Amicus Curiae Brief — Roe v. Wade

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OCT 8 1971

IN THE

Supreme Court of the United States

No. 70-18

JANE ROE, et al., Appellan

HENRY WADE, Appellee. | E ROBERT SEAVER, CLERK

On Appeal from the United States District Court

for the Northern District of Texas

No. 70-40

MARY DOE, et al., Appellants,

ARTHUR K. BOLTON, et al., Appellees.

On Appeal from the United States District Court

for the Northern District of Georgia

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE

ALFRED L. SCANLAN

MARTIN J. FLYNN

Juan J. RYAN 734 Fifteenth Street, N.W.

1351 Springfield Avenue Washington, D.C. 20005

New Providence, New Jersey 07974 RoBERT M. BYRN

JOSEPH V. GARTLAN, JR. 140 West 62nd Street

815 Connecticut Avenue Lincoln Center

Washington, D.C. 20006 New York, New York 10023

Attorneys for The National Right to Life Committee, Amicus Curiae

OF COUNSEL:

Shea & Gardner

734 Fifteenth Street, N.W.

Washington, D.C. 20005 October 8, 1971.

OC THIEL PRESS 202 393 0825

RRS Se PRE EE HS EIEN LALO OLE RA HME

RCRD RARE BNI PABST LO LEA SAI

SHAT RISER RRR ROR Dan Lr oc EET St Pe AR

POLIO OS NIT ete

IN THE

Supreme Court of the United States

No. 70-18

gee Set

JANE ROE, et al., Appellants,

HENRY WADE, Appellee.

On Appeal from the United States District Court

for the Northern District of Texas

DEAS ogi

LYWIO ET EMIT BARI elt

No. 70-40

MARY DOE, et al., Appellants,

ARTHUR K. BOLTON, et al., Appellees.

On Appeal from the United States District Court :

for the Northern District of Georgia

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

PURPOSE OF THE MOTION

The opposing parties in No. 70-18 (the Texas case) have

given their written consent for The National Right to Life

Committee! to file an amicus curiae brief. The appellants

in No. 70-40 (the Georgia case) have also given written con- ’

sent to the filing of such a brief.2 While declining to give

written consent to the filing of an amicus curiae brief by

‘Hereinafter usually referred to as “NRLC”.

2These consents have been filed with the Clerk.

o . MAGEE PIG OCIS: SEA

er See apt ee be me ae. T < me ae . 4

PDE IL IO A BOLE PIE EBD IBY RONDA ONL Ms Eile the A ED AOE F Poni

NRLLC, the appellees in the Georgia case have stated in writ-

ing that they do not object to this motion.®

INTEREST OF THE AMICUS CURIAE

1. Identification of the Amicus. The National Right to

Life Committee is a non-sectarian, interdisciplinary organiza-

tion that is committed to informing and educating the gen-

eral public on questions related to the sanctity of human

life. Protecting the right to life of the unborn child is of

central concern for NRLC. The Committee believes that

proposals for total repeal or relaxation of present abortion

laws represent a regressive approach to serious human prob-

lems. NRLC is in favor of a legal system that protects the

life of the unborn child, while recognizing the dignity of the

child’s mother, the rights of its father, and the responsibility

of society to provide support and assistance to both the

mother and child.

NRLC opposes the repeal of existing laws preventing or

restricting an abortion, whether this be achieved by legisla-

tion or through court order. It is for this reason that NRLC

seeks the Court’s permission to participate in these two

cases. In both, the appellants raised in the lower court, and

again attempt to argue in this Court, grave constitutional

questions concerning the power of state legislatures to enact

laws which restrict the taking of life through the destruction

of a live fetus. Candidly, NRLC has reservations concerning

the Georgia statute. which permits abortion in several situa-

tions beyond that when abortion is necessary to save the life

of a mother. Nevertheless, NRLC believes that neither the

Texas nor the Georgia statute should be held unconstitu-

tional on any basis urged by the appellants in the two cases

at bar.

2. The Legal Position of NRLC in These Cases. As indi-

cated, if the question before this Court were the most desir-

3A copy of their letter to that effect has been filed with the Clerk.

able form of abortion legislation, only the Texas statute

would come close to the ethical and political position of

NRLC;* the Georgia statute would fall substantially short of

that position.* In these cases, however, NRLC is not con-

cerned with the most desirable legislative resolution of oppos- :

ing concépts of public morality and welfare, but with funda-

mental issues of constitutional power and policy. Accord-

ingly, while not endorsing either the Texas or especially the

Georgia statute as the ideal abortion law, NRLC, if granted

leave by the Court to submit this brief, will argue that neither ;

statute should be declared unconstitutional on any grounds

raised by the appellants in the courts below and reiterated

by them in this Court. In view of the Fifth and Fourteenth

Amendments, there can be no doubt that protection of

human life against destruction without due process of law

is one of the most fundamental values in American consti-

tutional policy. To the extent that Texas and Georgia have

acted to protect the unborn child against arbitrary. destruc-

tion by private individuals, including doctors and mothers,

Texas and Georgia have acted well within their constitutional

power.

oo SE

3. Justification for Participation as Amicus Curiae. On

the basis of the motions filed in response to the jurisdictional

statements filed in these two cases, it appears that in neither

do the appellees intend to address themselves to several of

the important constitutional issues which appellants have

sought to raise. These issues are of major concern to this

amicus. If considered and decided by this Court, their reso-

lution will have a national impact, affecting the laws of

ont pura imscteenbatatt at ae te sagt ti SENOS \SUR STREETS NBN SOIR TO IR RE Mt RRS TERA AI SOIR ITS

_—

| “The Texas statute permits abortion only “for the purpose of saving |

the life of the mother.” |

| ‘The Georgia statute permits abortion in a case where “(1) A con-

tinuation of the pregnancy would endanger the life of the pregnant

woman or would seriously and permanently injure her health; or (2)

The fetus would be very likely born with a grave, permanent, and

iremediable mental or physical defect; or (3) The pregnancy resulted

from forcible or statutory rape.”

EE ney WS ATL Fea SOIL LENGE Set PEE BRAILES CPN AE Tt NT Ng OL EET LOLA CLL BLM Bat Fo ay

many states and going far in determining what are to be

acceptable public mores.

Under these circumstances NRLC believes that both the

spirit and the text of Rule 42(3) sanction its appearance as

amicus curiae in these two cases for the purpose of arguing,

inter alia, that the two statutes challenged were within the

constitutional competence of Texas and Georgia to enact,

since those states have a compelling interest in protecting

human life, in the form of a living fetus, from destruction

by abortion.

CONCLUSION

For the reasons stated herein, and as more fully expanded

in the accompanying brief, NRLC respectfully requests that

the Court grant its motion and accept for filing the amicus

curiae brief submitted herewith.

Respectfully submitted,

ALFRED L. SCANLAN

MARTIN J. FLYNN

JUAN J. RYAN 734 Fifteenth Street, N.W.

1351 Springfield Avenue Washington, D.C. 20005

New Providence

ROBERT M. BYRN

nae eee ee 140 West 62nd Street

JosEPH V. GARTLAN, JR. Lincoln Center

815 Connecticut Avenue New York, New York 10023

Washington, D.C. 20006

Attorneys for The National Right to Life Committee,

Amicus Curiae

OF COUNSEL:

Shea & Gardner

734 Fifteenth Street, N.W.

Washington, D.C. 20005 October 8, 1971.

(i)

;

Nik an |

TABLE OF CONTENTS

Page ;

INTRODUCTORY STATEMENT ..................05. :

QUESTIONS PRESENTED ......................4.. 2

SUMMARY OF ARGUMENT ....................4.. 2

ROMA Gi eh esas ces necevevecvinecess 9

I. Both Courts Should Have Abstained from Granting

ee Saar ae ae er gr ae 9

A. The Texas Three-Judge Federal Court Should Have :

Abstained from Granting Declaratory Relief ...... 9 ;

B. The Georgia Three-Judge Federal Court Also .

Should Have Abstained from Granting Declaratory

FE aos ho 5 ke eee aS Peewee eis 14

II. Neither the Ninth nor the Fourteenth Amendment Pro-

hibits a State from Protecting Against the Destruction

eo ee 6 lf os 19

A. A State’s Interest in Protecting the Rights of a

Live Fetus Rests on a Now Indisputable Medical

oo iS ie Ochs 4 ee ae 8 20

B. In Anglo-Saxon Law the State Has Always Had a

Compelling Interest in Preventing the Destruction

es ee ere ee ee eee 24

C. The Law’s Recognition of the Property Rights of

an (born CE onc a es Ee 5 ob Ou ak ak es 29

D. Evolving Rights Afforded an Unborn Child in the

SO I oe oa hia oe nie poe ee eee 32

E. Equity and the Unborn Child ............... 36

1. The Right to Parental Support ........... 37

ee eee es OPE 37 1

F. Life Should Take Constitutional Precedence Over

PO Ee Cir HR oo os ows Bs 42

G. The Right to Life Has Not Been Undermined by

SO I so i ov oo ee hos bs 48

Ill. The Statutes Are Not Unconstitutionally Vague ....... 53 :

”

' _—_ Soe ah I NES RE SETA IES IR eee ee OF: SIS

OLGA SLAG ARE ADT ME BG REED LIEN OLS A CLOG OAL PN DLA AE TH BER Wy A Bat ay

(ii)

Page

IV. The Remaining Constitutional Arguments Advanced by

the Appellants and the Amici Curiae Supporting Them

Pie Te I ii ion ek a eh oi ho EP es 55

A. The Statutes Do Not Abridge Either First or

Fourteenth Amendment Rights of Doctors ....... 55

B. Nor Do the Statutes Draw Invidious and Uncon-

stitutional Discriminations Between the More Af.-

TO GE TE ois ne re hee sk be es 56

V. Appellants’ Public Policy Arguments Are Mis laced ..... 58

Co i oe ea i a ee i oe eS 60

TABLE OF CITATIONS

CASES:

Application of the President. and Directors of Georgetown

College, Inc., 331 F.2d 1000 (C.A. D.C., 1964), cert. den.,

S77 ES, BIR TIN hoa ic eek 6 Cora ee vee oes 37, 38, 46

Babbitz v. McCann, 306 F. Supp. 400 (E.D. Wisc., 1969), app.

pRB en ee ee ree ee 46

Baggett v. Bullitt, 377 U.S. 360 (1964) ...........0000ee 17

Barnett v. Pinkston, 238 Ala. 327, 191 So. 371 (1939) ..... 31

Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108 (1958) ..... 33

Board of Education v. Barnette, 319 U.S. 624 (1943) ....... 37

Bonbrest v. Kotz, 65 F. Supp. 138 (D. D.C., 1946) ........ 33, 34

City of Greenwood v. Peacock, 384 U.S. 808 (1968) ....... 15

Craig v. Rowland, 10 App. D.C. 402 (1897) ........-.-.- 31

Daley v. Meier, 33 Ill. App. 2d 218, 178 N.E. 2d 691 (1961).... 33

Damasiewicz v. Gorsuch, 197 Md. 417, 79 A.2d 550 (1951)... 33

Dietrich v. Northhampton, 138 Mass. 14 (1884) .........-. 33

Doe, et al. v. Bolton, et al., 319 F. Supp. 1048 (1970), prob.

juris. noted, 402 U.S. 941 (1971) .....----- eee eee passim

Doe v. Clarke, 2 H. BI. 399, 126 Eng. Rep. 617(1795) .....- 29

Mary Doe, et al. v. General Hospital of the District of Colum-

bia, et al., Be, | oe ee eee ers os

ister, 380 US. 479 (1965) .....0.--06- 11, 15

Dombrowski v.

x toh ,

at —

(iii)

Page

Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567 (1921)....... 21

England v. Louisiana State Board of Medical Examiners, 375

Ce ee RO eo eh a sk oo a a es 18

Ferguson v. Skrupa, 372 U.S. 726 (1963) ............... 48

Fisch v. General Motors Corp., 169 F.2d 266 (C.A. 6, 1948)... 57

Giboney v. Empire Storage and Ice Co., 336 U.S. 490 (1949)... 55

Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967) . 39, 40, 47, 54

Great Lakes Co. v. Huffman, 319 U.S. 293 (1953) ......... 17

Griswold v. Connecticut, 381 U.S. 479 (1965) ... 7,47, 50,51, 52

Gunn v. University Committee, 399 U.S. 383 (1970) ....... 13

Mell v. Mamcodk, 13 Fick. 255 (iem., 1090). 2. ee ee ee 30

Helvering v. Lerner Stores Co., 314 U.S. 463 (1941) ....... 13

Hodgson v. Randall, 314 F. Supp. 32 (D. Minn., 1970), aff'd,

Wn SP PE EE bs woe Ge FS eas va a oa eee 18

Hoener v. Bertinato, 67 N.J.S. 517, 171 A.2d 140 (1961)... 38

Hormbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.

ae I ee or is ks bee eek eb ibe eewr 33

Ide v. Scott Drilling Co., Inc., 341 Mich. 164,67 N.W.2d 133

CR ky i ee Ch ow a EO a heh cess 31

In Re Sankey’s Estate, 199 Cal. 391, 249 P. $17 (i926) ..... 31

ch cndliemnni Mined cath hla t; oer ee re eres 30

Jones v. Jones, 208 Misc. 721, 144 N.Y. Supp.2d 820 (Sup.

Ns cn EE og OE Se ee oe Teena neem 24

Kelly v. Gregory, 282 App. Div. 542, 125 N.Y.S.2d 696

OW ee es oy Oe in ook ds ee 33, 34, 35

Keyes v. Constr. Serv., Inc., 340 Mass. 633, 165 N.E.2d 912

UE eo or oe i i eksibicas 33

Konigsberg v. State Bar of Cal., 366 U.S. 36 (1961)......... 56

Kyne v. Kyne, 38 Cal. App.2d 122100 P.2d 806 (1940) ..... 37

La Blue v. Specker, 358 Mich. 558, 100 N.W.2d 445 (1960)... 31

Lochner v. New York, 198 U.S. 45 (1905) ............... 48

mes & Pees: 08 OE 1 CNG): . i ok cc. 49

Mae ©. Alena, 279 UB. $73 1928)... oe eee wk 14

ee SOME LE LIL E EOI ELSE LPL ELLEN IE LEI VELEN ESE,

™

(iv)

Page

Mallison v. Pomeroy, 205 Ore. 690, 291 P.2d 225 (1955) ..... 3

McGowan v. Maryland, 366 U.S. 420 (1961) ............. 29

McNeese v. Board of Education, 373 U.S. 668 (1963) ...... 16, 17

Miller v. Bennett, 190 Va. 162, 56 S.E.2d 217 (1949) ....... 51

Mitchell v. Donovan, 398 U.S. 427 (1970) ........... Sax

O'Neill v. Morse, et al, _. Mich. __, __. N.W.2d ___

RUSTE <0 5 COTO 5 5 ax GOO 6 Wn Khe Ow eek 35

Parker v. County of Los Angeles, 338 U.S. 327 (1949) ....... 9

Panfield Co. ». S.8.C, 390 U.S, SBS CI96F) o.oo Se. Coen 14

People v. Estergard, ___ Colo. ___, 457 P.2d 698 (1969) ..... 37

People v. Yates, 114 Cal. App. Supp. 782, 298 P.961 (1931).... 37

Peterson v. Nationwide Mutual Insurance Co., 26 Ohio App.

re. Mick. * 2,36, | eee ee eee rere eee 36

Pierce v. Society of Sisters, 268 U.S. 510 (1925) .......... 49, 50

Planned Parenthood Association, et al. v. Nelson, et al., 327

eo oP Ge Re) are eee eee 18

Prince vy. Massachusetts, 321 U.S. 158 (1943) ............5. 39

Public Service Commission v. Wycoff Co., 344 US. 237

COUN, CN Nae s 0 en Oa oe Rha es tae RS 9,17

Railway Express Agency v. New York, 336 U.S. 106 (1949)... 57

Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson,

42 N.J. 421, 201 A.2d 537 (1964), cert. den., 377 US.

ki. | ee eee ne eo err oer re 38, 39, 46

Regina v. Wycherly, 8 Car. & P. 262, 173 Eng. Rep. 486

Coe CU, SS as Kass 4 TP RE Ps 88 es Oh 26

Riggs National Bank v. Summerlin, et al., C.A. 187-69, Memo.

