Amicus Curiae Brief — Roe v. Wade
Supreme Court brief1973
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Wh In the
Supreme Court of the
ge Rexnearina, Ocrosrr Team,
No. 70-18
Janz Roz, Joun Doz, and Many
) Appellant-Intervenor,
Hewny Wang,
Appellee.
On Appeal from the United States District Court
for the Northern District of Texas.
No. 70-40
Mary Doz, et al., etc.,
on Appellants,
Azruvur K. Botton, Attorney General of the State of
Georgia, et
rgia, et al., etc., , z
On I from the United States District Court
the Northern District of Georgia.
Motion for Leave to File Brief Amici Curiae on
Behalf of Organizations and Named Women in
Support of Appellants in Each Case, and Brief
Amici Curiae.
Tae Catrrory1a Commrrree To Legalize
ABORTION
Tae Sovrn Bay Cuapresr or Tue Nationa.
N FoR WomMEN
Zeno Popu.ation GrowTH, Inc.
CuerreL Mozencu Jensen
Lynetre Perxes
Joan K. Braprorp
987 Laurel Street
San Carlos, California 94070
Attorney for Amici Curiae
ING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94108
SUBJECT INDEX
: Page
Motion for Leave to File Brief Amici Curiae on Behalf
of Organizations and Named Women in Support of 4
Appellants in Each Case 1
Amici Curiae Brief on Behalf of Organizations and
Named Women in Support of Appellants in Each
Case ....... 4
Opinions Below 4
Jurisdiction 5
Interest of Amici Curiae 5 :
Summary of Argument 4)
Argument: Laws Which Restrict or Regulate Abor-
tion as a Special Procedure Violate the Thirteenth
Amendment by I ing Involuntary Servitude
Without Due Conviction for a Crime 6
I. Under the Thirteenth Amendment a Woman
Has the Right to Freedom from the Involun-
tary Servitude of Pregnancy and Childbearing
in the Absence of Due Conviction for a Crime 6
A. Scope and Application of the Thirteenth
Amendment 6
B. Involuntary Pregnancy and Childbearing
as Involuntary Servitude 9
1. Pregnancy: A State of Physical Servi-
tude 9
a. Changes Due to the Physical Inva-
sion of the Pregnant Woman’s
Body 9
sg |
ik Sussect InpEx
Page
b. Results of Metabolic Alteration of
the Pregnant Woman’s Vital Sys-
tem - 10
ce. Depletion of the Pregnant Wom-
an’s Calcium and Iron.........00...0000...... ll
2. Involuntary Pregnancy 12
a. Contraceptive Failure -......0000000.. 12
b. Limitations on the Right to Refuse 14
3. The Thirteenth Amendment Includes
Protection Against Involuntary Preg-
nancy and Childbearing 15
II. There Is No Compelling State Interest to Jus-
tify Impairment of the Pregnant Woman’s
Fundamental Constitutional Right to Be Free
from Involuntary Servitude 16
A. The Necessity of Showing a Compelling
State Interest 16
B. The Nature of State Interest in Areas of
Exception Permitting Limited Imposition
of Involuntary Service. : 17
1. Military Service . 17
2. Involuntary Commitment or Hospitali-
DRI ccostevivennvns 18
3 Jury Duty .................0000 18
4. Payment and Reporting of Taxes .......... 19
C. The Nature of State Interest in the Abor-
Cs CIE animsssteninsin intivtnsinsinenniieitnaieaitanitivspatiiien 19
1. The State’s Interest in Rights of the
Fetus 19
a 2 SEAM EIRENE ANE NPAAE RHE st SDC OE DRT tame? 08
Sussect InpEx
or RoE: ea
Page
2. The State’s Interest in Protecting the
Health and Welfare of the Pregnant
Woman
3. The State’s Interest in Promoting Pop-
ulation Growth
4. The State’s Interest in Punishing Sex-
ual Conduct and Promoting “Public
Morality”
Ill. If the Culpability of the Pregnant Woman Is
Presumed Rather Than Proved, She Is Denied
Due Process Under the Fourteenth Amendment
Conclusion
25
26
31°
ie ie - PRR Pe RAAT EO EY INE wrk 9 ROE CR ORT
TABLE OF AUTHORITIES
ConsTITUTIONAL PROVISIONS Pages
United States Constitution:
Amendment XIII . vincent iain passim
FT TRY exciciercicneessinensanentcpesnansannnerion 19-20, 29.30
STATUTES
Comstock Act, Stat. Sec. 3893, 42nd Congress, Ch, 3
(1883) 27-28
Georgia Code Ann., Sec. 26-1103 (1969) 1”
Georgia Code Ann., Sec. 30-102 (1971) 15
New York Consolidated Laws, Ch. 40, See. 1142 (1884) 2%
2A Texas Penal Code, art. 1201 (1961) mI
38 U.S.C., See. 101 et seg. (1958) 18
50 U.S.C. app., Sec. 454 (1967) 18
Uniform Anatomical Gifts Act 22
CasEs
Allen v. Hixson, 111 Ga. 460, 36 S.E. 810 (1900)............ 23
Arver v. United States, 245 U.S. 366 (1918)... 18
Bailey v. Alabama, 219 U.S. 219 (1910) 7, 16
Bates v. City of Little Rock, 361 U.S. 516 (1960).......... 1
Beltran v. Cohen, 303 F, Supp. 889 (N.D. Cal. 1969)... 19
Bonner v. Moran, 126 F.2d 121 (D.C. Cir, 1941)... 22
California v. Belous, 71 Cal. 2d 954, 458 P.2d 194, 80
Cal. Rptr. 354 (1969) cert. denied, 397 U.S, 915
CUD ON chisniinsientetenineienssasrecasecensniittinatonnpetbsibberinnannonen 20, 25-26
Cantwell v. Connecticut, 310 U.S, 296 (1940)... |
Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964) .............. »
Crews v. Lundquist, 361 Ill. 193, 197 N.. 768 (1935)... 19
Civil Rights Cases, 109 U.S. 3 (1883) 6-8, 16
Clyatt v. United States, 197 U.S. 207 (1905).................. 1
—_ PIE LATIN PEALE WAT Ho SOULE ABE AED .
TABLE OF AUTHORITIES Vv
Pages
Deutch v. United States, 367 U.S. 456 (1961).................. 30
Kisenstadt v. Baird, 405 U.S. 430 (March 22, 1972) ...... 28-30
Gilbert v. Gwin-McCollum Funeral Home, 268 Ala.
372, 106 So, 2d 646 (1958) 23
Griswold v, Connecticut, 381 U.S. 479 (1965) ................ 28
Harper v. Virginia State Board of Education, 383
U.S. 663 (1966) 8
Hodges v. United States, 203 U.S. 1 (1906) ................ 7, 16-17
Hurley v. Eddingfield, 156 Ind. 416, 59 N.E. 1058
(1901) 23
In re Wells’ Will, 221 N.Y. Supp. 714 (1927) ................ 20
Irvin v. Dowd, 366 U.S. 717 (1961) 30
Jobson v. Henne, 355 F.2d 129 (1966) 18
Jones v. Mayer, 392 U.S. 409 (1968) 8, 16
Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617,
87 Cal. Rptr. 481 (1970) 20
Kramer v. United States, 147 F.2d 756 (6th Cir. 1945)
cert. denied, 324 U.S. 878 (1945) 18
London vy, Atlanta Transit Company, 91 Ga. App. 753,
87 S.E. 2d 103 (1955) ...............00.: 23
McCann v. Babbitz, 310 F. Supp. 293 (IE.D. Wis. 1970)
(per curiam) appeal dismissed, 400 U.S. 1 (1970)
(per curiam) . 17, 20
MeLaughlin v. Florida, 379 U.S. 184 (1964) 000... 17
N.A.A.C.P. v. Alabama, 377 U.S, 288 (1964) 0.000.000... 29
N.A.A.C.P. v. Button, 371 U.S, 415 (1963) oo. 17
a
i
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POE ap Lo a aan ee gepe —
Cae IRR Pee EER GNIS ota St BAR
vi TABLE OF AUTHORITIES
Pages
O’Keefe v. W. J. Barry Company, 311 Mass. 517, 42
N.E, 2d 267 (1942) 8
Osterlind v. Hill, 263 Mass. 73, 160 N.I5. 301 (1928) ... 93
People v. Sanger, 222 N.Y. 192, 118 N.E. 637 (1918) ...... 28
Pollock v. Williams, 322 U.S. 4 (1944) 78
Reese v. United States, 225 F.2d 766 (9th Cir. 1955) ... 18
Shelton v. Tucker, 364 U.S. 479 (1960) . 17, 29
Sherbert v. Verner, 374 U.S. 398 (1963) 17
Skinner v. Oklahoma, 316 U.S. 535 (1942) —2000. 31
Taylor v. Georgia, 315 U.S, 25 (1942) 2... 18
Thornhill v. Alabama, 310 U.S. 88 (1940) .002 29
Toadvine v. Cincinnati N. 0. & T. R. Ry., 20 F. Supp.
