Planned Parenthood of Southeastern Pennsylvania v. Casey Brief Amici Curiae

    Nos. 91-744 and 91-902

In  The

v Supreme Court of ttje fHmteti Stated
October Term , 1991

P lanned  P arenthood of Southeastern 
P ennsylvania , et al.,

Petitioners,
v.

Robert P. Ca sey , et al.,

Robert P. Ca sey , et al.,

Respondents.

Petitioners,
v.

P lanned  P arenthood of S outheastern 
P ennsylvania , et al.,

Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Third Circuit

Brief Of Amici Curiae of the NAACP Legal Defense and 
Educational Fund, Inc., and Other Organizations,* in 

Support of Planned Parenthood of Southeastern 
Pennsylvania

P atricia W illiams 
S uzanne S hende 
Joan Gibbs 
666 Broadway 
New York, NY 10012 
(212) 614-6464

*  Counsel of Record

J ulius L. Chambers 
Ronald L. E llis 
Marianne  E ngelman Lado 

'A lice L. B rown 
99 Hudson St., 16th Floor 
New York, NY 10013 
(212) 219-1900
Counsel for Amici Curiae

‘ Individual am ici are listed on the inside front cover.

PRESS OF BYRON S. ADAMS. WASHINGTON. D.C. (202) 347-8203



ASIAN AMERICAN LEGAL DEFENSE & EDUCATIONAL 
FUND, THE CENTER FOR CONSTITUTIONAL RIGHTS, 

CENTER FOR LAW AND SOCIAL JUSTICE AT 
MEDGAR EVERS COLLEGE,

THE COMMITTEE FOR HISPANIC CHILDREN AND 
FAMILIES,

ECO-JUSTICE PROJECT & NETWORK, 
HISPANIC HEALTH COUNCIL,

JAPANESE AMERICAN CITIZENS LEAGUE,
THE LATINA ROUNDTABLE ON HEALTH AND 

REPRODUCTIVE RIGHTS, MADRE,
MEXICAN AMERICAN LEGAL DEFENSE AND 

EDUCATIONAL FUND,
THE NATIONAL ASSOCIATION OF SOCIAL WORKERS, 

NATIONAL BLACK WOMEN’S HEALTH PROJECT, 
THE NATIONAL COALITION FOR BLACK LESBIANS

AND GAYS,
THE NATIONAL COUNCIL OF NEGRO WOMEN, INC., 

THE NATIONAL EMERGENCY CIVIL LIBERTIES 
COMMITTEE,

NATIONAL LATINA HEALTH ORGANIZATION, 
NATIONAL MINORITY AIDS COUNCIL,

THE NATIVE AMERICAN WOMEN’S HEALTH 
EDUCATION RESOURCE CENTER,

THE NEW YORK WOMEN’S FOUNDATION,
THE PUERTO RICAN LEGAL DEFENSE AND 

EDUCATION FUND,
THE SOUTHERN POVERTY LAW CENTER, 

WOMEN FOR RACIAL & ECONOMIC EQUALITY, 
THE WOMEN’S POLICY GROUP.



QUESTION PRESENTED

Whether provisions of the Pennsylvania Abortion 

Control Act that impose a 24-hour waiting period 

before the performance of an abortion (18 Pa. Cons. 

Stat. Ann. § 3205(a) (informed consent)), mandate 

parental consent (18 Pa. Cons. Stat. Ann. § 3206), 

and require spousal notification (18 Pa. Cons. Stat. 

Ann. § 3209) unduly burden women’s right to

privacy.



TABLE OF CONTENTS

QUESTION PRESENTED......................................................................i

TABLE OF CONTENTS ...................................................................  ii

TABLE OF AUTHORITIES ...............................................................iv

INTEREST OF AMICI CURIAE ..................................................... 1

SUMMARY OF ARG UM ENT.......................................................  5

ARGUM ENT.......................................................................................  6

INTRODUCTION ..............................................................  6

A. L A W S  T H A T  O P E R A T E  TO
INTERFERE WITH OR IMPAIR 
ACCESS TO ABORTIONS BURDEN 
THE PRIVACY RIGHTS OF POOR 
W O M E N .................................................................  16

B. P E N N S Y L V A N I A ’S A B O R T I O N
CONTROL ACT WOULD IMPEDE THE 
DECISION-MAKING PROCESS AND 
THE EXERCISE OF THE RIGHT TO 
REPRODUCTIVE CHOICE FOR POOR 
WOMEN AND THUS CONSTITUTES A 
BURDEN ON THE RIGHT TO 
PR IV A C Y ..............................................................  19

1. Section 3205(a) of the Act, which 
requires a 24-hour delay between 
the lime that a woman’s consent for 
an abortion is obtained and the 
actual time when the procedure is 
performed, burdens the right to 
abortion..................................................... 19



I ll

2. Section 3206 of the Act, which
requires parental consent before an 
abortion can be obtained, burdens 
the rights of low-income young 
women, creating a virtual bar to 
abortion..................................................... 25

3. Section 3209 of the Act, which
requires spousal notification before 
an abortion can be obtained, 
burdens the right to abortion................  30

CONCLUSION ..................................................................................  34



IV

TABLE OF AUTHORITIES

Cases: Pages:

Akron v. Akron Clr. for Reproductive Health,
462 U.S. 416 (1983) ........................................  8, 11-14, 32

Beal v. Doe, 432 U.S. 438 (1 9 7 7 )...............................................  10, 32

Bellotti v. Baird, 443 U.S. 622 (1 9 7 9 ).............................................  25

Doe v. Bolton, 410 U.S. 179 (1973) ...................................  15, 31, 32

Eu v. San Francisco Democratic Comm., 489 U.S. 214 (1989) . 12

Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716
(7th Cir. 1975), cert, denied, 425 U.S. 916 (1 9 7 6 ) ..........  9

Harris v. McRae, 448 U.S. 297 (1980) ................................  8, 10, 32

Hodgson v. Minnesota, 497 U .S .__,111 L.Ed.2d 344, (1990) . . 8,
14, 25, 27, 28, 30

Hodgson v. Minnesota, 648 F. Supp. 756 (D. Minn. 1986) . . . .  28

Jacobson v. Mass., 197 U.S. 11 (1905) ..........................................  15

Leigh v. Olson, 497 F.Supp. 1340 (D.N.D. 1980).........................  21

Maher v. Roe, 432 U.S. 464 (1977) ...................................  12,13,31

Planned Parenthood Ass’n of Kansas City, Missouri
v. Ashcroft, 462 U.S. 476 (1983) ....................................  13

Planned Parenthood of Missouri v. Danforth,
428 U.S. 52 (1976) ................................................ 11,13,32

Planned Parenthood v. Casey, 947 F.2d 682
(3d Cir. 1991)............................................................  16, 17, 30

Planned Parenthood v. Casey, 744 F. Supp. 1323 (E.D. Pa.
1 9 9 0 ) ........................................................................................ 30



V

Pages:

Poelker v. Doe 432 U.S. 519 (1 9 7 7 ) ...............................................  32

Roe v. Wade, 410 U.S. 113 (1 9 7 3 )..........................................  passim

Rust v. Sullivan, 500 U.S. _ ,  114 L.Ed.2d 233 (1 9 9 1 ) ...............  32

Tashjihan v. Republican Party, 479 U.S. 208 (1986) .................. 13

Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S. 747 (1986) ......................  8, 32, 33

U.S. v. Kras, 409 U.S. 434 (1973).......................................................  4

Webster v. Reproductive Health Services, 492 U.S. 490
(1989) ...............................................................................  15, 32



VI

Statutes: Pages:

18 Pa. Cons. Stat. Ann. § 3205 .............................................  7, 19, 23

18 Pa. Cons. Stat. Ann. § 3206 .......................................................... 7

18 Pa. Cons. Stai. Ann. § 3209 ....................................................  7, 30

Other Authorities: Pages:

American Civil Liberties Union Reproductive Freedom 
Project, Parental Notification Laws: Their 
Catastrophic Impact on Teenagers’ Right to 
Abortion 15 (1986) ............................................................... 28

American Medical Association, Council on Ethical and 
Judicial Affairs, Black-White Disparities in 
Health Care 263 J.A.M.A. 2344 (May 2, 1990) ............. 10

Association for Sickle Cell Education Research and 
Treatment Inc. Sickle Cell Anemia: A Family 
Affair (1 9 8 8 ) ...........................................................................  24