COREA TG: TA Se 5 os vn ne egw Pee id 31

Roe, et al. v. Wade, 314 F. Supp. 1217 (1970), prob. juris.

outed, Gir ares GRP TED 0 8 Sv ode a cas Ke ris passim

Samuels v. Mockell, 401 US. 66 (1971) ©... on i eens passim

Scott v. McPheeters, 33 Cal. App.2d 629, 92 P.2d 678 (1939)... 33

Seattle-First Nat'l Bank v. Rankin, 59 Wash.2d 288, 367 P.2d

Oe eee a WS Vice hac es hg EN ae 24, 33

Sinkler v. Kneale, 401 Pa. 2677164 A.2d 93 (1960)......... 33

SOE 42s. ee ee ey er eee

(v)

rage

Skinner v. Oklahoma, 316 U.S. 535 (1942)............... 49

Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960) ....... 33

Sox v. United States, 187 F. Supp. 465 (E.D. S.C., ee 36

State v. Moretti, S52 N.J. 182, 244 A.2d 499 (1968), cert. den.,

DOO POR RUOE ik a Ka RA a rec ON ee 54

Steinberg v. Rhodes, et al., 321 F. Supp. 741 (N.D. Ohio

i, eee iia aes eae ors ue ees 41

Swain v. Bowers, 91 Ind. 307, 158 N.E. 598 (1927)......... 31

Sylvia v. Gobeille, 101 R.1. 76, 220 A.2d 222 (1966) ...... 24, 34

Thelluson v. Woodford, 4 Ves. 227, 31 Eng. Rep. 117 ( mes. B®

Torigian v. Watertown News Co., 352 Mass. 446, 225 N.E.2d

tip nk wendy: COI Oe ee ee ieee 33

Tursi v. New England Windsor Co., 19 Conn. Supp. 242, 111

“eee eta cng SEER ee ee ee oa eee 33

United States v. American Ry. Express Co., 265 U.S. 425

(1924)

cca e me Ee We eS Si FOS 68 66 8s oa 14

United States v. Vuitch, 402 U.S. 62 (1971) bake Beas 7, 9, 53, 54

United States v. Wurzbach, 280 U.S. 396 (1930) ........5.. 54

ie OO BR OR io hai cos be ees 30

Williams v, Marion Rapid Transit, Inc., 152 Ohio 144, 87

ons Bg ia: EEE Pe ee re Oe nee 33

Willner v. Committee on Character and Fitness, 373 U.S. 96

( 1963) ix S00 CPOs eee eres Wk eck a re ews ok 56

Womack v. Buchhorn Mich , 187 N.W.2d 218

RRFED 6s 55 GWA wi ee EE ie ee 35

Wyman vy. James, pe She PONTE ob oo i Oe 44

rege o. Gs, A US OPIN) ww os. 2 passim

cunt v, Koom, 300 OS. 201 (1967)... 5... ae

CONSTITUTIONAL AND STATUTORY PRO VISIONS:

- cutassion baie martenc, Pin ee oer ee 54

22 D.C. Code 201 RUMI Ce ok Wk oe Ok ca Pee 53

TMA Cie OIL BEIM S

LARGE ILENE AGG

(vi)

Page

Miscarriage of Women Act, 43 Geo. 3 c. 58 (1803) ...... 20 27

Oe ts ea a a ASR ee 13

United States Constitution:

ik Khia s ako O ae ae e passim

ccc kas eee ewe ER ee S 41

Pe NN i a A ca on ges sa ws a eS 41, 44

I a a slaw as Gn ws 8 646 eS 4]

ee EEE ey rea ene ree Passim

I oe se ok e's OK ee ee passim

MISCELLANEOUS:

American Medical Association, Minutes of the Annual Meeting

1859, Tenth Annual Medical Gazette 409 (1859)......... 28

Bishop, Commentaries on the Law of Statutory Crimes, Sec-

aks PU CE BA TOBY os i 8 a eos ae a ieee 27

Black’s Law Dictionary 1415 (4th Ed., 1968) ............ 26, 30

I Blackstone's Commentaries 456 .. 1.1... ccc een eee 26, 52

Blake, Abortion and Public Opinion: The 1960-1970 Decade,

OPE Bats SOO CTOT TD a on csc oe ei i wiki eck ee se ees 48

Bracton, De Legibus et Consuetudinibus Angliae, 3.2.4 (Lon-

OO as i ee ss on be ee Ra ess 25

Cavanagh, Reforming the Abortion Laws: A Doctor Looks at

the Case, America, April 18, 1970, p. 408 ..........-.. 59

Chicago Sun-Times, May 6, 1971, p. 12 ......--+-0 +0205) 39

Coke, The Third Part of the Institutes of England, Section 50

i IN og ee cag Sed ee ge 25

Coniff, The World of the Unborn, New York Times Magazine,

January 8, 1967, p.41 «ees. eee es Pee ee eat ee 22

Fox, Abortion, a Question of Right or Wrong, 57 A.B.A.J.

OOS Oe CASTE kg kok se eee ce Von 25, 27

_ Frankl, the Doctor and the Soul, 37 (1969)... ..-.---->- 56

Gordon, The Unborn Plaintiff, 63 Mich. L.R. 579, 627 (1965). . 33, 34

Gottleib, Developmental Genetics 17 (1966) ..........--: 22

Granfield, The Abortion Decision 25 (1969) ..........+-- 23,47

Gruenwald, Growth of the Human Fetus, 94 Am.J. Obstetrics

and Gynecology 1112 (1966) ......--- esse e ees dow

Pimltero

"y ,

(vii)

Page

Guttmacher, Pregnancy and Birth 86 (1960) \............. 51

Harper and James, Torts, Sec. 18.3 (1956) ............... 33

Hellegers, Abortion, the Law, and the Common Good, 3 Medi-

cal Opinion and Review, No. 5 (May 1967), pp. 84,90... . 45.54

Hellegers, Law and the Common Good, 86 Commonweal 418

WW Seeks nsx: Dera al oa Swe ves Re 41

De: SE See hs a nh ka eR 21

Liley, Modern Motherhood 26-27 (1967) ............... 23

Maledon, The Law and the Unbom Child: The Legal and

Logical Inconsistencies, 46 N.D. Lawyer 349, 356-57

COREE GON a a oes es ee a eo ae 35

Markham, Foeticide and Its Prevention, 9 Journal of the

American Medical Association 805 (1888) ............. 28

Means, The Law of New York Concerning Abortion and the

Status of the Fetus 1664-1968: A Case of Cessation of

Constitutionality, 14 N.Y. Law Forum 411, 439, n. 64

ROE hs 0 es 5d os bs 5h 6 oe se Cheha 27

Montagu, Hemolytic Disease of the Fetus, Intra-Uterine Devel-

opment 443, 455 (A. Barnes ed. 1968) ............... 21

Montagu, Life Before Birth 2 (1964) ..........0.05%.... 22

Morison, Foetal and Neonatal Pathology 99-100 (1963)....... 34

pvtattelyeris hence Go ida} Lee OE OC ee eae 58

Noonan, Amendment to the Abortion Law: Relevant Data

and Judicial Opinion, \$ The Catholic Lawyer, No. 2

ON ea kei ccs oc wun 40

Noonan, Contraception 491 (196S) ©). 5... de, 51

Noonan, Freedom To Reproduce. (gutionery History, Pres-

ent Invasions, Future Assurance. Qeenmial Conference on

the “Control of One's Own Body.” New York University,

Ue TN a ee Boe. 59

Noonan, The Morality of Abortion 224 (Harvard U. Press,

WO ee eRe ek hae ced esc 3 Sms 28, 41

Packer & Gamspell, Therapeutic Abortion, A Problem in Law

and Medicine, 11 Stanford L.R. 418, 444 (1959)......... 54

Patterson, Law in Scientific Age § (1963) ............... 36

LALA AAA ARLENE ETM HR RI NNT

Sad AR AAO PEE PLE NS EAN NED PME POEL NEE AF Sate OGIEE SOON ISTE NDE > SMO Ke ERIS

(viii)

Perkins, Criminal Law 28-29 (2d Ed., 1969) .............

Prosser on Torts, Sec. 56 (1964) 2... 2. ccc ences

Quay, Justifiable Abortion, 40 Georgetown L.J. 173, 430-31

i | | eR rae Ae ree eae a ee ee

Quimby, Introduction to Medical Jurisprudence, 9 Journal of —

the American Medical Association 164 (1887) ...........

Report of the Third Committee of the General Assembly, Offi-

cial Records, 14th Session, p. 593 .... 1... ee eee eeess

Rosen, Therapeutic Abortion, Medical, Psychiatric, Anthropo-

logical and Legal Considerations (1954) ...............

Time Magazine, February 25, 1960, p. 86 ...............

Uhrus, Some Aspects of the Swedish Law Governing Termi-

nation of Pregnancy, The Lancet 1292 (1964)............

United Nations, Declaration of the Rights of the Child, Offi-

cial Records of the General Assembly 19-20, 14th Session

CHR ao a a cs hs ee ew Oe ee SS

Washington Post, September 7, 1971, page A-l ...........

Zacchia, Quaestiones Medico-Legales 9.1 (1621) ...........

_— io ne es 2d ON Ah RAE OORT AIP RSE 2 AR Cie PERO eG RMB ND eemnee, |

IN THE

Supreme Court of the United States

No. 70-18

ELAR IEW IT DRT SINT GAT PE OLE LILLE RIE IT

JANE ROE, et al., Appellants,

HENRY WADE, Appellee.

On Appeal from the United States District Court .

for the Northern District of Texas

OATS (RO

ET PO At EDSON

No. 70-40

MARY DOE, et al., Appellants, :

v. :

ARTHUR K. BOLTON, et al., Appellees. F

On Appeal from the United States District Court

for the Northern District of Georgia

BRIEF AMICUS CURIAE OF

THE NATIONAL RIGHT TO LIFE COMMITTEE

INTRODUCTORY STATEMENT .

The interests and identification of the amicus curiae are

stated in the motion which NRLC has filed. The facts of

record, the pertinent provisions of the Texas and Georgia

Statutes, the provisions of the United States Constitution

involved and the opinions of the courts below are found

either in the printed appendices or in the briefs filed by

the appellants and appellees. This amicus accepts them

for purposes of its own brief.

_ 1

P re re

eens) et R78,

pes

SAMreSe%

pereenerrene SEER LT NPE Poe

ANGE MA ION DS! ites S55 Fie TARA ONT EPITOME ELE ARAL SAN EDI AAPL DE %

QUESTIONS PRESENTED

A. These cases raise issues both of jurisdiction and of con-

stitutionality. The basic jurisdictional question appears to

this amicus to be whether the two lower courts should have

abstained from exercising jurisdiction and granting declara-

tory judgments.

B. Should the Court conclude that the courts below

properly exercised jurisdiction and that jurisdiction on

appeal also exists in this Court, then it would be confronted

with the following substantive issues:

1. Did either the Texas or Georgia court abuse discre-

tion in refusing to issue the injunction sought by the respec-

tive appellants? '

2. Do the Georgia and Texas abortion statutes invade

any alleged constitutional right of privacy on the part of a

woman to abort an unborn child?

3. Are the statutes unconstitutionally vague?

4. Do the statutes impair First Amendment or Due

Process rights of doctors to practice their profession?

5. Do the statutes deny equal protection of the laws

to poorer citizens?

SUMMARY OF ARGUMENT

lL.

A. The Texas three-judge federal court should have

abstained from granting declaratory relief. At the time the

suit was instituted, state court criminal proceedings were

pending against the doctor-plaintiff charging him with vio-

lations of the Texas abortion statute. In such a case, as this

Court recently ruled, “relief by way of declaratory judgment

This issue has been adequately briefed by the appellees in both

cases. NRLC supports those arguments and therefore will not speak

further to that particular question.

should have been denied without consideration of the

merits.” Samuels v. Mackell, 401 U.S. 66, 73 (1971).

B. The Georgia case presents the fact situation to which

this Court referred but left undecided in Younger v. Harris,

401 U.S. 37 (1971); ie., no criminal prosecution was “‘pend-

ing in state courts at the time the federal proceeding...

[was] begun.” 401 U.S., at 41. The principles laid down in

the Mackell, Younger and related cases decided by the Court

at the last Term should also apply in this case. The state

statute has never been construed by the Georgia courts, and

those courts are available to provide both declaratory and

injunctive relief in an appropriate case. Therefore, tradi-

tional principles of equity, federalism, comity and sound

judicial administration support the proposition that the

Georgia three-judge federal court should have denied declara-

tory relief without reaching the merits of the constitutional

issues raised by the appellants.

2 If.

A. Whatever the metaphysical view, the legal concepts

as to the nature and rights of an unborn child have drastically

changed, based on expanding medical knowledge over the

last 2,500 years. As recently as 1921, a respected state court

could maintain that the child in the womb is part of his

mother. The findings of medical science have destroyed

that myth. The leading doctors and scientists in the field

now agree that life begins at conception. They further

agree that a developing fetus is alive, not only in the sense

that he is composed of living tissue, but also in the sense

that he is a living, striving human being, from the very

beginning. Very early in the pregnancy the fetus manifests

a working heart and brain gris, fag his mother. There

is absolutely no question but that his existence as an

individual begins no later than the stage at which the

cells which make up the fetus separate from those cells

which later become the placenta. Thus, the state’s interest

in the preservation of human life in the womb rests upon

the undisputed medical evidence.

VE ALR LILO LAME ILE NE |

OBL NTER REN AG

Lae SAIN APP De 1 RAEN ee Rage it BAILED Oi alt A by LE. * IE OO A: 3 eae

B. From Bracton’s day abortion was regarded at, com-

mon law as a serious evil or wrong which should be pre-

vented in order to curtail or stop the unnecessary destruc-

tion of human life. For a brief period difficulties of proving

that an abortion had in fact caused the termination of an

“unquick” child prevented application of the serious sanc-

tions of the criminal law to some cases. However, when

medical science eliminated those difficulties of factual

proof, there was no longer any question but that one of

the prime purposes of the abortion statutes was to prevent

the destruction of the unborn fetus at all stages of gesta-

tion. Therefore, the compelling interest which Texas and

Georgia have in prohibiting and regulating unjustifiable

abortions is not one newly discovered or advanced as an

afterthought argument.

C. The law has recognized the rights of an unborn child

in other important areas. For example, the property rights

of an unborn child, at all stages of fetal development, were

recognized by English law before the end of the eighteenth

‘century. The same recognition was afforded the property

rights of an unborn child by American courts. In property

law there was no requirement that the fetus must be “quick,”

ie., that his presence within her body be felt or recognized

by the mother. The rules protecting property rights of an

unborn child have been applied even where their application

benefited some third party rather than the child, and even

where the child himself suffered disadvantage because of

such application. We believe it would be an ironic and

inexplicable perversion of both human and constitutional

values if it were to be the law that a state has an interest in

protecting the property rights of an unborn child but has

no compelling, constitutionally justifiable interest in regu-

lating the circumstances and conditions under which he

may be destroyed.

D. In the field of tort law there has been a dramatic

development and complete change in the law in response to

expanding scientific knowledge and medical facts that for-

merly were unavailable. Until well into the twentieth cen-

BLEED THROUGH POOR COPY

tury most American decisions denied recovery in tort to the

human offspring harmed in the womb, primarily on the

ground that the defendant owed no duty to a person who

was not in existence at the time of the tort. The premise

here, Of course, was the now repudiated notion that the

unborn child was a part of his mother. Almost every juris-

diction which has considered the issue in the last 30 years

has upheld the right of an infant to sue for injuries sustained

prior to birth, including the right to sue under a wrongful :

death statute, whether or not the injury occurred at the

time the unborn child was viable or not. If the state may

protect the unborn child by a court action awarding damages

for a tort, a fortiori it cannot be impotent to protect the

same living being by criminal sanctions which prohibit his

arbitrary destruction.

‘

AERA ON OEY aor. |

E. It is also now established that the law will recognize

an unborn child’s right to support by his parents. If a state

has sufficient justification to require a father to support an

unborn child which he may not want, can it be fairly main-

tained that the same state has no justifiable interest in pro-

tecting from destruction as a living being a child which his

mother may not want? This Court hasofirmly settled that

the free exercise of religion rights guaranteed by the First

Amendment are susceptible of restriction only to prevent

grave and immediate danger to interests which the state may

lawfully protect. Nevertheless, the right of an unborn child

to live has served to permit the state’s abridgement of or

interference with a mother’s religious convictions when

necessary to save the life of an unborn child. These are

cases where the court has to override the religious convic-

tions of a mother and order a blood transfusion in order to

save an unbom child within the womb. Either expressly or

impliedly such judicial results are based on the findings of

modern medical science concerning the nature of the fetus

and constitute recognition of the right of the child in the

womb to the protection of the law.

