Commonwealth v. Edelin Brief Amicus Curiae

    COMMONWEALTH OF MASSACHUSETTS 
SUPREME JUDICIAL COURT 
FOR THE COMMONWEALTH

COMMONWEALTH
V.

KENNETH EDELIN

BRIEF AMICUS CURIAE OF THE NAACP 
LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC.

SUFFOLK COUNTY 
NO. 393

JACK GREENBERG 
JAMES M. NABRIT, III 
MARILYN HOLIFIELD 
DAVID E. KENDALL 
PEGGY C. DAVIS 
LINDA GREENE

ATTORNEYS FOR AMICUS CURIAE

\



TABLE OF CONTENTS

Page

Interest of the Amicus 
Curiae .......... 1

Argument 6

1



Barrows v. Jackson, 346 U.S. 249
(1953).........................  7

Brown v. Board of Education, 347
U.S. 483 (1954).............. 2

Bullock v. Carter, 405 U.S. 134
(1972) ........................  9

Dandridge v. Williams, 397 U.S.
471 (1970).....................  9

Doe v. Bolton, 410 U.S. 179 6,7,11,14,
(1973) .......................25,37,39

Douglas v. California, 372 U.S.
353 (1963)................... 9

Eisenstadt v. Baird, 405 U.S.
438 (1972)................... 7»1°

Furman v. Georgia, 408 U.S. 238
(1972) ...................... 2

Goosby v. Osser, 409 U.S. 512
(1973) .................... •* 9

Griffin v. Illinois, 351 U.S.
12 (1956).................... 9,38

Griggs v. Duke Power Co., 401
U.S. 424 (1971).............. 2

Griswold v. Connecticut, 381
U.S. 479 (1965).............. 7,10

Haines v. Kerner, 404 U.S. 519
(1972)....................... 2

Harper v. Virginia Bd. of
Elections, 383 U.S. 663(1966). 9

Lindsey v. Normet, 405 U.S. 56
(1972)....................... 9

Loving v. Virginia, 388 U.S. 1
(1967)....................... 10

TABLE OF CASES
Page

ii



Page

McDonald v. Bd., of Election 
Commrs., 394 U.S. 802
(1969)....................... 9

Patton v. Mississippi, 332
U.S. 463 (1947).............. 2

Pierce v. Society of Sisters, 268
U.S. 510 (1925).............. 10

Prince v. Massachusetts, 321 U.S.
158 (1944)................... 10

Roe v. Wade, 410 U.S. 113 (1973).. 6,7,10,11,14,25,37,38,39
San Antonio Independent School 

District v. Rodriquez, 411
U.S. 1 (1973)............. 8,9

Simkins v. Moses H. Cone Memorial 
Hospital, 323 F.2d 959 (CA4 
1963), cert, denied, 376 U.S.
938 (1964)................... 2

Shapiro v. Thompson, 394 U.S. 618
(1969)....................... 9

Shelley v. Kraemer, 334 U.S. 1
(1948)....................... 2

Skinner v. Oklahoma, 316 U.S. 535
(1942)....................... 1°

Stanley v. Illinois, 405 U.S. 645
(1972)....................... 10

Tate v. Short, 401 U.S. 395 (1971) 9
United States v. Guest, 383 U.S.

745 (1966)................... 9
Williams v. Illinois, 399 U.S.

235 (1970)................... 9

iii



OTHER AUTHORITIES
Page

Berger, Tietze, Pakter & Katz,
Maternal Mortality Associated 
with Legal Abortions in New 
York State, July 1, 1970- 
June 30, 1972, 43 OBSTET. &
GYN. 315 (1974)................

Bracken & Swigar, Factors Associated 
with Delay in Seeking Induced 
Abortions, 113 AM.J.OBSTET. &
GYN. 301 (1972)................18-

PHEW Report; Fewer Out-of-State 
Abortions in 1972, 3 FAMILY 
PLANNING DIGEST 12 (No. 5,1974).

Dryfoos, A Formula for the 1970's: 
Estimating Need for Subsidized 
Family Planning Services in the 
United States, 5 FAMILY PLANNING 
PERSPECTIVES 145 (No.2,1973)---

Gibbs, Martin & Gutierrez, Patterns 
of Reproductive Health Care 
Among the Poor of San Antonio, 
Texas, 64 AM.J.PUB.HEALTH 37
(1974).........................

Glass, Effects of Legalized Abortion 
on Neonatal Mortality and Obstet­
rical Morbidity at Harlem Hospital 
Center, 64 AM.J .PUB.HEALTH 717 
(1974).........................

