UUnniivveerrssiittyy ooff SStt.. TThhoommaass JJoouurrnnaall ooff LLaaww aanndd PPuubblliicc PPoolliiccyy Volume 1 Article 12 Issue 1 Spring 2007 January 2007 GGoonnzzaalleess vv.. CCaarrhhaarrtt:: WWoommeenn TTeellll tthhee CCoouurrtt AAbboouutt AAbboorrttiioonn Teresa Stanton Collett University of St. Thomas School of Law, [email protected] Follow this and additional works at: https://ir.stthomas.edu/ustjlpp Part of the Constitutional Law Commons, and the Family Law Commons RReeccoommmmeennddeedd CCiittaattiioonn Teresa S. Collett, Gonzales v. Carhart: Women Tell the Court About Abortion, 1 U. ST. THOMAS J.L. & PUB. POL'Y 175 (2007). Available at: https://ir.stthomas.edu/ustjlpp/vol1/iss1/12 This Amicus Brief is brought to you for free and open access by UST Research Online and the University of St. Thomas Journal of Law and Public Policy. For more information, please contact the Editor-in-Chief at [email protected]. GONZALES V. CARHART: WOMEN TELL THE COURT ABOUT ABORTION: AN INTRODUCTION TERESA STANTON COLLETT* In an unusual, but not unprecedented act,' Justice Ginsburg expressed her strong disagreement with the majority's opinion in Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Act of 2003, by reading a summary of her dissent from the bench.2 A major focus of the dissent was what she perceived to be the majority's uncritical acceptance of the claim that women sometimes come to regret their decisions to have abortions. [T]he Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from "[s]evere depression and loss of esteem." Because of women's fragile emotional state and because of the "bond of love the mother has for her child," the Court worries, doctors may withhold information about the nature of the intact D & E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.3 The footnote supporting her characterization of the majority's concern as "an antiabortion shibboleth" cites conflicting results of studies regarding the existence, nature and extent of post-abortion regret. Tellingly absent from the dissent's litany of studies are references from medical texts providing instruction on the performance of abortions. A * Professor of Law, University of St. Thomas School of Law (Minneapolis). The author served as counsel of record for Congressman Ron Paul and various medical groups in the filing of an amicus brief in support of the Petitioner in Gonzales v. Carhart, 550 U.S. --, 127 S.Ct. 1610 (2007). 1. Linda Crawford Greenburg, The Last Word at http://blogs.abcnews.com/legalities/2007 /04/thelastword.html (noting that Justice Kennedy read portions of his dissent in Stenberg v. Carhart,5 30 U.S. 914 (2000) from the bench). 2. David Stout, Supreme Court Upholds Ban on Abortion Procedure NY TIMES, April 18, 2007. 3. Carhart,1 27 S.Ct. at 1648-49 (2007) (citations omitted). 176 UNIV. OF ST. THOMAS JOURNAL OF LA W & PUBLIC POLICY [Vol. 1:1 1995 medical text on induced abortion describes the extent and cause of emotional harm in the following manner: In the USA, it is estimated that 20% of women suffer from severe feelings of loss, grief and regret. These feelings may progress to anger (at herself and at her partner), or to depression and even obsession. These feelings are more likely to arise in women who: lack social support; whose decision to terminate the pregnancy is in conflict with their family or their religious beliefs; who feel they were pressurized into having an abortion; who have abortion because of fetal anomaly; and who are very young or have a very late abortion.4 A 1999 medical text on abortion techniques, prepared under the auspices of the National Abortion Federation, identifies the risk factors for psychiatric illness following an abortion as prior or concurrent psychiatric illness, coercion, genetic or maternal medical indications, lack of social supports, paralyzing ambivalence, and advanced