Avery, A Question of Survival/A Conspiracy of Silence: Abortion 
and Black Women‘s Health, in FROM ABORTION
to Reproductive Freedom: Transforming 
a  Movement 75 (Fried ed. 1 9 9 0 )...................................  20

Belkin, Women in Rural Areas Face Martv Barriers to 
Abortion, N.Y. Times, July 11, 1989, at Al, 
col. 3 ........................................................................................ 22

Bland, Racial and Ethnic Influences: The Black Woman 
and Abortion, in PSYCHIATRIC ASPECTS OF 
Abortion 171 (Stotland ed. 1991) ................................. 10

Bonavoglia, Kathy's Dav in Court in FROM ABORTION 
to Reproductive F reedom : Transforming 
a Movem ent 161 (Fried ed. 1990) ................................. 27



Vll

Cates & Grimes, Morbidity and Morality of Abortion in 
the United States, in Abortion and Sterilization:
Medical and Social Aspects 155 (Hodson ed. 1981) . . .  29

Cates & Rochat, Illegal Abortion in the United States:
1972-1974, 8 Fam. Plan. Persp. 86 (1 9 8 6 ) .........................  4

Cates, Schulz, Grimes and Tyler, The Effect of Delay 
and Method Choice on the Risk of Abortion 
Morbidity, 9 Fam. Plan. Persp. 266
(Nov./Dec. 1977)...................................................................  23

Centers for Disease Control, HIVIAIDS Surveillance:
Year-End Edition, 15 (January, 1992) ..............................  24

Dixon, Ross, Avery & Jenkins, Reproductive Health of 
Black Women and Other Women of Color in 
From A bortion to Reproductive Freedom : 
Transforming a  Movement 157 (Fried ed. 1990) . . .  3

Drury & Powell, Prevalence of Known Diabetes Among 
Black Americans, in ADVANCE Data FROM 
Vital and Health Statistics, Pub. No. (PHS)
87-1250 ..................................................................................  24

Foes Successfully Chip Away at Abortion Rights;
Poor, Young Affected Most, USA Today,
June 3, 1991, at 6 A ..............................................................  22

Genovese, Roll, Jordan, Roll: Die World Die Slaves Made
(1st Vintage Books Ed. 1972) ..........................................  10

Gold, Abortion and Women’s Health; A Turning
Point for America? The Alan Guttmacher Institute . . . .  3

Grimes, Second-Tnmester Abortions in the United States,
16 Fam. Plan. Persp. 260 (Nov./Dec. 1984)....................  29

Henshaw & Wallisch, Die Medicaid Cutoff and Abortion Services
for the Poor, 16 Fam. Plan. Persp. 170 (1984) .................. 3



Vlll

Henshaw, Forrest & Van Vort, Abortion Services in the 
United States, 1984 <4 1985, 19 Fam. Plan. Persp.
63 (1987) ................................................................................  21

Koonin, Kochanek, Smith & Ramick, Abortion Surveillance,
United States, 1988, 40 Morbidity & Morality 17
(July, 1991) ...........................................................................  20,

28
Lincoln, Doring-Bradley, Lindheim & Cotterill, The Court,

The Congress and the President: Turning Back 
the Clock on the Pregnant Poor, 9 Fam. Plan.
Persp. 210 (Sept./Oct. 1977) .............................................  20

National Abortion Rights Action League Foundation,
Who Decides? A Reproductive Rights Manual
10 (1990) ............................................................ 18, 26, 28, 29

Nsiah-Jefferson, Reproductive Laws, Women of Color,
and Low Income Women, in REPRODUCTIVE Laws 
for the 1990’s: A Briefing Handbook (1988) . . .  22

O’Hair, A Brief Historv of Abortion in the United States,
262 J.A.M.A. 1875 (1989) ..................................................  18

O’Keefe & Jones, Easing Restrictions on Minor’s Abortion
Rights, Issues in Sci. & Tech. 74 (Fall, 1990).................. 26

Radecki, A Racial and Ethnic Comparison of Family Formation 
and Contraceptive Practices Among Low-Income Women,
106 Pub. Health Rep. 494 (Sept./Oct. 1991)....................  18

Roberts, 77te Future of Reproductive Choice for Poor
Women and Women of Color, 12 Women’s Law 
Reporter 59 (1 9 9 0 ) .................................................................  9

Scott, HHC Finds Hospitals Hurl by Budget Cuts, N.Y.
Newsday, March 4, 1992, at 21 ........................................  20

Sharpe, 17 Year Old Died of Fear and Abortion, Cincinnati
Enquirer, Nov. 26, 1989........................................................  26



IX

Siegel, Reasoning from the Body: A Historical Perspective
on Abortion Regulation and Questions of Equal Protection,
44 Stan. L. Rev. 261 (January, 1992) ..............................  16

The Alan Guttmacher Institute, Abortions and the Poor:
Private Morality, Public Responsibility (1979) .................. 18

United States Commission on Civil Rights, The Economic
Status of Black Women (1990) ............................................. 7

United States Dept, of Commerce, Bureau of Census,
Statistical Abstract of the United States, 1991,
No. 748 (1991) ........................................................................  7

United States Dept, of Health and Human Services, I Report 
of the Secretary’s Task Force on Black and Minority 
Health (1985)'........................................................................  24

United States Dept, of Health and Human Services, Health 
Status of Minorities and Low-Income Groups: Third 
Edition (1991)................................................................. 10, 24

United States Dept, of Health and Human Services,
Office of Minority Health, Diabetes and Minorities 
in Closing the Gap (1988) .............................................  24

United States Dept, of Health and Human Services, 1 Report 
of the Secretary’s Task Force on Black and Minority 
Health (1986) ..................................................................... 7, 24

Wilkerson, Michigan Judges' Views of Abortion Are Berated,
N.Y. Times, May 3, 1991....................................................  27

Zambrana, Research Issues Affecting Poor and Minority Women:
A Model for Understanding Health Needs, 14 Women 
and Health 137 (1988) .......................................................  10



Nos. 91-744 and 91-902

In The

Supreme Court of tfje Hmteb ii>tate£f
October Term , 1991

PLANNED PARENTHOOD OF SOUTHEASTERN
PENNSYLVANIA, et al,

v.
Petitioners,

ROBERT P. CASEY, et al.,

ROBERT P. CASEY, et al., 

v.
Petitioners,

PLANNED PARENTHOOD OF SOUTHEASTERN 
PENNSYLVANIA, et al.

On Writ of Certiorari to the United States 
Court of Appeals for the Third Circuit

Brief for the NAACP Legal Defense and Educational 
Fund, Inc. and Other Organizations as Amiens Curiae in 

Support of Planned Parenthood of Southeastern 
Pennsylvania

INTEREST OP AMICI CURIAE 

This brief is filed on behalf of twenty-four 

organizations that share a deep concern for the health and 

life chances of poor women, and particularly, for poor



2

women of color -- Le., African American, Latina, Asian 

American and Native American women. Our ranks include 

attorneys, medical professionals, community educators, and 

researchers, who fear the devastating effects of greater 

governmental interference in the reproductive choices of 

poor women and the provision of abortion services.

Poor women lack access to the quality health care 

services that more affluent Americans take for granted. 

Poor communities have few health care providers and poor 

women are already forced to wait long hours in overcrowded 

clinics and emergency rooms and to travel at great expense 

for needed services. As fifteen studies recently reviewed by 

the Institute of Medicine found, financial barriers, 

particularly inadequate insurance coverage and limited 

personal funds, are the most important obstacle to care­

seeking among women receiving insufficient care. United 

States Dept, of Health and Human Services, Health Status o f 

Minorities and Low-Income Groups: Third Edition 99 (1991). 

Indeed, simply paying for the abortion procedure itself



3

entails serious hardship for indigent women who, in order to 

exercise their right to abortion, must often let bills go unpaid 

or buy fewer necessities, such as food and clothing. 

Henshaw & Wallisch, The Medicaid Cutoff and Abortion 

Services for the Poor, 16 Fam. Plan. Persp. 170, 171 (1984). 

Amici are concerned about the adverse impact of statutory 

provisions that require women to delay treatment, to 

undertake multiple efforts to obtain care, and to overcome 

other psychological and procedural obstacles, such as those 

posed by the need to obtain spousal notification and 

parental consent.