36

20,36

32

13

30

17,35

iv



Page

Kerenyi, Mid-trimester Abortion 
in OSOFSKY,H. & OSOFSKY,J.
(ed.), THE ABORTION EXPER­
IENCE 383 (1973)............... 17

Kerenyi, Glascock & Horowitz,
Reasons for Delayed Abortions:
Results of 400 Interviews,
117 AM.J.OBSTET. & GYN. 229
(1973)......................... 17,20,25

Mallory, Rubenstein, Drosness,
Kleiner & Sidel, Factors 
Responsible for Delay in 
Obtaining Interruption of 
Pregnancy, 40 OBSTET. & GYN.
556 (1972)..................... 23,31,35

Muller, Health Insurance for 
Abortion Costs; A Survey,
2 FAMILY PLANNING PERSPECTIVES 
12 (No. 4,1970)................ 23

Muller & Jaffe, Financing Fertility- 
Related Health Services in the 
United States, 1972-1978: A Pre­
liminary Projection, 4 FAMILY 
PLANNING PERSPECTIVES 6 (No.l,
1972).......................... 21

NEWSWEEK, Mar. 3, 1975, at 24 ..... 11
Osofsky, Poverty, Pregnancy Outcome 

and Child Development, 10 BIRTH 
DEFECTS 37 (No. 2, 1974)....... 26

v



Page

Pakter, Impact of the Liberalized 
Abortion Law in New Ynrk City 
on Deaths Associated with 
Pregnancy; A Two Year Experience,
49 BULL. N.Y. ACAD. MEDICINE 804
(1973) ......................... 34,35

Pakter, New York's Liberalized 
Abortion Law; An 18-Month 
Summary for New York City,
28 NEW YORK MEDICINE 326
(1972).........................17,18,35

Pakter & Nelson, Abortion in New
York City; The First Nine Months 
3 FAMILY PLANNING PERSPECTIVES 5 
(No. 3,1971)................... 22,35

SARVIS, R., THE ABORTION CONTROVERSY
(1974) ........................  23

Sklar & Berkov, Teenage Family Forma­
tion in Postwar America, 6 FAMILY 
PLANNING PERSPECTIVES 80 (No. 2,
1974)............................  33

Smith & Kalozony, Inequality in Health 
Care Programs; A Note on Some 
Structural Factors Affecting 
Health Care Behavior, 12 MEDICAL 
CARE 860 (1974)..................  27

Sparer & Okada, Welfare and Medicaid 
Coverage of the Poor and Near 
Poor in Low Income Areas, 86 
HSMHA [Health Services and Mental 
Health Administration] HEALTH 
REPORTS 1099 (1971)..............  22

vi



Page

Tietze, Two Years Experience with 
a Liberal Abortion Law; Its 
impact on Fertility Trends in 
New York City, 5 FAMILY PLANNING 
PERSPECTIVES 36 (No.2, 1973)--- 17,18

TIETZE, C., JAFFE, F., WEINSTOCK, E., 
& DRYFOOS, J., PROVISIONAL 
ESTIMATES OF ABORTION NEED & 
SERVICES IN THE YEAR FOLLOWING 
THE 1973 SUPREME COURT DECISIONS 
— UNITED STATES, EACH STATE & 
METROPOLITAN AREA (1975, Alan 
Guttmacher Institute of the 
Planned Parenthood Federation 
of America).................... 12,13,15,

16,17,20

U.S. Census Bureau, Poverty in the
United States 1959-1968, CURRENT 
POPULATION REPORTS, Series P-60, 
No. 68 (Dec. 31, 1969).........

Weinstock, Tietze, Jaffee & Dryfoos, 
Legal Abortions in the United 
States Since the 1973 Supreme 
Court Decisions, 7 FAMILY 
PLANNING PERSPECTIVES 23(No.l, 
1975)..........................

Walton, Epstein, Gallay & Nelson, 
Development of an Abortion 
Service in a Large Municipal 
Hospital,64 AM.J.PUB.HEALTH 
77 (1974)......................

Wolfe, Primary Health Care for the 
Poor in the United States and 
Canada, 2 INT. J. HEALTH SERVICES 
217 (1974)......................

V l l



COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT 
FOR THE COMMONWEALTH

COMMONWEALTH )
)

V. ) Suffolk County No. 393
)

KENNETH EDELIN )

BRIEF AMICUS CURIAE OF THE NAACP 
LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC.
Interest of the Amicus Curiae 

Amicus curiae NAACP Legal Defense and 
Educational Fund, Inc., is a non-profit 
corporation, incorporated under the laws of 
the State of New York in 1939. It was formed 
to assist blacks to secure their constitutional 
rights by the prosecution of lawsuits. Its 
charter declares that its purposes include 
rendering legal aid gratuitously to Negroes 
suffering injustice by reason of race who are



unable, on account of poverty, to employ legal 
counsel on their own behalf. The charter was 
approved by a New York court, authorizing the 
organization to serve as a legal aid society. 
The NAACP Legal Defense and Educational Fund, 
Inc. is independent of other organizations 
and is supported by contributions from the 
public. For many years its attorneys have 
represented parties in the Supreme Court of 
the United States, state supreme courts, and 
lower courts and have also appeared as amicus 
curiae in many cases.

A central purpose of the Fund is the 
legal eradication of practices in our society 
that bear with discriminatory harshness upon 
blacks and upon the economically and culturally 
deprived, who too often are blacks. The Fund 
has represented clients in cases such as 
Brown v. Board of Education, 347 U.S. 483

2



(1954); Griggs v. Duke Power Co., 401 U.S.
424 (1971); Shelley v. Kraemer, 334 U.S. 1 
(1948); Furman v. Georgia, 408 U.S. 238 (1972) 
Haines v. Kerner, 404 U.S. 519 (1972); Patton 
v. Mississippi, 332 U.S. 463 (1947), which 
have had a profoundly reformative effect 
on the laws and social practices of this 
country.

