Amicus Curiae Brief — Roe v. Wade

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PAGE

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The Constitutional Provisions and Statutes Involved 2

Statement of the Case y

ARGUMENT:

The Georgia and Texas abortion laws unjustifiably

restrict the reserved constitut@pal liberty of all ;

persons to conduct their private lives without un-

warranted governmental interference .....................- 14

A. The abortion laws at issue, touching on per-

sonal and private aspects of marriage, sex, the

family, and family size, invade the right of

privacy 14

B. The Georgia and Texas abortion laws may not

be sustained as a valid exercise of the police

power : 20

1. The States may enact safety measures to

protect the public from dangerous abortions

but the protection of the public health is

not served, indeed the opposite effect is

achieved, by the laws under consideration

that make criminal virtually all abortions,

or all abortions judged not “necessary”, or

all abortions performed on non-residents .. 21

2. The laws cannot be justified as a restriction

on “immoral” sexual behavior, because the

laws also penalize marital sexual relations 25

:

GDL SELES LIELD ELIE LL IIE ELAN ADIL LEI BEE ao |

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3. The States’ claimed duty to preserve: the

right of a foetus to be born is not a valid

justification for encroaching on personal

\ liberties, for:

a. A foetus doesn’t have a “right” to be

ConcLuUsION

born; but if it did, that right would be

outweighed by the liberty of women, or

women and their husbands, to determine

whether or not to have children

The need to encourage population

growth, if it ever was a legitimate end of

government, is not now a valid justifica-

tion for invading personal liberties

The religious view that the product of

every conception is sacred may not

validly be urged by the States as a

justification for limiting the exercise of

constitutional liberties, for that would

be an establishment of religion ............

TABLE OF Cases AND OTHER AUTHORITIES

Cases:

Aptheker v. Secretary of State, 378 U.S. 500 ..................

Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wisc),

appeal dismissed sub nom. McCann v. Babbitz, 400

US. 1

31

PAGE

Bates v. City of Little Rock, 361 U.S. 516 _.00.... 14, 17, 20

Bolton v. Doe, —— U.S. ——, 29 L. Ed.2d 104 ........ 10-11

Corkey v. Edwards,:322 F. Supp. 1248 (W.D. N. Car.)

24, 30

Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga.) question

of jurisdiction postponed —— U.S. ——, 91 S. Ct.

1614, 20 L. Ed.2d 109 4, 9, 19, 21-22,

26, 29, 31, 33

Doe v. Scott, 321 F. Supp. 1385 (N.D. IIl.) appeals

docketed sub nom. Hanrahan vy. Doe (No. 70-105,

Oct. 1971 Term) and Heffernan v. Doe, (No. 70-106,

Oct. 1971 Term) 18, 23, 28

Drabbels v. Skelly Oil Co., 155 Neb. 17, 50 N.W.2d 299 28

Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d ©

65, 248 N.E.2d 901 27

Fondren v. State, 74 Tex. Crim. Rep. 552, 169 S.W.

411 26

Griswold v. Connecticut, 381 U.S. 479 ........ 14, 15, 16, 17, 18,

20, 21, 25, 29, 30,

31, 33, 34

Hammett v. State, 84 Tex. Crim. Rep. 635, 209 S.W.

661 26-27

Hill v. Lang, 211 Ga. 484, 86 S.E.2d 498 27

In re Peabody, 5 N.Y.2d 541, 186 N.Y.S.2d 265, 158

N.E.2d 841 27, 28

a

AD Nila i eh CME SAY oe A ORME DLA SEO ACRES

iv

" PAGE

- Leal v. Pitts Sand & Gravel, Inc., 419 S.W.2d 820 (Tex.

Sup. Ct.) : - 7

Loving v. Virginia, 388 U.S. 1 18, 19

Matter of Roberts, 158 Mise. 698, 286 N.Y. Supp. 476... 7

McGowan v. Maryland, 366 U.S. 420 -.000 33

McLaughlin v. Florida, 379 U.S. 184 _

Meyer v. Nebraska, 262 U.S. 390 18, 19, 29

Montana v. Rogers, 278 F.2d 68 (7th Cir.), aff’d sub

nom. Montana v. Kennedy, 366 U.S. 308 00. %

NAACP v. Alabama, 377 U.S. 288°.................... 17, 20, 21, 25

Palko v. Connecticut, 302 U.S. 319 ... 15

Passley v. State, 194 Ga. 327, 21 S.H.2d 230 2. 26

People v. Barksdale, —— Cal. App.2d ——, —— P.2d

—— (Docket No. 1 Crim. 9526, Ct. App., 1st App.

Dist., July 22, 1971) 18, 21, 2

People v. Belous, 71 Cal.2d 954, 80 Cal. Rptr. 354, 458

P.2d 194, cert. denied 397 U.S. 915 .-18, 23, 8

Poe v. Ullman, 367 U.S. 497 ....... 15

Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex.) question

of jurisdiction postponed —— U.S. ——, 91 S. Ct.

1610, 29 L. Ed.2d 108 10, 18, 24, 28, 29

Rosen v. Louisiana, 318 F. Supp. 1217 (E.D. La), ~

appeal docketed (No. 70-42 Oct. 1971 Term) ....18-19, 23,

30, 32, 33

Shapiro v. Thompson, 394 U.S. 618 -................... 17, 18, 24, 29

Sherbert v. Verner, 374 U.S. 398 I.

Skinner v. Oklahoma, 316 U.S. 535 18, 19, 31

2K. ens >

PAGE

State v. Munson, unreported (S.D. Cir. Ct. Pennington

County April 6, 1970) (portions appended to dis-

senting opinion in Rosen v. Louisiana, 318 F. Supp.

1217, at 1245) 18-19

Steinberg v. Brown, 321 F. Supp. 741 (N.D. Ohio) .... 30

Unborn Child of Mary Doe v. Doe, —— U.S. ——, 29

L. Ed.2d 104 .. 26

United States v. Guest, 383 U.S. 745 18, 24

United States v. Vuiteh, 402 U.S. 62 000. 17, 32

United States v. Vuitch, 305 F. Supp. 1032 (D.C. Cir.),

rev'd, 402 U.S. 62 29

United States ex rel. Williams y. Follette, 313 F. Supp.

269 (S.D.N.Y.) 19

Wolcott v. Gaines, 225 Ga. 373, 169 S.E.2d 165 ..........: oe

Statutes :

Constitution of the United States

Pee ON i ii ciisieeectn thascances 2,32, 33, 34

Third Amendment ..................... 34

Fourth Amendment 34

Fifth Amendment 2, 25, 34

Ninth Amendment ........ 3,15, 34™

Fourteenth Amendment 3, 15, 16, 19, 25, 34

Georgia Code

Section 26-1201 : 3, 26

Section 26-1202 3-7, 9, 24, 26

Section 26-1203 7, 26

Section 26-9921a 26

ees art

vi

2A Texas Penal Code

Article 1191 ...

Article 1192

Article 1193

Fi 2: eaeeeeone

Article 1195 ...

