Supreme Court of the United States


On Appeal from the United States Court of Appeals
for the Eighth Circuit


3800 Centre Square West
Philadelphia, Pennsylvania 19102
(215) 833-5624

Attorney for Amici Curiae

Of Counsel:
1025 Jefferson St., N.W.
Suite 500 East
Washington, D.C. 20007
(202) 342-5400






I. The Court's Trimester Approach to Abortion Rights Has Resulted in Unfettered Abortion On Demand

A. The Supreme Court Acts as the Nation's Medical Review Board

B. The Inherent Risks of Abortion Justify Regulation of the Abortion Procedure

C. The Aftermath of "Safe, Legal" Abortion-- The Survivors

D. When Legal Means Lethal

E. Buttressing the Myth of Safe, Legal Abortion--Underreporting of Maternal Mortality and Morbidity

II. Abortion on Demand--Abandonment and Exploitation

A. A Physician's Right to An Ignorant Patient

B. Abortion--the Unregulated Industry





Other Authorities:



Feminists for Life of America ("FFLA"), Women Exploited by Abortion of Greater Kansas City ("WEBA"), the National Association of Pro-Life Nurses, Let Me Live, and the Elliot Institute for Social Services Research file this brief under United States Supreme Court Rule 36, with the consent of the parties, as amici curiae in support of Appellant. These organizations, having seen the adverse physical and psychological effects of abortion on women, oppose the continued deregulation of the lucrative abortion industry, advocate the development of non-violent alternatives to crisis pregnancies and seek an end to the exploitation of women and the widespread destruction of preborn children which characterizes the current state of abortion on demand.


The decisions of the United States Supreme Court in Roe v. Wade, 410 U.S. 113 (1973) and its progeny have been based upon the assumption that legal abortion is safe and beneficial to women.(1) Many women who have had legal abortions, and who are purportedly the beneficiaries of the Court's abortion rulings maintain that the very heart of the decision in Roe--"Safe, legal abortion" is a myth, and that women are being exploited at the hands of the lucrative, unregulated private abortion industry which has developed in the sixteen years since Roe.

Dr. Warren M. Hern, an abortionist and author of a leading text on abortion procedures has stated that "[i]n medical practice there are few surgical procedures given so little attention and so underrated in its potential hazards as abortion."(2) Grieving families expressing their pain and outrage at the unnecessary deaths of their mothers, sisters, daughters and wives at the hands of an abortion establishment which continues to make broad assurances regarding the safety of abortion are testimony to the accuracy of Dr. Hern's statement. Aborted women who have survived hasty transfers from private abortion clinics to hospital emergency rooms with life threatening medical complications and who have sustained serious, irrevocable physical and psychological damage as a result of legal abortion are testifying to the intense pain and suffering their legal abortions cost them.

Many women are seeking recompense for injuries sustained through legal abortion. Some have recovered large sums in malpractice suits against abortion profiteers, only to see those responsible for their injuries continue to victimize yet more women and girls, unhampered by any regulatory authority. Others who have brought actions for abortion deaths and injuries do not recover anything because the courts have determined that their deaths and injuries were caused not by a physician's malpractice, but are due to the inherent dangers of induced abortion, whether the procedure is legal or illegal.

Many aborted women have reported that their concerns about the potential dangers of abortion, or the ambivalence they expressed regarding the prospect of having their child killed, were simply dismissed as "irrational" by "counselors" who downplay the medical risks of abortion, and evade any real discussion of fetal characteristics or alternatives to abortion.

The self-serving silence of the abortion industry regarding the dangers to women of induced abortion has been bolstered by the Court's decisions holding that a physician may in his or her own discretion withhold information regarding the particular medical risks of abortion and other information relevant to an informed decision on the part of the woman considering an abortion.(3) Abortion is the only medical procedure known to Amici with respect to which the normal requirements for informed consent prior to undergoing a medical procedure are suspended.

There is ample evidence in the medical studies and public health statistics cited herein that the unfettered right of abortion on demand foisted upon our society by the Court and by abortion advocates is a public health disaster the proportions of which we are just beginning to uncover. Although medical experts acknowledge the inherent dangers of abortion, public health authorities rely in large part upon a voluntary reporting system to collect data regarding deaths and injuries from legal abortion. Thus the very clinics and physicians causing death and injury to women are expected to police themselves and to voluntarily report the damage abortion causes despite their vested financial and political interest in maintaining the current state of de facto deregulation. Amici contend that the current reporting system is woefully inadequate and that it has contributed significantly to the gross underreporting of the actual deaths and serious injuries sustained by women undergoing legal abortions.