gestational age.' These texts identify women particularly at risk of regretting their abortions, or experiencing what some authors call "post-abortion stress syndrome,"6 as women who feel pressured into having abortions, who obtain abortions due to fetal anomalies, and who abort pregnancies at an advanced gestational age. Interestingly, these categories correspond neatly to the categories of women who seek partial-birth (or dilation and extraction "D&X") abortions described by the Brief of the Institute for Reproductive Health Access and Fifty-Two Clinics and Organizations as Amici Curiae in Support of Respondents in Gonzales v. Planned ParenthoodF ederation of American, et al., No. 05-1382, reproduced in this issue of the UNIVERSITY OF ST. THOMAS JOURNAL OF LAW & PUBLIC POLICY. Of the women who provided accounts, approximately 30 percent obtained second-trimester procedures after their pregnancies were diagnosed with severe fetal anomalies. Less than five percent obtained procedures when their own health became imperiled by their pregnancies; 4. Anna Glasier, Counselingf or Abortion, in MODERN METHODS OF INDUCING ABORTION 112, 117 (David T. Baird et al. eds., Blackwell Publishers 1995); see also Jo Ann Rosenfeld, Emotional Responses to Therapeutic Abortion, 45 AM. FAM. PHYSICIAN 137-38 (1992); Additional sources are collected and discussed in Thomas R. Eller, Informed Consent Civil Actions for Post- Abortion PsychologicalT rauma, 71 NOTRE DAME L. REV. 639 (1996). 5. Carol J. Rowland Hogue et al., Answering Questions About Long Term Outcomes, in A CLINICIAN'S GUIDE TO MEDICAL AND SURGICAL ABORTIONS, 217, 225 (Maureen Paul et al. eds., Churchill Livingstone 1999); See also E. Joanne Angelo, The Psychological Aftermath of Three Decades of Abortion and Elizabeth M. Shadigian, Reviewing the Evidence, Breaking the Silence: Long-term Physical and Psychological Health Consequences of Induced Abortion, in THE COST OF "CHOICE": WOMEN EVALUATE THE IMPACT OF ABORTION 63 (Erika Bachiochi, ed., Encounter Books 2004). 6. Kathryn Jean Lopez, Looking Beyond Choice, NATIONAL REVIEW ONLINE, Nov. 7, 2001, http://www.nationalreview.com/nr commentlnrcommentl10701b.shtml (last visited May 21, 2007). 2007] Women Tell the Court about Abortion and approximately 55 percent obtained second-trimester procedures for other reasons primarily because of delayed access to abortion services due to financial or geographic obstacles. Thus, as many as eighty-five percent of the women described in the Institute for Reproductive Health Access brief supporting the availability of dilation and extraction or "partial-birth" abortion are at risk of psychological harm related to their abortions according to abortion instructional texts.Unfortunately researchers can not obtain additional information from this group of women due to the absence of any identifying information regarding the women. In contrast, the Brieffor Sandra Cano et al. as Amici Curiae in No. 05- 380, excerpts 180 women's affidavit testimonies regarding adverse emotional affects they suffered in relation to their abortions. Many of the women are identified by name and state. Justice Kennedy relied upon these testimonies when observing, "While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow."8 Sandra Cano's brief and a selection of the affidavit excerpts are contained in this issue of the UNIVERSITY OF ST. THOMAS JOURNAL OF LAW & PUBLIC POLICY. By including both the brief of Sandra Cano and the brief of the Institute for Reproductive Health Access, the JOURNAL provides readers an opportunity to hear the voices of women describing varied experiences of abortion. From these varied experiences grow dramatically differing conclusions regarding the morality and legality of induced abortion. If Justice Ginsburg is correct that Gonzales v. Carhart provides greater opportunity for legislative action regarding abortion, these women's stories must be part of the debate. 