature recognizes “the undeniable effects
of sociological factors on an individual’s mental health,”
—_——
56
Pike, Therapeutic Abortion and Mental Health, 111 Carr,
MepicinE 318, 319 (1969). See generally Hook, Refused
Abortion, 37 Acta Psycuiat 203 (1961).
Nonetheless, in this area of medicine, the physician.
patient relationship is non-existent at the hospital commit-
tee level. There a woman may find her application blocked
by a physician she has never seen who is “convinced that
women have a need to give birth and urge[s] that there be
no interference with their doing so.” Crowley & Laidlaw,
Psychiatric Opinion Regarding Abortion: Preliminary Re-
port of a Survey, 124 Am. J. Psycuiatry 145, 147 (1967).
It would unduly lengthen this brief for Amici to point out
the many additional studies on capricious and discrimina-
tory administration of the type statute involved here. For
the Court’s reference, and to emphasize this important
point, Amici are including excerpts from such studies
below.”
5° Materials from medical and psychiatric literature which illus-
trate the wide-ranging interpretations of language in laws on abor-
tion, and the sometimes arbitrary implementation of these laws
include the following authorities :
(1) Hall, Abortion in American Hospitals, 57° Am. J. Pus.
HEattTH 1933, 1935 (1967) :
“Abortion policies vary not only from hospital to hospital
but also from service to service within the same hospital.
They also vary widely from doctor to doctor on the same
service of the same hospital.”
(2) M. CaLpERONE, (ed.), ABORTION IN THE UNITED States 34-35,
52 (1958) :
“(Necessity as a sine qua non of performing an abortion
. . . leaves the doctor’s position perilous and uncertain.
* * © The current laws provide no accurate criteria by
which the doctor can govern his actions.”
(3) For a vivid illustration of the variations among California
hospitals in assessing the legality of therapeutic abortion on
—
57
A final observation, however, should be that even the
more prominent opponents of abortion reform acknowl-
edged this statutory uncertainty. Father John T. Noonan,
Jr., criticized the A.L.I. proposal’s “physical or mental
‘health’” terminology because “[t]here is nothing in the
statute which would aid the physician in making the de-
termination.” Louisell & Noonan, Constitutional Balance,
in THE Moratity or Asortion 249 (Noonan ed. 1970). An
earlier article by Professor Louisell stated: “ ‘Mental
a given set of facts, see the questionnaire study and analysis
of results in Packer & Gampell, Therapeutic Abortion: A
Problem in Law and Medicine, 11 Stan. L. Rev. 417, 423
(1959). The study is discussed and relied on in California
v. Belous, 71 Cal.2d 954, 972, 458 P.2d 194, 205, 80 Cal.
Rptr. 354, 365 (1969).
(4) White, Induced Abortions: A Survey of their Psychiatric
Implications, Complications, and Indications, 24 Tex. REPs.
or Biotocy & MepicinE 531, 541 (1966) :
“(T]he enormous variability in the frequency of thera-
peutic abortions from one hospital to another . . . must
surely reflect, more than anything else, differences in the
personal values, religious beliefs, and social ideology of
the staffs of the respective hospitals about the matter of
abortion.”
(5) R. H. Scuwarz, Septic Aportion 11 (1968) :
“The legal status of abortion varies not only throughout
the world but from state to state. Interpretation and
enforcement differ from community to community; pro-
fessional assessment varies from hospital to hospital, and
from physician to physician.”
(6) Group FoR THE ADVANCEMENT OF PSYCHIATRY, THE RiGgHT
ro ABoRTION: A Psycuiatric View 40 (Comm. on Law &
Psychiatry, 1970) :
“(T]he rate of therapeutic abortion varies dramatically
from hospital to hospital within a state, even though all
are supposedly governed by the same statutes.”