However, studies and statistics cannot adequately describe the tragedy of the abortion establishment's exploitation of women--only the families of abortion's victims and the surviving victims themselves can adequately described the pain they have endured. Therefore, Amici have lodged with the Court a volume containing the testimonies of abortion's victims.(4)

The young, childless women who wanted children "someday" but have been rendered sterile by their abortions cry out from the pages for the children they so desperately want but cannot conceive and for those destroyed in abortion. The parents who were not aware of their teenager's abortion until they were called to the bedside of their dying child rail in anger against a system which requires their consent for administration of an aspirin, but forbade their participation in their daughter's decision to obtain the abortion that cost her young life. The women who were told they would feel only relief after their abortion recount the agony of discovering that the memory of the child they were urged to kill still haunts them decades after their loss. Their stories speak for themselves.

Some of abortion's victims can no longer speak for themselves. Yet even the cold, impersonal jargon of police investigative reports and death certificates cannot hide the suffering of those women and young girls who have lost their lives believing in the myth of "safe, legal" abortion.(5) They are the victims of an abortion establishment that cares more about profits or population control than about the health and welfare of pregnant women, and their unnecessary deaths are an indictment of society's failure to protect them from abortion profiteers.

The Court's decisions in Roe and its progeny are one of the primary reasons why the abortion industry is able to operate in the virtually unregulated environment which resulted in such human tragedy. By arbitrarily striking down every conceivable type of abortion regulation and reporting requirement enacted by state legislatures both prior to and after Roe, the Court has placed itself in the position of a "national medical review board" which makes judgments on the questions of the safety (or lack thereof) of abortion, the existence and extent of adverse abortion sequelae, what types of relevant information can be withheld from women regarding the particular medical risks of abortion (and who has the power to dispense or withhold such information) and what constitute appropriate methods for compiling health statistics crucial to the development of sound national health policies. And because a "right to privacy" was the chosen vehicle for adoption of a policy of abortion on demand, the abortion industry and its practices have themselves been wrapped in a cloak of "secrecy" amounting to de facto regulation of the industry. As a result, both the Court itself and the federal judiciary have been legislating health policy since Roe without reliable data concerning the dangers of abortion, and without the ability to engage in the kind of broad investigations and fact finding which legislatures can undertake prior to the enactment of legislation as important as abortion regulation.

To reaffirm Roe would be inimical to the interests of the very women whose "rights" are purportedly protected by Roe and its progeny. Therefore, Amici urge that the Court reconsider and overturn Roe and return to appropriate legislative bodies the power to regulate abortion. Otherwise, "the 'undesired and uncomfortable straitjacket' . . . [which] . . . the Court has tailored for the 50 States"(6) will most surely result in still more tragic losses of the lives and health of women and their pre-born children.



A. The Supreme Court Acts As The Nation's Medical Review Board.

Roe purportedly allowed the States to regulate abortions in the furtherance of two legitimate state interests: protection of maternal health and protection of the fetus. Roe, 410 U.S. at 162. Yet is must be remembered that, in pronouncing its factual findings regarding the safety of abortion and the stage at which a preborn child becomes viable, the Court in a single, powerful stroke invalidated statutes regulating abortion in every single State in the nation.(7) Indeed, "[e]ven the law of New York, the 'abortion capital of the country,' which allowed abortion on request through the twenty-fourth week of pregnancy, was too protective of the unborn. . ."(8) to withstand scrutiny by the United States Supreme Court once it has decided to act as "the Nation's 'ex officio medical review board, with powers to approve or disapprove medical and operative practices and standards throughout the United States.'"(9) A cursory review of Roe's progeny reveals that the promise of even a modicum of regulatory protection for women and their preborn children has proven illusory, as even the most innocuous attempts at regulation by State legislatures have fallen victim to the Court's own assessment of its superior fact finding capabilities with respect to the safety of abortion and what constitutes accepted medical procedure.