7. Brief of the Institute for Reproductive Health Access and Fifty-Two Clinics and Organizationsa s Amici Curiae in Support of Respondents in Gonzales v. Planned Parenthood Federationo f American, et al., No. 05-1382, 1 UST. J.L. & PUB. POL'Y 209, 212-13 (2007). 8. Carhart, 127 S.Ct. at 1634 (2007) (citations omitted). BRIEF OF SANDRA CANO, THE FORMER "MARY DOE" OF DOE V. BOLTON, AND 180 WOMEN INJURED BY ABORTION AS AMICI CURIAE IN SUPPORT OF PETITIONER* ** STATEMENT OF INTEREST OF THE AMICI CURIAE Consent to file this amicus brief was given by both parties. This brief supporting Petitioner was prepared by counsel for amici.1 At the heart of this case is the future of the "health" exception articulated in Roe v. Wade and Doe v. Bolton. Amici Sandra Cano is the "Doe" of Doe v. Bolton. It was Doe v. Bolton which provided for the health exception and led to partial-birth abortion and abortion on demand. While it is unusual for a successful litigant to file an amicus brief opposing the health exception which was the heart of her case, Mrs. Cano in fact never wanted an abortion in Doe v. Bolton and fraud was perpetrated on the Court. Her Affidavit is Appendix A. In addition, the three-doctor provision of the Georgia statute which provided actual verification and protection for women was struck down in Doe. Furthermore, the "health" exception has been broadly interpreted and thereby ultimately led to partial-birth abortion. Mrs. Cano supports Congress' position omitting the "health" exception and urges this Court to give deference to Congress and hold the ban on partial- birth abortion constitutional. Other amici are 180 post-abortive women who have suffered the adverse emotional and psychological effects of abortion. Congress in its findings only discussed the physical health consequences of abortion. However, other health consequences not stated in Congress' findings would be helpful to the Supreme Court in making its decision. The women attest * Linda Boston Schlueter, Counsel of Record, Counsel for Amici Curiae Sandra Cano and post-abortive women. ** Editor's Note: All citations have been converted to footnotes but are otherwise unchanged. 1. Counsel for amici authored the brief in whole. The Justice Foundation is a nonprofit legal foundation that handles cases in landmark decisions. The Foundation is supported through private contributions of donors who have made the preparation and submission of this brief possible. No party contributed to the writing or finances of this brief. 20071 Women Tell the Court about Abortion to the fact that there are adverse emotional and psychological health effects that have affected their lives. All of the women have used their full name in the original Affidavits, but some have requested that only their initials be used publicly to protect their confidentiality. Although the Supreme Court only made non-evidence based assumptions in Roe v. Wade and Doe v. Bolton because abortion was generally not legal or widespread, the post-abortive women amici provide this Court with their real life experiences and attest that abortion in practice hurts women's health. Post-abortive women were asked, "How has abortion affected you?" Some of the women's Affidavit testimony is in the brief with the complete answer to that question from the amici in Appendix B. The post-abortive women amici are: D.Q. (Tennessee); Myra J. Rasmussen (Tennessee); Donna M. Razin (Florida); C.R. (Georgia); Cathy L. Moffat (Utah); J.L.M. (Texas); Dana Renee Nickles (Arkansas); S.O. (Florida); Kristen Pettibone (Georgia); Mary A. Hill-Griffith (Florida); Dana Nicole Landers (Florida); Julie Thomas (Georgia); S.T. (Tennessee); Teresa Renee Zell (North Carolina); Mary Ellen York (Michigan); E.A.W. (Tennessee); Lorene Elaine Woods (Tennessee); J.S.W. (California); Carolyn Weedin (Texas); Darla Weaver (Texas); B.J.W. (Colorado); H.T. (Texas); T.J.H. (California); Caroline Burnett (Florida); Deborah R. Paine (Georgia); Rhonda Kay Plumb (Illinois); Tami T. Rohrbacher (Wyoming); Leslie Bowen (Florida); Janice L. Bartlett (Florida); Mary Catherine Coburn (Georgia); Hemda Ben-Judah (Georgia); Becky Abell (Oklahoma); Muriel A. Ramos (Florida); C.L.R. (Arizona); Nancy M. Haberling (Ohio); Beverly A. Green (Minnesota); Jackie Lynn Garner (Oklahoma); K.G. (California); O.F. (Maryland); Angela Eckstein (Ohio); Mary J. Duncan (South Carolina); Deborah L. Dowless (Virginia); T.D. (Pennsylvania); Darlene Crumbo (California); Jamie Renee Carter (West Virginia); Cynthia Carney (Oklahoma); Elizabeth Campbell (California); Elvira T. Brand (Florida); Paula S. Botos (Kentucky); Kim Marie Blackowiak (Minnesota); Loretta Bingham (Florida); Pamela Berry (Texas); Brandie M. Atwood (Arkansas); Melody A. Athey (Kansas); Paulette C. Heller (Tennessee); J.M.H. (Texas); Lori Harrington (Mississippi); Diane M. Hanson (Colorado); Kathleen Vaunae Hansel (California); Deanna Hall (California); M.J.H. (Tennessee); Karen Sue Green (Texas); Deborah Longford (Tennessee); V.L. (Oklahoma); Rose Lewis (California); Jana M. Lewis (Montana); S.A.L. (Oklahoma); C.L. (California); D.L. (Louisiana); L.L. (California); S.C.K. (California); Carolyn Knapschaefer (Kentucky); Marene M. Kissinger (California); M.M.K (Tennessee); Gale Denise Jones (Texas); Donna A. Jones (Florida); Kyra L. Janke (Texas); Lori Crossman (Michigan); Tammy Craven (North Carolina); R.A.C. (Alabama); Margaret Conway (Michigan); Pamela T. Colip (California); D.M. (Kansas); April Miera (New Mexico); Roxanne Mergenthaler (Montana); Amy Lynn Meole 180 UNIV. OF ST. THOMAS JOURNAL OF LAW & PUBLIC POLICY [Vol. I:1I (Connecticut); Patricia A. Meixelsperger (Wisconsin); S.B.M. (Arkansas); Vanessa McDonald (Texas); J.M.M. (Louisiana); Debra Mays (Michigan); Sandra Mauldin (Arkansas); G.M. (New York); Dana Mann (Ohio); N.A.M. (Idaho); S.M.L. (Virginia); L.M.S. (Washington); Marie Skurka (Louisiana); Amy Susan Shatrick (Ohio); Sebrina Seay (California); D.M. (California); Karyn Schneider (California); Rose A. Sarcione (Missouri); Sara Sarginson (Michigan); Tammy Joe Rutthofsky (Michigan); K.R. (Texas); Rosa Maria Rosas (West Virginia); Esther Monica Ripplinger (Oregon); Kathy S. Rice (West Virginia); Dorothy Rice (California); Melinda L. James (Mississippi); L.M.J. (Michigan); E.K.J. (Texas); Nancy C. Sweitzer (Pennsylvania); A.A.S. (Missouri); P.S. (Virginia); Brenda Hilliard Stockdale (Georgia); Lori A. Stirrup (Texas); Debra J. Storm (California); M.H.S. (Ohio); Judy Sullivan (New York); Tracy A. Stalsberg (Wisconsin); Natalie Ann South (Mississippi); N.M. (Florida); C.M.S. (North Carolina); Judee Oris (New York); M.E.M. (California); D.M. (Texas); LuAnn Morton (Colorado); Kathleen Murz (Texas); Maranda Music (Kentucky); Leslie D. Musick (Tennessee); Mary L. Neikam (Pennsylvania); T.M.N. (Wisconsin); Linda Newberry (Tennessee); Deborah Peterson (New Hampshire); Alison Phillips (Colorado); Lauralee Peterson (Minnesota); Dianne Pesares (Georgia); Kelli R. Perkins (Kentucky); J.A.P. (Texas); Elizabeth C. Patchet (Wisconsin); Debbie Otto (Montana); Laurie A. Moore (Kentucky); D.R. (California); T.R. (Tennessee); Janice K. Rathkey (Oregon); Lynn F. Rasberry (Texas); Angie Ramsey (Arkansas); K.G.R. (Florida); Regina Pulliam (Oklahoma); Connie Pollner (Georgia); Paisley Pryor (Florida); D.S.P. (Florida); Jana L. Phillips (Missouri); Leslie A. Patterson (Oklahoma); Joann L. Ostrowski (Pennsylvania); K.O. (Arizona); Kaye Peterson (Texas); Karen M. Kowalewski (California); M.M.P. (Minnesota); M.L.M. (Tennessee); Sherry Mae Morgan (Tennessee); Camelia M. Murphy (Texas); Tara L.K. Musico (Hawaii); Diane K. Musselman (Pennsylvania); Wendy Miller (Missouri); Mary Ann Novak (Pennsylvania); K.N. (Mississippi); Kristene O'Dell (Texas); Jeanette Parks (Arkansas); Dianne Marie Donaudy (Georgia); Tina C. Brock (Georgia); Rhonda Arias (Texas); Myra M. Myers (Texas); Kathy Rutledge (Kentucky); Karen Bodle (Pennsylvania); Cynthia Collins (Louisiana); Caron Strong (California). 