LEER LIONS PRE

ELA LOLOL LEST LE LOE LIAL, IL, NL EI GE DELLE LOB SE

F. The amicus believes that in any balancing of constitu-

tional values or rights, life must be preserved over alleged

privacy. Even if there is a certain right of privacy on the

part of a woman arising from the marital relationship, with

which the state cannot unjustifiably interfere, there is

another right involved here, and the most fundamental of

the personal liberties protected by the Due Process Clause,

ie., the unbom child’s right nat to “be deprived of life,”

in the very words of that constitutional provision. Thus,

the Court is not confronted with a balancing between a

right of personal liberty on the one hand and some lesser

competing state interest on the other. The choice here is

between a nebulous and undefined right of privacy on the

part of a woman with respect to the use of her body and

the personal right to life of an unborn child, with a con-

comitant right on the part of a state to prevent its unjusti-

fiable destruction.

The state’s interest in regulating abortion is not bottomed

exclusively on its concern for the health of the mother. The

state interest which justifies what the Congress had done

rests on concern for the preservation of human life, even

thougf®that life be within the womb. There are no decisions

of this Court which suggest the existence of an unrestricted

right of bodily integrity on the part of a woman sufficient to

permit her alone to decide, for whatever reason, whether

to terminate a pregnancy. Nor does a married couple’s right

to plan a family and to space their offspring encompass the

right to intentionally destroy an unborn, but living, fetus

any more than it would justify infanticide. Moreover, to

sustain the attack on the statute which the appellants make

in urging that it offends against an alleged right of privacy

would require this Court’s unabashed return to the long-

repudiated concept of substantive due process which plagued

its decisions for several generations.

Public and medical epinion with respect to relaxation of

the abortion laws is divided. However, the predilections of

the populace, much less the individual preferences of judges,

cannot serve as a basis to strike down legislation within the

LO te LA il Me PRR LE LOLI

fai eek i a Ma ar Fk tes

fs.

SHAE ATE DION

competence Of a state to enact, especially when such legis-

t Jation is aimed at protecting the most fundamental of the

f personal liberties protected by the Due Process Clause, that i

is, the right not to “be deprived of life.” f

G. All the cases cited by the appellants in support of the

: claim that a right of privacy is constitutionally guaranteed

are clearly distinguishable on their facts. The only one that

even superficially might be regarded as an analogy to support

appellee’s position here is Griswold v. Connecticut, 381 U.S.

479 (1965). Griswold stands only for the proposition that

a law outlawing the use of contraceptives, enforcement of

which would require invasion of the marital bedroom, trans-

gressed on the intimacies of the right of privacy inherent

in the marital relationship, including the sexual relationship.

The Texas and Georgia abortion statutes do not affect the

sexual relationships of husband and wife. Moreover, in

Griswold the Court was not called upon to choose between

the right to privacy and the right to life, the choice it must

make in this case. Nor can it seriously be argued that

abortion, a crime at common law, is a fundamental, albeit

‘‘penumbral,” liberty reserved by the Ninth Amendment.

Ill.

This Court’s decision in United States v. Vuitch, 402 U.S.

62 (1971) is dispositive of the appellants’ claims that the

Texas and Georgia statutes are unconstitutionally vague.

Doctors are neither in doubt nor in fear as to where

abortions permitted by those statutes end and where those

barred by them begin.

IV.

A. In both cases appellants urge that the particular statute

“chills and deters plaintiffs from practicing their profession

as medical practitioners and thus offends rights guaranteed

by the First and Fourteenth Amendments.” However,

neither statute proscribes speech or medical advice but

LOL LEEILE LE BP ELODIE PL LELE LE EMAIL EIA LALA OF

SP ED Ot Se

merely prohibits the commission of the criminal acts speci-

fied. If the acts outlawed by the statutes are within the

constitutional competency of Texas and Georgia to proscribe

as criminal conduct, then the argument is closed.. Criminal

acts do not fall within the freedom of speech which the First

Amendment protects. The same rationale also answers

appellants’ claims that the freedom to pursue the profession

of medicine guaranteed by the Due Process Clause is

offended by the statutes involved in these cases.

B. Nor does the statute effect any invidious discrimina

tion between rich and poor, as contended by the appellants.

It applies to all persons committing the acts condemned by

it and there is no suggestion that it seeks to discriminate

on any invidious basis, including that of income. Even if

it is true that the rich are in a better position to go to a

jurisdiction where abortions are legal or to engage the ser-

ices of more sympathetic physicians, the answer would be

no different. There is no requirement of equal protection

that all evils of the same genus be eradicated. or none at all. ,

If the law in this instance, as in so many others, bears more

oppressively on the less financially fortunate, the remedy

lies in the elimination of the causes of poverty and the

reform of the administration of criminal justice, not by the

selective invalidation of otherwise lawfully enacted statutes.

C. Appellants also argue that the common welfare would

be better served by more relaxed abortion Jaws. They

profess concern about the unsafe conditions which surround

criminal abortions and also claim to be moved by the

problem of world overpopulation. Whatever the efficacy of

such arguments, it is to the Congress, not to this Court, that

they should be directed. Apart from that, however, the

amicus questions their persuasiveness. The evidence is that

liberalization of abortion laws has effected no substantive

reduction in the rate of illegal abortions in other countries,

so all that is-done is to incréase the total number of abortions.

Finally, so far as the problem of overpopulation is concerned,

an abortion, whether on the free demand of a woman or pur-

;

a a

suant to the intimidating command of the state, appears to us

as a singularly ineffective, and indeed extremely dangerous,

way to attempt to solve the population problem, at least in

the context of the humanistic values traditional to Western

Civilization. In any event, this Court is not the forum,

and these cases are not the occasion, to debate whether

unrestricted abortion would best serve the general welfare

of the people of Texas and Georgia.

ARGUMENT

BOTH COURTS SHOULD HAVE ABSTAINED

FROM GRANTING DECLARATORY RELIEF

This amicus is primarily concerned about the ultimate

disposition of the important constitutional issues which the

appellants have attempted to raise in the two cases. Never-

theless, NRLC is also concerned that these issues not be

determined either prematurely or disparately and in the

context of litigation where federal jurisdiction, if not

absent, rests On an uncertain or disputed basis. Parker v.

County of Los Angeles, 338 U.S. 327, 333 (1949). This

Court has postponed the question of jurisdiction in both

cases. 402 U.S. 941 (1971). NRLC respectfully suggests,

for the reasons set out below, that this Court should either:

(1) note probable jurisdiction and vacate the orders entered

by the courts below on the ground that they should have

abstained from granting declaratory as well as injunctive

relief, Samuels v. Mackell, 401 U.S. 66, 72 (1971); or (2)

dismiss both cases for want of a substantial federal question,

in that the judgments entered below do not constitute final

determinations of federal constitutional rights. Public Service

Commission v. Wycoff Co., 344 U.S. 237, 247 (1952).

A. The Texas Three-Judge Federal Court Should Have

Abstained from Granting Declaratory Relief. One of the

plaintiffs in the Texas case was a doctor who was permitted

to intervene on the ground that he had been charged with

violating the Texas abortion statute in two cases “now

eel Glace ae te RMA Dona ona TANARIS RNIN IRE ANETTA EI SAR Ie RN a

pending in the Criminal District Court of Dallas County,

Texas... .” (App. 22).2 Last Term, this Court held that

federal courts should not exercise jurisdiction to enjoin

pending state criminal prosecutions except under extra-

ordinary circumstances where the danger of irreparable loss

is both great and immediate in that there is a threat to the

plaintiff's federally protected rights which cannot be elim-

inated by his defense of a criminal prosecution brought

against him. Younger v. Harris, 401 U.S. 37 (1971).

Speaking for a majority of the Court, Mr. Justice Black

pointed out that the ancient doctrine of equitable absten-

tion which grew up in the British judicial system “is

equally important under our Constitution, in order to

prevent erosion of the role of the jury and avoid a duplica-

tion of legal proceedings and legal Sanctions where a single

suit would be adequate to protect the rights asserted.””*

Continuing. he said:

‘

*. . . This underlying reason for restraining courts of

equity .from interfering with criminal prosecutions

is reinforced by an even more vital consideration,

the notion of ‘comity,’ that is, a proper respect for

state functions, a recognition of the fact that the

entire country is made up of a Union of separate

state governments, and a continuance of the belief

that the National Government will fare best if the

States and their-institutions are left free to perform

their separate functions in their separate ways. This.

perhaps for lack of a better and clearer way to

describe it, is referred to by many as ‘Our Federalism, ,

and one familiar with the profound debates that

ushered our Federai Constitution into existence is

bound to respect those who remain loyal to the

ideals and dreams of ‘Our Federalism.’ The concept

State of Texas v. James H. Hallford, No. C69-5307-1H, and State

of Texas v. James H. Halljord, No. C-69-2524-H. — Reterences to

the printed appendices in the two cases are designated herein as

“(App. ae ow:

31d, at 44. .

does not mean blind deference to ‘States’ Rights’

any more than it means centralization of control

over every important issue in our National Govern-

ment and its courts. The Framers rejected both these

courses. What the concept does represent is a system

in which there is sensitivity to the legitimate interests

of both State and National Governments, and in

which the National Government, anxious though it

may be to vindicate and protect federal rights ‘and

federal interests, always endeavors to do so in ways

that will not unduly interfere with the legitimate

activities of the States.’’4

The Younger case is square authority in support of the

refusal of the Texas three-judge federal court to grant the

injunction requested by the appellants. In this case, as in

Younger, criminal prosecutions were pending involving one

of “the plaintiffs. Moreover, in both cases, there is no

showing that a situation exists “in which defense of the

State’s criminal prosecution will not assure adequate vindi-

cation of constitutional rights.”” Dombrowski v. Pfister,

380 U.S. 479, 485-86 (1965). However, the three-judge

federal court in the Texas case, despite its refusal to issue

an injunction, did grant a declaratory judgment striking

down the Texas abortion statute as unconstitutional under

the Ninth and Fourteenth Amendments and on grounds of

vagueness under the Due Process Clause of the Fourteenth

Amendment. 314 F. Supp., at 1225. Here, the court below

erred: it should have abstained from the grant of such relief.

On the same day that this Court decided Younger v.

Harris, it handed down its opinion in Samuels v. Mackell,

401 U.S. 66 (1971). There, the Court held that the same

principles which govern the propriety of issuing federal

injunctions against state court criminal proceedings also

apply to the granting of federal declaratory judgments. In

41 bid.

Samuels, the appellants had been indicted under New

York’s Criminal Anarchy Law. They brought an action

seeking declaratory as well as injunctive relief against their

prosecutions on the ground that the statute violated the

First and Fourteenth Amendments of the Constitution of

the United States. A three-judge district court upheld the

law and dismissed the complaints on the merits. After

sustaining the lower court’s refusal to grant injunctive relief,

this Court held that the decision below should be affirmed

but on the ground that “relief by way of declaratory judg-

ment should have been denied without consideration of the

merits.” 401 U.S., at 73. Speaking for the Court, Mr.

Justice Black said that:

«| in cases where the state criminal prosecution was

begun prior to the federal suit, the same equitable

principles relevant to the propriety of an injunction

must be taken into consideration by federal district

courts in determining whether to issue a declaratory

judgment, and that where an injunction would be

impermissible under these principles, deciaratory re-

lief should ordinarily be denied as well.’”’*

A majority of the Court thus discerned no difference’

between the propriety of issuing declafatory relief as opposed

to injunctive relief where a “criminal proceeding was begun

prior to the federal civil suit . * In both situations,

“deeply rooted and long settled principles of equity have

narrowly restricted the scope for federal intervention, and

ordinarily a declaratory judgment will result in precisely the

same interference with and disruption of state proceedings

that the long standing policy limiting injunctions was

designed to avoid.” 401 U.S., at 72.

The efficacy of a policy which restricts the grant of federal

declaratory relief as well as the issuance of an injunction

when criminal proceedings are threatened or, as in the Texas

case, in existence at the time a civil suit is filed is further

Sid., at’73.

Agee

demonstrated when we consider the inequity and procedural

awkwardness of the situation facing the State of Texas.

’ which lost on the merits in the court below. It is settled that

neither the grant nor the refusal of a declaratory judgment,

without more, will support a direct appeal to this Court

under 28 U.S.C. 1253. Mitchell v. Donovan, 398 U.S. 427

(1970); Gunn v. University Committee, 399 U.S. 383 (1970).

» ~ The State of Texas, therefore, has only one avenue through

which to appeal directly the declaratory judgment voiding

its abortion statute and that is to the Fifth Circuit and, if

unsuccessful there, by attempting to invoke the certiorari

jurisdiction of this Court® Rarely has this Court tolerated

the unnecessary bifurcation of constitutional litigation. Yet.

should the Court hold in this case that the three-judge court

properly granted declaratory relief but improperly denied

injunctive relief, it then might be faced at least indirectly, as

we now show, with consideration and decision of the same

constitutional issues that are being directly raised by the

appellees in the Court of Appeals for the Fifth Circuit.

As stated, Texas is foreclosed from any direct appeal to

this Court of the decision of the three-judge court in declar-

ing its abortion statute unconstitutional. However. if this

Court finds that the lower court acted properly in taking

jurisdiction and deciding the case on the merits. then Texas

presumably would argue that the court below did not err in

refusing to grant injunctive relief. Under the rule that per-

mits an appellee, even though he has not cross-appealed, to

urge in support of the judgment under review any grounds

which were fairly presented but ignored or rejected by the

trial court, Texas could maintain that the three-judge court

acted properly since the statute in question did not trespass

upon any fundamental constitutional rights. Helvering vy.

*The Texas defendants have appealed to the U.S. Court of Appeals

tor the Fifth Circuit (App. 135). On October 29, 1970 a panel of the

Fifth Circuit granted plaintiffs’ motion holding the defendants’ appeal

in that court in abeyance pending the decision of this Court in the case

at bar (App. 140).

Lerner Stores Co., 314 U.S. 463, 467 (1941); United States

v. American Ry. Exp. Co., 205 U.S. 425, 435 (1924). Yet,

there would appear to be definite limits on the ability of the

Texas appellee to argue the constitutional validity of the

Statute in contending that injunctive relief was properly with-

held. Compare Penfield Cov. S.E.C., 330 U.S. 585, $94

(1947), with Lukas vy. Alexander, 279 U.S. 573 (1928),

Texas’ position must be that the three-judge court did not err

in declining to issue an injunction, but that it declined to do

so for the wrong reasons. That is, the court below correctly

refused an injunction because the Texas statute did not vio-

late the constitutional rights of any of the appellants, even

though the same lower court had held. by way of declaratory

judgment, that the statute did violate such constitutional

rights! The fact that the Texas litigation, and the Georgia

case as well, if permitted to go forward in this Court, might

evolve to the posture just described. where the state is forced

to argue that the lower court was right but for the wrong

reasons, seriously suggests that the important substantive

constitutional issues which inhere in this litigation first

should be subjected to consideration and determination

either by (1) the courts of Georgia, or (2) the Court of

Appeals for the Fifth Circuit, and should not be considered,

even indirectly, by this Court, at this time and on this appeal.

For these additional reasons, we contend that the holding

in Samuels v. Mackell, supra, is applicable here and that the

court below should have abstained from exercising jurisdic-

tion or, in the alternative, should have stayed further pro-

; ceedings pending the outcome of the criminal prosecutions

; already under way in the Texas courts.

B. The Georgia Three-Judge Federal Court Also Should

Have Abstained from Granting Declaratory Relief. While the

general principles of abstention that, in our view, should be

controlling in the Texas case also should be applicable in the

{ Georgia case, there is a factual difference between the two.

So far as the record in the Georgia case shows, no criminal

prosecutions were pending at the time appellants’ civil action

pense? _—

was brought, although, according to the complaint filed in

the Georgia case, the doctor-plaintiffs alleged a ‘threat of

. . . prosecution” under the statute which deterred them

“from exercising their rights of free speech . . .”” (App. 14).

Does this factual distinction between the two cases argue for

a different jurisdictional result in the Georgia litigation? For

the reasons stated, we think not.

In the Younger case, the majority opinion said: “We

express no view about the circumstances under which federal

courts may act when there is no prosecution pending in state

courts at the time the federal proceeding is begun.’ In our

view, the Georgia case appears to raise the precise issue that

this Court deliberately left unresolved in Younger.