226 (E.D. Ky. 1937) 23
Union Pacific Rwy. Co. v. Botsford, 141 U.S. 250
(1891) 16
United States v. Bennett, 24 Fed. Case No. 14571 (S.
D.N.Y. 1879) 28
United States v. Lumsden, 499 F.2d 154 (9th Cir.
1971) 18
United States v. Rogers, 454 F.2d 601 (7th Cir. 1971) 18
Whitfield v. Whitfield, 89 Ga. 471, 15 S.E. 543 (1892) 15
LecaL LITERATURE
AND COMMENTARY
Avins, Freedom of Choice in Personal Service Occu-
pations: Thirteenth Amendment Limitations on An-
tidiscrimination Legislation, 49 CornE.u L. Q. 228
(1964) 17
oa ____ ne RRR ER DIOR, Mi a re ate TRS E RDORES
TABLE OF AUTHORITIES vii
Pages
Atkinson, Witts (2d ed. 1953) 20
Clark, THe Law or Domestic Retations (1968) .......... 15
Curran, A Problem of Consent: Kidney Transplanta-
tion, 34 N.Y.U. L. Rev. 891 (1959) 22
Leavy and Kummer, Criminal Abortion: Human
Hardship and Unyielding Laws, 35 So. Cau. L. Rev.
123 (1962) 26
Means, The Law of New York Concerning Abortion
and the Status of the Fetus, 1664-1968: A Case
Study of Cessation of Constitutionality, 14 N. Y.
L. F. 411 (1968) 26
Note, District of Columbia Hospitalization of the
Mentally Ill, 65 Cotum. L. Rev. 1062 (1965) _.0....... 18
Note, The New Thirteenth Amendment: A Prelimin-
ary Analysis, 82 Harv. L. Rev. 1264 (1969) 0. 8
Perkins, Criminat. Law (1957) 26
Prosser, Law or Torts (3d ed. 1964) 20
Richards, Medical-Legal Problems of Organ Trans-
plantation, 21 Hastines L. J. 77 (1969) 0000... 22
RestaTEMENT OF Torts (Sgconp), Section 314 (1965) 23
Sanders and Dukeminier, Medical Advance and Legal
Lag: Hemodialysis and Kidney Transplantation, 15
U.C.L.A. L. Rev. 357 (1968) 22
Sands, Therapeutic Abortion Act: An Answer to the
Opposition, 13 U.C.L.A. L. Rev. 285 (1966) .............. 20
The Failure to Rescue: A Comparative Study, 52
Cotum. L. Rev. 631 (1952) 23
Ziff, Recent Abortion Law Reforms, 60 J. Cru. L.C.
& P.S. 3 (1969) 20
—_—_ . “ae grenmegerng yn
—
—
Viii TABLE OF AUTHORITIES
Mepicau LITERATURE
AND COMMENTARY
Pages
American Medical Association Official Pamphlet,
Wuat You SHovutp Know Asovut THE Pitt (1970) 13
Bumpass and Westoff, The Perfect Contraceptive
Population, 169 Science 1177 (1970) 14
Chaudhuri, Correlation of Toxemia with Anemia of
Pregnancy, 106 Am. J. Osst. & Gynec. 255 (Jan. 15,
1970) ll
Davis, The Shield Intrauterine Device, 106 Am. J.
Osst. & Gynec. 456 (Feb. 1, 1970) 12
Food and Drug Administration Advisory Committee
of Obstetrics and Gynecology, F.D.A. Report On
OraL Contraceptives (Sept. 1969) 12
Havemann, Birtu Controt (1967) 13
Hern, Is Pregnancy Really Normal?, 3 Famity Puian-
ninG Perspectives 7 (Jan. 1971) 9-12
Kinsey, Pomeroy and Martin, SexvaL Bewavior 1x
THE Human Mate (1948) 14
Macy and Huncher, An Evaluation of Maternal Nitro-
gen and Mineral Needs During Embryonic and In-
fant Development, 27 Am. J. Osst. & Gynec. 878
(1934) il
Moritz and Thompson, Septic Abortion, 95 Am. J.
Osst. & Gynec. 46 (1966) ....... 35
Ober, Analysts of Surgical Practice at the New York
Hospital, 1808-33 (1970) yA)
Oxorn and Foote, Human Lazor anp Birt (1968) .... 10
aa we Pe wi otra DANE i SRST eB |
TABLE OF AUTHORITIES ix
Pages
Reid, Assessment and Management of the Seriously
Ill Patient Following Abortion, 199 J.A.M.A. 805
(1967) -..... 25, 26
State of California Department of Public Health,
Firrh ANNUAL REPORT ON THE IMPLEMENTATION OF
~ THE CALIFORNIA THERAPEUTIC ABORTION Act, A Re-
port to the 1972 Legislature Pursuant to Section
25955.5 of the Health and Safety Code ...................... 13
Taylor, OpsteTRics (1972) 10-11
Tietze, Mortality with Contraceptive and Induced
Abortion, 45 Srupms In Famiry Piannine 6
(1969) 13, 25
Williams, Antepartum Thrombophlebitis Complicated .
by Hyperuricemia, Uremia and Polyhydramnios,
105 Am. J. Osst. & Gynec. 116 (Sept. 1, 1969) .......... 10
OTHER AUTHORITIES
Ehrlich, Paul, Toe Poputation Boms (1968) ................ 27
Gilmore, Something Better Than the Pil?, N.Y. Times
MacazinE, 7, 36 (July 20, 1969) 13
PopuLATION AND THE AMERICAN FuTuRE, THE REPORT
OF THE PrREsIDENT’s ComMMISsION ON PoPvuLATION
GrowTH AND THE Future (March, 1972) ..................-. 27
United States Department of Commerce, PopuLation
Cuaracteristics, BirtH Expectations Data: JuNE
1971, Series P-20, No. 232, Feb. 1972 14
Wilson, Robert A., M.D., Feminine Forever (1966) .... 24
ts PA he OL ALIS + A Se aa ti
In the
Supreme Court of the Wnited States
REHEARING, OcToBER TERM, 1972
No. 70-18
JANE Roz, Joun Doz, and Mary Dog,
Appellants,
James Husert Hatirorp, M.D.,
Appellant-Intervenor,
vs.
Hengy Wape,
Appellee.
On Appeal from the United States District Court
for the Northern District of Texas.
No. 70-40
Mary Dog, et al., etc.,
Appellants,
vs.
ArTHuR K. Bouton, Attorney General of the State of
Georgia, et al., etc.,
Appellees.
On Appeal from the United States District Court
oe the Northern District of Georgia.
Motion for Leave to File Brief Amici Curiae on
Behalf of Organizations and Named Women in
Support of Appellants in Each Case.
The organizations and named individuals whose names
are appended here respectfully move for leave to file a
brief amici curiae in these cases. The attorneys for appel-
lants in both cases and for appellant-intervenor in the
Md
&
ia —
|
2
Texas case have consented to the filing of this brief, The
respective attorneys for the appellees have not so consented,
THe CatirorniaA CoMMITTEE TO LEGALIZE ABORTION is an
organization consisting of approximately 5,000 individuals
organized into chapters throughout the State of California
and dedicated to the cause of removing the State’s interven.
tion in the decisions of pregnant women to obtain abortions,
The California Committee to Legalize Abortion engages in
activities which include preparation and circulation of peti-
tions, one such initiative petition bearing approximately
300,000 signatures from California citizens requesting that
a measure be placed on the California ballot to remove the
State’s intervention process in current California abortion
law.