SR Fe etic etenicecds

Other Authorities:

Clark, “Religion, Morality and Abortion”, 2 Loyola

(L.A.) L. Rev. 1. a ‘ 31, 32

Comment, 23 Vand. L. Rev. 1346 MAES PEE a EE 39

Dachs, “Liability-for Wrongful Harm to the Unborn”,

166 N.Y. Law Journal No. 22, p. 1, col. 4 (August 2,

1971), part 1. 1

166 N.Y. Law Soareai No. 23, p. 1, ol. 4 (August 3,

1971), part 2

SEONG, Te CMI LW civics, 32

Note, “Legal Analysis and Population Control: The

Problem of Coercion”, 84 Harv. L. Rev. 1856

“Supreme Court, 1964 Term”, 79 Harv. L. Rev. 56 ........ 33

The Federalist, No. 84 (Hamilton) (Mod. Lib. Ed.

1937) 16

The New York Times, June 30, 1971, p. 43, cols. 4-8... %

Tietze and Lewitt, “Abortion”, 220 Scientific American

No. 1, p. 21 (January 1969)

ERATE GALT rE FEE a Ee a = eae Sr Pa

BLEED THROUGH Seattle

IN THE

Supreme Court of the United States

Ocrosper Term 1971

——_<—

No. 70-40

Mary Dog, e¢ al.,

Appellants,

—against—

Arruur K. Boron, as Attorney General of the State of

Georgia; Lewis R. Staton, as District Attorney of

Fulton County, Georgia; and Herserr T. JENKINS, as

Chief of Police of the City of Atlanta, Georgia,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

i

No. 70-18

Jane Ror, Joun Dor, and Mary Dor,

Appellants,

James Husert Hatirorp, M.D.,

Appellant-Intervenor,

—against—

Henry Wane,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

i

‘ 7, Pere . ee Te ee Te : Pah}

haz Se Jigs see LANE tk . 4A EAE QUEER

CPOY BOUND CLOSE IN CENTER

—

2

BRIEF OF AMERICAN ETHICAL UNION, AMERICAN

FRIENDS SERVICE COMMITTEE, AMERICAN HUMAN.

IST ASSOCIATION, AMERICAN JEWISH CONGRESS,

EPISCOPAL DIOCESE OF NEW YORK, NEW YORK

STATE COUNCIL OF CHURCHES, UNION OF AMERICAN

HEBREW CONGREGATIONS, UNITARIAN UNIVERSAL

IST ASSOCIATION, UNITED CHURCH OF CHRIST AND

THE BOARD OF CHRISTIAN SOCIAL CONCERNS OF

THE UNITED METHODIST CHURCH AS AMICI CURIAE

IN SUPPORT OF THE APPELLANTS” POSITION

The Constitutional Provisions and Statutes Involved

The First Amendment to the Constitution of the United

States:

Congress shall make no law respecting an establish-

ment of religion or prohibiting the free exercise

thereof. ...

The Fifth Amendment to the Constitution of the United

States:

. nor shall any person . . . be deprived of life,

liberty or property, without due process of law. ...

2 Appellants in No. 70-40 whose names do not appear in the cap-

tion are: Peter G. Bourne; Ropert Hatcuer; Liwwas L. James;

JaMEs Waters; CorBeETT TURNER; NEWTON LONG; Epwarp

LEaDER; WILLIAM H. Biccers; GEorGE VIOLIN ; Patricia S. Smits;

JENNIE WILLIAMS; JUDITH BouRNE; SUZANNE DuNaway; JOYCE

Parks; Lou ANN Irion; Mary Lone; J. Emmett HErnpoy;

Samvev L. WituiaMs; EvGene Pickett; Ricuarp Devor; Dona

DavucutTry; JupiITH Zoracu and Karen WEaVER, residents of the

State of Georgia; PLANNED PARENTHOOD ASSOCIATION OF ATLANTA,

Inc., a Georgia corporation; and GrorGia CiTIzeENs For Hosprtai

AporTIon, INc., a Georgia corporation, for and on the behalf of all

persons and organizations similarly situated.

aa Kee

OO

3

The Ninth Amendment to the Constitution of the United

States :

The enumeration in the Constitution of certain rights

shall not be construed to deny or disparage others

retained by the people.

The Fourteenth Amendment to the Constitution of the

United States :

1, All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they re-

side. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States, nor shall any State deprive any

person of life, liberty, or property without due proc-

ess of law, nor deny to any person within its juris-

diction the equal protection of the laws.

The Georgia abortion laws:

Georgia Code § 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 pro-

duce a miscarriage or abortion. (Acts 1968, pp. 1249,

1277.)

Georgia Code § 26-1202. Exception

(a) Section 26-1201 shall not apply to an abortion

performed by a physician duly licensed to practice

medicine and surgery pursuant to Chapter 84-9 or

84-12 of the Code of Georgia of 1933, as amended,

4

based upon his best clinical judgment that an abortion

is necessary because:

(1) A continuation of the pregnancy would en.

danger the life of the pregnant woman or would

seriously and permanently injure her health; or

(2) The fetus would be very likely to be born

with a grave, permanent, and irremediable 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 -

penalties of false swearing to the physician who pro-

poses to perform the abortion that she is a bona

fide legal resident 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 writ-

ing and concurred in by at least two other physi-

cians 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 pregnant woman, the abortion is, in their

2 The italicized portions were held unconstitutional by the Dis-

trict Court in Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga.).

‘ a conte eee Sig

BA SPLIT SILLS BIEL SLI LLL LILO LYLE LIPOIC LEE : Pe

me rcecr BI cwrie.ul POOR COPY

5

judgment necessary because of one or more of the

reasons enumerated above.

. (4) Such abortion is performed in a hospital li-

censed by the State Board of Health and accredited

by the Joint Commission on Accreditation of Hos-

pitals.

(5) The performance of the abortion has been

approved in advance by a committee of the medical

staff of the hospital in which the operation is to be

performed. This committee must be one established

and maintained in accordance with the standards

promulgated by the Joint Commission on the Ac-

creditation 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.

(6) If the proposed abortion is. considered neces-

sary because the woman has been raped, the woman

makes a written statement under oath, and subject

to the penalties 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 to 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, accord-

ing 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

lls, aioe, aia i) AM allie Ma i ai ON NS lars 0

6

files of such hospital and are available at all reasop.

able times to the solicitor general of the judicial

circuit in which the hospital is located.

(8) A copy of such written opinions, statements, —

certificates, and concurrences is filed with the Dj.

rector of the State Department of Public Health

within ten (10) days after such operation is per.

formed.

(9) All written opinions, statements, certificates,

and concurrences filed and maintained pursuant to

Paragraphs (7) and (8) of this subsection shall be

confidential records and shall not be made available

for public inspection at any time. (

(c) 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 judg-

ment whether the performance of such abortion would

violate any constitutional or other legal rights of the

fetu:. Such solicitor general may also petition such

court for the purpose of taking issue with compliance

with the requirements of this section. The physician

who proposes to perform the abortion and the preg-

nant woman shall be respondents. The petition shall

be heard expeditiously and if the court adjudges that

such abortion 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.

iciasietiaaeialacaniallllll

_ —— ——————EE ee ee

7

(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

hospital be required to appoint a committee such as

contemplated 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

hospital in which an abortion has been authorized,

who shall state in writing an objection to such abor-

tion on moral or religious grounds shall not be re-

quired to participate in the medical procedures which

will result in the abortion, and the refusal of any such

person to participate therein shall not form the basis

of any claim for damages on account of such refusal

or for any disciplinary or recriminatory action against

such person. (Acts 1968, pp. 1249, 1280)

Georgia Code § 26-1203. Punishment

A person convicted of criminal abortion shall be

punished by imprisonment for not less than one nor

more than 10 years. (Acts 1968, pp. 1249, 1280.)