That the Court was promulgating legislation in Roe is apparent upon examination of the intricate scaffolding of medical theories and technological assessments upon which it was constructed. One critic of Roe aptly summarized the widespread reaction to this approach among constitutional scholars when he states that "[n]either historian, layman, nor lawyer will be persuaded that all the details prescribed in Roe v. Wade are part of either natural law or the Constitution."(10)

The majority in Roe purported to have conscientiously reviewed the medical "evidence" regarding the safety of various types of abortion procedures at various stages of pregnancy and discovered an incontrovertible medical "fact":

With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact . . . that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth.(11)

Roe, 113 U.S. at 163 (emphasis supplied).

Conversely, the Court's medical "finding" that second and third trimester abortions were statistically more dangerous for women than childbirth provided the rationale for its holding that "from and after [the end of the first trimester], a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health."(12) Id. (Emphasis supplied).

While the Court's medical findings regarding the relative safety of abortion as compared to childbirth have been widely criticized as being both inaccurate(13) and an inappropriate standard(14) upon which to construct the trimester approach on which Roe's holding depends, perhaps the most important question is why such findings are relevant at all. The Court's medical findings, even assuming they were correct, "provide no basis for concluding that there is no state interest in health regulations during the first trimester. 'The Court gave no reason why it should make a difference whether it is safer to undergo an abortion or carry the pregnancy to full term. . . . [T]hough it may be safer for a particular patient to undergo open heart surgery than to forego the operation and do nothing, the state still has an interest in ensuring that if the patient chooses to have the operation, it is performed as safely as possible.'"(15)

The Court ignored the well-established principle that the States, in the exercise of their police powers and in the interest of their citizens' health and safety, regulate medical and surgical procedures as a matter of course. Therefore, unless it can be established that there are no dangers of any kind to women inherent in the abortion procedure itself, or in the manner in which it is carried out, regulation of abortion by the States should be allowed even in the first trimester of pregnancy.

B. The Inherent Risks of Abortion Justify Regulation of the Abortion Procedure.

It is irrefutable that there are a number of known medical risks associated with abortion, regardless of its "legality" or "illegality,"(16) and while there is debate regarding the true complication rate(17) there is a well established pattern of potentially lethal complications of abortion, including cardiac arrest, hemorrhage, infection, inflammation of the heart, water intoxication, septic shock, disseminated intravascular coagulation, amniotic fluid embolism,(18) pulmonary embolism, salt poisoning, and swelling of the brain.(19) Despite these dangers, legal abortion can be performed in hospitals, doctors' offices, storefront clinics or virtually any place an abortionist chooses to perform the procedure. In 1982, 82% of abortions took place in nonhospital facilities.(20)

It is well recognized that the risks associated with late abortions are much greater than those associated with abortions performed in early pregnancy, one researcher having calculated that "between 16 and 20 weeks gestation, the risk of death is 25 times greater than before 8 weeks gestation."(21) Yet the post-Roe decisions consistently thwart attempts by the State to impose requirements that abortions performed after a particular point in pregnancy take place in hospitals.(22) Notwithstanding Roe, which reserved to the States the authority to promulgate reasonable regulations of second-trimester abortion in the interest of maternal health, the Court has invalidated provisions requiring hospitalization for such abortions.(23)

In Akron the Court invalidated as unreasonable a municipal ordinance requiring hospitalization for second-trimester abortions because the State failed to show that "accepted medical practice" at the time the decision was rendered called for hospitalization for all abortions after the first trimester. 462 U.S. at 435-37.

Thus, the Court declared essentially that States would be permitted to regulate the abortion industry only to the extent that such regulations coincide with the most recently revised minimum standards of the industry itself. Therefore, the standard of reasonableness is the standard set by those who perform abortions. However, abortion deaths in freestanding clinics and complications of abortion requiring hospitalization clearly demonstrate that it may be reasonable for a State to require hospitalization as an extra measure of protection as the line approaches that at which the safety of hospitalized, as opposed to unhospitalized, abortions becomes less clear.