Tue Soutn Bay CHAPTER OF THE NATIONAL ORGANIZATION
FoR WomEN is located in the San Francisco Bay Area, Cali-
fornia, as an affiliate of the National Organization for
Women, a civil rights organization founded in 1966 and
with approximately 20,000 members throughout the United
States. The South Bay Chapter was founded in 1970 and
consists of approximately 300 members dedicated to active
work in bringing women into the mainstream of society and
affirming a belief in the basic human right to limit one’s own
reproduction, including women’s civil right to abortion.
Zero PopuLaTion GrowTH, Inc., is a national organiza-
tion dedicated to achieving population stabilization by
voluntary means. Founded in 1969, Zero Population Growth,
_Inc., (ZPG) has 300,000 members in 300 active chapters
throughout the United States. The organization favors the
recommendation on abortion contained in the 1972 Report
of the President’s Commission on Population Growth and
the Future.
The concern of amici, CHERIEL Mosncu JeNsEN and
Lynerre PerKES, stems from their desire to be single whole
individuals, unencumbered by a pregnant condition and in
3
full control of their physical destiny. The necessity of
Lynette Perkes to participate fully in her marriage,
coupled with the frequency of contraceptive failure (already
experienced twice), precludes her right to be secure in a
non-pregnant condition. The concern of Cheriel Moench
Jensen stems from her need to be as reliable and promising
a professional person as the men with whom she must com-
pete. As long as normal married life puts her at constant
threat of having her capacity to work and to earn a living
suspended by unintended pregnancy and childbearing, she
cannot enter into financial or professional commitments
with the same confidence as a man.
Each of the organizations and individuals urges upon the
Court the position that laws restricting or regulating abor-
tion as a special procedure violate the Thirteenth Amend-
ment by imposing involuntary servitude without due
conviction for a crime and without the justification of serv-
ing any current national or public need.
Amici believe that this brief raises aspects of constitu-
tional issues before this Court hitherto unexplored by the
parties, and that the expressions herein will be of agsistance
to the Court in the decisions of importance now before it.
For these reasons, we respectfully request leave to file
the within brief Amici Curiae.
Respectfully submitted,
Joan K. Braprorp
Attorney for Movants
In THE
Supreme Court of the Wnited States
REHEARING, OcToBeR TERM, 1972
No. 70-18
JANE Ror, Joun Dor, and Mary Doz,
Appellants,
James Husert Hauirorp, M.D.,
A ppellant-Intervenor,
vs.
Henry WabE,
Appellee,
On Appeal from the United States District Court
for the Northern District of Texas.
No. 70-40
Mary Dor, et al., etc.,
Appellants,
vs.
Artuur K. Botton, Attorney General of the State of
Georgia, et al., etc.,
Appellees.
On Appeal from the United States District Court
for the Northern District of Georgia.
Amici Curiae Brief on Behalf of Organizations and
Named Women in Support of Appellants in
Each Case.
OPINIONS BELOW.
The opinions have been stated in appellants’ briefs and
are not repeated Mérein.
JURISDICTION.
The jurisdiction has been stated in appellants’ briefs and
is not repeated herein.
INTEREST OF AMICI CURIAE.
The interest of Amici Curiae has been set forth in the
accompanying motion to file this brief and need not be re-
iterated here.
SUMMARY OF ARGUMENT. \
Despite the numerous issues involved in these cases, this
brief will address itself only to one, so as to avoid repeti-
tion of the arguments presented by appellants and by other
briefs of amici curiae. We believe that the time is ripe for
this Court to announce that the laws which restrict or regu-
late abortion as a special procedure violate the Thirteenth
Amendment by imposing involuntary servitude without due
conviction for a crime.
Although the Texas abortion laws permit abortion only
in the single instance where the mother’s life would be saved
and the Georgia laws permit abortion in certain additional
categories, both, in the view of Amici, involve rights of un-
willingly pregnant women that make it appropriate to treat
the particular issue, to which this brief addresses itself, as
being the same in both cases.
CO
be
&
6
ARGUMENT: LAWS WHICH RESTRICT OR REGULATE
ABORTION AS A SPECIAL PROCEDURE VIOLATE
THE THIRTEENTH AMENDMENT BY IMPOSING INVOLUNTARY
SERVITUDE WITHOUT DUE CONVICTION FOR A CRIME,
1. UNDER THE THIRTEENTH AMENDMENT A WOMAN Has
THE RIGHT TO FREEDOM FROM THE INVOLUNTARY
SERVITUDE OF PREGNANCY AND CHILDBEARING IN THE
ABSENCE OF DUE CONVICTION FOR A CRIME.
A. Scope and Application of the Thirteenth Amendment.
The Thirteenth Amendment to the Constitution provides:
Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have
been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction.
The Amendment, by its very language, prohibits both
slavery and involuntary servitude, and requires due con.
viction of a crime as a condition precedent to all forms of
involuntary servitude regardless of racial contexts.
From the outset, the Amendment has been interpreted by
this Court to apply to all persons without regard to race or
class, and to guarantee universal freedom in the United
States.
The first cases on the Amendment, the early Civil Rights
Cases of 1883, 109 U.S. 3, interpreted the Amendment as
establishing two principles: (1) the prohibition of all forms
of involuntary servitude and slavery, and (2) a guarantee
of universal freedom to all persons. The Civil Rights Cases
found that just as the opposite of “slavery” is freedom, 80
this Amendment, by abolishing the conditions of slavery
and involuntary servitude, established “freedom” through-
out the United States by implication. This Court construed
the Amendment as “establishing and decreeing universal
civil and political freedom throughout the United States.”
(Id. at 20)
7
By its own unaided force and effect it abolished slavery,
and established universal freedom . . . for the amend-
ment is not a mere prohibition of state laws establish-
ing or upholding slavery, but an absolute declaration
that slavery or involuntary servitude should not exist
in any part of the United States. (Jd. at 20)
Application of the Amendment has never been limited to
racial contexts. As this Court stated in Batley v. Alabama,
219 U.S. 219, 240-241 (1910) :
While the immediate concern was with African slavery,
the Amendment was not limited to that. It was a charter
of universal civil freedom for all persons, of whatever
race, color, or estate, under the flag. . .. The plain in-
tention was to abolish slavery of whatever name and
form and all its badges and incidents; to render im-
possible any state of bondage; to make labor free, by
prohibiting that control by which the personal service
of one man is disposed of or coerced for another’s bene-
fit, which is the essence of involuntary servitude.
The Thir‘eenth Amendment prohibits many forms of
compulsory labor, i.e., involuntary servitude of all kinds. As
defined by this Court, involuntary servitude is “a condition
of enforced compulsory service of one to another.” Hodges
v. United States, 203 U.S. 1, 16 (1906).
Laws compelling personal service in liquidation of a debt
or other obligation are null and void as violations of the
Thirteenth Amendment. Batley v. Alabama, supra; Clyatt
v. United States, 197 U.S. 207 (1905); Pollock v. Williams,
322 U.S. 4 (1944). Statutes imposing criminal penalties on
laborers who fail-te perform work necessary to pay off ad-
vance wages from a prospective employer are void as viola-
tive of the Thirteenth Amendment, the undoubted aim of
the Amendment being, “not merely to end slavery but to
maintain a system of completely free and voluntary labor
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8
throughout the United States.” Pollock v. Williams, supra
at 17.
As conditions and values change, constitutional language
takes on new meanings, because constitutional concepts are
not static, “not shackled to the political theory of a particu.
lar era.” Harper v. Virginia State Board of Education, 383
US. 663, 669 (1966). The Thirteenth Amendment, as revived
by this Court with new force in Jones v. Mayer, 392 US.
409 (1968), reconsidered the early interpretation of the
Amendment as set forth in The Civil Rights Cases of 1883,
supra. In Jones v. Mayer, supra, the Court stated, at 443:
At the very least, the freedom that Congress is em.
powered to secure under the Thirteenth Amendment
includes the freedom to buy whatever a white man can
buy, the right to live wherever a white man can live, If
Congress cannot say that being a free man means at
least this much, then the Thirteenth Amendment made
a promise the Nation cannot keep.
In Jones v. Mayer, supra, this Court was not reluctant to
recognize within the Thirteenth Amendment the “promise
of freedom,” turning the focus again from what the Amend.
ment prohibits to what it guarantees, a broader principle
of freedom from compulsory service of one person to
another. (Note, The New Thirteenth Amendment: A Pre-
liminary Analysis, 82 Harvarp L. Rev. 1264, 1307 [1969].)