The Texas Aol Laws:

9A Texas Penal Code, Article 1191. Abortion.

If any person shall designedly administer to a preg-

nant woman or knowingly procure to be administered

with her consent any drug or medicine, or shall use

towards her any violence or means whatever exter-

nally or internally applied, and thereby procure an.

”_ —

a

8

abortion, he shall be confined in the penitentiary not

less than two nor more than five years; if it be done

without her consent, the punishment shall be doubled,

By “abortion” is meant that the life of the fetus or

embryo shall be destroyed in the woman’s womb or

that a premature birth be caused. Acts 1907, p. 55,

2A Texas Penal Code, Article 1192. Furnishing the

means.

Whoever furnishes the means for procuring an abor.

tion knowing the purpose intended is an accomplice.

2A Texas Penal Code, Article 1193. Attempt at abortion,

If the means used shall fail to produce an abortion,

the offender is nevertheless guilty of an attempt to

produce abortion, provided it be shown that such means

were calculated to produce that result, and shall be

fined not less than one hundred nor more than one

thousand dollars.

2A Texas Penal Code, Article 1194. Murder in producing

abortion.

If the death of the mother is occasioned by an abor-

tion so produced or by an attempt to effect the same

it is murder.

2A Texas Penal Code, Article 1196. By medical advice.

Nothing in this chapter applies to an abortion pro-

cured or attempted by medical advice for the purpose

of saving the life of the mother.

POOR COPY

Proce nm TLD CY ICL

Statement of the Case

The Appellants in these cases are representatives of the

classes of married and unmarried pregnant women who

want but cannot obtain lawful abortions, married couples

for whom abortions may become necessary because they

cannot use effective contraceptive devices, and physicians,

nurses, social workers and ministers who are regularly

consulted about abortion. The Appellants sought judg-

ments declaring the abortion laws of Georgia and Texas

to be unconstitutional and restraining the enforcement of

the laws.

In the Georgia case, Doe v. Bolton, 319 F. Supp. 1048

(N.D. Ga.), the District Court held unconstitutional the

portion of the Georgia abortion law that limited the class

of permitted abortions to those performed because the

pregnant woman’s life or health is endangered, or the

foetus may have a grave defect or the pregnancy resulted

from rape. The Court also struck down the provision for

an action on behalf of the foetus to complain of contem-

plated abortion. The Court held that those portions of the

statute “unduly [restrict] a decision sheltered by the Con-

stitutional right of privacy.” 319 F. Supp. at 1056. Under

the remaining portions of the Georgia statute, abortion

at any stage of pregnancy is a crime unless performed

in an “accredited” hospital on a Georgia resident by a

licensed physician “upon his best clinical judgment [in

writing] that an abortion is necessary”. The physician’s

judgment must be “concurred in [in writing] by at least two

other physicians” and “approved in advance by a committee

of the medical staff of the [accredited] hospital in which

the operation is to be performed”. The Amici support the

MTEC: SRY, Pa GARTEN LAE LIE OL LIA Ne ALESIEILE ML AT PH POLIO

10

decision of the Georgia District Court to the extent it holds

portions of the abortion law unconstitutional.

In the Texas case, Roe v. Wade, 314 F. Supp. 1217 (Np,

Texas), the three-judge District Court declared the Texas

abortion laws unconstitutional because they “deprive

single women and married couples of . . . the right of

choice over events which, by their character and conse.

quence, bear in a fundamental manner on the privacy of

individuals”. 314 F. Supp. at 1221. The statute provided

that abortion at any stage of pregnancy was a crime unless

“procured or attempted by medical advice for the purpose

of saving the life of the mother”. 2A Texas Penal Code

Article 1196. The Amici support the decision of the Texas

District Court.

Neither statute permits an abortion on the ground the

woman does not want, or the woman and her husband do

not want, a child.

Injunctive relief was denied in both cases. In the Georgia

ease standing was denied to all Appellants except Mary

Doe, a married pregnant woman, as representative of her

class, and in the Texas case to all Appellants except Jane

Roe, an unmarried pregnant woman, as representative of

her class. |

Appellants in both cases appealed to this Court from the

denial of injunctive relief, the denial of standing, and in

the Georgia case also from the declaratory judgment. On

May 3, 1971, the Court granted review of both cases but

postponed the question of jurisdiction to the hearing on

the merits.*

8 There are no cross-appeals. The appeal of the State of Georgia ,

was dismissed for want of jurisdiction. Bolton v. Doe, —— US. |

—eEo7~~— ae CN Mh LE PARMA AAA ALLEL PALE LDA AAO AY . Ceanenae dares

idbiaes “

11

The Amici address only the substantive constitutional

issues raised by both appeals. The appeal in the Texas case

is only from the denial of injunctive relief and of standing

to certain Appellants. Nevertheless, the Amici consider

t their duty to brief the merits of the Texas case in the

event the Court grants Texas’ application for a review of

the merits. Reply to Jurisdictional Statement, at 6-7.

Interest of Amici

The American Ethical Union is a membership corpora-

tion formed under the laws of New York. The Union rep-

resents 24 Ethical Culture Societies and Fellowships in

the United States. The Union was founded to promote re-

ligious and philosephical purposes.

The American Friends Service Committee, Inc., is a non-

profit corporation chartered under the laws of the State

of Delaware. The Committee’s purpose and object is to

engage in religious, charitable, social, philanthropic and

relief work in the United States and in foreign countries

on behalf of, and to promote the general purpose of, the

several branches and divisions of the Religious Society of

Friends in America. A major program of the Committee

concerns education about family planning, family living,

population and demographic trends.

The American Humanist Association is incorporated as

a religious corporation under California law to express a

common concern with the dignity and rights of all human

—, 29 L. Ed.2d.104. The State of Texas noticed an appeal to

this Court but never docketed it. The State wrote in iis Reply

to Jurisdictional Statement (at 6): “Since the filing of its Notice

of Appeal to this Court (Appendix D), Appellees herein have

determined that the only forum available to them for appeal from

the judgment below is to the Fifth Circuit”.

;

:

aqme: TAR ES oneneeiaeel

12

beings. The Association represents approximately 3,500

members in the United States.

The American Jewish Congress is a national organiza.

tign of American Jews having approximately 30,000 mem.

bers in the United States. The Congress was founded to

protect fundamental freedoms of all Americans.

The Episcopal Diocese of New York is the central or.

ganization representing 225 Episcopal churches in south.

ern New York State. The churches have approximately

‘¥22,000 individual members. The Diocese has resolved that

“abortion is a matter of individual conscience to be exer.

cised within the context of one’s own faith and established

medical practice”. .

The New York State Council of Churches is a religious

corporation formed under New York law to promote com-

mon interest among Protestant churches. The Council

represents 5,000 churches of 29 denominations with a total

membership f approximately 1,500,000 people. The Coun-

cil made a public statement of its belief that “abortion is

properly a matter of individual conscience to be exercised

within the context of one’s own faith and established medi-

cal practice”.

The Union of American Hebrew Congregations is a re-

ligious corporation formed under Ohio law. The Union

consists of approximately 700 Reform Jewish congrega-

tions in the United States with a membership of approxi-

mately 1,000,000 people. The Union has publicly stated its

opposition to unreasonably restrictive abortion laws.

The Unitarian Universalist Association, a religious ©:r-

poration incorporated under the laws of the Commonwealth

of Massachusetts, represents 1,038 churches and fellow-

: /

Beige ta ogra OE INF Oe

13

ships in the United States and Canada having a member-

ship of approximately 164,000 people. The Association has

publicly stated its opposition to criminal abortion laws.