In 1969, fully seventy-five percent of all the women 

who died of illegal abortions in the United States were 

women of color, and from 1972 to 1974, the rate of mortality 

from illegal abortions for women of color was twelve times 

greater than that of white women. Gold, Abortion and 

Women’s Health: A Turning Point for America? The Alan 

Guttmacher Institute 5 (1990)(hereinafter cited as Gold); 

Dixon, Ross, Avery & Jenkins, Reproductive Health o f Black



4

Women and Other Women o f Color in From Abortion TO 

Reproductive Freedom: Transforming a Movement 

157 (Fried ed. 1990). Even after legalization, high numbers 

of poor women of color were still precluded from obtaining 

safe and legal abortions. As a result, in 1975 women of 

color comprised eighty percent of the deaths associated with 

illegal abortions. Cates & Rochat, Illegal Abortion in the 

United States: 1972-1974, 8 Fam. Plan. Persp. 86, 87 (1986).

If the undue burden standard is to be adopted, it is 

crucial that the Court seriously consider the impact of 

statutory restrictions in the real world context in which poor 

women live. As Justice Marshall admonished nearly two 

decades ago, "It may be easy for some people to think that 

weekly savings of less than $2 are no burden. But no one 

who has had close contact with poor people can fail to 

understand how close to the margin of survival many of 

them are." U.S. v. Kras, 409 U.S. 434, 460 (1973)(Marshall, 

J., dissenting). Restrictions on the provision of abortion 

services and the decision-making process do not fall with



5

equal measure upon rich and poor, and the burdens imposed 

on poor women should not be ignored.

A complete list of amici and their statements of 

interest are set forth in an Appendix to this brief.

SUMMARY OF ARGUMENT 

Amici, supporting Planned Parenthood of 

Southeastern Pennsylvania, urge this Court to reaffirm Roe 

v. Wade, 410 U.S. 113 (1973). If, however, the Court adopts 

the undue burden test developed by Justice O’Connor, the 

Court would nevertheless be required to find the provisions 

of the Pennsylvania Abortion Control Act that define 

medical emergency, establish reporting requirements, and 

require informed consent, parental consent, and spousal 

notification unconstitutional.

The right to privacy is guaranteed to all women, 

regardless of income, race, or ethnicity. Accordingly, if the 

Court chooses to adopt the "undue burden" standard 

articulated by Justice O’Connor, the threshold examination 

of the statute’s "burden" must include the practical impact of



6

the law on the ability of poor women to exercise the 

protected right. Laws that place obstacles in the path of 

poor women who have chosen to terminate pregnancy — by 

imposing delays or procedural obstacles, economic barriers, 

or other impediments to access — constitute a burden on the 

privacy rights of poor women.

The Pennsylvania provisions under review would 

impose enormous burdens on the abortion decisions of poor 

women. The 24-hour delay, parental consent, and spousal 

notification requirements, in particular, erect prohibitive 

barriers in the path of poor women who seek abortions, 

thereby threatening the health of, and life chances for, many 

women. These provisions, thus, constitute an undue burden 

on women’s right to reproductive choice.

ARGUMENT

INTRODUCTION

The Court of Appeals erred in upholding the 

constitutionality of provisions of Pennsylvania’s Abortion

Control Act that force women to wait 24 hours between the



7

time that a woman’s consent for abortion is obtained and 

the time that the abortion may be performed (18 Pa. Cons. 

Stat. Ann. § 3205(a) (informed consent)) and that mandate 

parental consent (18 Pa. Cons. Stat. Ann. § 3206). Through 

these provisions, as well as the Act’s spousal notification 

requirement (18 Pa. Cons. Ann. § 3209), the state of 

Pennsylvania would actively restrict the provision of, and 

access to, abortion services.1 The provisions unduly burden 

the right to privacy, particularly for poor women,2 and are,

‘The issues presently before this Court pertain to five provisions 
of the Pennsylvania Abortion Control Act, i.e. (1) the definition of 
medical emergency; (2) informed consent; (3) parental consent; (4) 
reporting requirements; and (5) spousal notification. Amici assert 
that each of these provisions would have a severe and drastic impact 
upon the cost and timing of abortions, as well as the number of legal 
providers, and, consequently, would place an undue burden on a 
woman’s abortion decision. The focus of this brief, however, is 
limited to the three provisions listed in the above text.

2Laws that restrict the provision of, and access to, abortion 
services for poor women will necessarily affect a high percentage of 
women of color. African American women, for example, are five 
times more likely to live in poverty and three times more likely to be 
unemployed than white women. United States Commission on Civil 
Rights, The Economic Status of Black Women 1 (1990). Indeed, the 
percentage of people of color living in poverty in the United States 
is dramatically high: 29% of Native Americans, United States Dept, 
of Health and Human Services, 1 Report of the Secretary’s Task Force 
on Black and Minority Health 51 (1986), 31% of African Americans, 
and 26% of Latinos, as compared to 10% of whites. United States



8

therefore, unconstitutional.

In Roe v. Wade, 410 U.S. at 153, this Court 

recognized that the right to privacy "is broad enough to 

encompass a woman’s decision whether or not to terminate 

her pregnancy." This Court has repeatedly affirmed its 

recognition of "a freedom of personal choice in certain 

matters of marriage and family life ... [which] includes the 

freedom of a woman to decide whether to terminate a 

pregnancy." See, e.g., Harris v. McRae, 448 U.S. 297, 312 

(1980); Akron v. Akron Ctr. for Reproductive Health, 462 U.S.

416, 420, n. 1 (1983); Hodgson v. Minnesota, 497 U .S._, 111

L.Ed.2d 344, 360 (1990). As Justice Stevens has reminded 

us, the Court’s abortion cases implicate basic, fundamental 

values and address "the individual’s right to make certain 

unusually important decisions that will affect [her] own, or 

[her] family’s destiny." Thornburgh v. American College of 

Obstetricians and Gynecologists, 476 U.S. 747, 781, n. 11

Dept, of Commerce, Bureau of Census, Statistical Abstract o f the 
United States, 1991, No. 748, 463 (1991)(1989 data).



9

(1986)(quoting Fitzgerald v. Porter Memorial Hospital, 523 

F.2d 716, 719-20 (7th Cir. 1975), cert, denied, 425 U.S. 916 

(1976)).

For poor women, and particularly for poor African 

American women, the right to privacy in matters of body 

and reproduction — a right that was trammeled with state 

sanction during centuries of slavery -- is fundamental to 

notions of freedom and liberty. For years, governmental 

protection of the individual’s person or her private decision­

making was non-existent. The right to make and carry out 

reproductive decisions without governmental intrusion or 

government sanctioned interference was, and continues to 

be, a valued part of freedom. See generally Roberts, The 

Future of Reproductive Choice for Poor Women and Women 

of Color, 12 Women’s Law Reporter 59 (1990)(analysis of 

the historical significance for poor African American women 

of reproductive choice and the "struggle against fearful and 

overwhelming odds... to maintain and protect that which 

woman holds dearer than life... to keep hallowed their own



10

persons...."); Bland, Racial and Ethnic Influences: The Black 

Woman and Abortion, in PSYCHIATRIC ASPECTS OF 

A b o r t io n  171 (Stotland ed. 1991); Genovese, Roll, Jordan, 

Roll: The World The Slaves Made 497-98 (1st Vintage Books 

Ed. 1972).3

Roe and its progeny established the limits of state 

authority to regulate the performance of abortions and 

announced the standards of review by which restrictions on

3Even today poor women of color are often unable to share in the 
freedom of personal choice in matters of reproduction guaranteed 
by Roe. Poor women often lack the economic means to avail 
themselves of health services and are alienated by the inaccessibility 
of health care. The tragic effects of what is truly a health care crisis 
for poor women are well known and widely documented. See, e.g., 
United States Dept, of Health and Human Services, Health Status of 
Minorities and Low-Income Groups: Third Edition 99 (1991); Bland, 
Racial and Ethnic Influences: The Black Woman and Abortion, 
Psychiatric Aspects of Abortion 171 (Stotland ed. 1991); 
Zambrana, Research Issues Affecting Poor and Minority Women: A 
Model for Understanding Health Needs, 14 Women and Health 137, 
148-50 (1988); American Medical Association, Council on Ethical and 
Judicial Affairs, Black-White Disparities in Health Care 263 J.A.M.A. 
2344 (May 2, 1990)("Underlying the racial disparities in the quality of 
health among Americans are differences in both need and access. 
Blacks are more likely to require health care but are less likely to 
receive health care services."); see also Harris, 448 U.S. at 339 
(1977)(Marshall, J., dissenting); Beal v. Doe, 432 U.S. 438, 455, n. 1, 
459 (1977)(Marshall, J., dissenting)(taking note of the paucity of 
abortion providers available to poor women and the lack of a 
"meaningful opportunity" to obtain an abortion).