Perhaps the most serious flaw in the Court's trimester approach as it relates to maternal health concerns is that the Court's "abortion safety" data focused upon the deaths of aborted women, without even considering the morbidity (medical complications short of death) of abortion. This is astonishing in light of the fact that the Court adopted an extremely broad definition of "health of the mother" for purposes of determining when a viable preborn child could be aborted. The Court stated that the physician's medical judgment concerning the "health of the mother":

. . . may be exercised in light of all factors--physical, emotional, psychological, familial, and the woman's age-- relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage of the pregnant woman.(24)

The Court thus appears to set a "double standard" for its definition of "health of the mother." When the question is what latitude should be given in the decision to abort, the definition is extremely broad. However, when the question is how "safe" abortion is for women, the only standard which the Court finds relevant is how many women die from abortion at a particular stage of pregnancy. No assessment is made of the impact of abortion on the mother's overall physical, psychological and emotional health. In light of the fact that one million five hundred thousand abortions are performed annually in the United States, an assessment of the overall impact of induced abortion upon a woman's health is crucial. Amici contend that abortion on demand has not produced the health bonanza proclaimed by its proponents, but rather has created a public health hazard the scope of which is just beginning to come to light. There are other inherent risks of induced abortion which damage women's health and may affect a woman's ability to bear children in the future, including cervical trauma resulting in incompetent cervix and subsequent miscarriage, pelvic inflammatory disease, RH isoimmunization, subsequent fetal malformations and a substantially increased risk of potentially lethal ectopic pregnancy. See the Brief Amicus Curiae of Focus on the Family and the Family Research Council which contains an extensive discussion of the physical complications of induced abortion, including citations to studies which have established the existence of such adverse abortion sequelae.

In addition to the obvious physical complications, abortion has a profound psychological impact upon many women(25) that can be seen in the testimonies of women who have undergone abortion. Since the absolute safety of abortion, whether in the first trimester or thereafter, cannot be established, there is no justification for complete deregulation of the procedure. Therefore, the States should be allowed to regulate abortion throughout pregnancy.

C. The Aftermath of "Safe, Legal" Abortion--The Survivors.

Sue Liljenberg, who was a teenager when she obtained a "safe, legal" abortion, had no immediate physical complications. The passing years have revealed the self-destructive behavior and sterility that are the price she paid for exercising her "right to choose."

. . . I'm a victim of abortion and, even if it takes until my last breath, I must be heard.

When I was 17 I found myself in a crisis pregnancy . . . . When I went to the local family planning clinic, I sought guidance and wanted to know what I could do about my situation. I wanted a helping hand. When I walked into the clinic, I trusted the nurses and doctors, and thought they were concerned about my health enough to help me make a decision, not make my decision for me.

Only one solution was strongly recommended that day. When I questioned the development of my baby, I was told it wasn't a baby yet, and that it looked like a tadpole. Since that day I have learned differently . . . . I was told that abortion was simple and safe and that I could go and live the rest of my life and have children when I was in a position to provide for them. I heard no scientific facts that day, only biased opinions. I was not told what abortion itself could do to me in the years to come, only that it was "safe and simple." I was not told that I would abuse myself with alcohol, try to kill myself, develop an eating disorder, and have terrible dreams. Worst of all, I was not told that I might never have another child. It has been 14 years since my "safe and simple" abortion and I have never been able to have another child.

Letter from Sue Liljenberg to Sen. Gordon Humphrey, dated June 6, 1986 (emphasis supplied).

Can it be doubted that a young woman who was told she could have the children she wanted "someday," and yet will never hold her own child in her arms, is harmed irrevocably by abortion on demand? What about the impact of abortion upon her physical, psychological and emotional health?

Another woman, Elaine Blakely of Huntsville, Alabama, describes the "safe, legal" abortion she had in 1976:

I am a woman who was exploited by abortion ten years ago. My abortion was free, legal and by no means performed in a "back alley" facility. In fact, the abortion facility was recommended by Planned Parenthood. Since I was not working at the time, Planned Parenthood happily gave me a "free pass" for the abortion. I didn't even have to pay for the abortion. . .

At the Kansas City abortion clinic, I was given a pelvic exam. . . Contrary to what I was told, the abortion hurt very much and it led to severe complications. The "doctor" who performed my abortion perforated my uterus, cut an artery, and traumatized my colon. The doctor left me alone there with the "counselors" and one "nurse" for one and a half hours. After all the other patients had left the abortion facility, I was rushed by ambulance to a hospital across the state line for observation and blood transfusions. The ambulance rushed me to the hospital with lights flashing and sirens blaring in an attempt to save my life. The complaint that back alley abortions kills girls must be seen in light of the fact that girls are dying today from LEGAL abortions.