(7) Russell & Jackson, Therapeutic Abortions in California, 105
Am. J. Osst. & Gyn. 757, 762, 765 (1969) :
“It is obvious that there exists wide variability in the appli-
cation of the [statute]... . Variation exists from com-
58
health of the mother’ is particularly nebulous and suscep.
tible to subjective value judgments.” Louisell, Abortion,
the Practice of Medicine and the Due Process of Law, 16
U.C.L.A.L. Rev. 233, 252 n. 83 (1969). Opponents of re.
form in North Carolina “attacked the vagueness of such
munity to community, and from hospital to hospital within
the same community.
Many factors have contributed to this state of affairs.
Some of these are:
“1. A certain vagueness in what is intended, legisla-
tively speaking, by ‘mental’ and ‘physical’ health. * *
[T]he definition of mental health is one of the most vague
parts of an often vague piece of legislation.”
(8) Droegemueller, Taylor & Drose, The First Year of Experi-
ence in Colorado With the New Abortion Law, 103 Am. J.
Osst. & Gyn. 694, 697 (1969) :
“There is a great deal of variation in the interpretation of
psychiatric indications. .. .
“The hospitals in the small and medium-sized towns are
performing very few therapeutic abortions.”
In addition to the above authorities, who stress variations from
place-to-place and person-to-person, much research and analysis
has examined some of the many reasons why physicians and
psychiatrists have difficulty with the statutes, including specific
aspects of confusion:
(9) Ryan, Humane Abortion Laws and the Health Needs of
Society, 17 W. Res. L. Rev. 424, 431 (1965) :
“Distinctions between physical and mental health are mean-
ingless in terms of modern medical thinking. Health can-
not be divorced from socio-economic factors which in-
fluence people’s lives since health is a product of these
conditions.”
(10) White, supra no. (4), at 532:
“[T]here are no generally accepted policies, little or no
systematically gathered data, and remarkably few well
and objectively substantiated points of view among psy-
chiatrists about ‘legally’ or ‘illegally’ induced abortions.”
(11) Pike, Therapeutic Abortion and Mental Health, 111 Caur.
MEp. 318, 319 (Oct. 1969).
“One of the controversial aspects of the situation is the
undeniable effect of sociological factors on an individual’s
terms as... ‘substantial risk,’ ‘gravely impair,’ ‘grave
physical or mental defect’ and urged greater precision.
_.” Jain & Sinding, North Carolina Abortion Law 1967,
at 29 (Carolina Pop. Center 1968).
Further factors in the implementation of Georgia’s law
increase its irregular impact. The problem of construing
mental health. The stress and consequences of an unwanted
pregnancy as they affect mental health must be determined
for an individual patient, taking into consideration her
total life situation. Factors such as marital status, family
support, economic conditions, subcultural attitudes toward
the pregnancy, and personality structure all contribute
toward her ability to maintain and complete her preg-
nancy without damage to her mental functioning.
The new law requires physicians to make judgments
that are difficult to make, impossible to prove and of
crucial importance to the patient’s welfare and the welfare
of those dependent on her and intimately involved with
her.
(12) Sir Dugald Baird, The Obstetrician and Society, 60 Am. J.
Pusiic HEALTH 628, 635 (1970).
“[E]ven in a basically stable woman, emotional health and
subsequently physical health can be undermined by ad-
verse social conditions: for example, substandard housing,
overcrowding, illness in other children, elderly or bet-
ridden parents, alcoholic husband, and economic. necessity
for the mother to work outside the home.”
(13) Thompson, Cowen & Berris, Therapeutic Abortion: A Two-
Year rer in One Hospital, 213 J.A.M.A. 991, 994
(1970) :
“Psychiatric and socioeconomic problems are so intertwined
that it is difficult for the Therapeutic Abortion Board to
extract the relevant data in order to make a just and
an lawful decision. ... . In light of the previously stated vague-
ness of the law, the evaluation of the patient for psychi-
atric indications has been one of our major problems.”