- The United Church of Christ represents 7,000 churches

in the United States with a membership of approximately

200,000 people. The United Church has publicly stated

its opposition to criminal abortion laws.

The Board of Christian Social Concerns is an agency of

‘ the United Methodist Church. The United Methodist

Church consists of 41,000 churches in the United States

having a membership of approximately 11,000,000 people.

The United Methodist Church has publicly stated its oppo-

sition to laws making abortion a crime.

All the Amici seek leave to file this brief in support —

of the Appellants’ position on the merits in these cases

because they oppose legislation that interferes with the

liberty of an individual to exercise his or her own conscience

in the conduct of his or her personal life, free of unwar-

ranted governmental interference. The Amici believe the

Georgia and Texas abortion laws interfere with that liberty.

The Amici do not advocate abortion. They do advocate

the right of individuals to be free from State interference

in the conduct of their private lives. That freedom includes

the determination whether or not to have a child. If an

individual does not want a child, the Amici believe he or

she should be free to use means to that end consistent with

the woman’s health and safety.

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14

ARGUMENT

The Georgia and Texas abortion Aaws unjustifiably

restrict the reserved constitutional liberty of all persons

to conduct their private lives without unwarranted goy.

ernmental interference.

A. The abortion laws at issue, touching on personal and pri.

vate aspects of marriage, sex, the family, and family size,

invade the right of privacy.

The Constitution of the United States guarantees that

citizens shall retain the liberty—that has come to be known

as the “right of privacy”—to conduct their personal lives

with dignity and without unwarranted State interference.

The States may not infringe personal liberty unless the

States demonstrate that the statute narrowly serves “a

subordinating interest which is compelling”. Bates v. City

of Little Rock, 361 U.S. 516, 524; Griswold v. Connecticut,

381 U.S. 479, 485.

In Griswold v. Connecticut, 381 U.S. 479, seven Justices

of the Court agreed,, albeit on varying constitutional

grounds, that a law forbidding the use of contraceptives

as a birth control measure was an unwarranted inter-

ference with indiviaual liberty because it prevented mar.

ried and unmarried individuals from determining for them.

selves the personal question whether or not or when to have

children. The Georgia and Texas abortion laws also invade

the fundamental right of privacy because they prevent

married and unmarried individuals from taking steps

necessary to limit the number of children they shall have

The opinion of the Court in Griswold, 381 U.S. at 479-486,

traced the development of the constitutional concept of the

15

anctity of the individual and determined that the right

of privacy is derived from the “penumbras” of the “specific

guarantees in the Bill of Rights ... formed by emanations

from those guarantees that help give them life and sub-

tance.” 381 U.S. at 484. The concurring opinions in

Griswold stressed that the Ninth and Fourteenth Amend-

ments to the Constitution contemplate a reservoir of un-

specified personal rights now encompassed in the term

right of privacy” that the people had not delegated, and

should never be compelled to delegate, to a State or the

Federal Government.

“The Ninth Amendment simply shows the intent of the

Constitution’s authors that other fundamental per-

sonal rights should not be denied such protection or

disparaged in any other way simply because they are

not specifically listed in the first eight constitutional

amendments.” 381 U.S. at 492 (concurring opinion of

Mr. Justice Goldberg, joined in by Mr. Chief Justice

Warren, and Mr. Justice Brennan).

Mr. Justice Harlan, concurring in the judgment, wrote (381

US. at 500) : -

“In my view, the proper constitutional inquiry in

this case is whether this Connecticut statute infringes

the Due Process Clause of the Fourteenth Amendment

because the enactment’ violates basic values ‘implicit

in the concept of ordered liberty,’ Palko v. Connecticut,

302 U.S. 319, 325. For reaséns stated at length in my

dissenting opinion in Poe v. Ullman, supra [367 U.S.

497, 522, at 539-545], I believe that it does. While the

relevant inquiry may be aided by resort to one or more

of the provisions of the Bill of Rights, it is not depen-

16

dent on them or any of their radiations. The Dye

Process Clause of the Fourteenth Amendment stands,

in my opinion, on its own bottom.”

Mr. Justice White also concurred in the judgment on the

ground that the Fourteenth Amendment protected personal

liberties not enumerated in the Constitution. 381 U.S, at

502. :

Indeed, Publius, author of The Federalist, observed that

the Constitution as originally drafted, before the adoption

of the first ten Amendments, “is itself, in every rational

sense, and to every useful purpose, A BILL OF RIGHTS.” The

Federalist, No. 84 (IIamilton) at 561, Mod. Lib. Ed., 1937

(capitals in the original).

“Here, in strictness, the people surrender nothing; and

as they retain every thing they have no need of

particular reservations. ‘Wr THE PEOPLE of the United

States, to secure the blessing of liberty to ourselves

and our posterity, do ordain and establish this Con-

stitution for the United States of America.’ Here isa

better recognition of popular rights, than volumes of

... aphorisms ... which would‘sound much better ina

treatise of ethics than in a constitution of government.

“But a minute detail of particular rights is certainly

far less applicable to a Constitution like that under

consideration, which is merely intended to regulate

the general political interests of the nation, than toa

constitution which has the regulation of every species

of personal and private concerns.” Jbid. at pp. 558-559

(Emphasis in the original).

The same considerations stressed in Griswold govern the

constitutionality of the Georgia and Texas laws that make

17

abortion a criminal act unless performed for State-approved

reasons. ‘The Nbortion laws’ direct encroachment on the

wnstitutional right of privacy cannot be countenanced. The

laws are invalid on their face, for their reach is broader

than any compelling governmental interest.t Griswold v.

Connecticut, 381 U.S. 479, 485; Shapiro v. Thompson, 394

: US. 618, passim; NAACP vy. Alabama, 377 U.S. 288, 307;

— Sherbert v. Verner, 374 U.S. 398, 407; Bates v. City of Little

Rock, 361 U.S. 516, 524. The abortion laws interfere no

ess with married and unmarried persons’ decisions whether

to have children than did the Connecticut law prohibiting

the use of contraceptives that this Court struck down in

Griswold v. Connecticut, 381 U.S. 479.

“Abortion touches intimate affairs of the family, of

marriage, of sex, which in Griswold v. Connecticut, 381

US. 479, we held to involve rights associated with

several express constitutional rights and which are

summed up in ‘the right of privacy.’” United States

v. Vuitch, 402 U.S. 62, at 78 (dissenting opinion of Mr.

Justice Douglas).°

Several lower Federal and State Courts recognized that,

like laws restricting the use of contraceptives,’ «laws

‘See Subdivision B of this Brief, at pr20.

5In United States v. Vuitch, the majority of the Court expressly

did not reach the issue of the constitutional right of privacy

presented on these appeals. The District Court held the District

of Columbia abortion law unconstitutional on the sole ground that

the statute was unconstitutionally vague. On the appeal, this

Court disagreed and reversed the decision, but did not pass upon

“arguments . . . based on this Court’s decision in Griswold v.

Connecticut, 381 U.S. 479 (1965). . . . Since that question of

vagueness was the only issue passed upon by the District Court

it is the only issue we reach here.” 402 U.S. at 72-73.

* Griswold v. Connecticut, 381 U.S. 479.