In order to save my life, a few hours later a hysterectomy was performed at the Kansas City, Missouri, Hospital. I am telling you this because I am an adult. I was misled into believing it was a simple procedure with no complications. Since then I have had eighty percent of my colon removed.

Letter to Gordon Humphrey from Elaine Blakely dated August 5, 1986.

Are Sue Liljenberg, Elaine Blakely and tens of thousands of women who have also suffered the physical and psychological, and emotional trauma of legal abortion entitled to protection of their "health" by State legislatures or are their lives and health expendable in the quest for unfettered abortion on demand?

D. When Legal Means Lethal(26)

Abortion proponents' claims regarding the safety of legal abortion lead one to believe that there is virtually no risk of injury, let alone death, from legal abortion.(27) Yet, the discussion below of a few of the twenty-nine legal abortion deaths in Los Angeles County, California, alone belies the assertion that abortion is "safe" simply because it is legal,(28) and reveals the horrendous practices and substandard medical care provided in freestanding clinics which are largely unregulated by public health authorities.

Inglewood Women's Hospital, which performed approximately 1000 abortions a month in its single operating room was the site where several young women met their deaths obtaining "safe, legal" abortions. The substandard conditions at the clinic came to light in 1985 when it was reported that, for the second time within a year, county health officials had cited the abortion facilities for deficiencies in more than 20 areas.(29) In response to both inspections, hospital officials said steps would be taken to correct the deficiencies. However, by the time the horrendous conditions at the abortion clinic were again acknowledged by public health officials,(30) it was too late to save 37-year-old Belinda Byrd, a mother of three who underwent an abortion at Inglewood on January 23, 1984, and died three days later.(31) A suit filed in Los Angeles Superior Court alleges that Belinda Byrd's uterus was lacerated and that she lay bleeding and unattended for hours in a hospital bed at the abortion facility until she suffered a heart attack. Paramedics were summoned and Belinda was rushed to Centinela Medical Center in Inglewood where she died.(32) Yet another "deficiency report" was issued by county health officials which described patients being rushed through abortions performed in an operating room where the tables and floors were stained with the blood of previous patients.(33) The report stated that some patients "were encouraged to leave the facility before they were comfortable doing so" and some were not examined at all after surgery although the physicians signed paper work approving their discharge.(34) The abortion facility, which had been cited twice in 1986, had in response to each inspection submitted a "correction plan" which was invariably accepted by the county health officials.

The years of bureaucratic delays in taking action to close the facility, and the lack of prosecution of the physician who had performed Belinda's abortion added to the anguish her family felt over her death. Her mother, in desperation, finally wrote to a Los Angeles district attorney:

I am the mother of Belinda A. Byrd, victim of abortionists at 426 E. 99th Street in Inglewood. I am also the grandmother of her three young children who are left behind and motherless. I cry every day when I think how horrible her death was. She was slashed by them and then she bled to death, taken from this world on January 27, 1987. She has been stone dead for two years now, and nobody cares. I know that other young black women are now dead after abortion at that address--Cora Mae Lewis and Yvonne Tanner.

Where is [the abortionist] now? Has he been stopped? Has anything happened to him because of what he did to my Belinda? Has he served jail time for any of these cruel deaths?

People tell me nothing has happened, that nothing ever happens to white abortionists who leave young black women dead. I'm hurting real bad and want some justice for Belinda and all other women who go like sheep to slaughter.

Mrs. Mattie Byrd(35)

Belinda Byrd's mother has resorted to putting up posters in the neighborhood asking the women of Watts to urge the district attorney to take action against Inglewood's abortionists. An isolated case of the one "bad apple"? Unfortunately not.