From time to time, this Court has recognized certain ex-
ceptions to the Thirteenth Amendment in the interests of
serving compelling national or public needs, e.g., military
service, jury duty, confinement of the mentally ill (see the
cases cited under Section II. B. herein) ; each time surround-
ing the exception with safeguards to insure individual
rights. :
It is the purpose of this brief to show that anti-abortion
laws, which force an unwillingly pregnant woman to con-
9
tinue pregnancy to term, are a form of involuntary servitude
without the justification of serving any current national or
public need.
B. Involuntary Pregnancy and Childbearing as Involuntary Servi-
tude.
1, PREGNANCY: A STATE OF PHYSICAL SERVITUDE.
Pregnancy is not a mere inconvenience. “The physical
and functional alterations of pregnancy involve all the body
systems,”’ displacing body parts, depleting the body of its
necessary elements and changing its chemical balance.
The pregnant woman’s body is in a state of constant
service, providing warmth, nutrients, oxygen and waste
disposal for the support of the conceptus.? These activities
are always to the detriment of the woman’s body. They are
performed for the benefit of the conceptus alone unless an
interest of the pregnant woman is also served thereby, that
is, unless the pregnant woman defines the pregnancy as
wanted.
a. Changes due to the physical invasion of the pregnant woman's body.
During pregnancy, enlargement of the uterus within the
abdominal cavity displaces and compresses the other abdom-
inal contents including the heart, lungs and gastro-intestinal
tract. The resulting pressure has a direct effect on circu-
lation of the blood and increase in venous pressure, some-
times leading to irreversible varicose veins and hemorrhoids
1. Hern, W., Js Pregnancy Really Normal?, 3 Famity PLANNING
PERSPECTIVES 7 (January, 1971).
2. Amici use the term “conceptus”’ in this section because it is
the only medical term which covers the uterine contents in all stages
of pregnancy. Hereinbelow, in Section II. C. of this brief, the term
‘‘fetus’’ is used because it is the term of legal familiarity. In all
cases, amici continue to mean the uterine contents at all stages of
pregnancy.
Re Re he eo ne ee fs Ce enn Sener Tori. fret
a ~rasdy
.
—
10
and, with predictable frequency, to disabling thrombophle.
bitis.* The gastro-intestinal tract experiences functional ip.
terference causing constipation and displacement of the
urinary tract, thus urinary tract infections occur in six
to seven per cent of all pregnant women and such infections,
in turn, lead to kidney infections. During the second and
third months, bladder irritability is quite constant. Tearing
and overstretching of the muscles of the pelvic floor occurs
frequently during delivery, causing extensive and irrepa-
rable damage to the pelvic organs and their supporting con.
nections. Surgery is often required to return these organs
to position. Bladder control may be permanently lost!
The weight of the contents of the uterus causes sacroiliac
strain accompanied by pain and backache, with the effects _,
of the pressure being felt as far as the outermost extremities
of the woman’s body. The weight causes such pressure on
the cervical spine as to result in numbness, tingling and
proprioceptive acuity reduction in the hands.°
b. Results of metabolic alteration of the pregnant woman's vital systems.
During pregnancy estrogen levels exhibit severe increase,
this phenomena accounting for the symptoms of nausea and
vomiting occurring in one-half or more of all pregnant
women. If this condition is prolonged, hospitalization is
required. Evacuation of the contents of the uterus results
in immediate and dramatic relief of symptoms. In severe
cases blood protein may be destroyed. Bodies of women who
3. Hern, supra, 8; Taylor, E., Ossterrics, 206 (1972) ; Williams,
Antepartum Thrombophlebitis Complicated by Hyperuricemia,
Uremia and Polyhydramnios, 105 Am. J. Ost. & Gynec., 116 (Sept.
1, 1969).
4. Hern, supra, 8; Oxorn, H. and Foote, W., HuMAN Lasor ann
Birtu, 7, 8, 12 (1968).
5. Taylor, supra, 70, 216.
—-_
11
have died from this condition exhibit the symptoms of
starvation, acidosis, dehydration and multiple vitamin de-
ficiencies.®
The excess progesterone produced by the placenta causes
fluid retention, increase in blood pressure, weight gain,
irritability, lassitude, severe emotional tension, nervousness,
inability to concentrate, and inability to sleep.” At least
40 per cent of pregnant women have symptomatic edema,
distorting the hands, face, ankles and feet. A woman’s
lungs respire 45 per cent more air than normal in an at-
tempt to obtain the needed oxygen, but oxygen absorbed is _’
less than normal despite the extra effort of the crowded
lungs.®
¢c. Depletion of the pregnant woman's calcium and iron.
Because the conceptus utilizes almost twice as much cal-
cium as the pregnant woman can assimilate from adminis-
tered and dietary calcium, extra calcium must be drawn
from a woman’s calcium stores, mostly from her long bones.
Thus, the pregnant woman is likely to suffer leg cramps.”
In young women, permanent bone deformation results.
Total loss of a woman’s iron stores during pregnancy and
delivery is measured at 680 mg. Thus anemia of pregnancy
is high and almost all pregnant women, especially those
having repeated pregnancies, require supplementary iron.”
6. Hern, supra, 7; Taylor, supra, 186, 187,
7. Hern, 8; Taylor, 73.
8. Taylor, 189.
9. Id. at 52.
10. Macy and Hunscher, An Evaluation of Maternal Nitrogen
and Mineral Needs During Embryonic and Infant Development, 27
A. J. Onst. & Gynec. 878 (1934).
11. Taylor, 199; Chaudhuri, Correlation of Tozemia with
= co “f Pregnancy, 106 Am. J. Osst. & Gynec., 255-258 (Jan.
Sede A eet oe]
4
Ty RLS
Samet
Rr oy de nant
Se ho AL ee
EDIE SI TAEDA, RP BLEED KO LE OR A CS lS
12
Efforts to correct this condition may fail because many
pregnant women cannot tolerate iron supplements,
With such extensive effects, can pregnancy be considered
as merely a “natural” state of being?”
2. INVOLUNTARY PREGNANCY.
Amici ask this Court to consider the lack of options
open to the pregnant woman at the time of onset of her
pregnancy.
a. Contraceptive failure.
Contraceptives are never foolproof. Any act of inter-
course between a fertile man and woman constitutes some
risk of conception, no matter what contraceptives are used.
One woman in five using the most effective contraceptive
available, the combined oral contraceptive “pill,” will have
one unplanned pregnancy during her 25 reproductively sus-
ceptible years.* Many women cannot take the “pill” because
of its side effects. The second most effective device is the
intrauterine shield. With this device in place, one woman
in three will have one unwanted pregnancy. (The tolerance
rate among women using this device is 96 per cent.’* Intra-
12. See Hern, supra, at 5-10.
13. Food and Drug Administration Advisory Committee on
Obstetrics and Gynecology, F. D. A. Report on OrAL CONTRACEP-
Tives (Sept. 1969). Failure rates are: combined oral contraceptives,
0.7 per cent ; sequential oral contraceptives, 1.4 per cent ; intrauterine
loop, 2.7 per cent; the double-coil intrauterine device, 2.8 per cent.
Each average woman has 25 reproductively susceptible years. Mul-
tiply 25 years X device failure rate per 100 woman years. Ex-
ample: 25 years X 1.4 failures per 100 woman years due to sequen-
tial pill = 35 per cent chance per woman, meaning one woman in
three having one faijure during her lifetime due to the use of the
sequential pill. Figures for “the pill” include only those failures
resulting from the drug properties. They do not include forget-
fulness.
14. Davis, The Shield Intrauterine Device, 106 Am. J. Osst. &
Gynec. 456 (Feb. 1, 1970).
z
: ‘ PRR PARMA AES OBL I OIE DARE Ma 6 a OAT A LEROY AN FROG! INTs IRON Ei AIT i YC i
pa iv
i gs
13
uterine devices are not normally prescribed for women who
have not already given birth.) The death rate associated
with the use of either of these devices is about the same—
three per 100,000 woman users per year;® or put another
way, one woman in 1,300 using either of these methods
will die as a result. Among women taking the “pill,” one
in 80 will suffer blood clotting requiring hospitalization.?*
The diaphragm results in three failures per woman over
her 25-year reproductive life span. Other methods (foam,
jellies, rhythm, condoms) are far less reliable.”
If 100,000 women who do not wish to become pregnant
take the pill, three will probably die within the year and
1,000 will become pregnant.