As part of the Legal Defense Fund's 
litigation program to secure racial equality, 
many suits involving provision of fair and 
adequate health facilities and services have 
been filed. The Fund won a landmark decision 
in s-imkins v, Moses H. Cone Memorial Hospital, 
323 F.2d 959 (CA4 1963), cert, denied, 376 
U.S. 938 (1964), outlawing segregation in 
health care, and it has won a number of 
other cases involving discriminatory treat­
ment of black physicians or of black patients



/

Lawsuits also established the rights of black 
physicians and dentists to membership in state 
and local medical and dental societies which 
performed services for state governments. The 
Fund has also filed a number of complaints 
with the Department of Health, Education and 
Welfare under Title VI of the 1964 Civil Rights 
Act in an attempt to insure non-discriminatory 
federally funded health care services.

Because of its lengthy involvement in 
civil rights issues relating to health care, 
the Legal Defense Fund is almost uniquely 
capable of illuminating for the Court an 
important issue which may not be addressed 
in detail by either party in this case: the 
effect of an affirmance of appellant's crim­
inal conviction upon the ability of indigent 
black women to secure abortion services. While 
amicus curiae does not advocate the general

4



use of abortion as a family planning or popu­
lation control device, it believes that abor­
tions by safe medically-approved methods should 
be available to women who desire to terminate 
unwanted pregnancies in situations where contra­
ceptives have failed or had not been available, 
where the parents' income has suddenly been 
reduced or where other circumstances make pro­
vision of a decent home environment for a 
child impossible, where the pregnancy was due 
to rape, or where the fetus may be born de­
formed as a result of the mother's exposure 
to rubella or drugs. Amicus curiae believes 
that it is important that low-income women not 
be discriminated against because of their pov­
erty when they decide to seek abortions in these 
situations and has filed this brief because

5



this case presents important questions of 
law and policy affecting directly the rights 
of the poor to equal protection of the laws 
and to the full enjoyment of the personal 
privacy rights guaranteed under Roe v. Wade,
410 U.S. 113 (1973), and Doe v. Bolton, 410 
U.S. 179 (1973).

ARGUMENT
Appellant, a black senior resident ob­

stetrician and gynecologist at Boston City 
Hospital, a public facility which provided 
medical care to a great many low-income inner- 
city residents, was convicted of manslaughter 
as a result of a hysterotomy abortion he per­
formed on an unmarried black patient. T. 6—
77, 6— 88, 7— 70, 8— 6, 18-116-117. Amicus 
curiae NAACP Legal Defense and Educational 
Fund, Inc., will address in this brief the 
single question of the impact of this prosecu­
tion and conviction on the Ninth and Fourteenth

6



Amendment rights (as recognized in Roe V.
Wade, 410 U.S. 113 (1973) and Doe v. Bolton,
410 U.S. 179 (1973)) of low-income women to

1/terminate unwanted pregnancies. The patient 
for whom appellant performed the abortion 
which formed the basis for this manslaughter 
prosecution was an "18-year old black female." 
T. 8— 6. During the trial, appellant offered 
to demonstrate that "the general run of 
[appellant's] patients were not of the best 
in health" and that most of the persons who

1/ Appellant clearly has standing to assert 
and vindicate the constitutional rights of 
his patients. Griswold v. Connecticut, 381
U. S. 479, 481 (1965); Eisenstadt v. Baird, 
405 U.S. 438, 443-446 (1972). Cf. Barrows
V. Jackson, 346 U.S. 249 (1953).

7



sought abortions from him "were poor people 
who suffered the regular afflications [sic] of 
poor people." T. 18— 116. The trial court 
suggested, however, that to admit such evi­
dence would be to consider "an awful lot of 
collateral issues." T. 18— 117. Amicus curiae 
respectfully submits, however, that the in­
hibiting effect of this criminal prosecution 
on the ability of appellant's low-income 
patients to secure adequate and safe abortion 
services is an extremely important issue in 
this case and constitutes a significant 
reason appellant's conviction should be 
reversed.

While the Equal Protection Clause of 
the Fourteenth Amendment to the federal 
Constitution does not require the elimination 
of all state-imposed discriminations based 
upon wealth, San Antonio Independent School

8



Dist. v. Rodriguez, 411 U.S. 1 (1973); Lindsey
v. Normet, 405 U.S. 56 (1972); Dandridge v. 
Williams. 397 U.S. 471 (1970), it does require 
that restrictions upon "fundamental rights" be 
extraordinarily justified by some compelling 
state interest,. San Antonio Independent School 
Dist. v. Rodriquez, supra, 411 U.S. at 18. In 
addition to the "fundamental" right to fair 
treatment in the criminal process, see Griffin 
v. Illinois. 351 U.S. 12 (1956); Douglas v. 
California, 372 U.S. 353 (1963); Tate v. Short, 
401 U.S. 395 (1971); Williams v. Illinois,
399 U.S. 235 (1970), to vote, Harper v. Virginia 
Bd. of Elections, 383 U.S. 663 (1966); McDonald 
v. Bd. of Election Commrs., 394 U.S. 802 (1969); 
Bullock v. Carter, 405 U.S. 134 (1972); Goosby 
v. Osser. 409 U.S. 512 (1973), and to travel, 
Shapiro v. Thompson. 394 U.S. 618 (1969);
United States v. Guest, 383 U.S. 745 (1966),