OO ss ee —<«£ i. —<_ -.- | ee

18

limiting a parent’s right to teach his children,’ laws re.

quiring that individuals be sterilized,* laws preventing

interracial marriages’ and laws that restrict the right to

travel,’° restrictive criminal abortion laws also

“Cconstitute] an intrusion on constitutionally protected

areas too sweeping to be justified as necesSary to ae.

complish any compelling state interest. . . . | We cannot

distinguish the interests asserted by the plaintiffs jp

this case from those asserted in Griswold. ... We

believe that Griswold and related cases establish that

matters pertaining to procreation, as well as to mar.

riage, the family, and sex are surrounded by a zone of

privacy which protects activities concerning such mat.

ters from unjustified governmental intrusion.”. Doe

v. Scott, 321 F. Supp. 1385, 1389-90 (N.D. IIl.), appeals

docketed (Nos. 70-105 and 70-106, Oct. 1971 Term).

Accord, Roe v. Wade, 314 F. Supp. 1217, 1222-23 (N.D.

Tex.); Babbitz v. McCann, 310 F. Supp. 293, 299 (ED.

Wisc.), appeal dismissed sub nom. McCann v. Babbitz, 40

U.S. 1; People v. Belous, 71 Cal.2d 954, 963; 80 Cal. Reptr.

354, 359; 458 P.2d 194, 199, cert. denied, 397 U.S. 915;

_ People v. Barksdale, —— Cal. App.2d ——, —— P.2d —

(Docket No. 1 Crim. 9526, Ct. App., Ist App. Dist., July

22, 1971, slip opinion p. 16); and State v. Munson, w-

reported (S.D. Cir. Ct., Pennington Co., April 6, 1970),

(portions appended to dissenting opinion in Rosen v. Low-

7 Meyer Vv. Nebraska, 262 U.S. 390.

8 Skinner v. Oklahoma, 316 U.S. 535.

® Loving v. Virginia, 388 U.S. 1.

10 Shapiro v. Thompson, 394 U.S. 618; United States v. Guest,

383 U.S. 745.

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19

sana, 318 F. Supp. 1217, at 1245). Cf., United States ex rel.

Hilliams v. Follette, 313 F. Supp. 269, 273 (S.D.N.Y.). The

[istrict Court in the Georgia case held the statute in part

weonstitutional “because such action [by the State] unduly

nstricts a decision sheltered by the Constitutional right to

privacy.” Doe v. Bolton, 319 F. Supp. 1048, at 1056 (N.D.

(a.).

The recognition that the Constitution protects an indi-

ydual’s private life from becoming an affair of state is

not new. In Skinner v. Oklahoma, 316 U.S. 535, 541, the

Court struck down a compulsory sterilization law stating,

“We are dealing here with legislation which .involves one

of the basic civil rights of man. Marriage and procreation

are fundamental to the very existence and survival of the

race”, An anti-miscegenation statute was held unconstitu-

tional in Loving v. Virginia, 388 U.S. 1, 12, because it

deprived the defendants

“of liberty without due process of law in violation of

the Due Process Clause of the Fourteenth Amend-

ment .... Under our Constitution the freedom to

marry, or not marry, a person of another race resides

with the individual and cannot be infringed by the

State.”

In Meyer v. Nebraska, 262 U.S. 390, 399¢ the Court held

that a state may not intrude on a parent’s decision to teach

a foreign language to his child because the guaranty of

liberty in the Fourteenth Amendment protects

“the right of the individual to contract, to engage in

any of the common occupations of life, to acquire use-

ful knowledge, to marry, establish a home and bring

up children, to worship God according to the dictates

nis cla es iat Saal

LEME LLLP ALI EEL ORT

acta

. PENI OTT ME ere” OF

CARRERA TLL ORNL LOLA PELLICLE EDEL LEELA LE LE TED ITE ENE SES IE

20

of his own conscience, and generally, to enjoy those

privileges long recognized at common law as essentia|

to the orderly pursuit of happiness by free men.”

Fundamental personal liberties are also infringed py

abortion laws that are not limited to the protection of

health and safety.

B. The Georgia and Texas abortion laws may not be sustained

as a valid exercise of the police power.

The exercise of personal constitutional liberties may

not be abridged by State law unless the State demonstrates

that the statute narrowly serves an overriding and con.

pelling State interest. Griswold v. Connecticut, 381 US,

479, 485; Bates v. City of Little Rock, 361 U.S. 516, 524,

NAACP vy. Alabama, 377 U.S. 288, 307.

It cannot seriously be questioned that the Georgia and

Texas abortion laws encroach on the liberty to conduet

one’s private life. The States urge, however, that the

“police power” justifies the abortion laws’ restriction of

that liberty. The justification does not meet the consti-

tutional test, for the statutes are not limited to a legitimate

exercise of the police power. They do not merely regulate

by whom or when abortions may safely be performed but

they limit the very use of abortion as a therapeutic meas-

ure by married and unmarried persons. The statute struck

down in Griswold forbade (381 U.S. 479, at 485):

“the use of contraceptives rather than regulating their

manufacture or sale, ... [and sought] to achieve its

goals by means having a maximum destructive impact

upon that relationship [marriage]. Such a law cannot

stand in the light of the familiar principle, so often

samara remanent EE NTE IE IN EEE

21

applied by this Court, that a ‘governmental purpose

to control or prevent activities constitutionally sub-

ject to state regulation may not be achieved by means

which sweep unnecessarily broadly and thereby in-

vade the area of protected freedoms’. NAACP v.

Alabama, 377 U.S. 288, 307” [emphasis in the origi-

nal].

1. The States may enact safety measures to protect the

public from dangerous abortions but the protection of

the public health is not served, indeed the opposite

effect is achieved, by the laws under consideration that

make criminal virtually all abortions, or all abortions

judged not “necessary”, or all abortions performed on

non-residents.

The abortion laws cannot stand as health measures. The

Georgia statute’s elaborate structure requiring three suc-

cessive concurring approvals in writing by doctors and

committees of doctors and a patient’s sworn statement of

residence within the State before an abortion may lawfully

be performed, does not serve any proper concern for the

public health. See People v. Barksdale, Cal. App.2d

—, — P.2d , (Docket No. 1 Crim. 9526, Ct. App.,

Ist App. Dist. July 22, 1961), slip opinion at 20. Indeed,

this cumbersome procedure creates a health hazard. The

inevitable delay almost ensures that approved abortions

will not be performed in the “safe” twelve-week period

following conception. See Appellants’ Jurisdictional State-

ment in the Georgia case, at pp. 10-11.

The District Court intended to broaden women’s access

to abortion under the Georgia statute, for it found the

State may not constitutionally limit the reasons for which

abortions may be performed. Doe v. Bolton, 319 F. Supp.

22

1048, at 1056. The decision has the opposite effect, for jt

transfers to doctors the unfettered power to determine

why or when an abortion is “necessary”.

As modified by the District Court, the Georgia statute

makes all abortions criminal except those doctors judge to

be “necessary”. This formulation does not set any stand.

ard at all, least of all a standard relating to the public

health, for the doctors’ exercise of their judgment. (er.

tainly it does not call for medical judgment alone. The

questions doctors are competent to answer about abortion

are whether the woman is, in fact, pregnant, whether her

health will be impaired by the operation, whether the stage

or character of the pregnancy indicates undue risk in per.

forming the operation, ete. The question whether the abor.

tion is “necessary” calls for a “moral” as well as a medical

decision about a patient’s personal life by a team of doctors

who are likely to be strangers to the woman, or the woman

and her husband, and to their private plans about family

size or whether to have children at all. The statute as

construed substitutes the doctors’ several consciences-for

the patient’s in a critical personal decision.