11

this right are to be adjudged. "Where certain ‘fundamental 

rights’ are involved, the Court has held that regulation 

limiting these rights may be justified only by a ‘compelling 

state interest’ ... and that legislative enactments must be 

narrowly drawn to express only the legitimate state interests 

at stake." Roe, 410 U.S. at 155, 164-66; see Planned 

Parenthood o f Missouri v. Danforth, 428 U.S. 52, 61 (1976).

Amici join Planned Parenthood of Southeastern 

Pennsylvania in urging this Court to reaffirm Roe v. Wade. 

If, however, the Court adopts the undue burden test 

developed by Justice O’Connor, the Court’s prior decisions 

would also require reversal of the Third Circuit, which failed 

to analyze properly the burden imposed by the Pennsylvania 

statute.

In Akron, Justice O’Connor articulated the

conceptual basis for the undue burden standard:

This Court has acknowledged that ‘the right 
in Roe v. Wade can be understood only by 
considering both the woman’s interest and the 
nature of the State’s interference with it. Roe 
did not declare an unqualified ‘constitutional 
right to an abortion’.... Rather, the right



12

protects the woman from unduly burdensome 
interference with her freedom to decide 
whether to terminate her pregnancy.’

Akron, 462 U.S. at 461 (O’Connor, J., dissenting)(quoting

Maher v. Roe, 432 U.S. 464, 473-74 (1977)). If a statute

"places no obstacles -- absolute or otherwise -- in the

pregnant woman’s path to an abortion" and imposes "no

restriction," then, as this Court found in Maher, the

"regulation does not impinge upon the fundamental right

recognized in Roe," and the judicial inquiry has come to

closure. Maher, 432 U.S. at 474. If, however, a regulation

infringes, interferes, or coercively constrains the free exercise

of the right, then the statutory burden is established and

must be justified.4 See Akron, 462 U.S. at 462, 464

4The Court’s application of a "burden" standard in cases involving 
First and Fourteenth Amendment protections of free speech and 
associational rights are instructive: the threshold issue is whether a 
law burdens the right, not whether there is an undue burden. In Eu 
v. San Francisco Democratic Comm., 489 U.S. 214, 222 (1989), the 
Court summarized the standard applied in those cases:

To assess the constitutionality of a state election law, 
we first examine whether it burdens rights protected 
by the First and Fourteenth Amendments. If the 
challenged law burdens the rights of political parties 
and their members, it can survive constitutional



13

(O’Connor, dissenting). Accord Maher, 432 U.S. at 471 

("[T]he central question in this case is whether the 

regulation ‘impinges upon a fundamental right explicitly or 

implicitly protected by the Constitution.’").

The application of the undue burden standard 

involves two steps. First, there is a threshold assessment of 

the burden imposed by a statute -- i.e., an inquiry into 

whether the regulations restrict, or have a legally significant 

impact upon, the right to privacy. See, e.g., Planned 

Parenthood Ass’n o f Kansas City, Missouri v. Ashcroft, 462 

U.S. 476, 490 (1983)(Powell, J.)(regarding the cost of a 

requirement that pathology reports be conducted); Akron, 

462 U.S. at 434 ("A primary burden created by the 

[hospitalization] requirement is additional cost to the 

woman."); Danforth, 428 U.S. at 79 (prohibition of abortion 

technique after the first twelve weeks of pregnancy would

scrutiny only if the State shows that it advances a 
compelling state interest and is narrowly tailored to 
serve that interest.

(citations omitted). See also Tashjihan v. Republican Party, 479 U.S. 
208, 213-14 (1986).



14

have the effect o f inhibiting abortions). To constitute a 

burden, then, regulations need not impose an absolute bar 

to obtaining an abortion or create an absolute deprivation. 

See, e.g., Akron, 462 U.S. at 435 (a second-trimester 

hospitalization requirement held unconstitutional upon 

finding that the requirement "may force women to travel to 

find available facilities, resulting in both financial expense 

and additional health risk").

Second, if a statute is found to be a burden, then 

courts must determine whether such burden is undue, or

lacking in adequate justification.5 Hodgson, 497 U.S. ___,

111 L.Ed.2d at 361 ("Because the Minnesota statute

5The undue burden standard cannot logically be read to require 
plaintiffs to establish that the burden is undue as a threshold matter. 
Cf Akron, 462 U.S. at 463 (O’Connor, J., dissenting)(The ‘undue 
burden’ required in the abortion cases represents the required 
threshold inquiry...."). To require such an expansive assessment as a 
threshold matter would necessarily encompass a review of the 
statute’s justifications and means — i.e., precisely the same issues 
considered by the court after the threshold is overcome.

In this brief, Amici discuss only the proper analysis for 
determining whether a protected right is "burdened" by state law. 
Amici refer to the briefs submitted by other amici in support of 
Planned Parenthood of Southeastern Pennsylvania for fuller 
discussion of how to determine whether the burden is "undue.”



15

unquestionably places obstacles in the pregnant minor’s path 

to an abortion, the State has the burden of establishing its 

constitutionality. Under any analysis, the Minnesota statute 

cannot be sustained if the obstacles it imposes are not 

reasonably related to legitimate state interests.") Compare 

Webster v. Reproductive Health Services, 492 U.S. 490, 519 

(1989)(viability testing requirement deemed justifiable even 

though it would raise the cost of abortions) with Doe v. 

Bolton, 410 U.S. 179, 198 (1973)("the interposition of the 

hospital abortion committee is unduly restrictive of the 

patient’s rights and needs..."). As the Court stated in 

Jacobson v. Massachusetts, "[Tjhe rights of the individual in 

respect to his liberty may at times, under the pressure o f great 

dangers, be subjected to restraint...." 197 U.S. 11, 29 

(1905)(emphasis added).

In assessing whether a constitutionally protected right 

is burdened by state law, the Court must consider the 

practical impact of the law on the ability of the individual to 

exercise the protected right. In this case, the Pennsylvania



16

Abortion Control Act would so severely restrict the ability 

of poor women to obtain abortions that it would render 

illusory the right to make a private, procreative choice 

without state interference.

A. LAWS THAT OPERATE TO INTERFERE 
WITH OR IMPAIR ACCESS TO 
ABORTIONS BURDEN THE PRIVACY 
RIGHTS OF POOR WOMEN

Laws that burden women’s access to abortion include 

those laws that deter women from obtaining abortions by 

interposing procedural obstacles, economic barriers, or other 

practical impediments to access. See generally Siegel, 

Reasoning from the Body: A Historical Perspective on Abortion 

Regulation and Questions of Equal Protection, 44 Stan. L. 

Rev. 261, 371, n. 431 (1992).6 To assess whether, and the

6The Third Circuit has acknowledged that abortion regulations 
infringe upon the abortion right in a number of ways, including,

(1) causing a delay before the abortion is performed;
(2) raising the monetary cost of an abortion; and (3) 
reducing the availability of an abortion by directly or 
indirectly causing a decrease in the number of legal 
abortion providers.

Planned Parenthood v. Casey, 947 F.2d 682, 698 (3d Cir. 1991).



17

degree to which, a regulation is burdensome, courts should 

not and, indeed, must not, ignore the way in which the 

regulation operates, including its impact on all women.

Any analysis of whether a law that regulates or 

restricts the provision of abortions burdens the right to 

privacy must include an examination of the law’s burden on 

poor women for the simple reason that they, too, are 

guaranteed the constitutional right to privacy.7 Moreover, 

poor women constitute a significant proportion of the 

women who utilize abortion services. For example, women 

with family incomes of under $11,000 are nearly four times 

more likely to have an abortion than women with family 

incomes of over $25,000.® The greater incidence of 

unintended pregnancies is a consequence of (i) the greater 

likelihood of experiencing contraceptive failure; and (2)

7As the Third Circuit correctly concludes, it is unnecessary that 
the regulations impact upon the entire "universe of pregnant women" 
in order to constitute a burden. Planned Parenthood v. Casey, 947 
F.2d at 691. 8

8Gold at 16.

i



18

preferences for having fewer children than nonpoor 

women.9 At least one study indicates that for women below 

the poverty level, six out of ten births are unintended, i.e., 

unwanted or mistimed, compared to three out of ten births 

to women above 200% of the poverty level.10

In particular, restrictions on the right to abortion fall 

most heavily on poor women because they are in a worse 

position to overcome barriers of cost,11 availability, or delay 

imposed or generated by the regulation of abortion.