There are several situations in which a three-judge federal

court should have the duty to act against a state criminal

statute, whether or not criminal proceedings are pending.

One of these is where the statute on its face will have the

inevitable effect of “chilling” or deterring the exercise of

fundamental constitutional rights guaranteed by the First

Amendment, as made applicable to the States through the

Fourteenth Amendment. Dombrowski v. Pfister, 380 U.S.

479, 489-90 (1965). Another area where federal courts

should be free to act, whether or not state court criminal

proceedings are pending, is where a defendant’s federal rights

“will inevitably be denied by the very act of bringing the

defendant to trial in the state court.” City of Greenwood y.

Peacock, 384 U.S. 808, 828 (1968). Neither circumstance

exists here. As the three-judge court said in the Texas case:

“We do not believe that plaintiffs can seriously argue that

the ... Abortion Laws are vulnerable ‘on their face as abridg-

ing free expression’.”” 314 F.Supp., at 1224. Nor is there any

Suggestion in this record that the mere initiation of a criminal

prosecution by the State of Georgia under its statute, by

itself, would “inevitably” deny any rights of those made

defendants in such a proceeding. In addition, as we have

7401 US., at 41.

LETRA LE ET a Ni NIE A LOTR ANON Ha GS PE ELE AALS Se TEA BBL ILM BOP A WORN, er ete nS we ay

argued earlier in this brief, should this Court sustain the pro-

priety of the three-judge federal court’s grant of declaratory

judgment, while at the same time leaving the state to pursue

its appeal through the Fifth Circuit, there again would be pre-

sented the cumbersome and, we believe, undesirable proce-

dural situation where the same substantive constitutional

issues were being litigated in two separate federal forums,

albeit directly in one and indirectly in the other. Even apart

from principles of equity, federalism and comity, sound

judicial administration also argues against this Court’s tolera-

tion of such instances of disparate adjudication of constitu-

tional questions.

There is also the additional fact that the Georgia statute,

which was only passed in 1968, has never been construed by

the Georgia courts. One of the plaintiff's complaints was

that the statute is unconstitutional because there is no

“formal administrative procedure or body for establishing

rules, regulations or official interpretation® of the provisions

of said statute” (App. 14). If this Court must ultimately -

decide the validity of the Georgia statute under the Ninth

and Fourteenth Amendments to the Constitution of the

United States, it will undoubtedly be faced with the difficult

duty of balancing any alleged rights of privacy possessed by

pregnant women as opposed to the right to life possessed by

an unborn child. That delicate task might be made easier if

this Court had the benefit of an interpretation by the Supreme

Court of Georgia as to the scope of the exception which the

Georgia statute permits for aborting a pregnancy, which

‘would seriously and permanently injure [the mother’s] ...

health: ...” Thus, an “underlying issue of state law” bears

very pertinently on the alleged constitutional right which

appellants claim a pregnant woman has to determine whether

or not she wishes to carry an unborn baby to full term.

McNeese v. Board of Education, 373 U.S. 668, 674 (1963).

8Emphasis supplied throughout this brief.

NRLC raises one final point in arguing that the proper

course for the three-judge federal court would have been to

abstain from the grant of declaratory, as well as injunctive,

relief. That concerns the effect of the declaratory judgment

that has been rendered in this case. If the provisions of the

‘statute struck down in the declaratory judgment are now null

and void, the same considerations which prompted this Court

to uphold the abstention rule in the Younger and Samuels

cases, supra, should apply. On the other hand, if the decision

below is not determinative, if the state can institute criminal

proceedings under the statute. despite its emasculation by

the court below, and if a state court can take evidence and

decide the matter afresh, then ‘the federal judgment serves

no useful purpose as a final determination of [federal]

rights.” Public Service Commission v. Wycoff Co., 344 U.S.

237, 247 (1952); Samuels v. Mackell, 401 U.S. 66, 72

(1971); see also Great Lakes Co. v. Huffman, 319 U.S. 392

(1953).

Moreover, there has been no showing that the courts of

Georgia are not open to the plaintiffs for testing their claim

of deprivation of federal constitutional rights. This Court

has recognized, and we do not dispute, that ‘Congress

imposed the duty upon all levels of the federal judiciary to

give due respect to a suitor’s choice of a federal forum for

the hearing and decision of his federal constitutional claims.”

“Lwikler v. Koota, 389 U.S. 241, 248 (1967). Nor are we

arguing that the Georgia three-judge federal court should

have abstained “simply to give state courts the first oppor-

tunity to vindicate the federal claim’’ of the appellants.

McNeese v. Board of Education, 373 U.S. 668, 672 (1963).

We do maintain, however, that the “special circumstances’?

surrounding the challenge to the constitutionality of the

Georgia abortion statute should have led the three-judge

federal court to abstain until the Georgia courts had

had some reasonable opportunity to construe the statute,

*Baggett v. Bullitt, 377 US. 360, 375-79 (1964).

ALAS EAS AE ALO EPE LR OWL CE LAREN SS POMBE DOLE! LOLLESEE SE AIRE POODLE LE LEASE oe ——

‘ 18

especially the exception for preserving the health of the

mother which the Georgia law provides. Since the Georgia

courts were available to the appetlants for the vindication of

constitutional rights which they attempt to bring to this

Court for a final determination at this time, they would

suffer no inequity, hardship or denial of fundamental consti-

tutional rights by being required first to seek relief in such a

forum. At the same time, requiring plaintiffs first to proceed

in the Georgia courts would serve the principles of equitable

abstention and federal comity on which this Court relied in

its decisions in the Younger and Samuels cases, supra.

On May 17, 1971, this Court affirmed a three-judge federal

court ruling that a physician who had performed an abortion

but who had not been prosecuted under a Minnesota abor-

tion law is not entitled to a federal court declaration against

its enforcement when there was available a state statute ¢

under which declaratory relief could be obtained. Hodgson

vy. Randall, 314 F.Supp. 32 (D. Minn., 1970). aff'd. 402 US.

967 (1971). Again, on January 11, 1971. a three-judge

federal district court in Arizona reached a similar result in

dismissing an attack on Arizona statutes prohibiting criminal

abortions. Planned Parenthood Association, et al. v. Nelson,

et al., 327 F.Supp. 1290 (D. Ariz., 1971). In dismissing the

suit, the Arizona court said:

“Weighing the legitimate state and national inter-

ests involved in this case, and considering particularly

the abstract nature of plaintiffs’ complaint and the

ready availability of state remedies, we find that the

plaintiffs’ need for a federal forum is not sufficiently

great to override the interests of comity. and justify

federal interference with state activities.”

The cases cited further support the amicus in urging that

this Court vacate the decision of the Georgia three-judge

federal court with directions to it that it either dismiss the

complaint without prejudice or retain jurisdiction in the case

pending a reasonable time for the plaintiffs to pursue their

rights in a state court of appropriate jurisdiction. England vy.

Louisiana State Board of Medical Examiners, 375 U.S. 411,

415-17 (1964).

aa .

Moreover, there is really no justification for a three-judge

federal court to void a state criminal statute, under which no

criminal prosecutions have yet been instituted, and at the

same time to refuse to enjoin state officials from future

enforcement of such a statute. It should be made clear that

unconstitutional criminal statutes are also unenforcéable.

Therefore, the instant cases, we believe, present an oppor-

tunity for the Court to clarify some of the jurisdictional

and procedural complexities which frequently arise when a

three-judge federal court is permitted to grant declaratory

relief, while eschewing the issuance of injunctive relief.

NRLC respectfully urges that the Court use this opportunity

to lay down rules or guidelines for observation by three-judge

federal courts which, while protecting federal constitutional

rights, will follow traditional principles of equitable absten-

tion, serve the cause of federalism and comity and accord

with sound principles of judicial administration when those

principles must be applied to the adjudication of federal

constitutional questions.

Il.

NEITHER THE NINTH NOR THE FOURTEENTH

AMENDMENT PROHIBITS A STATE FROM PRO-

TECTING AGAINST THE DESTRUCTION OR

ABORTION OF HUMAN LIFE

Assuming that this Court concludes that the courts below

were correctin exercising jurisdiction in the pending cases and

that hse in their present posture, present substan-

tial federal stions, it then must take up the appellants’

claim that the lower courts erred in refusing to issue injunc-

tive relief, after having granted declaratory judgments which,

in one case, struck down the Texas statute and, in the other.

voided the essential provisions of the Georgia act. NRLC

further assumes that in resolving this claim the constitution-

ality of the two statutes must almost of necessity be resolved

on their merits in the instant litigation. It is to these consti-

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tutional issues that the amicus now speaks in the remaining

sections of its brief.

The primary or basic constitutional contention of the

appellants is that both the Texas and Georgia statutes violate

alleged rights of privacy guaranteed a woman by the Ninth

and Fourteenth Amendments to abort a live fetus for any

reason she asserts and in which her physician concurs. It is

the position of the NRLC that any right to privacy which a

woman possesses does not include the right to abort a live

fetus. NRLC further argues that a state has a compelling

interest to protect human life from unjustified destruction

by abortion. In short, a state’s important and compelling

interest in protecting human life, in the form of a live fetus,

justifies it in prohibiting abortions that destroy such a life

without demonstration of the strongest justification, such as —

abortion for the purpose of preserving another human life,

ie., that of the mother. We show in the immediately follow-

ing sections of this brief the precise and compelling nature of

a state’s interest in prohibiting abortions except in circum-

stances where the mother’s life would be endangered.

A. A State's Interest in Protecting the Rights of a Live |

Fetus Rests on a Now Indisputable Medical Basis. The

compelling evidence of modern medical science which sup-

ports this proposition is set out in considerable length in

the brief filed in these cases by the State of Texas. We

believe that those findings are both clearly stated and irre-

futable. Accordingly, we will resist the temptation to repeat

them at any length in this brief. We would like to emphasize,

however, that modern medicine has proved that life exists

within the womb in the very earliest stages of pregnancy

and that its findings to that effect should be of persuasive

import in the resolution of the constitutional issues with

which the Court is confronted, including any attempted

balancing of alleged rights of privacy possessed by the

mother on the one hand against the right to life possessed

by a living fetus on the other. Thus, while avoiding any

detailed repetition of Texas’ thorough presentation to this

REIL. TeeCRT TY, _ iat

Court, we now summarize the relevant evidence supplied

by modern medical science. Shela ale Pe

Whatever might be the metaphysical ‘view, it is beyond

argument that legal concepts as to the nature and rights of

an unborn child have drastically changed, based on expand-

ing medical knowledge, over the last 2500 years. In the

ancient world, a child in the womb was considered as part

of his mother.'® And up to the 17th Century it was pre-

vailing doctrine, based upon Aristotle’s notion, that 40 to

80 days after conception the fetus underwent a transforma-

tion that placed him in the human class. This notion was

successfully demonstrated to be medical nonsense as early

as 1621.1" Thereafter, the medical profession gradually

accepted the view that no valid line could be drawn within

the womb. The law followed, but dragged considerably

behind, the medical lead. For example, as recently as 1921,

the Court of Appeals of New York, with Judge Cardozo

dissenting, could hold that when “justice or Convenience

requires, the child in the womb is dealt with as a human

being although physiologically it is part of the mother,

... Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567, 568

(1971).

At this point in time, however, there is simply no

respectable ‘medical opinion supporting the ancient notion

that a fetus is “part” of his mother. The unassailable

medical evidence to the contrary has now been convincingly

confirmed by the findings of the new science of fetology,

which has received widespread recognition by virtue of

Liley’s work on blood transfusions in the fetus.'2 Some of

107).:. .: ; ,

This view was expressly incorporated in Roman law. Justinian

Digest 25.4.1.1.

''Zacchia, Quaestiones Medico-Legales 9.1 (1621).

21 iley’s pioneering work not only has opened new avenues in the

treatment of erythroblastosis fetalis, but has inspired the whole new

sub-specialty of ‘fetology’ and created a need for fetological surgeons

and fetological medical specialists for the future.” Montagu, Hemolytic

rye of the Fetus, Intra-Uterine Development 443, 455 (A. Barnes

ed. 1968).

PRAIA PIES LE RT SNAPE AI APN LEGE A he ACL ALO ORD Let Fes NaNO NM LIL OEY IS EE ARN TD ea

the observations and opinions on the question held by the

most eminent of doctors specializing in the field may be

of interest to this Court, although, as stated, a much more

comprehensive discussion of the medical evidence is to be

found in the brief filed by the Texas appellants.

Professor Ashley Montagu of Columbia University has

stated it very concisely:

“The basic fact is simple: Life begins, not at birth,

but at conception.

“This means that a developing child is alive, not

only in the sense that he is composed of living tissue,

but also in the sense that from the moment of con-

ception, things happen to him, even though he may

be only two weeks old, and he looks more like a

creature from another world than a human being—

he reacts. In spite of his newness and his appearance,

he is a living, striving human being from the very

beginning.” '*

It is now undisputed, for example, that the new fetus

possesses at the moment of conception a genetic code of

its own which is the transmitter of all the potentialities

that make men human, something that is not present in

either the spermatozoon or ovum. Gottleib, Developmental

Genetics 17 (1966). When conception takes place, scientists

now generally agree ‘a new life begins—silent, secret,

unknown.”’!* Moreover,

“The child may be parasitic and dependent, but

it is a functioning unit, an independent life. A child

is not, in the words of Mr. Justice Holmes, ‘a part

of its mother.’ However visceral may be its tempor-

ary residence, however dependent it may be before

birth—and for some yeafs after birth—it is a living

being, with its separate growth and development,

13Montagu, Life Before Birth 2 (1964).

4Coniff, The World of the Unborn, New York Times Magazine,

January 8, 1967, p. 41.

with its separate nervous system and blood circula-

tion, with its own skeleton and musculature, its

brain and heart and vital organs.’’'5

A most vivid description of the fetus within the womb is

found in the report of Dr. Liley and his wife, both pioneers

of the new science of fetology. In 1967 they said:

“Because the fetus is benignly protected, warmed

and nourished within the womb, it was long thought

that the unborn must have the nature of a plant,

static in habit ‘and growing only in size. Recently

through médéta.techniques of diagnosing and treat-

ing the unborn baby, we have discovered that little

could be further from the truth.

“The fluid that surrounds the human fetus at 3, 4,

5 and 6 months is essential to both its growth and its

grace. The unborn’s structure at this early stage is

highlyAiquid, and although his organs have developed,

he does not have the same relative bodily proportions

that a newborn baby has. The head, housing the mira-

culous brain, is quite large in proportion. to the

remainder of the body and the limbs are still rela-

tively small. Within his ‘watery world, however

(where we have been able to observe him in his

natural state by closed circuit x-ray television set),

he is quite beautiful and perfect in his fashion, active

and graceful. He is neither an acquiescent vegetable

nor a witless tadpole as.some have conteived him to.

be in the past, but rather a tiny human being as

independent as though he were lying in a crib

with a blanket wrapped around him instead of his

mother.”’!®

These proven medical facts explain why the great majority

of doctors, practicing their profession in good faith, treat the

'SGranfield, The Abortion Decision 25 (1969).

'°Liley, Modern Motherhood 26-27 (1967). Moreover, the modern

technique of fertilizing human eggs in test tubes further establishes that

life begins at conception.

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fetus or unborn child as a second patient, different from the

mother. This is acceptable medical practice and is almost

universally observed in the field of obstetrics. It may be the

only area of medical practice where a doctor treats two

patients at the same time, taking that unique fact into

account in his treatment of both patients. This practice has

been favorably noted in at least one reported decision. In

Jones v. Jones, 208 Misc. 721, 144 N.Y. Supp.2d 820 (Sup.

Ct., 1955), the court found that the unborn child:

“|. became a patient of the mother’s obstetrician, as ~

well as the mother herse!f. In so holding | can think

of the infant as a third party beneficiary of the

~~ mother-doctor contract or perhaps a principai for

whom the mother acted as agent.”"'”

And it has been held that a child may recover damages

for a prenatal injury suffered as the result of the negligence

of his doctor. Sylvia v. Gobeille, 101 R.I. 76, 220 A.2d 222

(1966); Seattle-First National Bank vy. Rankin, 59 Wash.2d

288, 367 P.2d 835 (1962).

However, NRLC sees no point in belaboring the scientific-

aliy obvious. Life begins at conception and for practical

medical purposes can be scientifically verified within 14

days. Within three weeks, at a point much before “quicken-

ing” can be felt by the mother, the fetus manifests a work-

ing heart, a nerve system, and a brain different from and

independent of the mother in whose womb he resides; the

unborn fetus is now a living human being. It is universally

agreed that life has begun by the time the mother realizes

she is pregnant and asks her doctor to perform an abortion.