9



the Supreme Court of the United States has 
recognized the guarantee under the Ninth 
and Fourteenth Amendments of a constitutional 
right of personal privacy extending "to 
activities relating to marriage, . . . pro­
creation, . . . contraception, ... . family
relationships, and child rearing and education, 
Roe v. Wade, supra, 410 U.S. at 152-153. See 
Loving v. Virginia, 388 U.S. 1 (1967); Skinner 
v. Oklahoma, 316 U.S. 535 (1942); Eisenstadt 
v . Baird, 405 U.S. 438 (1972); Griswold jy. 
Connecticut, 381 U.S. 479 (1965); Stanley 
Illinois, 405 U.S. 645 (1972); Princely. 
Massachusetts, 321 U.S. 158 (1944); Pierce,y^ 
gon-i^ty of Sisters, 268 U.S. 510 (1925). "This 
right of privacy . . .is broad enough to en­
compass a woman's decision whether or not to 
terminate her pregnancy." Roe v. Wade, supraf. 

410 U.S. at 153.

10



Unless appellant's conviction is reversed,
/the constitutional right recognized in Roe v. 

Wade and Doe v. Bolton will be severely and 
unjustifiably restricted. Indeed, the convic­
tion of appellant has already inhibited the 
willingness of certain public hospitals to 
perform second trimester abortions:

"[I]n Los Angeles, the Planned 
Parenthood Office reported a 
10 percent increase in the number 
of women coming in because doctors 
or hospitals to which they first 
turned had refused to abort them 
in the seventeenth or eighteenth 
week. Meanwhile Hutzel Hospital 
in Detroit announced it would no 
longer do abortions after sixteen 
weeks, and a twelve-week limit was 
set at West Penn Hospital in 
Pittsburgh."

NEWSWEEK, Mar. 3, 1975, at 24. This limita­
tion on the availability of abortions comes at 
a time when the need for such medical services 
already far surpasses the present capacity of 
the public health care delivery system of

11



this country. An extensive report by the 
Planned Parenthood Federation of America, 
released on October 6, 1975, revealed that 
between two-fifths and three-fifths of United 
States women needing abortions (approximately 
one-half to one million women) in 1973 were

yunable to obtain them. This report estimated
that approximately half of these women who/
were unable to obtain abortions had incomes 
classified by the federal government as "low" 
or "marginal": "One-third of these women —

2/ TIETZE, C., JAFFE, F., WEINSTOCK, E., & 
DRYFOOS, J., PROVISIONAL ESTIMATES OF ABORTION 
NEED & SERVICES IN TOE YEAR FOLLOWING THE 1973 
SUPREME COURT DECISIONS— UNITED STATES, EACH 
STATE & METROPOLITAN AREA (1975, Alan Guttmacher 
Institute of the Planned Parenthood Federation 
of America) at 9 [hereinafter cited as 1975 
PPFA Study].

12



413,000-580,000— had low incomes (below 125% 
of the federal poverty index)[and] one-fifth 
had marginal incomes (between 125 and 200

3/
percent of the index.)"

3/ 1975 PPFA Study at 7. The federal poverty
index is a schedule of gross income and family 
size thresholds which is adjusted each year 
acco rding to changes in the Consumer Price 
Index. See U.S. Census Bureau, Poverty in the 
United States 1959-1968. CURRENT POPULATION 
REPORTS, Series P-60, No. 68 (Dec. 31, 1969). 
While this index "is not an ideal measure of 
socioeconomic status, it is superior to income 
alone because it approximates per capita in­
come and provides a uniform measure applicable 
to all sections of the nation." 1975 PPFA Study 
at 70. See generally Dryfoos, A Formula for 
the 1970's: Estimating Need for Subsidized 
Family Planning Services in the United States,
5 FAMILY PLANNING PERSPECTIVES 145 (No.2,1973).

13



The inhibiting effect on the willingness
of public hospitals to provide abortions 
caused by a fear of criminal manslaughter 
prosecutions will disproportionately affect 
those people in low income brackets who al-

i/ready have a difficult time getting abortions.