The license which allowed Inglewood to receive Medicaid and Medi-Cal was ultimately revoked. The abortionist reopened their abortion business as West Coast Medical Group, an unlicensed clinic not subject to state scrutiny or regulation.(36)

Three young women brought to the emergency room at California Medical Center in critical condition after undergoing abortions at Her Medical Clinic in Los Angeles have died since August 1986.(37) Donna Heim, a 20-year-old pre-school teacher, who was 5 months pregnant went to the clinic and received anesthesia despite having noted on her medical forms that she had asthma. According to the coroner's report, approximately 10 minutes into the procedure, the nurse-anesthetist told the physician performing the abortion that Donna was having difficulty breathing, but the physician ignored her and continued the abortion for another five minutes before turning his attention to Donna. After an emergency tracheotomy failed, the abortion clinic then called paramedics who rushed Donna to the California Medical Center. She was unresponsive and comatose upon arrival, and was pronounced dead the following day.(38) One month later, 22-year-old Liliana Cortez also died after suffering cardiac arrest during an abortion at Her Medical Center. And one year later, 18-year-old Michelle Thames died at California Medical Center after an abortion at the same freestanding abortion clinic.(39)

Because Her Medical Center is run as a private physician's office, it is not open to inspection by public health authorities, and it is continuing to perform abortions.

E. Buttressing The Myth Of Safe, Legal Abortion-- Underreporting of Maternal Mortality and Morbidity.

Maintaining the myth of "safe, legal" abortion is crucial to supporters of abortion on demand. Anxious to convince women, politicians and the public at large that abortion is safe, they repeatedly cite statistics regarding abortion mortality and morbidity which, for the reasons described below, represent a gross underreporting of deaths and complications of abortion. The Court's post-Roe decisions concerning recordation and reporting of abortion-related information have made it virtually impossible for those States seeking to obtain even a minimum of information regarding the mortality and morbidity of abortion to tailor recordkeeping requirements to the exigencies of the Court's constitutional tests.(40) By striking down the minimal recordkeeping requirements fashioned by the Pennsylvania legislature, the Court assured that the "system" of collecting data concerning abortion morbidity and mortality would continue to rely solely upon the cooperation and self-policing of the clinics and physicians involved in abortion deaths or complications.

That the abortion industry is not policing itself in any regard, let alone in the reporting of abortion deaths and complications, is apparent from interviews with and testimonies of aborted women and former abortion providers, the abortionists' own descriptions of their "assembly line" procedures, and from the horrifying practices uncovered in the few investigations of the abortion industry undertaken by newspaper reporters and others.(41) To contend that all abortionists supply relevant information concerning the mortality and morbidity of abortion given such practices is disingenuous.

The unreliability of abortion safety data on which the medical profession and public health authorities depend can be illustrated most easily by comparing the number of maternal deaths from abortion reported annually for the State of California, with the number of deaths from legal abortion which have been documented herein and in the volume lodged with this Brief under the caption "When Legal Means Lethal." The State of California reported no deaths from abortion during 1983 and 1984.(42) Yet there is incontrovertible evidence from death certificates, police reports, coroner's reports and other sources that at least four women and teenage girls have died from legal abortion in Los Angeles County alone during 1983 and 1984--23-year-old Cora Mae Lewis, 16-year-old Patricia Chacon, 43-year-old Mary Pena, and 22-year-old Yvonne Tanner. The stories of these women and others who have met their deaths and suffered physical and psychological injury in abortion clinics throughout the Nation provide a brief glimpse of the exploitative nature of the abortion industry.


When the Court made its initial foray into the business of formulating the Nation's abortion policy, it did not even remotely envision the surgical "assembly line," commercialization, and exploitation which many aborted women say characterize their experiences with the abortion industry. Rather, the majority in Roe apparently envisioned a reasoned, one-on-one consultation(43) between the pregnant woman and a physician who took the time to become familiar not only with the woman's medical history, but who knew the woman well enough to take into consideration "all of the factors--physical, emotional, psychological, familial, and the woman's age--relevant to . . . [her] well-being. . ."(44) when discussing the relative risks and benefits of abortion and childbirth.

However, the Court's vision of how a decision to abort would be reached and effectuated bears no resemblance to the reality which many women have experienced at the hands of an abortion industry, some segments of which appear to be maximizing profits at the expense of women's lives and health.

Abortion is a lucrative business(45) the profitability of which depends upon speed, efficiency and minimizing contact between the physician and the pregnant woman.(46) Dr. Edward Allred, whose chain of abortion clinics was said to have grossed $12 million annually as of 1981, and performs approximately 60,000 abortions each year, has stated that "[v]ery commonly we hear patients say they feel like they're on an assembly line. We tell them they're right. It is an assembly line. . . We're trying to be as cost effective as possible, and speed is important." Indeed, Allred has stated that "[w]e try to use the physician for his technical skill and reduce the one-on-one relationship with the patient. We usually see the patient for the first time on the operating table and then not again. . ."(47) Dr. Allred's abortion clinics do not differ from others in this respect, and it is clear that the "consultation" between the physician and the pregnant woman which Roe envisioned simply does not exist.