B. Jn Anglo-Saxon .Law the State Has Always Had a

Compelling Interest in Preventing the Destruction of Unborn

Children. The appellants, and those allied with them as

amici curiae in this case, are hard put to deny that a state

has a grave and important interest in preventing the desiruc-

tion of human life through unjustifiable abortion. However,

17144 NLY. Supp.24, at 826. /

ee NEE WE, en POOR COPY

they argue that even assuming such an interest, the abortion

laws do not reflect that interest since, they claim, such laws

were passed for another purpose, ie., to protect the life and

health of pregnant women who submit to illegal, and what

once were highly dangerous, operations. Their position here

crumbles before the thrust of the history of Anglo-Saxon

law both in England and in this Country. That history

shows conclusively that the protection of the life of the

unborn child was always a major purpose, if’ not the para-

mount purpose, surrounding the enactment of the abortion

laws in both England and the United States.

In Roman law the unborn child was deemed a part of his

mother, and a parent had absolute dominion over his off-

spring. Fox, Abortion, a Question of Right or Wrong, 57

A.B.A. J. 667, 671 (1971). Due initially to the influence of

ecclesiastical law and precedents, the Anglo-Saxon law of

abortion developed in the other direction. The first refer-

ence to abortion in the English criminal law occurs in the

writings of Bracton. He transposed the canon, Sicut ex, to

England by saying that aborting a woman by blow or

poison is homicide if the fetus were “formed and especially

if it were ensouled.”'® Early in the 17th Century, Lord

Coke repeats what Bracton said in a passage which begins:

“If a woman be quick with child . . . this is a gréat mis-

prision and so murder.”'? Coke’s authority on this point

has been questioned. If the word “ensouled” is translated

as “alive”, it could be argued that Coke may have mistrans-

lated Bracton and as a result erroneously imposed the

requirement that to constitute a felony a woman must be

“quick” with child.2° “Quickening”, of course, is “the

first motion of the fetus in the womb felt by the mother”,

'8Bracton, De Legibus et Consuetudinibus Angliae, 3.2.4 (London

1640).

"Coke, The Third Part of the Institutes of England, Section 50

(London, 1797).

Quay, Justifiable Abortion, 40 Georgetown LJ. 173, 430-31

(1961).

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and a “quick” child is defined as a child “that has developed

so that it moves within the mother’s womb.”?' However,

Lord Coke more likely was taking into realistic account

the practical difficulties, in view of the state of 17th

Century medical knowledge, of proving that the act of an

accused abortionist was the cause of a death of a live fetus.

At that time, unless a child was born alive after an induced

abortion, it would have been virtuaily impossible to prove

that the abortional act caused his death since the fetus

might have died in the womb from some other cause con-

current in time with the abortion. At English common

law, for example, if a victim of an assault died after a year

and a day following the assault, his assailant could not be

convicted of homicide. Proof of causality between the

assault and the death was precluded by the passage of time.

Perkins, Criminal Law 28-29 (2d Ed., 1969). Under the

circumstances, at this point in the development of the

criminal law, it was understandable that the abortionist, as

a defendant, should enjoy the benefit of doubt as to (a)

whether the fetus was alive or dead, or even in existence,

at the time of the alleged act, and (b) whether the abortional

act, in fact, killed the fetus. On the other hand, when a

pregnant. woman was sentenced to be executed, the law held

that she could not be executed for the crime until after

birth, even though the child had not yet quickened. Regina

v. Wycherly, 8 Car. & P./262, 264, 173 Eng. Rep. 486-87

(Nisi Prius, 1838).22_ In the case of the pregnant woman

scheduled for execution, the fetus as a possible innocent

victim of the execution was entitled to the benefit of the

doubt as to whether he was present and alive in the womb

even though he had not manifested life by perceptible

movement.

The first statutory regulation of abortion in England

became effective in 1803. The statute made it a felony

punishable by death to administer poison “to cause and

2'Black’s Law Dictionary 1415 (4th Ed., 1968).

221 Blackstone’s Commentaries 456.

a — LSE AIO LONELY EO IOS AOE ADS ee

procure the miscarriage of any woman then quick with :

child” and a felony punishable by fine, imprisonment, i

pillory, whipping or transportation to attempt by drug or i

instrument to procure the miscarriage of any woman “not :

being or not being proved to be quick with child.”’?3 Thus. 5

in this first abortion statute, Parliament did away with any ;

distinction in law, except for the punishment prescribed, g

between abortions occurring before quickening and those t

committed after quickening. The preamble to the 1803 E

Act explains the reason, saying that “no adequate means b

have hitherto been provided for the prevention and punish-

ment of such offenses.’*?4

At the time Lord Coke wrote, “quickening” of the child

furnished the only positive proof to 17th Century men that

it was alive within the womb. However, when Parliament

turned to the regulation of abortion in the early 19th Cen-

tury, medical science was able to supply proof of the

existence of an animated fetus prior to the movement of :

the child within the womb first felt by the mother. At last,

Parliament was able to make criminal that which was always

regarded as an offense, evil or wrong but one incapable of

being proved.?*

In 19th Century America, the requirement of “quickening”

hung on in some of the statutes, but a tendency soon was

manifest for courts to interpret abortion statutes as applic-

able: t6 any stage of the pregnancy.*® Medical writers in

this Country were critical of the retention of a distinction ;

between abortions based on the presence or absence of i

quickening. In 1887, a distinguished doctor wrote: | i

SR PRE LOT

Miscarriage of WomnanrAct, 43 Geo. 3c $8 (1803).

Means, The Law of New York Concerning Abortion and the

Status of the Fetus 1664-1968: A Case of Cessation of Constitution-

ality, 14 N.Y. Law Forum 411, 439, n. 64 (1968).

SFox, supra, at 671.

Se RCE LI FETE,

*©Bishop. Commentaries on the Law of Statutory Crimes, Section

746 (2d Ed., 1883).

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“This fallacious idea that there is no life until quicken-

ing takes place has been the foundation of, and

formed the basis of, and has been the excuse to

ease or appease the guilty conscience which had led

to the destruction of thousands of human lives.”?" .

During the course of the 19th Century, the House of Dele-

gates of the American Medical Association several times

called on the states to reform their laws to prevent abor-

tion.2® In 1859, a Committee on Criminal Abortion of

the American Medical Association obtained unanimous adop-

tion of a resolution which condemned abortion at every

period of gestation except as necessary for preserving the

life of either the mother or child. The reason for the

resolution was stated to be the increasing frequency “of

such unwarrantable destruction of human life.” ?°

In summary, from Bracton’s day abortion was regarded

at common law as a serious evil or wrong which should

be prevented in order to curtail or prevent the unnecessary

destruction of human life. For a brief period, difficulties

of proving that abortion had in fact caused the termination

of an “unquick” child prevented application of the serious

sanctions of the criminal law to some cases. When medical

science eliminated those difficulties of factual proof, there

was no longer any question but that one of the prime pur-

poses of the abortion statutes then on the books, or subse-

quently enacted, was to prevent the destruction of the

unborn fetus at all stages of gestation. Therefore, the com-

pelling interest which the States of Texas and Georgia both

have in prohibiting and regulating unjustifiable abortions is

not one newly discovered, or advanced as an afterthought

argument. It is true that the findings of modern fetology

27Quimby, /ntroduction to Medical Jurisprudence, 9 Journal of the

American Medical Association 164 (1887); see also Markham, Foeticide

and Its Prevention, Id., at 805 (1888).

28Noonan, The Morality of Abortion 224 (Harvard U. Press, 1970).

29 american Medical Association, Minutes of the Annual Meeting

1859, Tenth Annual Medical Gazette 409 (1859).

help demonstrate the cruel and distasteful nature of the

abortion of a human fetus more vividly than previously

had been known. Nevertheless, the state’s legitimate inter-

est in preventing the infliction of such carnage on unborn

children has never been open to serious debate.

However, even if it were true that the compelling state

interest in preventing or reguiating abortion is an interest

arising only recently as a result of the findings and research

of modern medicine, no different legal conclusions should

result. The fact that a statute or law may originally have

been enacted to serve one purpose does not serve to con-

demn it when the same statute, with the passage of time,

serves another equally valid public purpose, such as pre-

venting the destruction of the life of an“unborn child.*°

Both Texas and Georgia still could claim that their respective

’ statutes serve a compelling state interest than of which

there are few higher, i.e., outlawing the unjustifiable taking

of human life. :

In the next several sections of this brief, the amicus shows

that during the same period in which the criminal law of

abortion developed, other areas of the law also manifested

concomitant concerns for important subsidiary rights of

unborn children derivative from their right to life. These

are their nights of contract, tort and parental support.

C. The Law’s Recognition of the Property Rights of an

Unborn Child. The first area where the rights of the unborn

child, at all stages of fetal existence, were recognized by the

law was in the realm of property law. In Doe v. Clarke, 2

H. BI. 399, 126 Eng. Rep. 617 (1795), the court interpreted

the ordinary meaning of “children” in a will to include a

child in the womb: “An infantéen ventre sa mere, who by

the course and order of nature is then living, comes clearly

within the description of ‘children living at the time of his

McGowan vy. Maryland, 366 US. 420, 429-30 (1961), upholding,

as having a valid, non-religious basis under the state’s police powers,

Sunday Closing statutes which at their inception served religious

purposes. .

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SECON ATI SEAS i ERE AL Be PMP PRE RESERPINE EM MLE I LIENS Rs EIN BLN IRE I EEG ERLE IG LASS a

decease’.” In Thelluson v.. Woodford, 4 Ves. 227, 31 Eng.

Rep. 117 (1798), the court rejected the contention that this

was a mere rule of construction invoked for the benefit of

the child: “Why should not children en ventre sa mere be

considered generally as in existence. They are entitled to

all the privileges of other persons.” J/d., at 323. To the

argument that such a child was a nonentity it replied:

“Let us see, what this non-entity can do. He may be

vouched in a recovery, though it is for the purpose

of making him answer over in value. He may be an

executor. He may take under the statute of distri-

butions. He may take by devise. He may be

entitled under a charge for raising portions. He may

have an injunction; and he may have a guardian.”

Id., at 322.

When the English property rules were adopted by Ameri-

can courts, the same approach was taken. In Hall v. Hancock,

15 Pick. 255 (Mass., 1834), the issue was whether a bequest

to grandchildren “living at my decease” was valid, and the

court was asked to say that “in esse” was not the same as

“living” and that for a child to be “living,” the mother

must be at least “quick’.*' Chief Justice Shaw held that

a conceived child fell within the meaning of the language

and quoted with approval Lord Hardwicke in Wallis v.

Hodson, 2 Atk. 117: “The principal reason I go upon is, that

a child en ventre sa mere is a person in rerum natura, so that,

both by the rules of the civil and common law, he is to all

intents and purposes a child, as much as if born in the father’s

lifetime.”

In In Re Well’s Will, 221 N.Y.S. 417 (1927), a trust fund

originating from the estate of the deceased was to be divided

into “as many parts:‘as I have grandchildren living at the

date of my decease.” The decedent died on May 22, 1922;

31“Quickening” of the child means only that his presence in the

womb is felt by the mother for the first time. Black’s Law Dictionary,

supra, at 1415. “‘Quickening” served to prove the existence of life to

common law men. Modern medicine now can prove the same existence

long before it can be seen by the eye or felt by the mother.

eee ee

—_—_—

a granddaughter of the decedent was conceived on May 1,

1922. The granddaughter was held to be entitled to a share

in the trust estate. See also Swain v. Bowers, 91 Ind. 307,

158 N.E. 598 (1927).%

In the case of La Blue v. Specker, 358 Mich. 558, 100

N.W.2d 445 (1960), an unborn illegitimate child was held

to be a child or “other person’’’ having standing to bring

suit under a dram shop act, for the death of his father,

which had occurred before the child’s birth. Quoting from

Ide v. Scott Drilling Co., Inc., 341 Mich. 164, 67 N.W.2d

133 at 135, the court in the La Blue case stated:

“For certain purposes, indeed for all beneficial pur-

poses, a child en ventre sa mere is to be considered

as born.... It is regarded as in esse for all purposes

beneficial to itself, but not to another. ... Formerly,

this rule would not be applied if the child’s interests

would be injured . . . thereby, but for purposes of

the rule against perpetuities such a child is now con-

sidered a life in being, even though it is prejudiced

by being considered bom .... Jts civil rights are

protected at every period of gestation.” **

The foregoing approach has not been a sentimental con-

cession to the supposed benefit of some forgotten post-

humous child. The rule has been applied even where its

application benefited some third party, Barnett v. Pinkston,

238 Ala. 327, 191 So. 371 (1939), and also in cases where

the child himself has been injured by the rule, /n re Sankey's

Estate, 199 Cal. 391, 249 P. 517 (1926), in which a child

conceived but not born was held bound by a decree entered

against the living heirs.

The English and American common law doctrine under which an

unborn child is considered as a “child” or as “in existence” for pur-

poses of inheritance and trusts also has long been followed in the

District of Columbia. Craig v. Rowland, 10 App. D.C. 402 (1897).

The rule was recently applied in Riggs National Bank v. Summerlin, et

al, C.A. 187-69,Memo. Opinion (D. D.C., 1969).

3100 N.W.2d, at 449.

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This amicus believes that it would be an ironic and an

inexplicable perversion of both human and constitutional

values if it were to be the law that the state has an interest

in protecting the property rights of an unborn child, but

has no constitutionally justifiable interest in regulating the

circumstances and conditions under which such a child may

be destroyed, ie., put out of existence and denied further

life as a human being. Nor is it any answer to reply that the

property rights of a fetus which are protected by the state

are merely contingent and depend upon his having been

born. It is only the remedy, not the right, which is conting-

ent. Existence as an unborn child is the basis of the state’s

interest in granting and protecting the property rights of an

unborn child. The fact that the child may not survive to

enjoy those rights does not denigrate the state’s interest

or deny its authority to implement that interest by law.

We should assume that the proposition would have special

applicability when the state’s interests and action are directed

at insuring that the existence of life of the unborn child,

and all such contingently enforceable property rights as he

may possess, are not exterminated by his deliberate destruc-

tion, at least short of an overwhelming countervailing interest

such as the protection of the life of another human being—

the mother.

D. Evolving Rights Afforded an Unborn Child in the Law

of Torts. Perhaps even more demonstrably so than in the

case of purely property rights, including rights of inheritance,

it is in the law of torts where we witness a dramatic develop-

ment, indeed, an abrupt change, of the law in response to

expanding scientific knowledge and medical facts formerly

unavailable.

Well into the 20th Century most American decisions

denied recovery in tort to the human offspring harmed in

the womb. The denial was based in part on the danger of

fraudulent claims, in part on the difficulty of proving

causation, but principally on the ground that “the defend-

ant could owe no duty of conduct to a person who was

not in existence at the time of his action,” Prosser on Torts,

\ is inte. tient \: . eqn. SOFY

Sec. 56 (1964). The theory followed was that succinctly

expressed by Justice, Holmes in Dietrich vy. Northhampton,

138 Mass. 14, 17 (1884): “The unborn child was a part of

the mother at the time of the injury.”

There is no doubt of the sweeping nature of the reversal

of the Dietrich doctrine that the unborn child is a part of

the mother and therefore cannot sue for pre-natal injuries.

Almost every jurisdiction which has considered the issue

in the last 30 years has upheld the right of an infant to sue

for injuries sustained prior to his birth. Prosser on Torts,

Sec. 56; Gordon, The Unborn Plaintiff, 63 Mich. L.R. 579,

627 (1965). Moreover, it appears that a majority of juris-

dictions now recognize that a wrongful death action may

be brought for negligently inflicted injury to the unborn

child resulting in its death, whether or not it was viable at

the time of the injury, and whether born alive or still born.

Torigian v. Watertown News Co., 352 Mass. 446, 225 N.E.2d

926, 927 (1967); Harper and James, Torts, Sec. 18.3 (1956).

Many of the early cases required that the unborn child

have reached the stage of viability (ie., capable of living

outside of the mother’s uterus) at the time the injuries were

inflicted in order to maintain an action.* The modern

trend, and more in accord with the medical facts, however,

has been to reject any distinction based on viability and to

allow recovery whenever the injury was received, provided

that the elements of causation are properly established.°®

*Bonbrest v. Kotz, 65 F.Supp. 138 (D. D.C., 1946); Scort vy.