’The Alan Guttmacher Institute, Abortions and the Poor: Private 
Morality, Public Responsibility at 20 (1979).

10Radecki, A Racial and Ethnic Comparison of Family Formation 
and Contraceptive Practices Among Low-Income Women, 106 Pub. 
Health Rep. 494, text at n. 32, 33 (Sept./Oct. 1991).

uSee O’Hair, A Brief History of Abortion in the United States, 262 
J.A.M.A. 1875 (1989). Significantly, only 13 states permit the use of 
state funds for medically necessary abortions. National Abortion 
Rights Action League Foundation, Who Decides? A Reproductive 
Rights Manual 10 (1990)(hereinafter cited as NARAL).



19

B. P E N N S Y L V A N I A ’S A B O R T I O N  
CONTROL ACT WOULD IMPEDE THE 
DECISION-MAKING PROCESS AND THE 
EXERCISE OF THE RIGHT TO 
REPRODUCTIVE CHOICE FOR POOR 
WOMEN AND THUS CONSTITUTES A 
BURDEN ON THE RIGHT TO PRIVACY.

Through its regulations and restrictions, 

Pennsylvania’s Abortion Control Act would actively interfere 

with the ability of poor women to obtain abortions. And for

many poor women, the obstacles caused by the Act would 

not be merely burdensome, but insurmountable.

1. Section 3205(a) of the Act, which 
requires a 24-hour delay between the 
time that a woman’s consent for an 
abortion is obtained and the actual 
time when the procedure is 
performed, burdens the right to 
abortion.

First, the 24-hour delay may significantly increase the 

costs of abortion for poor women because of the limited 

availability of abortion services. For poor women, it is 

already more difficult to find the necessary financial 

resources, medical information, child care and time away



20

from work.12 The additional delay imposed by the 24-hour 

waiting period -- exacerbated by the likelihood of 

scheduling difficulties at overcrowded facilities at which poor 

women receive care,13 as well as barriers of distance and 

mobility -- will actively interfere with the ability of poor 

women and women of color to obtain abortions.

The need to travel long distances already presents a 

substantial barrier to care for many women. For example, 

one of the plaintiff clinics in this case, the Women’s Health

12Lincoln, Doring-Bradley, Lindheim & Cotterill, The Court, The 
Congress and the President: Turning Back the Clock on the Pregnant 
Poor, 9 Fam. Plan. Persp. 207, 210 (Sept./Oct. 1977); Koonin, 
Kochanek, Smith & Ramick, Abortion Surveillance, United States, 
19S8, 40 Morbidity & Morality 17, 18 (July, 1991). Even the informal 
networks built by women to ensure pregnant women access to 
abortion are often inaccessible to women of color and the solutions 
offered unaffordable. Avery, A Question of Survival/A Conspiracy of 
Silence: Abortion and Black Women’s Health, in FROM ABORTION TO 
Reproductive Freedom: Transforming a Movement 75 (Fried 
ed. 1990).

‘’Overcrowded conditions at public facilities delay and frequently 
foreclose timely treatment. At Health and Hospitals medical clinics 
in New York City, for example, patients must wait six to twenty-two 
weeks to get a first clinic appointment; women must wait four to 
fifteen weeks for an appointment with a gynecologist. A recent 
Health and Hospitals Corp. report found that "one patient in eight 
tires of waiting in city emergency rooms and leaves without 
treatment." Scott, HHC Finds Hospitals Hurt by Budget Cuts, N.Y. 
Newsday, March 4, 1992, at 21.



21

Services (WHS) in Pittsburgh services an area of 34 counties 

within Pennsylvania, portions of Ohio, West Virginia, 

Maryland and New York. Against this backdrop, patients 

travel great distances and, according to the testimony of that 

agency’s Executive Director, "it is not unusual for women to 

travel three, four hours to get to the clinic. Sometimes it’s 

much longer because they have to take buses to get in." 

Trial Testimony of Roselle, Vol. II at 80.

In 1985, eighty-two percent of all counties in the 

United States -- in which one-third of all women of 

reproductive age lived -- had no abortion provider.14 In 

rural areas the problem is especially acute. Nine out of ten 

non-metropolitan counties in the United States have no 

facility that perform abortions.15 For example,

•  Not a single physician in residence in the 
state of North Dakota performs abortions.16

MHenshaw, Forrest & Van Vort, Abortion Services in the United 
States, 19S4 & 19S5, 19 Fam. Plan. Persp. 63, 65 (1987).

liId.

'“See Leigh v. Olson, 497 F.Supp. 1340, 1347 (D.N.D. 1980).



22

•  In South Dakota there is only one doctor who 
will perform abortions. As a result, women 
must travel hundreds of miles to obtain an 
abortion.17

•  In northern Minnesota, one clinic must 
provide all abortions for 24 counties.18

In particular, poor Native American women face some of

the largest obstacles, since the Indian Health Services, which

may be the only familiar provider of health care and the only

health service available for hundreds of miles, is prohibited

from performing abortions even if women can find the

monetary resources to pay for the procedure themselves.19

The 24-hour delay may require duplicate journeys, 

overnight stays away from home, and two or more absences 

from work, often without pay, as well as added 

transportation expenses. For many poor women, the

11 Foes Successfully Chip Away at Abortion Rights; Poor, Young 
Affected Most, USA Today, June 3, 1991, at 6A.

18Belkin, Women in Rural Areas Face Many Barriers to Abortion, 
N.Y. Times, July 11, 1989, at A l, col. 3.

l9Nsiah-Jefferson, Reproductive Laws, Women of Color, and Low 
Income Women, in REPRODUCTIVE Laws FOR THE 1990’s: A 
Briefing  Handbook 21-22 (1988).



23

additional expense caused by the waiting period will be 

prohibitive.

Secondly, Section 3205(a) may often result in delays 

greater than the 24 hours required by statute. The 

Executive Director of WHS in Pittsburgh testified that her 

agency would not be able to guarantee that delays would be 

limited to 24 hours because physicians are not available 

every day of the week. Trial Testimony of Roselle, Vol. II 

at 82.

Significant delays in obtaining abortions increase 

dramatically the health risks associated with abortions. 

"[A]ny delay increases the risk of complications to a 

pregnant woman who wishes an abortion. Moreover, this 

risk appears to increase continuously and linearly as the 

length of gestation increases."20 The total morbidity rate 

rises 20% when abortion is delayed from the eighth to the 

twelfth week, and the complication rate increases 91% for

:oCates, Schulz, Grimes & Tyler, The Effect of Delay and Method 
Choice on the Risk of Abortion Morbidity, 9 Fam. Plan. Persp. 266, 267 
(Nov./Dec. 1977). See also Trial Testimony of Allen, Vol. I at 45.



24

that same delay.21 Poor women of color in particular, who 

disproportionately suffer from illnesses exacerbated by 

pregnancy,22 will be most affected by significant delays in 

obtaining abortion services.

In sum, the 24-hour waiting period places poor 

women at significant risk of harm and constitutes a burden.

21 Id., at 267.

22Poor women of color suffer at high rates from a variety of 
serious health conditions that may be exacerbated by pregnancy. 
These include high blood pressure, hypertension, diabetes, sickle cell 
anemia, AIDS, and certain forms of cancer. See United States Dept, 
of Health and Human Services, Health Status o f Minorities and Low- 
Income Groups: Third Edition 131-58 (1991); United States Dept, of 
Health and Human Services, I Report of the Secretary’s Task Force on 
Black and Minority Health 74-75 (1985); United States Dept, of 
Health and Human Services, Office of Minority Health, Diabetes and 
Minorities in CLOSING THE Gap 2 (1988); Drury & Powell, Prevalence 
of Known Diabetes Among Black Americans, in ADVANCE D ata 
F rom Vital and H ealth Statistics, Pub. No. (PHS) 87-1250; 
Association for Sickle Cell Education Research and Treatment Inc. 
Sickle Cell Anemia: A Family Affair (1988); Centers for Disease 
Control, HIV/AIDS Surveillance: Year-End Edition 15 (January 
1992)(comparison of annual rate of reported AIDS cases for White 
females, 1.7 per 100,000, with rates for Black and Hispanic females, 
24.6 and 12.6, respectively).



25

2. Section 3206 of the Act, which 
requires parental consent before an 
abortion can be obtained, burdens the 
rights of low-income young women, 
creating a virtual bar to abortion.

Although a parental consent requirement with a 

judicial bypass may be legal in some circumstances, see

Hodgson, 497 U.S. at _, 111 L.Ed.2d at 375; Bellotti v.