Using these figures as a basis, a far safer method can
be postulated. If these 100,000 women use the diaphragm,
resulting in 12,000 pregnancies which are then legally ter-
minable with abortion, the total death risk to these 100,000
women then beqgmes 0.36 per 100,000 women. The laws
under consideration do not allow women to reduce their
risks in this way.?8
15. Gilmore, Something Better Than the Pill?, N.Y. Times
Macazine, 7, 36 (July 20, 1969).
16. American Medical Association Official Pamphlet, WHat You
SHoutp Know Apovut THE ‘‘Pinw’’ (1970).
17. Havemann, Brrn ContrRo., at 58, 59 (1967). Failure rates
for the diaphragm = 12 per 100 woman years (three per fertile
woman lifetime); the condom = 14 per 100 woman years (3.5 per
fertile woman lifetime); withdrawal = 18 per 100 woman years
(4.5 per fertile woman lifetime) ; rhythm = 24 per 100 woman years
(6.0 per fertile woman lifetime).
18. State of California Department of Public Health, Firrn
ANNUAL REPORT ON THE IMPLEMENTATION, OF THE CALIFORNIA
TuerxareuTic ABorTION Act, A Report to the 1972 Legislature,
pursuant to Section 25955.5 of the Health and Safety Code; Tietze,
Mortality with Contraception and Induced Abortion, 45 Stupirs IN
FamILy PLANNING 6 (1969).
14
Westoff® reports that one-fifth of all pregnancies studied
were unwanted. The magnitude of the problem then jg
very large, affecting most women in substantial ways.
Under the present state of contraceptive failure, a woman
does not have the option of remaining free of pregnaney
by making careful use of contraceptives. She is at some
risk in using the most effective methods of contraception
available.
b. Limitations on the right to refuse.
The average married woman expects to bear two to three
children,” yet coitus takes place between a couple married
during the period of the woman’s reproductive years (age
18 to 43) an average of 2,535 times.” The frequency of
coitus stated in the Kinsey Report is average behavior
between married couples. If the woman wishes to remain
free of pregnancy once her desired family size is reached,
her only sure method of remaining so free of pregnancy
is complete abstinence from sexual intercourse. If she em-
barks on such a course, will the law uphold her decision!
A wife has no legal power to refuse to participate in the
intimacies of married life. If she refuses her husband's
19. Bumpass and Westoff, The Perfect Contraceptive Popula
tion, 169 Science 1177 (1970).
20. United States Dept. of Commerce, CurrENT POPULATION
REPorTS, POPULATION CHARACTERISTICS, BirTH EXPECTATIONS Data:
June 1971, 1, Series P-20, No. 232 (Feb. 1972).
21. This figure is derived from data provided in the Kinsey
Report, SexuaL BEHAVIOR IN THE HUMAN MALE, showing average
marital coitus taking place with a frequency of 2.6 times per week
when the male is age 20, and 1.3 times per week when the male is
forty-five. As the figures show a straight line decline, the average
weekly frequency rate is 1.95. Thus, 1.95 times per week X 52
weeks per year X 25 fertile years = 2,535 acts of coitus per married
woman’s fertile lifetime. Kinsey, Pomeroy, and Martin, SexvaL
BEHAVIOR IN THE HuMAN MALE, at 255, data from Fig. 49 (1948).
15
forced attentions, there is no law to intervene in her behalf.
She cannot charge her husband with rape. Indeed, if a mar-
ried woman attempts to practice abstinence, the laws of
most states treat her behavior as a denial of the marital
right of the husband. Some jurisdictions construe refusal
of sexual relations as desertion and thus ground for
divorce. This is the law in Georgia under Ga. Code Ann.
Sec. 30-102. (See also, Whitfield v. Whitfield 89 Ga. 471,
15 S.E. 543 [1892].) In some other jurisdictions, desertion
is held to occur upon cessation of sexual relations not-
withstanding that the spouses continue to take meals to-
gether, converse and in other ways behave as husband and
wife In some other states in which cruelty is a ground,
such refusal constitutes cruelty, giving the husband cause
for divorce. In the states now recognizing “no-fault” divorce,
or dissolution of marriage, the husband no longer needs to
plead or prove specific grounds; his dissatisfaction is thus
acceptable as sufficient cause for dissolving the marriage.
Under present law, a married woman has two choices: -
she can attempt to refuse to fulfill the sexual obligations
of the marriage and thus risk termination of-her marriage;
or she can participate in normal marital relations and risk
unwanted pregnancy and childbirth. With a choice of either
alternative, she risks the consequence of a legally imposed
penalty. The woman is left with no non-punishable course
of action.
3. THE THIRTEENTH AMENDMENT INCLUDES PROTECTION AGAINST
INVOLUNTARY PREGNANCY AND CHILDBEARING.
The women who bear children and the medical experts
who assist them testify that pregnancy and childbearing are
indeed labor. The fact that many women enter into such
labor voluntarily and joyfully does not alter the fact that
22. Clark, THz Law or Domestic RELATIONS, 336 (1968).
<2 RR TN ta
16
other women, under other circumstances, find childbearing
too arduous, become pregnant through no choice of their
own, and are then forced to complete the pregnancy to term
by compulsion of state laws prohibiting voluntary abortion.
It is the purpose of the Thirteenth Amendment to prohibit
a relationship in which one person or entity limits the
freedom of another person. In the absence of a compelling
state interest or due conviction for a crime, the state’s
forcing the pregnant woman through unwanted pregnancy
to full term is a denial of her Thirteenth Amendment right
to be free from “a condition of enforced compulsory service
of one to another.” (Hodges v. United States, supra). This
is the very essence of involuntary servitude in which the
personal service of one person is “disposed of or coerced
for another’s benefit.” (Bailey v. Alabama, supra.)
ll. THERE IS NO COMPELLING STATE INTEREST TO JUSTIFY
IMPAIRMENT OF THE PREGNANT WOMAN'S FUNDAMEN.
TAL CONSTITUTIONAL RIGHT TO BE FREE FROM INVOL-
UNTARY SERVITUDE.
A. The Necessity of Showing a Compelling State Interest.
The Thirteenth Amendment guarantees to every person
those fundamental rights which are “the essence of civil
freedom.” Jones v. Mayer, supra; The Civil Rights Cases,
supra. In Union Pacific Railway Company v. Botsford, 141
U.S. 250, 251 (1891), this Court recognized :
No right is held more sacred, or is more carefully
guarded, by the common law, than the right of every
individual to the possession and control of his own
person, free from all restraint or interference of others,
unless by clear and unquestionable authority of law.
It is clear that in order to justify the regulation of
fundamental private rights, the state must show a compel-
ling need. “Where there is significant encroachment upon
17
personal liberty, the State may prevail only upon showing
a subordinating interest which is compelling.” Bates v, City
of Little Rock, 361 U.S. 516, 524 (1960).
The critical issue is whether the state’s regulation is
“necessary ... to the accomplishment of a permissible state
policy.” (McLaughlin v. Florida, 379 U.S. 184, 196 [1964];
NAACP v. Button, 371 U.S. 415, 4388 [1963]; Sherbert v.
Verner, 374 U.S. 398, 403 [1963]), and whether legislation
impinging on constitutionally protected areas is narrowly
drawn and not of “unlimited and indiscriminate sweep.”
Shelton v. Tucker, 364 U.S. 479, 490 (1960). See also Cant-
well v. Connecticut, 310 U.S. 296, 308 (1940); McCann v.
Babbitz, 310 F. Supp. 293 (E.D. Wis. 1970), (per curiam)
appeal dismissed, 400 U.S. 1 (1970) (per curiam).
:
2
Re
a
F
x =
=
e
;
k
B. The Nature of State Interest in Areas of Exception Permitting k
the Imposition of Involuntary Service.
The law has recognized certain exceptions to the Thir-
teenth Amendment, all such exceptions being based on the
state’s compelling interest in serving the common need.
Thus, although the Thirteenth Amendment proscribes a
“eondition of enforced compulsory service of one to an- i
other” (Hodges v. United States, supra), services required
by the state for the benefit and protection of all citizens do
not fall within the meaning of involuntary servitude under
the Thirteenth Amendment. Avins, Freedom of Choice in
Personal Service Occupations: Thirteenth Amendment Lim-
itations on Antidiscrimination Legislation, 49 Corne.y L.Q.
228, 240 (1964).
