# Amicus Curiae Brief — Roe v. Wade > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0097%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1973 - **Citation:** 410 U.S. 113 ## Text 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 pro [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0097%3A14. Public record. Not legal advice.