4/ A study of abortions performed since Roe 
v. Wade and Doe v. Bolton found:

"the failure of publicly financed 
hospitals to . . . [provide abor­
tions] . ... particularly limits 
the availability of abortion to 
low-income residents who depend 
on such hospitals for much of 
their medical care, . . . Only 17 
percent of public hospitals were 
providing abortions during 1973 and 
the first quarter of 1974, compared 
to 28 percent of non-public non­
catholic hospitals. Indeed, in 11 
states not a single public hospital 
reported performance of a single 
abortion for any purpose whatso­
ever in all of 1973; and in five 
other states fewer than 5 percent 
of all hospital abortions were per­
formed in public facilities. W ithin

14



and who tend to seek later abortions than more
affluent women. The 1975 report of the Planned
Parenthood Federation of America concluded:

"all available evidence indicates 
that low-income women continue to 
face great difficulties in obtain­
ing safe, legal abortions. In 37 
states, the number of abortions 
reported by public hospitals con­
stituted less than 15 percent of 
the estimated number needed by 
low-income women." 5/

4/ cont'd.
the overall reluctant response of 
U.S. hospitals to the Supreme Court 
decisions, therefore, public insti­
tutions have been slowest to respond. 
Whatever the reason for this differ­
ential response, its effect is to 
make the constitutional right to 
choose abortion considerably less 
available to low-income women."

Weinstock, Tietze, Jaffee, & Dryfoos, Legal 
Abortions in the United States Since the 1973 
Supreme Court Decisions, 7 FAMILY PLANNING 
PERSPECTIVES 23, 31 (No. 1, 1975).
5/ 1975 PPFA Study at 9.

15



This study estimated that in Massachusetts in
1974, there was a need for abortion services
in from 35,500 to 49,520 cases, and that low
and marginal income women comprised 41% of

6/
this population. From the first quarter of
1973 to the first quarter of 1974, only 12,370
abortions were provided in Massachusetts, and

1/
public hospitals accounted for only 780.

The fact that low income women seek later 
abortions than more affluent women is well 
documented. Although about three-quarters of

6/ 1975 PPFA Study at 48. It was estimated
that from 14,440 to 20,380 low and marginal 
income women needed abortion services in 1974. 
Ibid.
7/ 1975 PPFA Study at 62. The remainder were
performed in clinics (5880), private hospitals 
(5280), and physicians' offices (430). Ibid.

16



/

all abortions actually performed are done in
8/

the first trimester, the overwhelming majority 
of the remaining women who secure later abor­
tions are poor. Low-income residents depend

9/
largely on public hospitals for their abortions,

8/ Tietze, Two Years Experience with a Lib­
eral Abortion Law: Its Impact on Fertility 
Trends in New York City, 5 FAMILY PLANNING 
PERSPECTIVES 36 (No.2,1973); Pakter, New York's 
Liberalized Abortion Law: An 18-Month Summary 
for New York City, 28 NEW YORK MEDICINE 326 
(1972); Glass, Effects of Legalized Abortion 
on Neonatal Mortality and Obstetrical Morbid­
ity at Harlem Hospital Center, 64 AM. J. PUB. 
HEALTH 717 (1974)? Kerenyi, Mid-trimester 
Abortion in QSOFSKY, H. & OSOFSKY, J. (ed.),
THE ABORTION EXPERIENCE 383 (1973).
9/ The 1975 Report of the Planned Parenthood 
Federation of America found that the response 
of public hospitals to Roe v. Wade and Doe 
v. Bolton had been extremely sluggish. The 
Federation warned that:

"The default of hospitals and other 
existing health agencies, if it 
continues, will perpetuate sharp in­
equities in the availability and 
accessibility of legal abortion to 
women in different communities and 
sections of the nation. The default 
of public hospitals, if it continues, 
will perpetuate inequities based on 
socioeconomic status."

17



and a study of abortions in New York City 
found that municipal hospitals serving low 
income patients had the greatest proportion

Wof patients seeking late abortion. Two 
other studies found that non-private patients 
have relatively more abortions in the second 
trimester: "women referred from private phys­
icians apply for abortions at an earlier stage 
of pregnancy. Applicants referred through the
clinic and university services presented

11/[themselves] later." Race is also a distin­
guishing feature of the group of women who

10/ Pakter, New York's Liberalized Abortion 
Law: An 18-Month Summary for New York City,
28 N.Y. MEDICINE 326 (1972).
11/ Bracken & Swiqar,Factors Associated with 
Delay in Seeking Induced Abortions,113 AM.J. 
0BSTET.& GYN.301, 305 (1972). The percentages 
were quite striking —  25% of the private 
patients applied for abortiorP after the tenth 
week, whereas 45% of the non-private applied 
after the tenth week. Ibid. See Tietze, Two 
Years Experience with a Liberal Abortion Law: 
Its Impact on Fertility Trends in New York 
City, 5 FAMILY PLANNING PERSPECTIVES 36 
(No. 2, 1973).

18



must seek abortions in the second trimester.
12/

12/ Indeed, there is some evidence that non­
whites in the United States seek abortions 
proportionately more frequently than whites. 
The 1975 Planned Parenthood Federation study 
noted that:

"New York City, Maryland and 
California . . . report that the 
incidence of abortion among non­
whites, a disproportionate number 
of whom have low incomes, is two 
to three times greater than among 
whites.

Further support for a higher rate 
of abortion utilization among low- 
income women comes from abortion 
service statistics for residents of 
New York City. While Medicaid has 
changed many of the traditional 
patterns of health service utiliza­
tion, it still remains true that a 
greater proportion of low-income 
women obtain obstetrical care from 
non-private services, while a great­
er proportion of higher income women 
obtain care from private services.
The differential incidence of abortion 
in these two types of services, there­
fore, can be used to indicate the 
differential incidence of abortion 
between the two socioeconomic groups.