(14) Moyers, Abortion Laws: A Study in Social Change, 7 San
Diego L. Rev. 237, 241 (1970) :
“Although some hospitals in the state have done away with
the requirement, most committees still require. Raa Hos
consultation when a request for abortion is presented or.
this [mental health] ground.”
a
—
60
“health” rests not solely with her personal physician. Two
additional examining physicians are required by the statute.
Moreover, any conclusion reached bv the first three physi-
cians may be overturned by the hospital committee possibly
composed of yet three more physicians, at a minimum. All
of the uncertainties set out above are multiplied at this
stage by the further examining and committee physicians.
Putting to one side the extraordinary waste of highly
skilled professional time consumed by this cumbersome
ritual, the multiple physician evaluation has a common
denominator effect. This is a particular problem in Georgia
because “(maternal mental health indications are more re-
strictively detiaed by the medical community in Georgia
than in other states with similar laws.” Rochat, ct al.,
An Epidemiological Analysis of Abortion in Georgia, 61
Am. J. Pustac Heaurn 543, 551 (1971).
The victim of this confusion is the patient, the very
individual whose health interests should be of prime con-
cern. Throughout the literature on discriminatory imple-
mentation of abortion laws, mention of her is slight or non-
existent. Under the statutory language, her health interests
are penultimate. In practice, her interests are secondary to
state and county lines, hospital quotas, professional dis-
putes among schools of psychiatric philosophy, and a host
of sub-conscious motivating factors present in the indi-
viduals who stand between her and her private physician.
In short, to obtain a medical abortion in Georgia and simi-
lar states, a patient must find physician A, sympathetic
examining colleagues B and C, cooperative JCAH-accred-
ited hospital D, in county E, a sympathetic committee of
physicians F, G, and H at the hospital, and personal
patience of an exceptional variety.
_ ems Bs
61
2. Widespread discrimination on the basis of a patient's
place of abode has resulted from the statute and its
uneven administration
None of the barriers described above stand between a
physician and patient with respect to any other medical
procedure, not even organ transplants or brain surgery.
It is no statistical aberration that 67% of the Georgia
residents who obtained legal medical abortions between
July and December, 1970, did so in another state. ApPEN-
pix B, Figure 1-2, infra, at B-5, 6. A total of 838 Georgia
residents obtained legal abortions in New York City alone as
of March 31, 1971. Chase, Abortions to Out-of-State Resi-
dents (June 29, 1971) (report released by Health Services
Administration, City of New York). The figure of 838
for nine months extrapolates to 1,117 for twelve months.
This compares with the 1968-1970 in-state Georgia total
of 939 legal abortions, for almost three full years (April
12, 1968 to December 31, 1970; 2.72 years), or 1,035 for
three years as extrapolated. In short, New York City
physicians provided legal medical abortions for more
Georgia residents in one year than Georgia itself has
permitted in three years.
Abortion may be a recent subject insofar as litigation is
concerned, but the data presented here reveal the same
‘kinds of discriminations dealt with forcefully in the past
by this Court. One need only review a few of the decisions
on jury selection," voting rights, and legislative mal-
apportionment. In every area wherein the rights of any
81 F.g., Swain v. Alabama, 380 U.S. 202 (1965).
2 F.g., Harper v. Virginia Board of Elections, 383 U.S. 663
1966).
83 F.g, Gray v. Sanders, 372 U.S. 363 (1963) ; Reynolds v. Sims,
377 U.S. 533 (1964)..
62
American citizen are abridged for arbitrary reasons,
“figures speak and when they do, Courts listen... .”
Brooks v. Beto, 366 F.2d 1, 9 (5th Cir. 1966). This has
increasingly been the case with respect to important
personal needs, particularly where the State exercises
monopolistic control over access to the means to vindicate
the need. E.g., Boodie v. Connecticut, 401 U.S. 371 (1971);
Hawkins v. Town of Shaw, Mississippi, 437 F.2d 1286 (5th
Cir. 1971).