McPheeters, 33 Cal. App.2d 629, 92 P.2d 678 (1939); Tursi v. New

England Windsor Co., 19 Conn. Supp. 242, M4 A.2d 14 (1955);

Damasiewicz v. Gorsuch, 197 Md. 417, 79 A.2d 550 (1951); Keyes v.

Constr. Serv., Inc., 340 Mass. 633, 165 N.E.2d 912 (1960); Williams v.

Marion Rapid Transit, Inc., 152 Ohio 144, 87 N.E.2d 334 (1949);

Mallison v. Pomeroy, 205 Ore. 690, 291 P.2d 225 (1955); Seattle-First

Natl Bank v. Rankin, 59 Wash. 2d 288, 367 P.2d 835 (1962).

5 Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d

727 (1956); Daley v. Meier, 33 Ill. App.2d 218, 178 N.E.2d 691

(1961); Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108 (1958);

Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960); Kelly v. Gregory,

282 App.Div. 542, 125 N.Y.S.2d 696 (1953); Sinkler v. Kneale, 401

St omen

wpenr

The District of Columbia 25 years ago repudiated the

notion that an unborn child must be considered as part of

his mother and unable to sue for prenatal injuries in

Bonbrest v. Kotz, 65 F. Supp. 138 (D. D.C., 1946). The

court pointed out in that case that under the civil law and

the common law of real property a child en ventre sa mere is

regarded “as a human being . . . from the moment of con-

ception—which it is in fact.” Referring to the state of medi- .

cal knowledge in 1946 and noting the resilient, unstatic

features of the common law of torts, it found no difficulty

in upholding the right of an unborn child to = for damages

in tort. 65 F. Supp., at 142.%°

Kelly v. Gregory, 282 App. Div. 542, 125 N.Y.S.2d 696,

contains language which summarizes precisely the basis of

the rejection on the part of modern tort law of the anti-

quated notion of the common law that an unborn child is

merely part of his mother’s body:

“We ought to be safe in this respect in saying that

legal separability should begin where there is bio-

logical separability. We know something more than

the actual process of conception and foetal develop-

ment now than*when some of the common law cases

were decided; and what we know makes it possible

to demonstrate clearly that separability begins at

conception.

“The mother’s biological contribution from concep-

tion on is nourishment and protection; but the foetus

has become. a separate organism and remains so

Fa. 267, 164 A.2d 93 (1960); Sylvia v. Gobeille, 101 R.1. 76,220 A.2d

222, 223-24 (1966). “Viability” of a fetus is not a constant but

cepends on the anatomical and functional development of the parti-

alar baby. J. Morison, Foetal and Neonatal Pathology 99-100 (1963).

The weight and length of the fetus are better guides than age to the

sate of fetal development, and weight and length vary with the

individual. Gruenwald, Growth of the Human Fetus, 94 Am. J. Obstet-

rcs and Gynecology 1112 (1966).

%The battle in jurisprudence is almost over. Development of the

infant’s right of action has illustrated the inherent capacity of legal

systems to adjust to new situations.” Gordon, supra, at 627.

nate _

} J

POOR COPY | |

BLEED THROUGH

35.

throughout its life. That it may not live if its pro-

tection and nourishment are cut off earlier than the

viable stage of its development is not to destroy its

separability; it is rather to describe the conditions

under which life wil! not continue.’’ 7

Very recent demonstrations of the adaptability of the

common law to the findings of modern medicine are fur-

nished by two cases decided by the Supreme Court of

Michigan. On June 1, 1971, that court repudiated the

doctrine of stare decisis to hold, despite earlier precedents

to the contrary, that a surviving child could recover for

prenatal brain injuries suffered in an automobile accident

occurring during the fourth month of pregnancy.*® — Little

more than a month later,-the Michigan Supreme Court,

again departing from stare decisis and atfirming the “wisdom

of [a] public policy [which] regards unborn persons as

being entitled to the protection of the law’, held that the

administrator of the estate of an unborn child is entitled

to sue under the Michigan wrongful death statute for

injuries which caused the death of an unborn 8-month

infant en ventre sa mere.*® In deciding the case, the

Michigan Supreme Court noted rhetorically, but percep-

tively:

“If property interests of unborn persons are protected

by the law. how much more solicitous should the law

be of ‘the first unalienable right of man—the right to

life itself?"

‘At the present time the right to recover for prenatal

injuries has been recognized by 30 states and the District of

Columbia.*! Compensation for prenatal ‘injuries has also

37125 N.Y.S.2d, at 697.

®Womack v. Buchhorn, ___ Mich. __-, 187 NW.2d 218 (1971).

ONeill v. Morse, et al, ___ Mich. __, 188 N.W.2d 785 (1971).

188 N.W.2d, at 788.

“'Maledon, The Law and the Unborn Child: The Legal and Logical

Inconsistencies, 46 N.D. Lawyer 349, 356-57 (1971).

been allowed under the Federal Tort Claims Act in an action

against the United States. Sox v. United States, 187 F. Supp.

465 (E.D. S.C., 1960). Finally, an Ohio court has held an

unborn child in the 24th week of gestation is a ‘‘person”

within the meaning of a family compensation clause of an

automobile liability insurance policy. Peterson v. Nation-

wide Mutual Insurance Co., 26 Ohio App.2d 246, 197 N.E.2d

194 (1964). Is it possible for a human life to be both legally

insurable and, as the appellants would have it, legally

destructible at the same moment in time?

The emergence of the rights in tort of unborn children is

referred to as a prime example of the effect of scientific

development. on law in the instructive book of Professor

Patterson—Law In a Scientific Age (1963). He concludes:

“that the meaning and scope of even such a basic term as

‘legal person’ can be modified by reason of changes in

scientific faets—the unborn child has been recognized as a

legal person, even in the law of torts.” 4?

The revolution in tort law has thus, by the majority rule,

recognized rights in the fetus at every stage of life and has

refused to condition recovery on survivorship. The dean of

authorities on tort law notes that all writers on the subject

have maintained “that the unborn child in the path of an

automobile is as much a person in the streét as the mother.”

Prosser on Torts, Sec. 56. Can such a child become less a

person when, instead of an automobile, another agency is

directed to his destruction? If the state may protect this

person by court action awarding damages for tort, a fortiori

the state cannot be impotent to protect the same living

being by criminal sanctions.

E. Equity and the Unborn Child. The emerging rights of

unborn children to recover in tort have been matched by

developing concern for their rights in equity. Decisions in

this area bear not only on his right to parental support

but on the fetus’ right to life itself.

Patterson, supra, at 5.

1. The Right to Parental Support

It is now established that the law will recognize an unborn

child’s right to support by his parents. Kyne v. Kyne, 38

Cal. App.2d 122, 100 P.2d 806 (1940), -involved a suit

brought by the guardian ad litem of a fetus against the

natural father. At the time the suit was instituted, the

unborn child was less than six months old. The court held

that both the father and mother of such a child owed him

the duty of support. See also People v. Yates, 114 Cal. App.

Supp. 782, 298 P. 961 (1931), and People v. Estergard,

_. Colo. ___, 457 P.2d, at 698, 699 (1969). If the law

holds that a state has sufficient justification to require a

father to support an unborn child which he may not want,

it cannot be true that the state has no justifiable interest in

protecting that child from extinction as a living being where

his mother may not want him.

2. The Right to Life

Since this Court’s decision in Board of Education y.

Barnette, 319 U.S. 624 (1943), it has been firmly settled

that the Free Exercise of Religion rights guaranteed by the

First Amendment (as incorporated in the Fourteenth Amend-

ment) are “susceptible of restriction only to prevent grave

and immediate danger to interests which the state may law-

fully protect.” 319 U.S., at 639. Nevertheless, the right of

an unborn child to life has served in several recent instances

to permit the state’s abridgement of or interference with a

mother’s religious convictions, when necessary to save the

life of an unborn child. One case touching upon, but not

deciding, the point was decided in the District of Columbia.

In Application of the President and Directors of George-

town College, Inc., 331 F.2d 1000 (C.A. D.C., 1964), cert.

den., 377 U.S. 978 (1964), the Court of Appeals upheld an

order of the District Court authorizing a hospital to admin-

ister a blood transfusion to a woman patient who, on

religious grounds, was unwilling to consent to the trans-

fusion and where the husband also was unwilling to consent,

PGI Me

38 ®

where the transfusion was necessary to save her life. The

adamant mother had a seven-month-old child at the time

the terrible dilemma arose. In resolving this Hobson’s

choice, Judge Wright said:

“The child cases point up another consideration.

The patient, 25 years old, was the mother of a-seven-

month-old child. The state, as parens patriae, will not

allow.a parent to abandon a child, and so it should

not allow this most ultimate of voluntary abandon-

ment. The patient had a responsibility to the com-

munity to care for her infant. Thus the people had

an interest in preserving the life of this mother.” ®

Other crucial decisions bearing directly on the unborn

child’s right to life have been handed down during the past

decade. In,one such case, where there was a possibility that

a child might be born with a possibly fatal blood condition,

a New Jersey juvenile court held that the state, in the

interests of the child’s welfare, had a right to authorize

the hospital to give life-saving transfusions, even though

the parents objected on religious grounds.“ The court made

it clear that the state, pursuant to its parens patriae juris-

diction, not only had a right but also a duty to protect

children within its jurisdiction—including an unborn child—

notwithstanding the wishes of his parents.

More precisely in point is Raleigh Fitkin-Paul Morgan

Memorial Hospital v. Anderson, 42 N.J. 421, 201 A.2d

537 (1964), cert. den., 377 U.S. 985 (1964). There, a

court was asked to decide whether the rights of a child in

the mother’s womb were violated by her refusal, on religious

grounds, to submit to a blood transfusion necessary to

preserve the lives of both. The New Jersey court found it

unnecessary to decide whether an adult may be compelled

to submit to medical treatment necessary to save his own

life. However, the court had no difficulty, after finding a

parity of rights possessed by both unborn and after born

43331 F.2d, at 1008.

“Hoener v. Bertinato, 67 N.JS. 517, 171 A.2d 140 (1961).

children, in deciding that the unborn child was entitled to

the law’s protection and ordering the transfusion. In sustain-

ing the unborn child’s right to life, even over his mother’s

right to practice her religion, the court said:

“In State v. Perricone, 37 N.J. 463, 181 A.2d 751

(1963), we held that the State’s concern for the

welfare of an infant justified blood transfusions not-

withstanding the objection of its parents who were

also Jehovah’s Witnesses, and in Smith v. Brennan,

31 N.J. 533, 157 A.2d 497 (1960), we held that a

child could sue for injuries inflicted upon it prior to

birth. We are satisfied that the unborn child is

entitled to the law’s protection~and that an appro-

priate order should be made to insure blood trans-

fusions to the mother in the event that they are

necessary in the opinion of the physician in charge

at the time.” (201 A.2d, at 538)45:

Also worthy of note in the context of a claim of a

mother’s right to freedom over the use of her body is

Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967).

In that case, the plaintiffs sought damages against doctors

who had attended the mother during pregnancy. They

alleged their child had been born with birth defects and

that the defendants had negligently failed to warn the

child’s mother and father that an attack of German measles

- which she suffered during pregnancy might result in such

defects. The failure to give the warning, it was alleged,

deprived the parties of the opportunity of terminating the

_pregnancy. In affirming the trial court’s dismissal of the

“=

SAn Illinois court recently followed the rationale of the Raleigh

Fitkin case in ordering that doctors may give an emergency blood trans-

fusion to a pregnant Chicago mother who had refused such treatment

on religious grounds. Chicago Sun-Times, May 6, 1971, p. 12. This

Court too has had no trouble in sustaining as superior a state’s interest

in, and authority with respect to, children over their parents’ free exer-

cise of religion rights, noting that the “right to practice religion freely

does not include liberty to expose . . . the child . . . to ill health or

death.” Prince v. Massachusetts, 321.U.S. 158, 166-67 (1943).

ycomplaint, the majority of the New Jersey Supreme Court

/ emphasized the child’s right not to be aborted, saying:

“The right to life is inalienable in our society ... .

We are not faced here with the necessity of balanc-

\ ing the mother’s life against that of her child. The

- sanctity of the single human life is the decisive

factor in this suit in tort. Eugenic considerations

are not controlling. We are not talking here about

the breeding of prize cattle. /t may have been easier

for the mother and less expensive for the father to

have terminated the life of their child while he was

an embryo, but these alleged detriments cannot

stand against the preciousness of a single human life

to support a remedy in tort. Cf. Jonathan Swift,

‘A Modest Proposal’ in Gulliver’s Travels and Other

Writings, 488-496 (Modern Library ed. 1958).

“Though we sympathize with the unfortunate situa-

tion in which these parents find themselves, we

firmly believe the right of their child to live is

greater than and precludes their right not to endure

emotional and financial injury.”*4°

The line of cases discussed in this section of the amicus’

brief, all of which are based either impliedly or expressly

on the findings: of modern medical science concerning the

nature of the fetus, is a recognition of the right of a child

in the womb to the protection of the law. From this, a

learned commentator has gone on to reason that:

“|. it seems established by analogy that to remove

the protection of the criminal law from the child in

the womb would be itseif an unconstitutional act.

The civil rights cases have established that for the

Government to fail to protect a class is itself an

unconstitutional denial of civil rights.”’47

In point of fact, if the issue had been raised in these

cases, this amicus would be arguing that both due process

927 A.2d, at 693.

“Noonan, Amendment to the Abortion Law: Relevant Data and

Judicial Opinion, 15 The Catholic Lawyer, No. 2 (Spring 1969).

and equal protection of law should prevent a state from

permitting the abortion of a live fetus, except when neces-

sary to save the life of the mother.48 ‘Once human life has

commenced, the constitutional protections found in the

Fifth and Fourteenth Amendments impose upon the state

the duty of safeguarding it.” Steinberg v. Rhodes, et ai.

321 F. Supp. 741 (N.D. Ohio, 1970). At the minimum,

NRLC would contend, as suggested by several scholars in

‘the field, that the unborn child is entitled to the tradi-

tional protections of due process, including representation

by counsel at some type of adversarial hearing, before he is

doomed to death either at his mother’s whim or upon her

physician’s unreviewable moral-medical judgment that his

life is less important than his mother’s state of mind.4?

Some doctors might balk at that suggestion because of the

technicalities and delays which observance of due process

of law sometimes entails. The same argument is often made

by prosecutors faced with claims of Fourth, Fifth or Sixth

Amendment rights, but in neither case is the position a

valid one. The legitimacy of an abortion operation is more

than merely a medical decision; it involves legal; moral,

ethical, philosophical, theological, sociological and psycho-

logical considerations. These realities cannot be brushed

aside merely by calling the problem ‘‘medical’’. Moreover.

the primary training and function of physicians is to diag-

nose and heal, not to adjudicate.5® And if war is too

important to be entrusted solely to the generals, the ulti-

mate issues of life and death are too important to be

entrusted solely to the surgeons. Both logic and experi-

ence warrant the presumption that the unborn child would

- want his chance at life.S' Surely, the ingenuity of Ameri-

Under this analysis the Texas, but not the Georgia, statute would

be constitutional.

Noonan, supra n. 28, at 254-57.

Hellegers, Law and the Common Good, 86 Commonweal 418

(1967).

S'As Artur Rubenstein put it: “My mother did not want a seventh

child, so she decided to get rid of me before I was born. Then a marve-

lous thing happened. My aunt dissuaded her, and so I was permitted to

can law for fashioning procedural protections when consti-

tutional rights are threatened justifies optimism that our

legal system could be utilized to provide such protections

for the unborn child faced with destruction, but who, at

the present time, has no voice to plead his case and no

forum in which to make it.

‘However, as we have said, the due process argument need

not be pressed in the instant litigation since the issue has

not been raised by any of the parties. Nevertheless, the

point has relevancy. It serves to emphasize that in evaluat-

ing the legitimacy of any alleged right to privacy on the

part of a pregnant woman to destroy her: unborn child the

Court must take into countervailing account the funda-

mental right of that child to be protected by the State

from -arbitrary and capricious destruction of its existence

merely because it is unwanted.