19



One study found that the racial distribution 
among abortions in the early weeks of preg­
nancy was commensurate with the national 
average, while among later abortions the 
percentage of blacks was double the national

13/average. Another study of over 31,000 New 
York residents found that:

"Race was also found to be associated 
with stage of pregnancy. Exactly half 
(50.0 per cent) of black women 
sought an abortion after the tenth 
week of pregnancy. Whereas only one- 
third (32.2 per cent) of white women 
(including several Spanish American 
women) applied for an abortion that 
late." 14/

12/ cont'd.
In the first year following legal­
ization of abortion, the abortion 
rate was 637.8 abortions on nonprivate 
services per 1,000 live births, com­
pared to 400.6 on private services."

1975 PPFA Study at 71-72 (footnotes omitted).
13/ Kerenyi, Glascock, & Horowitz, Reasons 
for Delayed Abortions: Results of 400 Inter- 
views 117 AM. J. OBSTET. & GYN. 229 (1973).
14/ Bracken & Swigar, Factors Associated with 
Delay in Seeking Induced Abortions, 113 AM.J. 
OBSTET. & GYN. 301, 304 (1972).

20



The reason that so many low-income women 
seek later abortions is not simply negligence. 
Inability to finance an abortion is one sub­
stantial reason for delay in seeking an abor­
tion. In 1972, the average cost of an abor-

15/
tion in the United States was $332. Although 
Medicaid, Medicare and private health insur­
ance may cover part of these costs, many low- 
income women have no health care coverage 
and thus must spend a great deal of time and 
effort trying to raise the necessary money.
In a study of health care coverage across 
the United States, Spare: and Okada found:

15/ Muller & Jaffe, Financing Fertility- 
Related Health Services in the United States, 
1972-1978: A Preliminary Projection 4 FAMILY 
PLANNING PERSPECTIVES 6, 11 (No. 1, 1972).

21



"Moreover, despite the differential 
mix of public programs [Medicaid 
and Medicare] and private health 
insurance, the proportions of the 
poor having no health care coverage 
ranged from 11 per cent in Bedford- 
Stuyvesant-Crown Heights and Red 
Hook to 60 per cent in Charleston; 
the proportions of the near-poor 
in this category ranged from 14 
per cent in Wisconsin to 58% per 
cent in Atlanta and Charleston; 
and the proportions of non-poor in 
this category ranged from 9 per 
cent in Wisconsin to 44 per cent in 
Atlanta." 16/

This finding is supported by a study of abor­
tions in New York City which found that approx­
imately 16% of the patients in municipal hos­
pitals were required to pay for abortions

17/
entirely from their own funds.

16/ Sparer & Okada, Welfare and Medicaid 
Coverage of the Poor and Near Poor in Low In­
come Areas, 86 HSMHA [Health Services and Men­
tal Health Administration] HEALTH REPORTS 1099, 
1105 (1971)
17/ Pakter & Nelson, Abortion in New York City 
The First Nine Months 3 FAMILY PLANNING PER­
SPECTIVES 5, 7 (No; 3, 1971).

22



"Great hopes for paying abortion 
costs should not be held for Medi­
caid because of the limited popu­
lation it covers and because it is 
becoming more restrictive in most 
states —  'it is thus, even poten­
tially, a source of abortion cost 
reimbursement for no more than 
14% of medically indigent women of 
child bearing age.'" 18/

18/ SARVIS, R., THE ABORTION CONTROVERSY 
(1974) at 51, quoting Muller, Health Insur­
ance for Abortion Costs; A Survey, 2 FAMILY 
PLANNING PERSPECTIVES 12 (No. 4, 1970). An­
other study by Professor Wolfe on health 
insurance coverage fcmnd that, "In 1968 close 
to 30,000,000 persons had no hospital insur­
ance, 20% of the population had no insurance 
against the costs of surgery, 34.5% had no in- 
hospital medical insurance, half the popula­
tion had no X-ray or laboratory coverage out 
of hospital, and 57.5% were unprotected for 
the costs of visits to the physicians' office 
or for visits by the physician to the patients' 
home." Wolfe, Primary Health Care for the Poor 
in the United States and Canada, 2 INT. J . 
HEALTH SERVICES 217, 218 (1974). See generally 
Mallory, Rubenstein, Drosness, Kleiner,
& Sidel, Factors Responsible for Delay 
in Obtaining Interruption of Pregnancy, 40 
OBSTET. & GYN. 556, 560 (1972).

23



Many hospitals, particularly municipal hospitals, 
have instituted a pay-first policy for their 
abortion services, thus insuring that those 
women not covered by any health coverage plan 
will be forced to delay their abortions while 
seeking funds. Kings County Municipal Hospital 
in Brooklyn instituted a pay-first policy for 
patients not covered by Medicaid. Thirty-seven 
per cent of the women applying for abortion 
during the first year of the program's opera­
tion were not covered by any health coverage 
plan and thus had to pay themselves. In the 
first year of the abortion service, fifty 
patients were rejected on the day of their
scheduled abortions due to their inability

19/
to pay in advance for their abortions.