Data on the availability and distribution of legal medical
abortion in Georgia and other A.L.I. states reveal an
arbitrary and discriminatory pattern inherent in the
statutes themselves. This has been the studied concensus
of proponents and opponents of abortion reform alike, and
is verified by available data.
Tables I-2, IIl-A & III-A, supplemented by Figures
TI-A-1 & II-A-2, Aprenpix B, infra, at B-5, 6, et seq., shows
the numbers of legal abortions.by county in Georgia, and the
distribution within the state.
Georgia is a state with 159 counties. However, only 56
counties have a JCAH-accredited hospital, while 103
(65%) do not. Although only 38% (5/13) of the metro-
politan counties’ lack JCAH-accredited facilities, a full
67% (98/146) of rural counties are without facilities
authorized to do legal abortions. Even more significant is
the fact that 96% (153/159) of Georgia’s counties had 10
or fewer legal abortions in the most recent year, 1970.
54% of the metropolitan counties had fewer than 10 legal
8 The standard definition of “metropolitan county” is one con-
taining at least one city of 50,000 or more inhabitants, or a county
integrated with such a city in a neighboring county. Figures are
based or the 1960 census data. See I U.S. Bureau of the Census,
Census ef Population ch. A saa
_ <a
63
abortions in 1970, but a full 100% of the rural counties
had fewer than 10. Of the 150 Georgia hospitals which are
licensed by the State, 79 (53%) are not JCAH-accredited,
and-accordingly not permitted to perform legal abortions.
71 of these 79 are in non-metropolitan counties.
Data from the other A.L.I. states, where available, have
been included in the additional tables and charts which
make up Appendix B to this brief. These show a com-
parable state of affairs in other jurisdictions which are
operating under the Model Penal Code-type statute. See
Aprenpix B, esp. Table 1-2, infra, at B-5, 6.
The ratio of legal abortions to births, which is a rough
measure of the availability of abortion, varied from a 4.0
low in Georgia to a 194.2 high in California, although both
have essentially the same statute.
The percentages of counties in A.L.I. states wherein
fewer than 10 legal abortions were performed in 1970
exceeded 50% in eight of the ten states for which data
were available: Georgia (96%), South Carolina (85%),
North Carolina (79%), Virginia (91%), Maryland (68%),
Colorado (86%), New Mexico (78%), and Oregon (53%).
These figures point to a systematic pattern of dis-
crimination. In practice the A.L.I. statute excludes an
extraordinarily disproportionate number of: (1) rural
patients; (2) patients lacking sufficient access to any
family planning measures at all, and funds for a legal
medical abortion when needed; (3) patients lacking access
to the few hospitals and physicians who are most sympa-
thetic to legal abortion; (4) black patients who, as a class,
are more economically deprived in Georgia, for example,
a
64
and account there for 88% of the non-medical abortion
deaths (1965 to date). Rochat, et al., An Epidemiological
Analysis of Abortion in Georgia, 61 Am. J. Pusric Heaura
543 (1971).
As to these classes of patients, their entitlement to
scrupulous judicial scrutiny of the statute’s effects is
particularly well-established. Not only do they suffer in
the inability to exercise the fundamental personal rights
described previously, but they are also denied access to
medical abortion on grounds of: (1) place of residence;
(2) financial status; (3) lack of information; and (4)
race.* As physicians, Amici contend that such factors
should have no bearing upon an individual’s entitlement
to medical care.
Discrimination against persons on the basis of place of
residence has been uniformly condemned, provided that
factor had no relevance to the person’s status in relation
to the particular law. The medical data in this case show
vast disparities in access to medical care from county-to-
county and hospital-to-hospital. Patients are thé victims
of this disparity. In the same way that “white children”
had “accredited schools” in Prince Edward County,
Griffin v. County School Board, 377 U.S. 218, 230 (1964)
(Black, J.), white, urban, and affluent patients have access
to JCAH-accredited medical facilities in urban Georgia.