20071 Women Tell the Court about Abortion SUMMARY OF THE ARGUMENT I At the heart of this case is the future of the "health" exception established in Doe v. Bolton. The health exception has been broadly interpreted to even include the partial-birth abortion procedure which Congress has defined as "gruesome and inhumane." This Court has recognized that the state may promote but not endanger a woman's health when it regulates the methods of abortion. But after thirty-three years of real life experiences, post-abortive women and Sandra Cano, "Doe" herself, now attest that abortion hurts women and endangers their physical, emotional, and psychological health. Therefore, the ban on partial-birth abortion which excludes a health exception should be held constitutional. II This Court should re-evaluate the health exception considering the extensive evidence that Congress heard and its findings of fact. Congress found that the partial-birth abortion procedure is never medically necessary to preserve the health of the mother and, in fact, poses serious risks to the long-term health of women. Numerous state legislatures are currently holding hearings and also are finding the long-term negative health effects of abortion. The sworn Affidavit evidence of post-abortive women also demonstrates that abortion hurts women physically, emotionally, and psychologically. This Court now has the benefit of fact-finding by Congress and the states as well as the real life experience of post-abortive women and therefore should give deference to those findings and exclude a health exception. HI This case demonstrates the need to examine the underlying assumptions of a "health" exception. This case also demonstrates that the health exception involves complex physical, emotional, and psychological health issues. Such issues are best left to fact-finders and policy makers in the federal and/or the state legislative branches. Therefore, this Court should give deference to Congress' findings of fact and hold the partial-birth abortion ban constitutional. 182 UNIV. OF ST. THOMAS JOURNAL OF LAW& PUBLIC POLICY [Vol. I: 1 ARGUMENT I. THE "HEALTH" EXCEPTION IS NOT A PER SE REQUIREMENT AND THIRTY-THREE YEARS OF REAL LIFE EXPERIENCE DEMONSTRATES THAT IT SHOULD BE ABANDONED BECAUSE THE "HEALTH" EXCEPTION IN FACT CREATES SERIOUS ADVERSE CONSEQUENCES TO WOMEN'S HEALTH. The health exception has been defined so broadly that it allows abortion on demand and the partial-birth abortion procedure which Congress defined as "gruesome and inhumane."2 In a precursor to Roe v. Wade, this Court had an opportunity to analyze the word "health" in the District of Columbia abortion statute.3 This Court stated that the general usage and modem understanding of the term "health" includes both psychological and physical wellbeing.4 In Roe v. Wade, the Court did not focus on the health exception as it did in Doe v. Bolton. However, the Court made the following observation: "Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent."5 In Doe, the Court stated that the health exception could be judged" ... in light of all factors - physical, emotional, psychological, familial, and the woman's age relevant to the well-being of the patient."6 In his concurring opinion, Chief Justice Burger recognized that the term health was used "in its broadest medical context."7 At the time, he believed that the decision would not have the sweeping effect that the dissenting Justices forewarned because physicians would observe the standards of their profession and only act after careful deliberation concerning judgments of life and health.8 He also believed that the Court rejected "any claim that the Constitution requires abortions on demand."9 Unfortunately, Chief Justice Burger's assumptions have not been realized in the thirty-three years of real life experiences of the post-abortive women. Because of the broad definition of health and the fact that "health" is determined solely by one woman and one abortionist profiting from the abortion, America in effect has abortion on 2. Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531, subsec. (1). 3. United States v. Vuitch, 402 U.S. 62 (1971). 4. Id. at 72. 5. Roe v. Wade, 410 U.S. 113, 153 (1973). 6. Doe v. Bolton, 410 U.S. 179, 192 (1973). 7. Id. at 208 (Burger, C.J., concurring). 8. Id. 9. Id. 2007] Women Tell the Court about Abortion demand and partial-birth abortion. Furthermore, there is not a careful or narrow view of "health" and abortionists and women do not have a normal doctor-patient relationship as the post-abortive women attest.1° The broad interpretation of "health" is certainly evident in Justice Douglas' concurring opinion." Justice Douglas elaborated on the meaning of health with a very broad definition. He stated: "Elaborate argument is hardly necessary to demonstrate that childbirth may deprive a woman of her preferred lifestyle and force upon her a radically different and undesired 12 future."' Justice Douglas expanded the definition of "health" to include "hardships" by stating: The vicissitudes of life produce pregnancies which may be unwanted, or which may impair 'health' in the broad Vuitch sense of the term, or which may imperil the life of the mother, or which in the full setting of the case may create such suffering, dislocations, misery, or tragedy as to make an early abortion the only civilized step to take. These hardships may be properly embraced in the 'health' factor of the mother as appraised by a person of insight. In Casey, this Court stated that "psychological well-being is a facet of health."'3 This Court also stated that there could be "devastating psychological consequences" if a woman's decision was not fully informed and truthful, not misleading.'4 The post-abortive women amici attest to the "psychological consequences" that they experienced when they were not fully informed of the physical and psychological consequences of abortion and the information they were given by the abortionist or the abortion facility staff was in fact misleading.5 In Stenberg v. Carhart,6 this Court held that the Nebraska statute violated the Constitution because it lacked the health exception. But this 10. For example, H.T. (Texas) - "Experienced major clinical depression during and after birth of oldest living child after I learned how abortions were performed and more about fetal development." App. B at 30. M.J.H. (Tennessee) - "I had ten years of depression, anxiety, and panic attacks that I had trouble understanding ... Those ten years of my life were spent in anguish due to a decision that I had made based upon misinformation and untruths." App. B at 39. 11. Doe v. Bolton, 410 U.S. 179, 209 (1973) (Douglas, J., concurring). 12. Id. at 214-15. 13. Planned Parenthoodv . Casey, 505 U.S. 833, 882 (1992). 14. Id. 15. For example, C.R. (Georgia) - "No one ever showed me the stages of pregnancy. If someone had, I wouldn't have went through it. If I would have known the emotional effects that was years later, I would have reconsidered." App. B at 12-13. Muriel A. Ramos (Florida) - "It made my life go into a downward spiral from emotional and spiritual pain to absolute symptoms of ill health.... However, the reality of the abortion was exasperated. [sic) I was forever changed in an unhealthy way from that legal choice I made, however misinformed that I was." App. B at 23-24. 16. Stenberg v. Carhart,5 30 U.S. 914 (2000).