Baird, 443 U.S. 622, 633-39 (1979)(discussion of principles to 

be applied in parental consent cases), "the constitutional 

protection against unjustified state intrusion into the process 

of deciding whether or not to bear a child extends to 

pregnant minors as well as adult women." Hodgson, 497

U.S. a t __,111 L.Ed.2d at 360. The judicial inquiry begins

with an examination of the burden imposed by the statute. 

See, e.g., Hodgson, 497 U.S. a t __, 111 L.Ed.2d at 362-66.

As the Executive Director of WHS testified at trial, 

the combined effect of the 24-hour delay and parental 

consent provisions will be to create additional obstacles for 

teenagers who, in many instances, are already in difficult 

circumstances. "If you talk about a 24-hour period, we’re



26

talking about delay and additional costs. If we’re talking 

about parental consent, we’re talking about additional delay. 

If we talk about a judicial bypass, it’s still more delay, more 

expense, more trips to the clinic." Trial Testimony of 

Roselle, Vol. II at 81-82. In Massachusetts, for example, a 

parental consent law forced one-third of the state’s minors 

to travel to a neighboring, less restrictive state to obtain an 

abortion.23

Anecdotal evidence points to the horrors of such 

restrictions: high school student Rebecca Bell died in 1988 

of a massive infection after an illegal abortion that she 

obtained rather than telling her parents that she was 

pregnant.24 Thirteen-year-old Spring Adams was shot to 

death by the father who had impregnated her when he 

learned that she was going to abort the pregnancy.25

■30'Keefe & Jones, Easing Restrictions on Minors’ Abortion Rights, 
Issues in Sci. & Tech. 74, 78 (Fall 1990).

24Sharpe, 17 Year Old Died of Fear and Abortion, Cincinnati 
Enquirer, Nov. 26, 1989, cited in NARAL at 6.

“ NARAL at 6.



27

Moreover, judicial bypass provisions frequently leave 

young women and the freedom to exercise their fundamental 

right to the discretion of hostile judges.26 One judge, who 

openly demonstrated the impermissible grounds on which he 

would base a decision, stated that he did not like the law 

and that he would only allow a minor to have an abortion 

without parental consent in cases of incest or the rape of a 

White girl by a Black man.27 In some Minnesota counties, 

judges refuse to hear petitions for judicial bypass, forcing 

minors to travel 250 miles to receive a hearing. Half of the 

minors who were able to utilize the bypass procedure of that 

state’s notification law were not residents of the city in which 

the hearing was held.23

Parental consent provisions exacerbate delay and

2bSee, e.g., Bonavoglia, K a th y ’s  D a y  in Court in FROM ABORTION 
to Reproductive Freedom : T ransforming  a Movem ent  161 
(Fried ed. 1990).

:7Wilkerson, Michigan Judges’ Views of Abortion Are Berated, N.Y. 
Times, May 3, 1991.

78Hodgson, 497 U.S. at __, 111 L.Ed.2d at 387 (Marshall J.,
dissenting in part).



28

increase both the cost and the risk to teens: in Minnesota, 

the parental notification requirement — a far less onerous 

law than Section 3206 of the Pennsylvania Abortion Control 

Act — increased the number of minors who obtained second 

trimester abortions by 26.5%.29 This change ran counter to 

the national trend toward earlier term abortions.30

The difficulties of obtaining an abortion and the 

additional obstacles created by statute fall heaviest on young 

low-income women of color. The proportion of women of 

color under 15 years of age who have abortions is high -- 

nearly double that for their white counterparts.31 For these 

young women, the vast majority of whom had unintended

29NARAL at 6; Hodgson v. Minnesota, 648 F. Supp. 756 (D. Minn. 
1986), aff’d and rev'd in part, 853 F.2d 1452 (8th Cir. 1988), affd, 497 
U.S. 111 L.Ed.2d 344 (1990).

30American Civil Liberties Union Reproductive Freedom Project, 
Parental Notification Laws: Tlieir Catastrophic Impact on Teenagers’ 
Right to Abortion 15 (1986).

31Koonin, Kochanek, Smith & Ramick, Abortion Surveillance, 
United States, 1988, 40 Morbidity & Mortality 17 (July 1991).



29 I

pregnancies,32 abortion is a necessary health service. Laws 

that place these services further from reach have a severe, 

detrimental impact.

The medical dangers of abortion are already 

particularly acute for adolescents, in part because they often 

postpone pregnancy confirmation and abortion. See Trial 

Testimony of Allen, Vol. I at 62-63. As a consequence of 

the parental consent provision, compounded by the 24-hour 

delay provision, teenagers will not be able to obtain abortion 

services until even later, more dangerous stages of 

pregnancy. The mortality rate for abortion increases fifty 

percent each week after the eighth week of pregnancy, and 

the risk of major complications in the procedure increases by 

approximately thirty percent per week.33

“ Among teenagers, 84% of all pregnancies and 92% of pre­
marital pregnancies, are unintended. NARAL at 7.

“ Grimes, Second-Trimester Abortions in the United States, 16 Fam.
Plan. Persp. 260-65 (Nov./Dec. 1984). See also Cates & Grimes,
Morbidity and Morality of Abortion in the United States, in ABORTION 
and Sterilization : Medical and Social Aspects 155 (Hodson 
ed. 1981).

i

!



30

3. Section 3209 of the Act, which 
requires spousal notification before an 
abortion can be obtained, burdens the 
right to abortion.

After conducting the requisite legal and factual

analyses, the district court concluded that the spousal

notification requirement "is constitutionally defective because

it impermissibly invades a woman’s fundamental right to

privacy in the abortion decision." Planned Parenthood v.

Casey, 744 F.Supp. 1323, 1384 (E.D.Pa. 1990). On appeal,

the Third Circuit affirmed, holding that the provision

imposes an undue burden on a woman’s abortion decision

and does not serve a compelling state interest. 947 F.2d 682

(3d Cir. 1991). In reaching this conclusion, the Third Circuit

looked to this Court’s opinion in Hodgson, 497 U.S. a t __,

111 L.Ed.2d at 371, & n. 36, and observed,

The Supreme Court has thus been attuned to 
the real-world consequences of forced 
notification in the context of minor 
child/parent relationships.... In this case, we 
conclude that the real-world consequences of 
forced notification in the context of 
wife/husband relationships impose similar



31

kinds of undue burdens on a woman’s right to an 
abortion.

947 F.2d at 711 (emphasis added). Amici fully agree. And 

just as the courts should be attuned to the real-world 

consequences of forced notification in the context of familial 

relationships, so too should they heed the real-world burdens 

caused by other statutory requirements that would unduly

burden a woman’s abortion decision.

* * *

Roe v. Wade and Doe v. Bolton did not countenance 

a test of constitutionality that would prohibit only absolute 

deprivations. Roe, 410 U.S. at 164-66 (1973)(specified 

standards of review); Doe v. Bolton, 410 U.S. 179 

(1973)(procedural requirements held unduly restrictive). 

Correspondingly, under the undue burden standard, barriers 

to abortion that are constructed by government and that 

would impinge upon the ability of poor women to exercise 

their fundamental right must be recognized as burdensome.

Unlike the line of cases beginning with Maher v. Roe, 

432 U.S. 464 (1977), and evidenced, most recently, in



32

Webster, 492 U.S. 490 (1989), and Rust v. Sullivan, 500 U.S.

__, 114 L.Ed.2d 233 (1991), this case does not involve the

question whether a state may choose not to grant benefits 

that would further the provision of abortion services. See 

also Harris v. McRae, 448 U.S. 297 (1980); Poelker v. Doe 432 

U.S. 519 (1977); Beal v. Doe, 432 U.S. 438 (1977). To the 

contrary, the Pennsylvania laws at issue place discrete and 

burdensome obstacles in the pregnant woman’s path to an 

abortion. Pennsylvania is not merely encouraging an 

alternative option, but, instead, actively delaying and 

otherwise burdening the exercise of a protected activity. 

Compare Thornburgh, 476 U.S. 747 (1986); Akron, 462 U.S. 

416 (1983); Danforth, 428 U.S. 52 (1976); Doe v. Bolton, 410 

U.S. 179 (1973).

"Few decisions are more personal and intimate, more 

properly private, or more basic to individual dignity and 

autonomy, than a woman’s decision... whether to end her 

pregnancy. A woman’s right to make that choice freely is 

fundamental. Any other result... would protect inadequately



33

a central part of the sphere of liberty that our law 

guarantees equally to all...." Thornburgh, 476 U.S. at 772. 