Deengonn Fee cata gh fee
ERP TIS TH os terre Bec
SMELT
SAA RNR
1, MILITARY SERVICE.
Compulsory military service is not regarded as involun-
tary servitude, because the draftee’s surrender of personal
freedom and safety are made in the interests of national j
SRA IOS RN
“=
IDSA Stites Ni, Ft Re AIPA De acl ARAN
18
defense, a common need, Arver v. United States (Selective
Draft Law Cases), 245 U.S. 366 (1918); United States »,
Lumsden, 449 F.2d 154 (9th Cir. 1971). Nor is the Thir.
teenth Amendment regarded as violated by assignnient of
conscientious objectors to work camps or other work assign.
ments as an alternative to military service ; again, a common
need is served. Kramer v. United States, 147 F.2d 756 (6th
Cir. 1945), cert. den. 324 U.S. 878; Reese v. United States,
225 F.2d 766 (9th Cir. 1955) ; United States v. Rogers, 454
F.2d 601 (7th Cir. 1971). However, the draftee is pressed
into service only if his physical condition permits such.
service (Selective Service Act of 1967, 50 U.S.C.A. app.
Sec. 454 [a]); he is paid for his services (Id. Sec. 454 [e});
and is further reimbursed by way of veterans’ benefits
(38 U.S.C. See. 101, et seq.).
2. INVOLUNTARY COMMITMENT OR HOSPITALIZATION.
The compulsory commitment of mentally ill individuals
who may be harmful to themselves or to society if allowed
to remain at large does not violate the Thirteenth Amend-
ment, but only if the commitment procedures contain sufi-
cient procedural safeguards and if the activities required
of the individuals are for therapeutic purposes. Jobson ».
Henne, 355 F.2d 129 (1966). However, if the mental insti-
tution requires inmates to perform chores which have no
therapeutic purpose or relationship to the inmate’s personal
needs, the Thirteenth Amendment is violated. Ibid. See also
Taylor v. Georgia, 315 U.S. 25 (1942) and Note, District
of Columbia Hospitalization of the Mentally Ill, 65 Couum.
L. Rev. 1062, 1066-72 (1965).
3. JURY DUTY. ¥
Jury duty does not constitute involuntary servitude; such
service rendering effective the government under which
19
liberty of the citizen may be protected. Crews v. Lundquist,
361 Ill. 193, 197 N.E. 768 (1935). But the citizen called for
jury duty is excused if personal duties override.
4. PAYMENT AND REPORTING OF TAXES.
Payment and reporting of taxes is not regarded as in-
voluntary servitude because the service is for support of
the general welfare and not for another individual. Beltran
v. Cohen, 303 F. Supp. 889 (N.D. Cal. 1969).
C. The Nature of State Interest in the Abortion Conflict.
The state’s restriction or regulation of abortion as a spe-
cial procedure imposes limitation on the pregnant woman’s
control of her person and her services. What compelling
state interest justifies such impairment of her personal
rights? A number of possible reasons have been stated:
1, THE STATE'S INTEREST IN RIGHTS OF THE FETUS.23
An argument recently raised is that the state has a com-
pelling interest in protecting the rights of the fetus. This
is the legal position taken by those who argue that concep-
tion is a dramatic moment in the evolution of a human being,
after which the fetus becomes a “person” within the terms -
of the due process clause of the Fourteenth Amendment,
and is so entitled to the constitutional protections afforded
any other citizen.
Such argument disregards the nature of the state’s in-
terest in the fetus in all contexts other than the modern
abortion conflict: First: The rights of citizenship con-
23. Amici will, in this section, use the term “fetus” when
referring to the contents of the uterus although the term is medically
incorrect. Medically, the term ‘‘embryo’’ refers to the organism
from conception through the first three months of gestation; the
term ‘‘fetus’’ refers to the organism from the end of the first three
pre-natal months until birth; the term “conceptus’’ covers in utero
being through all stages of pregnancy. Amici use “fetus” here, a
more familiar legal term.
a
ferred by the Fourteenth Amendment relate to “all persons
born or naturalized . . .” (emphasis added). There are no
cases holding that fetuses are protected by the Fourteenth
Amendment. Second: Of all the statutes and rules referred
to by proponents of the “right to life” argument, none con.
fers rights on the fetus in utero; all such rights exist only
in contemplation of live birth or réflect interests of the
parents.* Third: The state does not generally regard as
punishable the destruction of the fetus by any person other.
than the doctor or abortionist. See Keeler v. Superior Court,
2 Cal. 3d 619, 470 P.2d 617, 87 Cal. Rptr. 481 (1970), in which
the California Supreme Court held that the assailant of a
pregnant woman could not be guilty of murder although a
Caesarean section and examination in*utero revealed that
the fetus, of approximately thirty-five weeks, had died of
a severely fractured skull and resultant hemorrhaging. The
same result would apply in Texas under 2A Tez. Pen. Code,
art. 1202 (1961) and in Georgia under Ga. Code Ann., See.
26-1103. :
Some courts and commentators have already analyzed
and rejected the idea that the state has any compelling in-
terest in protecting the rights of the fetus. See California v.
Belous, supra; McCann v. Babbitz, supra; Sands, Thera-
peutic Abortion Act: An Answer to the Opposition, 13
U.C.L.A. L. Rev. 285, 305 (1966) ; Ziff, Recent Abortion Law
Reforms, 60 J. Crim. L. C. & P.S. 3 (1969).
Nevertheless, even if the position were accepted, argu
endo, that the fetus is a “person” or “potential person,” *
24. See e.g. In re Wells’ Will, 221 N. Y. Supp. 714 (1927), and
Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964), ‘(ownership of
property wholly dependent on live birth) ; Atkinson, Wis, 75
(2d ed. 1953) ; Prosser, Torts, 356 (3d ed. 1964), (an individual
may sue for pre-natal injuries ‘‘provided he is born alive’);
California v. Belous, 71 Cal. 2d 954, 968, 458 P.2d 194, 80 Cal.
Rptr. 354 (1969), cert. den. 397 U.S. 915 (1970), (‘‘ All of the
statutes and rules relied upon [to support the right to life] require
a live birth or reflect the interest of the parents.’’).
&
21
such recognition of the fetus would not provide the state
with a compelling interest to justify encroachment upon the
pregnant woman’s possession and free control of her own
person.
Let us assume, for the time being, that the pregnant
woman and the fetus she carries within her body have come
before the law as equal “persons.” The woman desires an
abortion. May the state legitimately intervene to prevent
the abortion? At the present stage of medical knowledge
and ability to control human incubation, the fetus cannot
survive and develop into a separate self-sustaining person
without contribution of the bodily force of the single female
individual who carries that particular fetus within her body.
Yet the laws prohibiting and regulating abortion, unlike
all other laws in respect of persons, compel this pregnant ~
woman to breathe, process food and donate blood for the
sustenance of another human entity, either fully or partially
developed. In no other instance does the law compel one
individual to donate his/her bodily force to another indi-
vidual. In no other instance does the law give another
human — even a fully developed human — a right to life
beyond that which the person himself can sustain.
The law does not give a person in need of blood the right
to receive blood from an unwilling donor; the conclusive-
ness of the law on this subject being so clearly recognized
that it is difficult even to imagine testing such a principle in,
* the courts.*
25. Notwithstanding the close relationship of parent and living
child, there is no legal duty of the parent to contribute blood from
his/her body*for the donation to the living child: Even the parent
of a live hemophiliae child is not required to donate his/her blood
—the principle element for keeping the child alive. Nor are parents
of living children required to draw any substance from their own
bodies for contribution to their children. Mothers are not compelled
to breast-feed their babies although medical data indicate that
breast-fed babies are healthier.
ce Re Se ee en ee ee me ne re
22
The law does not give a person whose kidneys or other
body parts are not functioning the right to demand another
person’s kidneys or body parts. The Uniform Anatomical
Gifts Act, now enacted in forty-four states, recognizes that
bodily parts are contributed only by the voluntary act of
the donor; and the very titles of the statutes known as
anatomical “gift” acts imply that lawmakers have never had
any intention of authorizing forcible contributions of bodily
parts from one human being to another. Rather than pro.
tecting the interests of potential donees in such cases, the
state zealously safeguards the rights of potential organ
donors. Legislators, courts and commentators, recognizing
that there is no obligation, either legally or morally, for one
person to supply another, even a close relative who may be
dying, with a healthy organ, turn their attention to the issue
of informed consent of the potential donor to make sure
that he is acting free from any psychological coercion. See
Bonner v. Moran, 126 F.2d 121 (D.C. Cir. 1941); Curran,
A Problem of Consent: Kidney Transplantation, 3
N.Y.U. L. Rev. 891 (1959); Richards, Medical-Legal Prob-
lems of Organ Transplantation, 21 Hastinos L. J. 77 (1969);
Sanders and Dukeminier, Medical Advance and Legal Lag:
Hemodialysis and Kidney Transplantation, 15 U.C.L.A. L.