19/ Walton, Epstein, Gallay, & Nelson, 
Development of an Abortion Service in a Large

24



Another reason that low-income women so

19/ cont'd.
Municipal Hospital, 64 AM. J. PUB. HEALTH 77 
(1974). Another study of abortions in New York 
found financial difficulties to be a chief 
cause of delay:

"For [12.5% of those women seeking 
abortions] . . . financial diffi­
culties represented the only cause 
of delay . . . .  Many of the women 
were aware of their pregnancies in 
the first tri-mester but were unable 
to accumulate the necessary funds 
for a curretage and their trip to 
New York. By the time this money 
was raised, the pregnancies were 
sufficiently advanced to require 
saline induction, an even more ex­
pensive procedure involving a long­
er hospital stay."

Kerenyi, Glascock, & Horowitz, Reasons for 
Delayed Abortion: Results of 400 Interviews, 
117 AM. J. OBSTET. & GYN. 299, 309 (1973).
This study was completed after New York lib­
eralized its abortion law in 1970 but before 
the United States Supreme Court's decisions 
in Roe v. Wade and Doe v. Bolton. At this 
time, travel expenses, often quite substan­
tial, had to be added to the cost of abor­
tions. The conclusions of the study are still

25



frequently delay in seeking abortions is the 
lack of good primary medical care which would 
make possible the early diagnosis of preg­
nancy.

"The current situation in this 
country results in the highest 
quantity and quality of medical 
care being offered to the middle 
and upper socioeconomic classes 
who are the lowest risk members 
of the population. The poor, who 
are the highest risk, have least 
adequate care. Impersonal and frag­
mented services, accompanied by long 
waits and inconveniences, are more 
common for this group." 20/

19/ cont'd.
relevant, however, due to the failure of 
many public hospitals to provide abortion 
services, see notes 4 and 9,supra,thus necessitating 
a great deal of travel expenses for many women 
who desire abortions.
20/ Osofsky, Poverty, Pregnancy Outcome and 
Child Development, 10 BIRTH DEFECTS 37, 45 
(No. 2, 1974).

26



[between the health care afforded the poor
and that afforded middle and upper income
groups] are most striking in terms of use of
preventive care such as routine physicals [and]
prenatal checkups . . . .  The pattern of care
of low income groups tends to be more sporadic,

21/
fragmented, and crisis oriented." The poor 
see less doctors less frequently than do higher

Another study found that " [t]he discrepancies

21/ Smith & Kalozony, Inequality in Health 
Care Programs: A Note on Some Structural
Factors Affecting Health Care Behavior, 12 
MEDICAL CARE 860 (1974). "Numerous studies 
and statistics document the discrepancies 
in health care received by poor as opposed to 
more wealthy segments of the United States 
population. While lower income groups have 
substantially more chronic conditions, 
restricted activity, and bed disability days 
as well as more than twice the infant mor­
tality rates of more wealthy segments of the 
population, they tend to use health services 
less effectively." Ibid.

27



income groups. A survey of the Los Angeles

area revealed that while there were 127
doctors per 100,000 people in Los Angeles,
there were only 38 doctors per 100,000 

22/
people in Watts. Moreover, while " [t]wo-
thirds of all children in the United States
see a doctor in the course of a year, only
half of the children from low-income, farm,
or non-white families” see doctors once a 

23/
year. Fcr the poor, "the emergency room of
the hospital is increasingly used as a sub-

24/
stitute for primary care."

22/ Wolfe, Primary Health Care for the Poor 
in the United States and Canada, 2 INT. J. 
HEALTH SERVICES 217, 218 (1974).
23/ Id. at 219.
24/ Ibid.

- 28 -



The frequent lack of adequate primary 
medical care often leads to delays by low- 
income women in the discovery of pregnancy 
and consequent delays in seeking abortions.
A study of prenatal services at a public 
hospital whose clientele consists almost ex­
clusively of indigent persons in the San 
Antonio, Texas, area found that approximately 
one half of the pregnant women who utilized 
the hospital for prenatal services of all 
kinds made their first visit to the hospital 
after twenty weeks gestation. Through inter­
views, it was determined that their delay in 
seeking medical care was due to (1) lack of 
transportation, (2) difficulty in finding 
care for other children, (3) cost of medical 
care, and (4) the inconvenient location and

29



In additionhours of the hospital clinics, 
to the delays in diagnosing pregnancy, low- 
income women frequently are faced with sig­
nificant delays in receiving abortion services 
after an unwanted pregnancy is detected. A 
study conducted at the Albert Einstein College 
of Medicine neighborhood clinic in New York 
City found that frequently there was a signif­
icant interval between the appointment for an 
abortion and the date when the abortion was 
actually performed. "Fourteen per cent of the 
early abortion patients [up to twelve weeks 
gestation] waited more than two weeks from

25/

25/ Gibbs, Martin & Gutierrez, Patterns of 
Reproductive Health Care Among the Poor of 
San Antonio, Texas, 64 AM. J. PUB. HEALTH 37, 
38, 39 (1974).