Amici believe that the sphere of liberty guaranteed to all 

should contain protection for the right of poor women to 

make reproductive choices free from intrusion by 

burdensome government restrictions. We thus ask that the 

Court consider the burdens of governmental restrictions on 

the availability of abortions for poor women.

The provisions of the Pennsylvania Abortion Control 

Act requiring a 24-hour waiting period, parental consent and 

spousal notification actively interfere with women’s decision­

making and the provision of abortion services, and will limit 

the ability of poor women to obtain needed services. The 

provisions unduly burden the right to privacy and are

unconstitutional.



34

CONCLUSION

For the foregoing reasons, the judgment of the Third 

Circuit regarding Sections 3205(a) and 3206 should be 

reversed, and the judgment regarding Section 3209 affirmed.

Respectfully submitted,

JULIUS L. CHAMBERS 
RONALD L. ELLIS 
MARIANNE L. ENGELMAN LADO 

* ALICE L. BROWN 
99 Hudson St., 16th Floor 
New York, NY 10013 
(212) 219-1900

PATRICIA WILLIAMS 
SUZANNE SHENDE 
JOAN GIBBS 
666 Broadway 
New York, NY 10021 
(212) 614-6464

Counsel for Amici Curiae

•Counsel of Record



INTEREST OF AMICI CURIAE

THE ASIAN AMERICAN LEGAL DEFENSE 

AND EDUCATIONAL FUND (AALDEF) is a national 

civil rights organization that addresses the critical problems 

facing Asian American communities, including the growing 

trend of anti-Asian violence, immigrant rights, voting rights, 

labor and employment rights, and redress for Japanese 

Americans who were incarcerated in camps within the 

United States during World War II. AALDEF is committed 

to protecting the right to reproductive choice by women 

including Asian immigrant women and joins other amici 

curiae in support of reproductive choice as a fundamental 

right.

♦ * *

THE CENTER FOR CONSTITUTIONAL RIGHTS 

(CCR), a litigation/education organization headquartered in 

New York City, was founded in 1966. Born of the civil 

rights movement and the struggles of Black people in the 

United States for true equality, CCR has litigated for voting



2a

rights, civil rights, and the fundamental and necessary right 

of each woman to obtain access to safe and legal abortion. 

CCR decries the disproportionate and potentially devastating 

effect that the limitation or loss of the right to abortion will 

have on women of color and low-income and working 

women, and we urge this Court to protect the right to

accessible, safe and legal abortion in their names.

* * *

THE CENTER FOR LAW AND SOCIAL JUSTICE 

(CLSJ) at Medgar Evers College is a research and advocacy 

institution created in 1985 by a special appropriation of the 

New York State Legislature to establish a legally oriented 

civil rights and social justice institution in New York City. 

CLSJ conducts litigation and public policy projects on 

matters involving pressing civil and human rights issues in 

such areas as employment, health care and housing.

Discrimination in these areas has historically plagued 

the African-American communities CLSJ serves, particularly 

the women in these communities. For that reason, CLSJ



3a

joins as amicus curiae in this consolidated appeal to the

United States Supreme Court.

*  *  *

THE COMMITTEE FOR HISPANIC CHILDREN

AND FAMILIES is a not-for-profit organization in New

York City dedicated to promoting and strengthening the

Hispanic family. In our community education efforts we

seek to heighten awareness of issues such as domestic

violence, teen pregnancy and child abuse and neglect.

Clearly our goal is to mobilize our community in effective

prevention strategies for these and other problems which

afflict our community. Key to being able to confront these

myriad problems is the need for quality and equitable

medical care. We oppose the denial of access to health

services including abortion for Hispanic women.

* * *

THE ECO-JUSTICE PROJECT AND NETWORK 

(a project of the Center for Religion, Ethnics, and Social 

Policy at Cornell University) is an organization concerned



4a

about both environmental and social justice, and the well­

being of all people on a thriving Earth. Our concern in this 

case focuses on the effect it may have on the lives of poor 

and socially disenfranchised women. Poor women, already 

significantly burdened in accessing medical services, will 

suffer even greater adverse consequences should the Court 

strip the right to abortion of constitutional protections. We 

also are concerned about women’s rights of privacy, doctors’ 

rights to free speech, and the physician-patient relationship 

of confidentiality. In a world in which human population 

may already be exceeding carrying capacity, we 

wholeheartedly support a women’s right to choose whether

or not to give birth to even more human beings.

♦ * *

Founded in 1978, the HISPANIC HEALTH 

COUNCIL is a community-based research, education, and 

advocacy organization devoted to the improvement of health, 

mental health and general social well-being of Puerto Ricans 

and other Latino populations in Hartford, Connecticut.



5a

Specifically, the Council seeks to empower Latino families 

for community change through education about health and 

disease risks, health-related legal rights, and social 

conditions underlying poverty and illness. The Council also 

strives to alter existing inadequacies in the quality and 

quantity of health care available to low income groups.

We join this case as amicus curiae because this kind 

of legislation has only proven to be discriminatory towards 

underserved populations and impacts negatively on the lives 

of the poor because it does not look at other socio-economic

factors which influence people’s behavior.

* * *

THE JAPANESE AMERICAN CITIZENS 

LEAGUE (JACL) is a national civil and human rights and 

educational organization concerned with the welfare of 

Japanese and Asian Americans. It was formed in 1929 and 

is the oldest and largest Asian American civil rights 

organization. The JACL is committed to educating the 

public on the history, experience, contributions, and current



6a

concerns of Japanese Americans and Asian Americans in the 

United States. As a civil rights organization, the JACL has 

worked to guarantee justice and due process to all persons. 

To that end, we are firmly committed to a women’s 

fundamental right of choice and self-determination to 

exercise her reproductive rights. We believe that abortion - 

- choice -- is a fundamental right protected by the United 

States Constitution.

* * *

THE LATINA ROUNDTABLE ON HEALTH 

AND REPRODUCTIVE RIGHTS (LRHRR) is an 

organization of Latinas who have come together to examine 

and address the legislative, judicial, and policy initiatives that 

effect the health and reproductive freedom of Latinas in 

New York. The LRHRR is made up of Pro-Choice health 

care providers, attorneys, educators, policy makers, and 

community activists who through these efforts defend the 

rights of Latinas to access abortion services regardless of 

age, economic or marital status.



7a

♦ * *

MADRE is a national women’s friendship 

organization that sees the connections between U.S. policy 

and its effects on women and children in the U.S., Central 

America, the Caribbean and the Middle East. MADRE’s 

work includes programs which address health care and child 

care issues affecting women’s daily lives. We support 

reproductive freedom and quality affordable health care for 

all. We know that poor women and women of color are 

most affected by restrictive policies. We therefore sign on 

to the amicus brief in its opposition to any restrictions

placed on a woman’s reproductive choice.

* * *

THE MEXICAN AMERICAN LEGAL DEFENSE 

AND EDUCATIONAL FUND (MALDEF), established in 

1967, is a national civil rights organization headquartered in 

Los Angeles. Its principal objective is to secure, through 

litigation and education, the civil and constitutional rights of 

Hispanics living in the United States. Fundamental among



8a

those rights is the right to privacy which encompasses the 

right to choose in matters of family planning. MALDEF 

opposes restrictions on the right to choose, as such 

restrictions are devastating in their disproportionate effect 

upon low-income Hispanic women with regard to their

family planning rights, choices, and alternatives.

* * *

T H E  N A A C P  L E G A L  D E F E N S E  & 

EDUCATIONAL FUND, INC. (LDF) is a non-profit 

corporation formed to assist African Americans to secure 

their constitutional and civil rights and liberties. For many 

years LDF has pursued litigation to secure the basic civil 

and economic rights of low-income African American 

families and individuals. Litigation to ensure the non- 

discriminatory delivery as well as the adequacy of health care 

services available to African American communities has 

been a long-standing LDF concern.

Through its Black Women’s Employment and Poverty 

& Justice Programs, LDF is also challenging barriers to



9a

economic advancement to help to improve the economic 

status and living conditions of the many in poverty.

This case implicates the full panoply of these 

important LDF concerns. Burdensome legislation can 

severely limit the availability of reproductive health services 

to poor African American women. This, in turn, will 

increase the number of unwanted pregnancies and promote 

continuing cycles of poverty and despair, while creating 

unnecessary medical risks for poor, African American 

women. LDF feels that it is crucial for the Court to fully 

consider how statutory restrictions on abortion operate in 

practice to limit the accessibility of health care for poor 

women.