Rev. 357 (1968)**
26. Sanders and Dukeminier note that the law permits kidney
donation only from adult persons fully informed of the risks and
consequences; that the use of prisoners as organ donors has been
discontinued on the grounds of possible abuse; that kidney trans-
plantations from living donors are illegal in France because of the
fear of moral or psychological coercion. The authors state that
donors with only one remaining kidney run the risk of shortening
their lives should they be afflicted with kidney disease ; and conelude
by questioning the propriety of allowing any donor to take such
risk. Where the life of the kidney donor may be placed in jeopardy
by his donation, or where the consent of a minor is involved,
courts use extreme care to be sure that knowing and voluntary
consent precedes the donation. See Bonner v. Moran, supra.
23
As a general rule the law has traditionally been reluctant
to impose liability on a person who has failed to rescue or
aid one in peril as such liability would be an unwarranted
limitation on personal freedom. The Failure to Rescue:
A Comparative Study, 52 Cotumsia L. Rev. 631, 632
(1952). A person is not required to jeopardize his own
safety to rescue another placed in danger by emergency
circumstances. London v. Atlanta Transit Company (1955)
91 Ga. App. 753, 87 S. E. 2d 103, 106. This rule has a long
history in case law,” and has been reaffirmed in the Restate-
ment of the Law of Torts (Second) Section 314 (1965):
“The fact thet the actor realizes or should realize that action
on his part is necessary for another's aid or protection does
not of itself impose upon him the duty to take such action.”
And Comment C of the Reporter's Notes states:
The rule stated in this Section is applicable irrespec-
tive of the gravity of the danger to which the other is
subjected and the insignificance of the trouble, effort,
- or expense of giving him aid or protection.
While it may be argued that the continuation of pregnancy
is a non-active course, and so lacking in comparison with
eases relating to “no duty to act,” experts recognize that,
once conception has taken place, there is no non-active
course open to the pregnant woman. To abort takes action;
to sustain the fetus also takes action. Even if the life sup-
port services which the woman’s body brings into per-
formance for sustenance of the fetus are largely automatic
and non-voluntary, they are not non-services or non-actions.
They are, according to medical experts, arduous, tiring and
obstructive of other work. The contractions of childbirth
27. Toadvine v. Cincinnati, N.O. & T.R. Ry. (E.D. Ky. 1937),
20 F. Supp. 226; Allen v. Hixson, 111 Ga. 460, 36 S.E. 810 (1900) ;
Hurley v. Eddingfield, 156 Ind. 416, 59 N.E. 1058 (1901) ; Gilbert
v. Gwin-McCollum Funeral Home, 268 Ala. 372, 106 So. 2d 646
(1958) ; O’Keefe v. W. J. Barry Company, 311 Mass. 517, 42 N.E.
2d 267 (1942) ; Osterlind v. Hill, 263 Mass. 73, 160 N.E. 301 (1928).
24
are literally “labor.” They are the most strenuous work of
which the human body is capable.
According to Robert A. Wilson, M.D., obstetrician ang
gynecologist: “The pressure exerted in this act of birth
is at least 80 pounds per square inch, a truly astonishing
feat of sheer muscular strength.’
Abortion laws alone compel the contribution of one indi.
vidual’s organs, blood, breath and life support system for
another individual, either fully or partially formed. Unless
the law recognizes fetuses as more valuable to the state or
more worthy of the state’s intervention than other potential
donees of bodily organs or unless the state finds the freedom
and bodily integrity of pregnant women to be less valuable
than that of other potential donors, the state must be
assumed to maintain in the abortion conflict at least the
same position as it does in any similar conflict between two
living persons. That is, whenever one person requires an
organ donation, or a pint of blood, or even the temporary
use of the other person’s lung power for artificial respira-
tion, the potential donor’s right to refuse is not measured
by the degree of interest the state may take in the life of
the potential recipient. Rather, it is measured against the
potential donor’s right in his/her own bodily integrity.
If the pregnant woman, as potential donor, and the
fetus, as potential donee, come before the law as equal
“persons,” one may not command involuntary servitude
of the other; and so the potential donor retains her sov-
ereignty over her body and her right to refuse. Therefore,
it follows that the fetus, a potential person, can have no
greater right over a potential donor. Unless the state has
28. Wilson, Robert A., M.D., (Fellow of the American College
of Surgeons Board of Obstetricians-Gynocologists, Diplomate of
the International College of Surgeons, Fellow of the International
College of Surgeons) describes such measurements in his book
FEMININE Forever (1966).
25
some other compelling interest in forcing the donation of
the pregnant woman’s body to the service of the fetus, the
state must stand aside in the abortion conflict; it cannot
legitimately intervene in preventing the pregnant woman
from withholding her life force from the fetus.
2. THE STATE'S INTEREST IN PROTECTING THE HEALTH AND WELFARE
OF THE PREGNANT WOMAN.
Strict control by the state of all surgical procedures, not
just abortion, is justifiable in the interests of the health
of the persons involved. But state control of abortion other-
wise available through modern medical science actually
inhibits the health of the mother, and frustrates the very
interest the state would protect.
When abortion laws were first adopted in this country,
surgery was very dangerous. Aseptic procedures and anti-
bioties were unknown. Nearly 40 per cent of patients under-
going surgery of all kinds in the early 19th century died.
See, e.g., Ober, Analysis of Surgical Practice at the New
York Hospital, 1808-33 (1970) ; California v. Belous, supra,
at 965.
Today, jiowever, it is literally safer for a woman to have
an aboy#fon in early pregnancy than to go through child-
birth. See California v. Belous, supra, at 965. The maternal
mortality rate for therapeutic abortion is three per 100,000;
the maternal mortality rate connected with pregnancy and
childbirth is 20 per 100,000. Tietze, Mortality with Contra-
ception and Induced Abortion, 45 Stupies 1x Famity Puan-
nine 6 (1969).
On the other hand, women who cannot obtain therapeutic
abortions because of the law are driven to criminal abor-
tionists where mortality and morbidity rates are astronomi-
cal. See, e.g., Moritz and Thompson, Septic Abortion, 95
Am. J. Osst. & Gynec. 46 (1966); Reid, Assessment and
Management of the Seriously Ill Patient Following Abor-
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tion, 199 J.A.M.A. 805 (1967). Today, abortion restrictions
designed “to protect women from serious risks to life and
health in modern times become a scourge.” California 4,
Belous, supra, at 967.
Any justification for abortion laws based on protecting
the woman’s health has long since been rendered obsolete
by medical science, and no compelling state interest in this
justification can possibly remain.
3. THE STATE'S INTEREST IN PROMOTING POPULATION GROWTH.
Abortion was not a crime at common law unless induced
after the fetus had “quickened,” 7.e., moved in the womb,
Perkins, Criminal Law (1957) 101. Abortion prior to quick.
ening was outlawed and punished as crime in France,
England and the United States at the time when those
countries required manpower for armies, settling or coloni-
zation, with the harshest anti-abortion laws existing in
societies with an overriding interest in producing soldiers
for military conquest. See Leavy and Kummer, Criminal
Abortion: Human Hardship and Unyielding Laws, 35 So.
Cal. L. Rev. 123 (1962); Means, The Law of New York
Concerning Abortion and the Status of the Fetus, 1664
1968: A Case Study of Cessation of Constitutionality, 14
N.Y.L.F. 411 (1968).
In the early history of our country’s colonization and
settlement, there was a felt need for more persons. Conse.
quently, population growth was encouraged by anti-abortion
law, and importation of slaves was allowed.