As originally drafted the statute’s standards for per-

mitted abortions also did not serve any State interest in

public health. The law prohibited a doctor from perform.

ing and a patient from having an abortion the doctor would

otherwise approve as medically sound; that is, an abortion

sought early in pregnancy on the ground that the woman

does not want a child. The denial to a patient of access to

medically approved treatment injures rather than promotes

public health.

It is commonly recognized that the unavailability of or

severely limited access to lawful, safe abortions results in

a

LA

|

23

women submitting to criminal abortionists. The public

health problem due to the after-effects of criminal abortion

is near epidemic. See, e.g., authorities referred to in

People v. Belous, text and fns. 7, 9 and 10,71 Cal.2d 954,

965-66, 80 Cal. Rptr. 354, 361, 458 P.2d 194, 201, cert.

denied 397 U.S. 915. A woman risks serious physical in-

jury, sterility or even death at the hands of criminal abor-

tionists. “Far from protecting human life . . . [the

statutes] tend in practice to destroy it.” Rosen v. Louisi-

ana, 318 F. Supp. 1217, at 1223 (E.D. La.) appeal docketed

(No. 70-42, Oct. 1971 Term) (dissenting opinion). Accord,

Doe v. Scott, 321 F. Supp. 1385, 1390-1391 (N.D. Tll.).

Health considerations do not justify the requirement in

the Georgia law that abortions be performed in “accred-

ited” hospitals. Medical experience with abortions per-

formed in adequately staffed out-patient clinics has been

favorable. See statistics reported in The New York Times,

June 30, 1971, p. 43, cols. 4-8. There certainly isn’t any

compelling reason to limit abortions to the relatively few

“accredited” hospitals in Georgia. Appellants’ Jurisdie-

tional Statement, pp. 18-19. The medical profession has

recognized that termination of an early pregnancy is a

relatively simple and safe procedure with fewer risks

to health than pregnancy itself. See People v. Belous,

text and authorities cited at fn. 7,°71 Cal.2d 954, at 965,

80 Cal. Rptr. 354, at 361, 458 P.2d 194, at 201, cert. denied

397 U.S. 915. Abortions like other simple surgical pro-

cedures can safely be performed in licensed hospitals (or

dinies) that do not meet “accreditation” standards. In

' People v. Barksdale, —— Cal. App.2d —— (Docket No. 1

Crim. 9526, Ct. App. Ist App. Dist. July 22, 1961), a re-

quirement that abortions be performed only in “accredited”

hospitals was struck down as “an unnecessary and unrea-

t,

24

sonable restraint upon the constitutionally guaranteed

right under discussion” (slip opinion pp. 19-20),

Similarly, the requirements that the prospective patient

prove (Georgia Code §26-1202(b)(1)) and that her physi.

cian certify (Georgia Code §26-1202(b)(2)) that she ig a

Georgia resident, do not accomplish any legitimate state

purpose in protecting the public health. The obvious pur.

pose of the requirements is to prevent non-resident pa.

tients from seeking abortions. Such a rationale does not

justify limiting the federally guaranteed liberties of women

who do not reside in Georgia.

The provisions regarding residency may also violate

another fundamental constitutional right of all citizens:

namely, the right to travel. In Corkey vy. Edwards, 322 F.

Supp. 1248, 1254 (W.D. N. Car.) a three-judge Court held

a four-month residency requirement in the state abor.

tion law an unconstitutional invasion of the right to travel,

The Court relied on Shapiro v. Thompson, 394 U.S. 618

(in which a one-year residency requirement for welfare

benefits was held a violation of the riglit to travel); and

United States v. Guest, 383 U.S. 745 (in which the right to

travel was declared a fundamental constitutional liberty).

The Court in Corkey indicated that even if the waiting

period were deleted, “flat exclusion of non-residents” (such

as that in the Georgia abortion law) would still offend the

Constitution. 322 F. Supp., at 1254-1255.

The Texas statutes do not remotely resemble health

legislation for they do not contain any medical standards

for the performance of the narrowly drawn class of per-

mitted abortions. There isn’t even a requirement that per-

mitted abortions be performed by licensed doctors. See

opinion of the District Court below in Roe v. Wade, 314

F, Supp. 1217, at 1223, fn. 15.

waa 4: Sieh ght acta ~

Pista »

2. The laws cannot be justified as a restriction on “im.

moral” sexual behavior, because the laws also penalize

marital sexual relations.

25

The power to regulate immoral sexual conduct cannot

responsibly be urged by the Appellees as a justification for

the statutes in question. Here, as in Griswold vy. Connecti-

cut (381 U.S. 479, 498, concurring Opinion) :

« it is clear that the state interest in safeguarding

marital fidelity ean be served by a more discrimi-

nately tailored statute, which does not, like the pres-

ent one, sweep unnecessarily broadly, reaching far

beyond the evil sought to be dealt with and intruding

upon the privacy of all married couples. See Aptheker

y. Secretary of State, 378 U.S. 500, 514; NAACP v.

Alabama, 377 U.S. 288, 307-308; McLaughlin v.

Florida, supra, 379 U.S. [184] at 196.”

Accord, Babbitz v. McCann, 310 F. Supp. 293, 301 (E.D.

Wise.), appeal dismissed sub nom. McCann v. Babbitz, 400

US. 1.

3. The States’ claimed duty to preserve the right of a

foetus to be born is not a valid justification for en-

croaching on personal liberties, for:

a. A foetus doesn’t have a “right” to be born; but if

it did, that right would be outweighed by the liberty

of women, or women and their husbands, to deter-

mine whether or not to have children.

The States claim the abortion laws are justified by a

compelling state interest in the foetus. The claim cannot.

legitimately be based on a foetus’ right to birth for there

is no such “right”. The constitutional guarantees of the

Fifth and Fourteenth Amendments apply only ‘*o “per-

Se RE EL A!

26

sons” and “citizens.” Citizenship, of course, is accorded

only.on birth, and not at conception: Montana v. Rogers

278 F.2d 68, 72 (7th Cir.), aff'd sub nom. Montana y.

Kennedy, 366 U.S. 308.

The Georgia District Court expressly declined to rule

that the foetus has a civil right to birth, holding: “the Court

does not postulate the existence of a new being With fed.

eral constitutional rights at any time during gestation,”

Doe vy. Bolton, 319 F. Supp. 1048 at 1055, fn. 3." The

Court also declared unconstitutional Georgia Code 496.

1202(c) that purported to create a right of action in an

unborn foetus to complain of contemplated abortion. 319

F. Supp. at 1056.

Criminal abortion laws are not designed to protect rights

of a foetus. In neither Georgia nor Texas is the destruction

of a foetus at any state of pregnancy a homicide. Passley

v. State, 194 Ga. 327, 329-330, 21 S.E.2d 230, 232; and see

the statutes at issue on these appeals, Georgia Code §{2-

1201, 26-1202, 26-1203; 2A Texas Penal Code Articles

1191-1194, 1196.7 In Texas “a woman who commits an

abortion on herself is guilty of no crime, she being re-

garded rather as the victim than the perpetrator of the

crime.” Fondren v. State, 74 Crim. Rep. 552, 557, 169 S.W.

411, 414. See also Hammett v. State, 84 Tex. Crim. Rep.