A. A Physician's Right To An Ignorant Patient.

The Court has recognized that "[t]he decision to abort, indeed, is an important, and often stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences. The woman is the one primarily concerned, and her awareness of the decision and its significance may be assured, constitutionally, by the State to the extent of requiring her prior written consent."(48) But subsequent decisions have made a mockery of the requirement of informed consent.(49)

In Thornburgh, supra, the Court struck down a provision requiring that women undergoing abortions be informed of the name of the physician performing the abortion, the fact that there may be unforeseeable "detrimental physical and psychological effects" of the abortion, the "particular medical risks associated with the particular procedure to be employed," the fetus's probable gestational age, the medical risks associated with carrying the child to term, the fact that there may be medical assistance benefits available for prenatal care, childbirth and neonatal care, and the fact that the father is required by law to assist in the child's support. In addition, the provision required that the woman be offered the opportunity to examine printed materials describing the fetus and its development, and listing agencies offering alternatives to abortion, which opportunity she could, of course, decline. The Court struck down these provisions, in their entirety, holding that despite the Court's previous decisions that the government might further its legitimate public policy interests in preferring childbirth over abortion, the information on abortion alternative agencies was impermissible because it "contains names of agencies that well may be out of step with the needs of the particular woman and thus places the physician in an awkward position and infringes upon his or her professional responsibilities." 476 U.S. at 763. Thus, despite the fact that the woman was not required to view these materials, information on fetal development was struck as "not medical information that is always relevant to the woman's decision, and it may serve only to confuse and punish her and to heighten her anxiety contrary to accepted medical practice" 476 U.S. at 762 (emphasis supplied).(50) Incredibly, the Court found that even the information regarding "detrimental physical and psychological effects" and all "particular medical risks" of the abortion must be struck as likely to "compound the problem of medical attendance, increase the patient's anxiety, and intrude upon the physician's exercise of proper professional judgment." 476 U.S. at 762 (emphasis added). To grant the physician complete control over whether to provide information to a woman regarding a surgical procedure portrays a patronizing attitude toward women--an attitude that assumes women are such poor decision makers, so fragile and so easily "confused" that abortionists need not provide them with information relevant to their future health or necessary to the exercise of a meaningful choice regarding elective surgery. After all, it might "increase their anxiety." Instead, the abortionist, who in a freestanding clinic generally first meets a woman when she is gowned and on the operating table, is entitled to withhold relevant information and make the abortion decision, not in consultation with the pregnant woman, but rather for her. The Court cloaks this paternalistic attitude in the mantle of protection of women's constitutional right to "choice," while it strips women of their right to information necessary for control of their bodies and their destinies, by empowering the abortionist to withhold information a woman needs in order to make an informed choice regarding her own medical care and the irrevocable decision to have her preborn child killed.

The common thread which runs through almost all testimonies of aborted women who have suffered psychological trauma and/or physical injury as a result of decisions such as Akron and Thornburgh is the sense of anger and betrayal when they discover that they were not told of the possible consequences of a decision to abort, and often were fed outright lies when asking questions regarding the procedure, particularly when the questions involved fetal developmental characteristics.

The following are examples of the effect of nondisclosure such as the Thornburgh decision endorsed on aborted women: Being a woman who experienced an abortion, I can tell you that withholding information from women that may affect them for the rest of their lives is both dangerous and demeaning. Doctors may explain more to their patients about tonsillectomies or appendectomies than they do about abortions. I really believe that if I had been fully informed, both medically and as to my options, I would have chosen not to abort my baby.

I was given a saline abortion at four months and I never once was told of the pain involved during the injection of the saline solution into my womb. Neither was I told of the pain involved in labor, nor even that my body would go into labor to reject the struggling, dying baby that was being burned alive in my uterus. Over four hours after the injection, I gave birth to my dead son. I knew he was my son because I asked the nurse what it was as she removed the bedpan and she said, "It's a boy."