Unfortunately, our abortion law is dangerously out of
date. Many of our laws and customs still reflect the desires
of a nation seeking to fill a frontier. These laws, sensible
enough at earlier stages of history when man’s survival may
have depended on encouraging population maintenance and
growth, have become foolish and dangerous in the light of
changed circumstances.
a, BSNS iSO CR AT IER I RS Bm ROO DIOR Cmtinn Er
27
A state cannot seriously contend today that restrictions
on abortion are justified by an overriding state interest in
increasing population. See Ehrlich, The Population Bomb,
1968. On the contrary, it is accepted government policy to
limit family size and to encourage family planning. Such
state interest is expressed in Population and the American
Future, The Report of the President’s Commission on
Population Growth and the Future (March, 1972) p. 192:
Recognizing that our population cannot grow indefin-
itely, and appreciating the advantage of moving now
toward the stabilization of population, the Commission
recommends that the nation welcome and plan for a
stabilized population.
The President’s Commission recognizes the acceptability of
voluntary abortion as a method of achieving population
stability. (Jd. at pp. 173-174, 177-178).
4. THE STATE'S INTEREST IN PUNISHING SEXUAL CONDUCT AND PRO-
MOTING "PUBLIC MORALITY.”
It is often argued that restrictions on abortion discourage
sexual promiscuity by deterring pre-marital and extra-
marital sex, and thus enhance “public morality.” Such argu-
ments must be reviewed in historical perspective.
The Nineteenth Century morality, in which anti-abortion
and anti-contraceptive laws first flourished in this country,
regarded sex and sexual information as “sinful.” The Com-
stock Act®, which prohibited dissemination of obscene ma-
29. The Comstock Act, Stat. § 3893, 42nd Congress, Ch. 3
(1883) : “ Whoever . . . shall sell, lend, or give away . . . or shall
have in his possession . . . any obseene book, pamphlet, writing,
advertisement, circular, print, picture, drawing or other
representative figure . . . or any drug or medicine, or-any
article whatever, for the prevention of conception, or for,
causing unlawful abortion, or shall advertise the same for
sale . . . or shall manufacture, draw or print . . . any of such
articles shall be deemed guilty of a misdemeanor .. .”
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terials, did not differentiate between medical or technical
studies of sexual activity, contraception, abortion, marriage
manuals or hard core pornography. The public was to be
shielded from all such sexual information.
The first case brought under the Comstock Act found a
book dealing with sex in marriage to be obscene. A New
York statute* patterned after the Comstock Act Served ag
the basis for conviction of Margaret Sanger when she
opened the first birth control clinic in New York and at
tempted instruction of women regarding their reproductive
systems.*?
In the modern context, such archaic laws have been
abridged by judicial decision and legislation recognizing
needs for population control, public health and rights of
individuals. (See Griswold v. Connecticut, 381 US. 479 ¢
[1965] and LFisenstadt v. Baird, 405 U.S. 430 (March 22,
1972].) -
There is no evidence that a prohibition on abortion deters
“immoral conduct” or even non-marital sex. This Court
recently rejected a similar argument in invalidating a
Massachusetts statute that prohibited sale of contraceptives
to unmarried persons. Eisenstadt v. Baird, supra.
[W]e cannot agree that the deterrence of pre-marital |
sex may reasonably be regarded as the purpose of the
Massachusetts law. . . . It would be plainly unreason-
able to assume that Massachusetts has prescribed
pregnancy and the birth of an unwanted child as pun-
ishment for fornication ... (Jd. at 440.)
In Eisenstadt v. Baird, this Court found that a prohibi-
tion on dissemination of contraceptives without limitation
30. United States v. Bennett, 24 Fed. Case No. 14571 (S.D.N.Y.
1879).
31. N. Y. Consolidated Laws, Ch. 40 § 1142 (1884).
32. See People v. Sanger, 222 N.Y. 192, 118 N.E. 637 (1918).
9 ae PE FOES rena ter ~ .
29
to specifically criminal conduct swept too broadly. We
submit that a prohibition on abortion without limitation to
specifically criminal conduct (e.g., fornication, adultery,
prostitution) sweeps too broadly, prohibiting abortion for
unwanted pregnancy occurring in marriage, or without
criminal sexual conduct, as well as that resulting from an
unlawful relationship. A statute cannot withstand the
challenge of invasion of constitutional rights if it has such
overbreadth that it forbids legitimate acts as well as illegiti-
mate ones. Eisenstadt v. Baird, supra; N.A.A.C.P. v. Ala-
bama, 377 U.S. 288 (1964); Shelton v. Tucker, supra;
Thornhill v. Alabama, 310 U.S. 88 (1940).
il, IF THE CULPABILITY OF THE PREGNANT WOMAN IS PRE-
SUMED RATHER THAN PROVED, SHE IS DENIED DUE
PROCESS UNDER THE FOURTEENTH AMENDMENT.
The very language of the Thirteenth Amendment pro-
hibits subjection to involuntary servitude “except as punish-
ment for crime whereof the party shall have been duly
convicted.” Yet, the state’s subjection of an unwilling woman
to the continued pregnancy and childbearing compelled by
anti-abortion law is accomplished without defining her sub-
stantive crime or providing her with due process in proving
. her guilt and inflicting her punishment.
It is pointless to argue that the pregnant woman is not
the subject of the punishment inflicted upon a doctor/
abortionist. On -e regnancy begins, the unwillingly preg-
nant woman is with a governmental mandate that
requires her to dedicate her body and her strength to a
fetus or, in the alternative, to seek out an illegal abortionist
in unhealthful surroundings and thereby risk her health
and life. The state, by withholding from the pregnant
woman the assistance of competent surgical and medical
care for legal abortion, effectively condemns the woman to
Soon ONZE SAE ESAS LOD I TIE I ROT
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30
the alternative courses of the continued servitude of preg.
nancy or the dangers of risking her life and health.
What is the woman’s crime? Substantive due process re.
quires that it be clearly defined, not vague, not arbitrary,
Is her crime that of having engaged in a sexual relation.
ship? If the relationship occurred within marriage, no crime
is involved in any state. On the contrary, the woman was
compelled by virtue of her married state to submit to her
husband. (See Subsection I.B. 2.b. supra.) Even if the
pregnancy may have occurred as the result of some pro.
hibited non-marital sexual conduct (according to due proof),
an anti-abortion law punishing such conduct would be over.
broad and beyond the competence of the state. (See Eisen.
stadt v. Baird, supra.) Is her crime that of failing in knowl.
edge of, access to, or effectiveness of contraceptives? Such
crime has not been defined by the state.
Regardless of the possible crime that a state might formu-
late as the basis for a pregnant woman’s fault, procedural
due process under the Fourteenth Amendment establishes |
a presumption of innocence which can be overcome only by
evidence beyond a reasonable doubt, produced in a court.
room with the safeguards of fair procedure, As this Court
stated in Deutch v. United States:
“One of the rightful boasts of Western civilization is
that the [prosecution] has the burden of establishing
guilt solely on the basis of evidence produced in court
and under circumstances assuring an accused all the_-
safeguards of a fair procedure.” Irvin v. Dowd, 366
U.S. 717, 729. Among these is the presumption of the
defendant’s innocence,
(367 U.S. 456, 471 [1961])
Can due process be totally oyerlooked in regard to individ-
ual rights of unwillingly pregnant women?
31
It is true that, at varying times in our country’s history,
rights of om individuals have gone unrecognized while
urgently felt public needs pressed for stronger recognition.
Thus, during the early years of this country’s colonization
and settlement, the pressing need for more persons to
settle and work the land was allowed to override considera-
tions of individual rights. Slaves were imported to work
ad the females of society were pressed into repeated
reproductive service,
Today, this country’s population has moved far beyond
its needed growth, and current government policy is to en-
courage population control. Anti-abortion laws have out-
lived their purpose if regarded in historical perspective.
Rights of the individual pregnant woman can no longer be
ignored,
The Thirteenth Amendment’s promise of freedom has
long provided to male citizens the sovereign control of their
own bodies. «|
In 1942, this Court protected the civil right of a male
person, even one duly convicted of crime, to control his
own reproductive system. Skinner v. Oklahoma, 316 U.S.
535. Is it any the less important that this Court protect
the right of a female person to control her body and her
reproductive system?
CONCLUSION ;
We respectfully request this Court to recognize that the
anti-abortion laws which force an unwillingly pregnant
woman to continue pregnancy to term are a form of invol-
untary servitude without due conyiction for a crime and
without the justification of serving any national or public
need,
Respectfully submitted,
Joan K. Braprorp,
Attorney for Amici Curiae.
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.