1 An appeal to this Court from the District Court’s denial of a

motion to intervene to assert the foetus’ constitutional rights was

dismissed for want of jurisdiction sub nom. Unborn Child of Mary

Doe v. Doe, U.S. ——, 29 L. Ed.2d 104.

12The crime of foeticide, defined as the “willful killing of an

unborn child so. far developed as to be ordinarily called ‘quick’,

formerly recognized in Georgia (Georgia Code §26-992la), was

apparently superseded by the new statute that is before the Court.

2A Texas Penal Code Article 1195 makes it a crime but not a

homicide to destroy a live child who is in the process of being born.

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Dri _ cen Tue OYIGH

27

635, 638, 209 S.W. 661, at 661, holding that the woman upon

whom an abortion is performed is not an accomplice in the

crime; and Texas’ Reply to Jurisdictional Statement at

5, The rule is the same in Georgia. Wolcott v. Gaines,

995 Ga. 373, 374, 169 S.E.2d 165, 166.

Other purported rights of the unborn, such as the right

to inheritance and the right of action in ‘tort, do not vest

unless there is ‘a live birth. Hill v. Lang, 211 Ga. 484, 489,

86 §.E.2d 498, 502; Leal v. Pitts Sand & Gravel, Inc., 419

S.Wi2g 820, 821 (Tex. Sup. Ct.). See algo discussion in

Dachs, “Liability for Wrongful Harm to the Unborn,” 166

VY. Law Journal No. 22, p. 1, col. 4 (August 2, 1971) part

1, at p. 4, cols. 3-4, and 166 N.Y. Law Journal No. 23, p. 1,

col. 4 (August 3, 1971), part 2. Dachs concluded (166 N.Y.

Law Journal No. 23, at p. 4, col. 4): “The unborn, as such,

has no legal standing and its complete destruction prior

to birth brings into being no rights in its favor. This is so

because in legal contemplation it is nothing.”

In In re Peabody, 5 N.Y.2d 541, 547, 186 N.Y.S.2d 265,

970, 158 N.E.2d 841, 844, the Court of Appeals of New York

held that in trust, estate and tort cases, “a child en ventre

* sa mere is not regarded as a person until it sees the light

.of day.” More recently in Endresz v. Friedberg, 24 N.Y.2d

478, 485, 301 N.Y.S.2d 65, 70, 948 N.E.2d 901, 904, the

< Court of Appeals reaffirmed its holding in Peabody and

stated : e

«| even if, as science and theology teach, the child

begins a separate ‘life’ from the moment of conception,

it is clear that, ‘except in so far as is necessary to

protect the child’s own rights’ (Matter of Roberts, 158

Mise. 698, 699, 286 N.Y.S. 476, 477, supra), the law

has never considered the unborn foetus as having a

ee ee Oe Pt | i ee a ee a ee a eB ee te et ee

CREE UP ES POEL IT TL RIE NE D

A IE SEE TE

28

separate ‘juridical existence’ (Drabbels v. Skelly jj

Co., 155 Neb. 17, 22, 50 N.W.2d 299) or a legal per.

sonality or — ‘until it sees the light of day. (Mat.

ter of Peabody, 5 N.Y.2d 541, 547, 186 N.Y.S.24 265,

270, 158 N.E.2d 841, 844, 845 supra)” (emphasis ours),

See also People v. Belous, 71 Cal.2d 954, 80 Cal. Rptr

354, 362, 458 P.2d 194, 202, cert. denied 397 U.S. 915.

The States may argue that the foetus nevertheless has

some claim to State protection. The State of Texas trieg

to convince the District Court that the statute is justified

by the State’s duty to protect the “quickened foetus”. The

District Court disagreed and held the statute overly

broad to serve the alleged interest, because all abortions

were prohibited regardless of the foetal term. Roe v. Wade,

314 F. Supp. 1217, at 1223 (N.D. Tex.). The Georgia

statute is similarly broad, for it, too, does not distinguish

abortions before “quickening” from those performed after.

ward.

Apart from the objection of overbreadth, the argument

must fall, for if the foetus has a right to protection, it is

outweighed by the greater constitutional liberty of persons

to determine whether they shall have children. As the

three-judge Court in Illinois wrote, Doe vy. Scott, 321 F.

Supp. 1385 (N.D. Ill.) at 1391: oa

“

a statute which forces the birth of every fetus, no

matter how defective or how intensely unwanted by

its future parents, displays no legitimately compelling

state interest in fetal life, especially when viewed with

regard for the countervailing rights of pregnant

women. We do not believe that the state has a com-

pelling interest in preserving all fetal life which justi-

.

.

DAMmD Crnnowy

_ asa

fies the gross intrusion on a woman’s privacy which is

involved in foreing her to bear an unwanted child.”

99 !

Other Courts have also refused to recognize the claimed

supremacy of the foetal entity over the constitutional free-

dom of people. See Roe v. Wade, 314 F. Supp. 1217, 1223 |

(X.D. Tex.); Babbitz v. McCann, 310 F. Supp. 293, 301 ’

% (ED. Wise.) appeal dismissed sub nom. McCann v. Bab-

bitz, 400 U.S. 1; ef., United States v. Vuitch, 305 F. Supp.

1032, 1035 (D.C. Cir.), rev’d on other grounds, 402 U.S. 62.

a

® In Babbitz v. McCann, the Court held (310 F. Supp. 293 .

at 301): :

“The deféndants urge that the state’s interest in pro-

tecting the embryo is a sufficient basis to sustain the

statute. Upon a balance of the relevant interests, we

hold that a woman’s right to refuse to carry an embryo

during the early months of pregnancy may not be in-

vaded by the state without a more compelling public

necessity than is reflected in the statute in question.”

The argument in Doe v. Bolton, 319 F. Supp. 1048, at

1055, that foetal rights predominate because after concep--

tion, “the decision to abort its [the foetus’] development

cannot be considered a purely private one affecting only

husband and wife, man and woman,” betrays a limited

understanding of the right of privacy. The “privacy”

guaranteed by the Constitution and recognized in Griswold t

x, Connecticut, 381 U.S. 479, 483, 485, is not limited to _ :

- activities in the home or between husband and wife, but

- ineludes all personal conduct that does not interfere with

the rights of others. See also Meyer v. Nebraska, 262 U.S.

390, 399; Shapiro v. Thompson, 394 U.S. 618, passim. Such

ayes

30

conduct is protected whether undertaken in or out of the

home, whether alone or in association with others. A pa-

tient’s treatment by a physician is not an affair of state

The State may not compel persons to become parents,

It cannot responsibly be argued that the right of pri-

vacy does not outweigh a foetus’ purported claim to pro.

tection because the right of privacy is “only implied or

deduced”, t.e. not enumerated in the Gonstitution. Stein.

berg v. Brown, 321 F. Supp. 741, 748 (N.D. Ohio). The

right of privacy does not have inferior status because it

is not enumerated. On the contrary, “the concept of liberty

protects those personal rights that are fundamental, and

is not confined to the specific terms of the Bill of Rights.”

Griswold v. Connecticut, 381 U.S. 479, at 486 (concurring

opinion of Mr. Justice Goldberg).

It has been suggested that Courts should not interfere

with state legislative detisions relating to abortion. See

Corkey v. Edwards, 322 F. Supp. 1248, 1253-54 (W.D. N.

Car.), Steinberg v. Brown, 321 F. Supp. 741, 748 (ND.