F. Life Should Take Constitutional Precedence over

Privacy. In this section of its bri€éf, the amicus discusses the

judicial balancing which necessarily is involved in weighing

competing claims of an unborn child’s right to life and the

‘alleged right of privacy which appellants and their allies in

these cases assert is possessed by all pregnant women. In

deciding the relative priority which the Constitution should

afford, on the one hand, to a woman’s right to destroy her

unborn child and, on the other, to the right of that child to

live, certain relevant facts are beyond argument. First, the

medical evidence is unchallengeable—life begins at concep-

tion, and from that point on the fetus has a living existence,

including a heart and a brain, separate and independent from

his mother. Secondly, as NRLC previously has shown, the

common law has not been impervious to the findings of

modern science in changing and adjusting its concepts and

rules regarding the legal rights possessed by a child in the

womb. Supra, pp. 32-36.

be born. Think of it! It was a miracle! Time Magazine, Feb. 25, 1960,

p. 86.

We might also add at this point that the approach taken by

American law in recognizing important legai rights of an

unborn child is not some national aberration explained, per-

haps, by some latent puritanical instincts in American society

alone. For example, in 1959 the United Nations adopted a

“Declaration of the Rights of the Child” which supplemented

the United Nutions’ statement enttled the “Univessal Decla-

ration of Human Rights’. One reason for this supplementary

declaration. as stated in its Preamble, was because. “the child.

by reason of his physical and mental immaturity. needs

special safeguards and care, including appropriate legal pro-

tection, before as well as after birth.”” General Assembly of

the United Nations. “Declaration of the Rights of the Child”’.

adopted unanimously in the plenary meeting of November

20. 1959, Official Records of the General Assembly, 14th

Session. pp. 19-20. Thus. the representatives of most of the

civilized nations of the world recognized that the being

before birth deserved recognition as a “child”. They further

recognized that a child, so defined, needed special legal pro-

tection. The committee report on this declaration noted that

“representatives of the most diametrically-opposed sociai

systems find common ideals in discussing the privileges of

childhood”. Report of the Third Committee of the General

Assembly, Official Records, 14th Session, p. 593. The com-

mittee thus underlined that the rights asserted by the United

Nations as applicable to the fetus represented a commitinent

which had commended itself to all of the various social

systems represented within that worldwide body.

if, then. an unborn child can inherit by will and by intes-

tacy. be the beneficiary of a trust. be tortiously injured. be

represented by a guardian secking present support from the

parent. be preferred to the religious liberties of his parents,

be protected by the criminal statutes on parental neglect, and

enjoy the specific concern of the United Nations’ General

Assembly. are there not interests here which the State may

guard from intentional extinction? If not. then all of these

rights are meaningless. capable of being destroyed through

the exercise. of an unrestrictable right simply to destroy their

possessor--the unborn fetus.

Let us then address ourselves specifically to the question

of balancing the two rights which may appear to be in con-

flict in these cases. That question must be: To what extent

can the State protect the right of an unborn infant to con-

tinue its existence as a living being in the face of a claim of

right_of privacy on the part of a woman to decide whether or

not she wishes’ to remain with child?

This Court has decided that the Constitution protects cer-

tain rights of privacy on the part of a woman arising from the

marital relationship which cannot be unjustifiably interferred

with by the State. NRLC believes that the genesis of such

rights, to the extent such rights may exist, must be found

among the “penumbral” personal liberties protected by the

Due Process Clause of the Fifth Amendment. Yet equally

unchallengeable is the proposition that an unborn child’s

right not to “be deprived of life’’, to quote the words of the

the Due Process Clause itself, is also a fundamental personal

right or liberty protected by that same amendment and

entitled to the traditional searching judicial scrutiny and

review afforded when basic personal liberties are threatened

by state action, whether legislative or judicial in character.

Therefore, it is very clear that this case is not one, as the

appellants would portray it, which involves merely the bal-

ancing of a right of personal liberty (i.e., a married woman’s

privacy) against some competing, generalized state interest

of lower priority or concern in an enlightened scheme of con-

stitutional values, such as the state’s police power.*? Here,

the Court must choose between a nebulous and undefined

legal “right” of privacy on the part of a woman with respect

to the use of her body and the State’s right to prevent the

destruction of a human life. That election involves the deter-

mination as to whether the State’s judgment that human life

is to be preferred is a prohibited exercise of legislative power.

52Even in this area the Court, by closely divided vote, has held that

a “dependent child’s needs are paramount” and rarely are to be placed

in “a position secondary to what the mother claims as her rights”.

Wyman v. James, 400 U.S. 309, 318 (1971).

}

There would be no question of the answer, of course, if

the choice were between a woman’s “right to privacy”’ and

the destruction of an unwanted after born child. Yet abor-

tion is distinguishable from infanticide only by the event of

birth. The recent findings of medical science now suggest

that any distinction, at least from a medical if not a legal

point of view, disappears very early in a woman’s pregnancy

and in the life of the unborn child within the womb. Con-

trary to the appellants’ assumption in these cases, a state’s

interest in regulating abortion is not bottomed exclusively on

concern for the health of the mother, a concern which

admittedly ‘would be of Jess than persuasive effect, since it

cannot be successfully established that abortions during the’

early period of pregnancy performed by competent physi-

cians in hospital surroundings represent a substantially high

medical risk to the life and health of the mother5? The state

interest which justifies what Texas and Georgia have done

rests on a concern for human life, even though that life be

within the womb of the mother. Such an interest on the part

of the State has existed since the common law of England.

Now the separate, early and independent existence of fetal

life has been conclusively proven by medical science. While

it may be impossible for the State to insist on maintaining

such a life under all circumstances, can it seriously be main-

tained that the Government is powerless to insist on protect-

ing it from intentional destruction, absent danger to the

mother’s life.

Under the analysis set out above, the appellant’s argument

in support of a woman’s “sovereignty .. . over the use of her

>The amicus has one reservation here, however. Evolving research

into the complications that may follow abortion indicates a 2%

sterility rate with an approximate 10% rate of moderate or severe

psychic sequelae. Hellegers. Abortion, the Law, and the Common

Good, 3 Medical Opinion and Review, No. 5 (May 1967). Indeed,

respectable studies raise the question of whether the guilt complex

evoked by an abortion may itself constitute a more severe psychiatric

probiem than any pre-existing mental health problem serving to justify

the abortion in the first instance. Rosen, Therapeutic Abortion, Medi-

cal, Psychiatric, Anthropological and Legal Considerations (1954).

Oe eeeeeeEeeeeeeeeEeEeEeeroorrrrwowrre ee eS ee er eee

body” cannot stand. Either (1) the argument means that she

has a “private right”’ or personal freedom which permits her

to decide, for any reason whatsoever, whether to sustain

and support, or whether to eliminate, a life which she alone

may decide is unwanted; or (2) it means that she has some

kind of right to bodily integrity which permits her and

her alone to decide under all circumstances whether to

retain, or permit to be destroyed, a human life contained

within her own body.

In all fairness we doubt that the first is the correct under-

standing of the basis of the “private right of personal free-

dom” for which the appellants contend. For, were that

principle ever to be accepted as the law, there would have

crept into the Constitution a potentially terrifying principle

that, with very little more logic than the appellants have

relied upon to sustain their position in these cases, would

equally justify infanticide and euthanasia, at least if the

victims were those in a ‘relationship of dependence with

the person or persons who wished to destroy them. Nor

would the laws which forbid abandonment, failure of support

and child neglect be immune from attack.

If the appellants and their supporting amici are maintain-

ing that a woman has a right to the integrity of her body suf-

ficient to permit her alone to decide, for whatever reason,

whether to terminate a pregnancy, the proposition cannot

prevail5* If a woman has sovereignty over her body of the

degree suggested by the appellants, how could the States ban

prostitution, outlaw suicide or prohibit the use of harmful

drugs?

However, in the amicus brief filed by the American Associ-

ation of University Women and other women’s organizations,

the “‘sovereignty of the body” argument is made in a dis-

guised and superficially more plausible form. These amici

assert a woman’s right of “reproductive autonomy”. This

they define as the “personal, constitutional right of a woman

—————_L_

ASee also the Georgetown College and Raleigh Fitkin cases dis-

cussed supra, pp. 37-39; cf. Babbitz v. McCann, 306 F. Supp. 400 (E.D.

- Wisc., 1969), app. dism., 400 US. 1 (1970).

& ————

to determine the number and spacing of her children, and

thus to determine whether to bear a particular child... .”

Such a right, those amici argue, evolves inevitably from the

recognition which this Court has afforded to those human

interests “which relate to marriage, sex, the family and the

raising of children”. It is true that the Court has upheld the

right of a married couple to plan their offspring prior to con-

traception, Griswold v. Connecticut, 381 U.S. 479 (1965), a

case which, as we show in the next section of this brief, has

no applicability to the issues presented’ in these cases.

Parents may have a constitutional right to plan for the

number and spacing of children. Still, that right cannot be

extended to permit the destruction of a living human being

absent a threat to the life of the mother carrying the unborn

baby. Family planning, including the contraceptive relation-

ship, is a matter between a man and a woman alone. The

abortion relationship, on the other hand, is between the par-

ents and the unborn child. “This additional party changes the

whole structure of the situation. The freedom of the parents

is limited by the rights of the child.”” Granfield, The Abortion

Decision 184-85 (1969); see also Gleitman v. Cosgrove, supra,

at 30-31. Thus, while a man and woman may have the right

to plan their family free from interference by the State, which

the Court upheld in Griswold, surely such a right cannot be

projected, indeed distorted and debased, to serve as justifica-

tion for the destruction of a third party, the unborn but

living child.- The right to plan a family no more encompasses

the right to intentionally destroy a 2,3,4,5, 6.7 or 8 month

unborn child than it would encompass the right to destroy a

one-day-old baby. We do not believe, therefore. that it can

successfully be maintained that the Texas and Georgia abor-

tion statutes, and the balancing between any alleged consti-

tutional right to plan a family and the right of an unborn

child to life which they attempt to effect. should be struck

down as unconstitutional ** To reach the contrary result

5SWe show in the next subsection of this brief that the one decision

on which appellants might rely, at least by attenuated analogy, to

support a claim of the unfettered right of a married woman to termi-

>” OSE ap!

would require this Court’s unabashed return to the long- -

repudiated concept of substantive due process which plagued

its decisions for several generations, albeit in another context,

i.e., economic and social legislation. The fact that a law

might not impress the judiciary as a good law, or might

appear to them as futile or unworkable, no longer can serve

as a basis for its invalidation.*° Moreover, even though many

doctors, representatives of women’s organizations and well

known public figures may claim that these abortion statutes

_are illiberal, outmoded and restrictive of women’s rights, this

is.not the general viewpoint of the American people. A

recent careful analysis of abortion and public opinion by

demographer Judith Blake indicates that 78% of the popula-

tion disapproved legalization of abortion when the parents

desired no more children.*’ In any event, at this stage of

American constitutional development there is no need to

remind the Court that the predilections of the populace,

much less the individual preferences of judges, cannot serve

as a basis to strike down legislation within the competence

of the state to enact, especially where the laws so challenged

are aimed at protecting the most fundamental of personal

liberties protected by the Due Process Clause, i.e., the right

not to “be deprived of life”’.

G. The Right to Life Has Not Been Undermined by

Judicial Decision. The amicus has demonstrated the persua-

sive medical basis supporting the compelling substantial state

interests which justify the Texas and Georgia abortion laws.

Beyond that, and contrary to the contentions of the appel-

lants and the amici who have filed briefs in their support,

nate a pregnancy does not support the proposition in behalf of which

it is summoned.

56Compare Lochner v. New York, 198 U.S. 45 (1905), with

Ferguson v. Skrupa, 372 U'S. 726, 730 (1963).

57Blake, Abortion and Public Opinion: The 1960-1970 Decade, \7\

Science 540, 544 (1971). The same study shows that there are wide

disparities in American attitudes toward abortions. Women, for

example, disapprove of it more than men. /bid.

NRLC disputes the assertion that a woman enjoys any right

of privacy, as yet undefined in American law, which vests in

her alone the absolute authority to terminate a pregnancy for

any reason whatsoever. No precedents of this Court have

| gone so far. Nevertheless, the proponents of abortion on

demand always advance three or four decisions of the Court

from which they argue that the Court has impliedly recog-

nized a startling and dangerous extension of a right of pri-

vacy that they now ask the Court to enunciate expressly in

the cases at bar. We discuss those alleged analogies in this

| section of our brief. None of them, we believe, can serve as

analogy, much less precedent, for the grave proposition of

constitutional law which the appellants seek to establish in

this litigation.

A case usually cited by those challenging state abortion

laws is Loving v. Virginia, 388 U.S. 1 (1967). There, this

Court held that a state anti-miscegenous marriage statute

violated the Equal Protection Clause of the Fourteenth

Amendment. 388 U.S., at 12. As a supporting ground for

its decision, the Court also found that such statutes deny due

process, since “‘the freedom of choice to marry [can] not be

restricted by invidious racial discrimination.” Jbid. Loving,

therefore, is no precedent in support of the appellants’

notion of the extreme scope of a woman’s constitutional

right of privacy. It is y an invidious racial discrimina-

tion holding.

Other cases on which the appellants rely must similarly fail

in their role as alleged analogies for their position. Skinner v.

Oklahoma, 316 U.S. 535 (1942), decided that the com-

pulsory sterilization of some types of habitual criminals and

not others represented an invidious discrimination con-

demned by the Fourteenth Amendment. Thus, Skinner is

most accurately read as a case prohibiting the imposition of

unreasonable impediments on the right to procreate and, in

any event, cannot logically be stretched to serve as an

analogy for the unrestricted right to abort. Likewise missing

the mark as a supporting precedent is Pierce v. Society of

RRNA 1 NONI gt _— anorp . ee ee . = re —

Sisters, 268 U.S. 510 (1925). This was the Court’s landmark

decision upholding, over the requirements of a’state’s com-

pulsory school attendance law, the freedom of parents,

guaranteed by the Due Process Clause of the Fourteenth

| Amendment, “to direct the upbringing and education of

| [their] children .. . ’’ 268 U.S., at 534. Once more, the

liberty which was protected in the Pierce case was not a

“right of privacy” and again the legislation which was

struck down had ‘“‘no reasonable relation to some purpose

within the competency of the State.” 268 U.S., at 535.

When the obviously unanalogous authorities tendered by

the appellants are put aside, they are left only with Griswold

v. Connecticut, 381 U.S. 479 (1965), as the one slim reed of

alleged precedent to which they cling in arguing for the awe-

some right of privacy which they would have the Court enun-

ciate in this case. That decision. too. is insufficient to carry

such a heavy burden. The Griswold case produced a number

of opinions by the Justices of this Court, concurring and dis-

senting. The actual holding in the case, however, was that a

statute which forbade the use of contraceptives by married

couples violated a “‘penumbral” right of marital privacy.

older than the Bill of Rights and one falling within a “zone

of privacy created by several constitutional guarantees.”

381 U.S., at 485. Three of the Justices who decided that

case, two dissenting and one concurring, refused to recognize

any constitutionally protected right of privacy whatsoever.

The remaining six Justices agreed only that a law, the

7 enforcement of which would require the invasion of the

marital bedroom, transgressed on the intimacies of, and the

right of privacy inherent in, the marital relationship.

The particular aspect of the marital relation with which

the Connecticut statute at issue in Griswold interfered was

the sexual relationship. The state made it criminal for a

married couple to have sexual intercourse usgre contracep-

tives. Enforcement of the statute would have required actual

invasion of the marital bedchamber. The Connecticut law

challenged was more stringent and sweeping than any statute,

civil or ecclesiastical, in the history of social efforts to con-

trol contraception. Noonan, Contraception 491 (1965). In

contrast, the Texas and Georgia statutes do not affect the

sexual relations of husband and wife. Pregnancy does not

‘interfere with these relations except under some circum-

stances at limited times. Guttmacher, Pregnancy and Birth *‘

86 (1960). .

Further, it is a distortion of both the “penumbral” and

Ninth Amendment approaches relied on by the majority in

Griswold to assert them as a basis for challenging state regu-

lation of abortion as unconstitutional. Centuries of judicial

and legislative history refute the argument that the unre-

stricted right to abort is an “emanation” of any specific

guarantees of the Bill of Rights necessary to give them “‘life

and substance”. 381 U.S., at 484. Where, for example,

after considering the “traditions and [collective] conscience

of our people’, will this Court find the right to unrestricted

abortion a principle “‘so rooted [there] . . . as to be ranked as

fundamental”? 381 U.S., at 493 (Goldberg, J. concurring).

Rather, in the words of a state court on the subject, the

tradition has been that: “Unnecessary interruption of preg-

nancy is universally regarded as-highly offensive to public

interest.” Miller v. Bennett, 190 Va. 162, 169, 56 S.E.2d

217 (1949).