Then began the horror that I have lived with for years afterward, the horror of the certainty that I had killed my own son in a moment of confusion and, I believe, the omission of basic information that would have changed the course of my life. I was twenty-one years old then. My son would now be fourteen.

Letter from Rosemary Gaston to Senator Gordon Humphrey dated August 4, 1986.

Another woman, who discovered the facts about fetal development only after her baby was aborted writes:

In 1980, I aborted my first child. I was told at Planned Parenthood that this "little blob of tissue" would be as easily removed as a wart. Terminating a pregnancy, I was told, is no more significant than removing a tiny blood clot in my uterus. "Sounds harmless," I reasoned. Exercising my right, I opted for abortion. At that time, no other options, such as adoption or single parenting, were explained.

Following my abortion I became deeply depressed, suicidal and unable to hold a job. I never mourned the loss of my appendix, so why did I grieve over the passing of an enigmatic uterine blob? The answer is that it wasn't a mere "blob of tissue." It was a living baby. I realized it the moment I saw his dismembered body. I realized it too late.

Letter from Karen Sullivan Ables to Senator Gordon Humphrey dated May 23, 1986.

B. Abortion--The Unregulated Industry.

There are a number of instances in which abortions were attempted, but were not completed, and where the patient was either not given appropriate medical treatment by the abortion clinic, or was literally abandoned by the abortionist. Such women generally are treated in hospital emergency rooms within the vicinity of the freestanding facility. As was discussed in Section I, the documentation of death or injury causing hospitalization often does not include any reference to the fact that death or injury ensued upon performance of an induced abortion. While abortion injuries are rarely reported to the police, one case surfaced recently which graphically illustrates the horrendous practices engaged in by some abortionists in utter disregard for women's lives and health and the lack of either prosecution by police authorities or regulatory control of the industry. It involved an abortion of a 23-year-old woman, Mrs. Arias, by Dr. McMillan at Quality Medical Health Group. The Los Angeles Police Department investigative report attached to the death certificate of Baby Arias states that after having paid $400 cash for her abortion (51):

Ms. Arias was escorted into a room and placed on a table. The receptionist (unknown if a nurse) held her on the table and the doctor started the abortion. The patient was in extreme pain and was bleeding profusely. After crying and screaming, the receptionist left the room and returned with a shot that was administered to the patient by the receptionist. The doctor exited the room and never returned. The receptionist told the patient she was going to take her to the hospital. The patient was placed in the receptionist's private vehicle for transportation. . . .

The patient was given a note from the doctor explaining the complications during the attempted abortion. The patient was seated in the Emergency Room and the receptionist departed without notifying anyone why the patient was present. After a long period of time, one of the hospital personnel asked the patient why she was present. The patient showed the note from the doctor and the patient was immediately rushed to surgery where the abortion was completed and medical treatment was administered.

When the surgeon operated, she removed half of the torso of a preborn child of 24 to 27 weeks gestation. The autopsy of the child indicated that the infant's left arm, leg and internal organs were missing, but the remainder of the child was intact.

The police report concludes:

Deputy District Attorney Brian Kelberg was notified of the incident and advised that because of the consent by the patient for the abortion, that there is no criminal violation. . .

The incident was a therapeutic abortion of a second trimester fetus, constitutionally recognized as the right of the patient. Id. at p. 3.(52)

Ms. Arias must have been astonished to discover the breadth and depth of the fundamental rights visited upon her by Roe and its progeny. So, too, must the families of the women and girls who were led to their deaths in Inglewood and Hers Medical Clinic by abortionists who continue to ply their trade unhampered by any regulatory authority.


Before Roe women died and were injured by illegally performed abortions. After Roe, women die and are injured by legally performed abortions. Whether pre-Roe or post-Roe, their deaths and the physical, psychological and emotional trauma caused by abortion are tragic. However, today, one and one-half million women each year are exposed to the risks of abortion, an astronomical increase over the numbers which were performed prior to Roe. Over twenty-two million preborn children have been killed, and respect for human life has been denigrated. This is an enormous price to pay for the current state of abortion on demand. Amici urge that the Court reconsider and overturn its ruling in Roe and return to the legislatures the power to solve the dilemma of abortion.

Respectfully submitted,

3800 Centre Square West
Philadelphia, PA 19102
(215) 833-5624
Attorney for Amici Curiae

Of Counsel:
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(202) 342-5400