Ohio), and Rosen vy. Louisiana, 318 F. Supp. 1217, 1223,

1224, 1230 (E.D. La.). But no rational explanation was

offered why a State legislature should be free to set the

extent and limits of federally guaranteed liberties without

judicial scrutiny.

“The vice of ... [such] views is that it would permit

such experimentation by the States in the area of the

fundamental personal rights of its citizens. I cannot

agree that the Constitution grants such power either

to the States or to the Federal Government.” Gris-

wold v. Connecticut, 381 U.S. 479, at 496 (concurring

opinion of Mr. Justice Goldberg).

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ELEED THROUGH

See ee ee eee eee ee

31

b. The need to encourage population growth, if it ever

was a legitimate end of government, is not now a

valid justification for invading personal liberties.

The States may argue their interest in the foetus—a

potential being—is a legitimate expression of concern in

encouraging population growth. Assuming arguendo that

a government may encourage population growth by per-

suasion, population growth may not be compelled by laws

that can be obeyed only at the expense of individual liber-

ties. Cf. Griswold v. Connecticut, 381 U.S. 479, 496-497

(concurring opinion of Mr. Justice Goldberg) ; Skinner v.

Oklahoma, 316 U.S. 535, at 536, 541.

Moreover, as Mr. Justice Clark wrote: “procreation is

certainly no longer a legitimate or compelling State inter-

est in these days of burgeoning populations.” “Religion,

Morality and Abortion,” 2 Loyola L. Rev. (L.A.) 1, at 9.

Indeed, the current debate underscores the necessity for

governmental action to reduce population growth. See Note,

“Legal Analysis and Population Control: The Problem of

Coercion”, 84 Harv. L. Rev. 1856, 1865, et seq.

c. The religious view that the product of every con-

ception is sacred may not validly be urged by the

States as a justification for limiting the exercise of

constitutional liberties, for that would be an estab-

lishment of religion.

The real basis of the claim of state interest in the foetus

is a doctrinaire “moral” concern for the “potential of

independent human existence”. Doe v. Bolton, 319 F. Supp.

1048 at 1055 (emphasis in the original). The theoretical

moral concern is effected only by permitting a greater

moral outrage: the deep human suffering of adults and

children alike, that results from compelling one to continue

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an unwanted pregnancy, to give birth to an unwante

child, and to assume the- burdens of unwanted parenthood,

To many minds the “moral” concern for the foetus is mis.

placed. Reflective judges, scholars and commentators haye

perceived and deplored the fact that religious beliefs

underly the retention of abortion laws. Mr. Justice Clark,

wrote in his article “Religion, Morality and Abortion,” 9

Loyola L. Rev. (L.A.) 1, at 6:

“Despite the fact that religious belief continues to per.

meate our attitude toward abortion, most people to.

day agree with Justice Holmes that ‘moral predilee.

tions must not be allowed to influence our minds jp

settling legal distinctions.’ [O.W. Holmes, The Com.

mon Law].”

In “Abortion” 220 Scientific American No..1, p. 21, at 2

(January 1969) the scholars Christopher Tietze and Sarah

Lewitt traced opposition to abortion to the rise of Jewish

and Christian religions. Sée also Rosen v. Louisiana, 318

F. Supp. 1217, 1233 (E.D. La.), appeal docketed (No. 70-42,

Oct. 1971 Term) (dissenting opinion); and Comment, 8 |

Vand. L. Rev. 1346, at 1351:

“The American Law Institute has determined that

objections to abortion reform are not primarily

grounded on legal considerations but rather on re.

ligious beliefs which deem abortion sinful because it

cheapens: the value of human life.”

See also discussion in United States v. Vuitch, 402 US. 62,

at 78-79 (dissenting opinion of Mr. Justice Douglas).

No argument is needed to show that the police power

cannot be employed in the service of sectarian moral views

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without violating the Establishment Clause of the First

Amendment. Yet the Georgia District Court recognized

acompelling State interest in controlling’* what it discreetly

called “the quality and soundness of the decision” and

would have approved a state requirement that women de-

siring | abortions “[consult] with a licensed minister”. Doe

v. Bolton, 319 F. Supp. 1048, at 1056. :

In Rosen v. Louisiana, 318 F. Supp. 1217 (E.D. La.),

appeal docketed (No. 70-42 Oct. 1971 Term), the majority

recognized that the Louisiana abortion laws in effect codi-

fied “the official Roman Catholic view” that assigns an un-

defined value to foetal life from the moment of conception.

318 F. Supp. at 1223, fn. 2, and 1231, fn. 18. The Louisiana

District Court, however, characterizing the crime of abor-

tion as a “moral offense” and a “moral wrong”, claimed it

was powerless to interfere with the State’s moral decision.

As District Judge Cassibry said in dissent (318 F. Supp.

at 1233): “the [abortion] law rather seems to be an effort

to enforce certain views of private morality against those

not sharing those views”.

The writer of “Supreme Court, 1964 Term”, 79 Harv.

L. Rev. 56, 165, commenting on Griswold v. Connecticut,

381 U.S. 479, questioned the assumption that particular

views of morality are of state concern:

. the close relationship of moral to religious prin-

ciples suggests that the first amendment “might be.

taken to forbid governmental regulation of issues of

personal conscience unless such regulation has prag-

matic justification. (McGowan v. Maryland, 366 U.S.

8 By giving doctors the power and burden to judge whether an

abortion is “necessary” and should be performed.

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420, at 422-445). The establishment clause does seem

to express the judgment that freedom of conscience

for the individual is preferable to the possible benefits

of enforced uniformity. And the free exercise clanse

suggests that one should be permitted to act on per.

sonal principles as long as his actions do not threaten

to disrupt the social order.”

See also- discussion in Note, “Legal Analysis and Popula-

tion Control: The Problem of Coercion,” 84 Harv. L. Rey.

1856, at 1885-1888, tracing “courts’ and legislatures’ deep.

ening skepticism toward laws regulating the ‘morality’ of

. consensual sexual or sex-related behavior”. 84 Harv. L,

Rev. at 1887.

In Griswold v. Connecticut, 381 U.S. 479, the Court held

that the right of privacy, whether drawn from the penum-

bras of. the First, Third, Fourth, Fifth, Ninth and Four-

teenth Amendments, or protected by the Due Process

Clause of the Fourteenth Amendment, protects the free

exercise of one’s views (whether of religious or secular

origin) on birth control. State laws such as the abortion

laws at issue cannot be justified on the ground that they

comport with one gromp’s “moral” condemnation of the

exercise of the guaranteed freedom by others.

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CONCLUSION

The abortion laws invade the fundamental individual

liberty reserved by the Constitution to conduct one’s

nal life without unwarranted governmental inter-

ference, and the laws’ infringement of that liberty is

not warranted by any overriding valid ‘state interest.

For the reasons outlined, (1) the declaratory judgment

of the Georgia District Court should be affirmed only

to the extent that it held unconstitutional portions of

the Georgia abortion law; (2) the remainder of the law

should be declared unconstitutional, except that the pro-

vision of the Georgia abortion law that requires abor-

tions to be performed by physicians should be sustained ;

and (3) the declaratory judgment of the Texas Court

holding the Texas abortion laws unconstitutional shouid

be affirmed.

Respectfully submitted,

Heten L. Butrenwieser

Attorney for Amici

Bonnie. P. WINAWER

Of Counsel

On the Brief:

Heten L. Butrenwieser

Bonnie P. WINAWER

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