In relying on the Griswold case, the appellants have not

considered that in this case, as opposed to that decision,

there is another important interest at stake, the life of an

unborn child. If, despite all the medical evidence and legal

history on the point, the unborn child is not to be considered

a person within contemplation of the law with legally pro-

tectable interests, then Griswold possibly might be stretched

to serve as a precedent for the result that the appellants urge

this Court to reach. On the other hand, if terminating preg-

nancy is something different from preventing it, if abortion

is different from cosmetic surgery, if the fetus is not in the

same class as the wart, and if we are dealing with something

other than an inhuman organism, then Griswold is totally

Fp Re ie ee on ee ee a a ee Te

inapposite. As medical knowledge of prenatal life has

expanded, the rights of the unborn child have been enlarged,

And even if it could still be argued that the fetus is not

fully the equal of the adult, the law, through centuries of

judicial decision and legislation, and following the lead |

supplied by medical science, has raised the equivalency of

‘ that life to such a status that the unborn child may not be

deprived of it, absent the demonstrated necessity of pro-

tecting a reasonably equivalent interest on the part of the

mother. Griswold, of course, presented no such conflict and

therefore is not controlling in this case.

Finally, as we have previously argued®*® abortion was

always condemned at common law. In Blackstone’s words, it

was regarded as a “heinous misdemeanor’’>® American law

gave it the same hostile reception. Therefore, any argument

that by virtue of the passage of the Ninth Amendment there

was reserved to pregnant women a “penumbra!” constitu-

tional right of privacy entitling her to abort for any reason

and that such a “right”’ was one of the fundamental liberties

of American citizens recognized before the Bill of Rights and

retained by them thereafter is completely without support ‘in

either British or American constitutional history. There was }

no “right” to abort at common law. Rather, abortion—in

contrast to contraception—was considered a serious criminal

act.

Thus, on any fair analysis, the appellants’ alleged prece-

dents, including Griswold, furnish no support for their claim

that there is a constitutional basis on which to claim that a

woman has a right to abort, for any reason, an unborn child

which she does not want.

Supra, pp. 24-29.

* Blackstone, supra n. 22, at 129-30.

Ill.

THE STATUTES ARE NOT

UNCONSTITUTIONALLY VAGUE

In both cases, the appellants attacked the statutes in the

courts below on the additional ground that they were uncon-

stitutionally vague. The Texas three-judge federal court

agreed. 314 F.Supp., at 1223. The Georgia three-judge

court impliedly rejected the argument, but struck the statute

down on other constitutional grounds. 319.F.Supp., at 1055.

The appellants again raise the vagueness issue in their briefs

which they have filed in this Court.

Neither of the courts below had the advantage of this

Court’s decision in United States v. Vuitch, 402 U.S. 62

(1971), at the time they handed down their decisions. In

that case, this Court reversed the decision of a district court

judge who had found that the District of Columbia abortion

law was unconstitutionally vague. The District of Colum-

bia statute outlawed abortions except when “necessary for

Court’s holding in Vuitch should be dispositive of the vague-

ness issue in these cases. The exception clause which this

Court upheld in Vuitch is no more or less certain of meaning

than the exception found in the Texas statute, i.e., “for the

purpose of saving the life of the mother”. Likewise, the

exceptions permitted under the Georgia statute are stated in

language free of any inhibiting unconstitutional vagueness

or ambiguity.

Doctors are neither in doubt nor in fear as to where abor-

tions permitted by the Texas and Georgia statutes end and

where those barred by them begin. For example, a recent

study in California, whose abortion statute at the time had

an exception limited solely to cases where termination of

305 F.Supp. 1032 (D. D.C., 1969).

*122'D.C. Code 201.

+ Pen RN

‘a s A ee ee eR ee ee ne ae eS ee ee ei eT SOMES Or 2 Dn Oe ay

the pregnancy is necessary to preserve the life of the

mother,” shows that there has never been a prosecution for

an abortion performed in a hospital by a physician licensed !

to practice medicine in that state. Packer & Gamspell, |

Therapeutic Abortion, A Problem in Law and Medicine, \\ |

Stanford L.R. 418, 444 (1959). Other recent studies show |

the same has been true in New York and in Maryland. |

Hellegers, Abortion, the Law, and the Common Good, 3

Medical Opinion and Review, No. 5 (May 1967), p. 84. The

amicus is confident that the same experience holds for Texas |

and Georgia and that in those jurisdictions, as in others, “the

law has not gone out of its way to make things difficult for

the physician, . . .”®

The words of Mr. Justice Holmes, as in so many other

areas of constitutional law, supply the answer to any claim

of the alleged vagueness of these two statutes. Speaking for

the Cotrt in United States v. Wurzbach, 280 U.S. 396, 399

(1930), he said:

“Whenever the law draws a line there will be cases very

near each other on opposite sides. The precise course

of the line. may be uncertain, but no one can come

near it without knowing that he does so, if he thinks,

and if he does so it is familiar to the criminal law to

to make him take the risk.” ™

Accordingly, we urge the Court to adhere to its decision in

Vuitch and reject any contention that these two statutes are

62Cal. Penal Code §274.

S3Hellegers, supra, at 84. Indeed, a recent decision of the Court of

Appeals for the District of Columbia Circuit suggests, should appellants

prevail on this appeal, that any “doctor’s dilemma’ will not be whether

he will be punished if he performs an abortion but whether he will be

punished if he does not. Mary Doe, et al. v. General Hospital of the

District of Columbia, et al., C. A. No. 24,011. For a recent case show-

ing this is not an illusory concern see Gleitman v. Cosgrove, 49 NJ. 22,

227 A.2d 689 (1967).

ASee also, State v. Moretti, 52 N.J. 182, 244 A.2d 499 (1968), cert.

den., 393 US. 952 (1968).

FS ERA SEINE RIPE TARE FEES EI A SI —

unconstitutionally vague in prescribing what is criminal con-

duct on the part of doctors and what is not.

IV.

THE REMAINING CONSTITUTIONAL ARGUMENTS

ADVANCED BY THE APPELLANTS AND THE AMICI

CURIAE SUPPORTING THEM ARE WITHOUT MERIT

In addition to their primary claim that the Texas and

Georgia statutes violate rights of privacy guaranteed by the

Ninth and the Fourteenth Amendments, the appellants in

these cases, or the amici curiae who filed briefs in support of

the appellants, attempt to raise several other constitutional

issues. For instance, the doctor-appellants argue that

the statutes in question transgress First and Fourteenth

Amendment rights which guarantee them the right to pursue

their chosen profession. Additionally, the appellants claim

that the statutes under challenge in this litigation violate

equal protection of the laws, so far as poorer citizens are

concerned. These contentions are meritless.

A. The Statutes Do Not Abridge Either First or Four-

teenth Amendment Rights of Doctors. \n both cases, the

doctor-appellants alleged that the particular statute in ques-

tion “chills and defers plaintiffs from practicing their profes-

sion as medical practitioners” and thus offends rights guaran-

teed by the First and Fourteenth Amendments.® The dis-

positive answer to these contentions is that neither statute

proscribes speech or medical advice but prohibits the com-

mission of the criminal acts specified in the statute. If, as

this amicus maintains, the acts outlawed by the statutes are

within the constitutional competency of Texas and Georgia

to proscribe as criminal conduct, then the argument is closed.

Criminal acts do not fall within the “freedom of speech”

which the First Amendment protects. Giboney v. Empire

Storage & Ice Co., 336 U.S. 490, 498 (1949). On the other

App. 19 in No. 70-18 and App. 14 in No. 70-40.

LP RRR oS ue Sr hase RE MORRO coal Meine he — “as ot% x 4 . ay

hand, if we are wrong and these statutes do represent uncon-

stitutional invasions of a woman’s right to privacy, then the

free speech argument advanced by the doctor-appellants

becomes superfluous. Apart from that, however, we do not

believe that the appellants can seriously argue that these

abortion statutes are vulnerable on their face as abridging a

doctor’s or anyone else’s right of free expression.

The identical rationale also answers appellants’ claims that

any freedom to pursue the profession of medicine guaranteed

by the Due Process Clause of the Fourteenth Amendment is

offended by the statutes involved in these cases. Cf, e.g.,

Konigsberg v. State Bar of Calif., 366 U.S. 35, 44 (1961),

with Willner v. Committee on Character and Fitness, 373

U.S. 96, 102-03 (1963). And it legitimately could be asked

whether the deliberate destruction of the unborn child, absent

a threat to a mother’s life or a serious menace to her health, is

really the practice of the “healing art” of medicine. Frankl,

The Doctor and the Soul 37 (1969).

B. Nor Do the Statutes Draw Invidious and Unconstitu-

tional Discriminations Between the More Affluent and the

Poor. As so often happens in such cases, the parties attack-

ing abortion statutes argue that they discriminate against the

economically deprived. Specifically, appellants contend that

there is an advantage to the class which is able to obtain abor-

tions and that this advantage is enjoyed only by the more

affluent people of Texas, Georgia and the rest of the United

States. We doubt that this contention rises to the level of a

constitutional argument which must be dealt with in these

cases. If it were necessary, NRLC would point out that the

statutes on their face apply to all persons committing the

acts condemned and that there is no suggestion that they

seek to discriminate on any invidious basis, including that of

income.

Of course, departing from the facts of the two cases, it

might be argued abstractly that (1) a poor woman finds it

more difficult than a rich woman to leave Texas or Georgia

in order to get an abortion in a jurisdiction where that might

aia SELENITE SEPT LEE PEN SERIA IRN SIE hy a

be legal, and (2) she cannot afford treatment by a private

physician who, some might say, would be more inclined to

find a legal reason for the abortion. Hence, the two statutes

bear unequally upon the poor.- However, the same theoreti-

cal argument could be made of many types of conduct pro-

scribed by the criminal laws of Texas and Georgia. There

are jurisdictions to which wealthy persons may travel in

order to indulge in the doubtful pleasures of gambling at will,

using narcotics without restraint, and enjoying a plurality of

wives. Could these doubtful “advantages” on the part of the

rich be relied on as any basis to set aside the criminal statutes

of Texas or Georgia proscribing such activities within those

jurisdictions? |

And even if it were assumed to be true that the rich are

more likely than the poor to secure the services of a sympa-

thetic physician for purposes of terminating an unwanted

pregnancy, such a result, unintended by the statute, would

not rise to the level of a constitutional infirmity. “It is no

requirement of equal protection that all evils of the same

genus be eradicated or none at all.” Railway Express Agency

v. New York, 336 U.S. 106, 110 (1949). If the statute is to

fail, it must be shown that on its face it takes away a right

guaranteed to the poor by the Constitution. Fisch v. General

Motors Corp., 169 F.2d 266, 270 (C. A. 6, 1948). No such

showing is possible in these cases.

Unfortunately, Anatole France’s sardonic comment about

the “majestic equality’ of the law much too often has

proved to be true. Many criminal laws in actual practice do

bear with unequal severity upon the poor. It is they who are

more likely than the rich to be caught, to be unable to post

bail bond, to be prosecuted, to be unskillfully defended, to

be convicted and to be punished. However, the remedy for

these injustices of society lies in the elimination or mitiga-

tion of the conditions and causes of poverty and in the

reform of the administration of crimimnal justice, not by the

selective invalidation of otherwise lawfully enacted criminal

Statutes.

APPELLANTS’ PUBLIC POLICY ARGUMENTS

ARE MISPLACED

In addition to their arguments of unconstitutionality, the

appellants, and their supporting amici, dwell at some length

on what they believe is the poor public policy inherent in the

Texas and Georgia abortion statutes in particular and in abor-

tion laws generally. Attention is called to the fact that the

presence of strict abortion statutes requires women often to

go to non-medical practitioners for the performance pf illegal

abortions conducted under poor hygienic conditions. The

problem of world overpopulation is also touched upon in the

appellants’ marshalling of their reasons why they think abor-

tion laws are a bad thing. Finally, in the brief of at least one

of the amici, there is the suggestion that abortion laws stand

in the way of women’s liberation and represent a stamp of

servility imposed by men upon the women of America.

In our opinion, the validity of all of these arguments is

very questionable. In any case, their assertion, directly or

indirectly, in this litigation is misplaced. They should be

directed to the legislatures of Texas:and Georgia, not to this

Court. Moreover, we point out that in recent years it has not

been impossible to convince state legislatures that their abor-

public policy arguments were addressed to a legislative body,

NRLC would dispute their validity. For example, Sweden, a

country not unlike ours, and the nation which has had the

longest experience with state-regulated abortions in Western

Europe, has produced no evidence that criminal abortions,

estimated at 20,000 a year when the law was passed in 1938,

have been substantially reduced since that time. Uhrus,

New York has enacted an abortion statute which permits abortion

for any reason within 24 weeks from the commencement of pregnancy.

That act became effective on July 1, 1970. New York Times, July 2,

1970, p. 1. Laws almost, but not quite, as unrestrictive as the New

York statute have recently been approved in Alaska, Hawaii and Wash-

ington State.

rma FF ee Pr.

eR ed

Some Aspects of the Swedish Law Governing Termination

of Pregnancy, the Lancet 1292 (1964). Other studies con-

firm the belief that liberalization of abortion laws effect no

reduction in the rate of criminal abortions and all, that is

crease maternal mortality.”” Cavanagh, Reforming the Abor-

tion Laws: A Doctor Looks at the Case, America, A

1970, p. 408.

So far as any alleged problem of overpopulation is con-

cerned, abortion, whether on the free demand of a woman

or on the intimidating command of the State, appears as a

completely ineffective and extremely dangerous way to

deal with such a problem, if it exists.°’ For instance, one

side effect of the repeal of abortion statutes and the foster-

ing of abortion through state auspices is that no group will

be more likely to feel the sting more bitingly than the

mothers of illegitimate children. Already, laws making the

birth of illegitimate children a crime suggest the squeeze to

which the poor mother might be subjected in an age of

unrestricted, and state-sponsored, abortion.%

Finally, the suggestion that laws against abortion were

enacted by men to constrain the behavior of women has

nothing to support it except the historical accident that most

of the criminal statutes, including abortion laws, were

enacted by male legislators in the 19th Century when women

were unable to vote. It is not evident how this general condi-

tion of political freedom influenced abortion laws more than

it influenced other developments in the criminal law. More-

over, more women than men currently disapprove of elective,

In point of fact, recent statistics indicate that the population of

the United States is approaching a zero growth rate. Washington Post,

September 7, 1971, page A-1.

SF eg, La. Rev. Stat. Ann. $14.79.2; see Noonan, Freedom To

Reproduce: Cautionary History, Present Invasions, Future Assurance,

Biennial Conference on the “Control of One’s Own Body”, New York

University, New York (1970).

BNE A gd ie

or unrestricted, abortion.” The suggestion that abortion

laws are peculiarly the product of a male-dominated govern-

ment is especially inapposite in the case of Georgia, which

enacted the abortion statute involved in this litigation in

1968. This amicus applauds the continuing process by which

illegal discriminations against women have been removed.

However, the claim that a woman should be free to destroy a

human being whom she has conceived by voluntarily having

sexual intercourse can only make sense if that human being

be regarded as part of herself, a part which she may discard

for her own good. However, at this point, the evolution of

social doctrine favoring freedom for women collides squarely

with modern scientific knowledge and with the medical and

judicial recognition that the fetus in the womb is a living

“person. A woman should be left free to practice contracep-

tion; she should not be left free to commit feticide.

CONCLUSION

NRLC has stated its doubts that the lower courts should

have exercised jurisdiction in these cases and urges that the

decisions below be vacated on those grounds. However, if

the Court does note probable jurisdiction in these two

case, we respectfully ask, for the reasons stated in this brief,

i at

* Supra note 57.

SE GL LLL EL SLL SLIDES PEI A ILE -

er weinerme

that it affirm those portions of the judgments below which

denied injunctive relief and reverse those portions which

awarded declaratory relief.

Respectfully submitted,

Juan J. RYAN ALFRED L. SCANLAN

1351 Springfield Avenue MARTIN J. FLYNN

i New Providence, N. J. 07974 734 Fifteenth Street, N. W.

Washington, D.C. 20005 |

JOSEPH V. GARTLAN, JR. ~~ ROBERT M. BYRN

815 Connecticut Avenue, N. W. 140 West 62nd Street

j Washington, D. C. 20006 Lincoln Center

, New York, New York 10023

Attorneys for The National Right to Life

Committee, Amicus Curiae

OF COUNSEL:

Shea & Gardner

734 Fifteenth Street, N. W.

Washington, D. C. 20005

October 8, 1971.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.