The State imposes the JCAH requirement, forbids rural
non-JCAH hospitals to offer this single medical procedure,
and permits even the JCAH general community hospital
‘governing boards to forbid entirely the medical procedure
of abortion.
55 Other arbitrary classifications in the statute are examined
“infra, such as the structures on medical justifications for abortion,
the limitation to JCAH-accredited hospitals, and the requirement
of residency.
—
65
In Griffin and the reapportionment cases this Court held
that persons “cannot be classified, constitutionally, on the
pasis of where they live... .” Reynolds v. Sims, 377 US.
533, 560 (1964). The cumulative effect of the restrictions
on medical abortion in Georgia, however, accomplishes this
forbidden result. By statute Georgia creates the obstacles
which inherently work to the disfavor of rural physicians
and their patients.** While it is commendable that at least
this discrimination may not have been foreseen, or
‘In light of the fact that the rural counties in Georgia have
81% of the State’s hospitals, and account for 42% of births, it
cannot be maintained that the rural discrimination results from
lack of facilities, or. other special rural characteristics.
Discrimination based on location within the state has frequently
been held to violate the Equal Protection clause. See, ¢.g., Avery
vy, Midland County, 390 U.S. 474, 480 (1967) (White, J.) :
“A city, town, or county may no more deny the equal protection
of the laws than it may abridge freedom of speech. . . .”
Hawkins v. Town of Shaw, Mississippi, 4837 F.2d 1286, 1292
(5th Cir. 1971) :
“IN]o compelling state interests can possibly justify the dis-
criminatory results of Shaw’s administration of municipal ser-
vices... .” (Emphasis in original.)
Long v. Robinson, 316 F. Supp. 22, 27 (D. Md. 1970), aff’d, 436
F.2d 1116 (4th Cir. 1971) :
“[T]here is no psychological or physical basis for distinguish-
ing between sixteen and seventeen year olds residing in Balti-
more Citf and in the Counties.”
Sams v. Mhio Valley General Hospital Ass’n, 413 F.2d 826, 827
(4th Cir. 1969) :
“[Wl]ithout semblance of reason for the differentiation, these
hospitals accord full participation to doctors with offices and.
practices within Ohio County but refuse the same éntitlement
to those not so classifiable.” (Emphasis added.) f
Clayton v. North Carolina State Bd. of Elections, 317 F. Supp
915, 920 (E.D.N.C. 1970) :
“TN]o evidence has been adduced to show why the siz counties
should be treated differently from the other ninety-four with
66
“thoughtless,” the lack of overt invidious intent is of
little consolation to the poverty-stricken rural mother of
- ten who is facing her eleventh pregnancy. The Constitution
forbids “sophisticated as well as simple-minded modes of
discrimination. It hits onerous procedural requirements
which effectively handicap exercise -of the [right in
question]... .” Lane v. Wilson, 307 U.S. 268, 275 (1939)
(Frankfurter, J.). >
respect to the distance from the polling place at which elec-
tioneering may lawfully be conducted.” (Emphasis added.)
Orr v. Thorp, 308 F. Supp. 1369, 1372 (S.D. Fla. 1969) :
“TD]efendants have made no effort to demonstrate that Palm
Beach County is in any way unique so as to justify placing
its educational employees in a class apart from those of other
Florida counties.”
Richards v. Townsend, 303 F. Supp. 793, 795 (N.D. Calif. 1969): .
“The equal protection clause applies not only to unreasoned
- distinctions based on race or relative affluence, but also to those
based on accidents of geography.”
- Alabama State Teachers Ass’n v. Lowndes County Bd. of Educa-
tion, 289 F. Supp. 300, 304-05 (M.D. Ala. 1968) :
“,. Alabama denied the benefits of the teacher tenure law to
eight counties which, with one exception, are amon
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