* * *

THE NATIONAL ASSOCIATION OF SOCIAL 

WORKERS, INC. (NASW), a non-profit professional 

association with over 135.000 members, is the largest 

association of social workers in the United States. The 

association is devoted to promoting the quality and



10a

effectiveness of social work practice, to advancing the 

knowledge base of the social work profession and to 

improving the quality of life through utilization of social 

work knowledge and skills. NASW is deeply committed to 

the principle of self-determination and to the protection of 

individual rights and personal privacy. The association has 

been in the forefront of the struggle for women’s equality, 

and is particularly concerned in the present instance that the 

state not override a pregnant woman’s autonomy nor restrict

her right to choose abortion.

♦ ♦ ♦

THE NATIONAL BLACK WOMEN’S HEALTH 

PROJECT (NBWHP) is a self-help, health education and 

advocacy organization which works to improve the health 

status and quality of life for African American Women and 

their families. It consists of 150 developing and established 

chapters in 31 states serving a broad constituency of 

approximately 2,000 members. The NBWHP is deeply 

concerned about barriers that impede or prevent access to



11a

quality health services, including abortion. The purpose of 

the NBWHP is the definition, promotion, and maintenance 

of health for Black women, including full reproductive rights 

and the essential authority of every woman to choose when, 

whether, and under what conditions she will bear children.

Because too many single family household in the 

United States are headed by Black women living in poverty, 

possessing fewer educational and job training opportunities, 

enduring inadequate, often non-existent child care services, 

subject to substandard housing conditions, and lacking access 

to appropriate health services of any kind; because more 

than half of all Black children are poor, bom of mothers 

receiving inferior, if any, prenatal care, suffering the highest 

rate of infant mortality and neonatal deaths in the Western 

world; and because we lack fail-safe birth control methods, 

lack adequate human sexuality education, and suffer also the 

highest rate of teenage pregnancy in the Western world, we 

firmly insist upon continued access to safe, legal and

affordable abortion. Restrictive abortion laws exacerbate the



12a

low socioeconomic status of women of color, and the 

passage of such laws will further denigrate the dignity of 

Black womanhood. The NBWHP joins this brief to voice its 

opposition to laws which prevent African American women 

from exercising their rights.

♦ * ♦

THE NATIONAL COALITION FOR BLACK 

LESBIANS AND GAYS (NCBLG) is the oldest Black 

organization in the country working to advocate and 

promote the empowerment and enhancement of the lesbian 

and gay community. Formally a chapter organization with 

branches in Baltimore, Chicago, Detroit, New York, and 

Oakland/San Francisco, the national office is located in 

Washington, DC. We have over 500 members nationally 

and our numbers continue to increase.

Since NCBLG began in 1979, it has been dedicated 

to equal rights and civil liberties for the entire community 

regardless of race, gender, or sexual orientation. In spite of 

the strides that have been accomplished in the last 50 years,



13a

injustices continue to be prevalent. NCBLG joins with other 

concerned organizations in opposing the restrictions on 

abortion services which threaten the right to reproductive 

choice and access to health care for low income women and 

women of color.

* * *

THE NATIONAL COUNCIL OF NEGRO 

WOMEN, INC. (NCNW) is a membership organization of 

33 national African American’s organizations, 250 

community based sections in 42 states and 65,000 individual 

members. The NCNW has worked for a half century in 

support of the civil and human rights of African American 

women and their families. NCNW joins Planned 

Parenthood in this brief in opposition to the restrictive and 

burdensome requirements of the Pennsylvania statute, which

interferes with the constitutional rights of women.

* * *

THE NATIONAL EMERGENCY CIVIL

LIBERTIES COMMITTEE is a not-for-profit organization



14a

dedicated to the preservation and extension of civil liberties 

and civil rights. Founded in 1951, it has brought numerous 

actions in the federal courts to vindicate constitutional 

rights. Through its educational work, it likewise has sought 

to preserve our liberties. From time to time NECLC 

submits amicus curiae briefs to the courts when it believes

issues of particular import for civil liberties are at stake.

* * *

T H E  N A T I O N A L  L A T IN A  H E A L T H  

ORGANIZATION is committed to work toward the goal of 

bilingual access to quality health care, reproductive services 

and the self-empowerment of Latinas. Our health and 

reproductive issues have not been addressed. Lack of 

awareness on the part of the medical profession and the 

language barrier have had a major impact on our access to 

quality reproductive services and media care. Further 

restrictions and lack of access to safe and legal abortion will 

jeopardize our health and our lives further. We must have

all information and services available to us so we can make



15a

knowledgeable, educated and healthful choices for ourselves.

* * *

NATIONAL MINORITY AIDS COUNCIL is a 

national organization dedicated to creating a greater 

response among people of color to HIV/AIDS in our 

communities. The council has as its primary focus 

leadership. As such we take stands on issues impacting on 

minority health. Therefore, we recognize the importance of 

supporting increased access to public health, and a national

focus on public health for all women.

* * *

THE NATIVE AMERICAN WOMEN’S HEALTH 

EDUCATION RESOURCE CENTER of Lake Andes, 

South Dakota (The Resource Center) is a reservation based 

organization that works with Native women in the 

empowerment process involving Native women’s health, 

education and reproductive rights. The Resource Center is 

currently active in coalition building on the local and 

national levels with Native women from diverse tribes, in an



16a

attempt to move forward policies that promote positive 

lifestyles and better reproductive health for Native women. 

As Native women, whose traditions have shown that 

abortion has always been women’s business, determined by 

women, we must support other women in their fight to have 

the right to have abortion, and to make that decision within

the personal circles of women’s business.

* * *

THE NEW YORK WOMEN’S FOUNDATION is 

a cross-cultural alliance of women helping women and girls. 

With a membership of approximately 2000 and a board of 

forty, The Foundation is committed to address the unmet 

needs of low-income women in New York City through 

grants and advocacy. The board of The Foundation believes 

strongly that every woman has a fundamental right to full 

information about her reproductive health, a fundamental 

right to make an informed decision about her reproductive 

health options, and a fundamental right of access to all 

reproductive health services.



17a

The Foundation believes that every woman must have 

access to safe, legal and affordable abortion and that the 

disproportionate lack of such access in the African- 

American, Latina and Asian-American communities is 

particularly deplorable.

* * *

THE PUERTO RICAN LEGAL DEFENSE AND 

EDUCATION FUND is a national organization based in 

New York City dedicated to protecting and furthering the 

civil rights of Puerto Ricans and other Latinos. The Fund’s 

litigation efforts focus on the areas of employment, 

education, housing and voting rights, with a particular 

emphasis on safeguarding the rights of Puerto Ricans of low 

economic status. Puerto Rican woman and other woman of 

color are particularly vulnerable to discrimination and 

therefore the Fund supports efforts to protect their rights. 

The Fund opposes any efforts to overturn or in any way 

restrict the rights recognized in Roe v. Wade.

* * *



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THE SOUTHERN POVERTY LAW CENTER is 

dedicated to protecting the legal rights of poor people and 

minorities. It has served as counsel in numerous cases 

raising constitutional issues of particular significance for 

women, including Frontiero v. Richardson, 411 U.S. 677 

(1973).

*  *  *

WOMEN FOR RACIAL AND ECONOMIC 

EQUALITY is a multi-racial, multi-ethnic national 

organization founded in 1977. Our members are Black, 

White, Chicana, Puerto Rican, Caribbean, Asian and Native 

American Women who are workers, trade unionists, 

unemployed, welfare recipients, professionals, students and 

senior citizens. We are women who may be especially 

vulnerable to discrimination because of color, national 

origin, religious beliefs or sexual preference. We are women 

whose experiences have shown that racism is the major 

obstacle to bettering our living conditions in any real or 

meaningful way. Our program is a 12-point Women’s Bill of



19a
I

Rights which includes: the right to reproductive choice;

access to federally-funded non-racist, nonsexist sex education 

and birth control, regardless of age; abortion upon demand;

and outlawing of coerced sterilization.

* * *

THE WOMEN’S POLICY GROUP (WPG), formed 

in 1988, is a Georgia-based organization working to improve 

the lives of women. We study and analyze issues, and work 

with individuals and other groups on women’s concerns. We 

are interested in a variety of issues affecting women’s family, 

work, and personal lives including insurance coverage for 

pap smears and mammograms, child custody, child support, 

child care, family violence, Medicaid coverage for pregnant 

women and infants, obstetrical malpractice, family medical 

leave, universal health care coverage, sexual harassment and 

reproductive choice.