30



time of appointment to abortion; fourteen

per cent of the late abortion patients [after
twelve weeks gestation] waited in excess of 

26/
four weeks." This study concluded that while 
55% of the women who had second trimester 
abortions delayed for personal reasons, 26% 
delayed for reasons which could be attributed
to the medical care system; 11% delayed be-

' <

cause of physician error (misdiagnosis, fail­
ure to utilize timely procedures, etc.)/ 9% 
delayed because of difficulty in locating an
abortion facility, and 6% delayed because of

27/
problems in securing financing.

26/ Mallory, Rubenstein, Drosness, Kleiner 
& Sidel, Factors Responsible for Delay in 
Obtaining Interruption of Pregnancy, 40 OBSTET. 
& GYN. 556, 559 (1972)(emphasis added).
27/ Id. at 560.

31



(in 1972, almost one-third of all reported
28/

abortions were performed on teenagers) also 
accounts for delay in securing abortions. 
Moreover, where abortions are difficult to 
obtain (as in states with restrictive abor­
tion laws before 1973^ there is evidence of
much higher illegitimacy rates among nonwhite

29/
teenagers than among white teenagers.

The youth of many women seeking abortions

28/ PHEW Report: Fewer Out-of-State Abortions 
in 1972, 3 FAMILY PLANNING DIGEST 12 (No. 5, 
1974). The hysterotomy patient whom appellant 
treated was eighteen years old. T. 8— 6.
29/ In the fifteen states which had liberal­
ized their abortion laws by 1970, both white 
unmarried teenagers and black unmarried teen­
agers showed significant declines in the rate 
of illegitimate births per 1,000 women (14.4% 
and 8.9%, respectively) when the 1965-1970 
period was compared to the 1970-1971 period.
By contrast, in states which had not liberal­
ized their abortion laws by 1970, the group 
of white unmarried teenagers showed a more 
modest decline in the rate of illegitimate 
births per 1,000 women when the 1965-1970 
period was compared to the 1970-1971 period,

32



One final consideration should be noted.

Prior to the liberalization of the abortion

29/cont'd.
presumably because such women were able to 
secure abortions in states with liberal laws, 
while the group of nonwhite unmarried teen­
agers showed a rise in the illegitimacy rate 
of 3.3% when these two periods were compared. 
Sklar & Berkov, Teenage Family Formation in 
Postwar America, 6 FAMILY PLANNING PERSPEC­
TIVES 80, 86 (No. 2, 1974). In fact, in the 
pre-Roe v. Wade period, "in the states where 
abortion was illegal, white women of all age 
groups showed declines of at least five per­
cent [in the illegitimacy rate], whereas non­
white women of virtually all age groups showed 
either little change or small rises" due to 
the inability of this latter group to avail 
themselves of "migratory" abortions (i.e., 
abortions outside their home state) to the 
same extent as white women. Ibid. The Sklar- 
Berkov study concluded that:

"a number of constraints -- 
such as ignorance of the legality 
of abortion in other states and 
the expense of travel to a state 
where abortion was legal, coupled 
with the costs of and concerns 
about abortion itself —  limited 
the widespread use of migratory 
abortion. Poor and nonwhite women

33



laws, deaths due to abortion were the leading
cause of all deaths associated with pregnancy 

30/
and birth. Because of their inability to
pay for illegal abortions,

"[Blacks and Puerto Ricans] were 
the ones who had been largely 
the victims of crude attempts 
at abortions by unskilled non­
medical individuals, or self 
induced by dangerous and des­
perate measures. In fact, 
deaths among these women com­
prised the largest component 
of our pregnancy associated

29/ cont'd.
in general, especially if they 
were teenagers, probably suffered 
most from these constraints and 
thus were unlikely to have resorted 
to abortion in very great numbers 
unless it was legal and readily 
available in their state of resi­
dence or very nearby."

Ibid.
30/ Pakter, Impact of the Liberalized Abortion 
Law in New York City on Deaths Associated with 
Pregnancy: A Two-Year Experience, 49 BULL. N.Y. 
ACAD. MEDICINE 804, 807 (1973).

34



deaths year after year." 31/
In 1970, the New York State abortion law was
liberalized, and there was a subsequent fifty
per cent decline in the maternal mortality 

32/rate." Abortions after the twelfth week
have a complication ratio between 5 and 7
times higher than those performed in the

33/
first twelve weeks, and it is therefore

31/ Pakter, New York's Liberalized Abortion 
Law: An 18-Month Summary for New York City,
28 N.Y. MEDICINE 326 (1972).
32/ Glass, Effects of Legalized Abortion on 
Neonatal Mortality and Obstetrical Morbidity 
at Harlem Hospital Center, 64 AM. J. PUB.
HEALTH 717 (1974). See also Pakter & Nelson, 
Abortion in New York City: The First—Nine 
Months, 3 FAMILY PLANNING PERSPECTIVES 5 (No.3, 
1971) ; Pakter, Impact of the Liberalized 
Abortion Law in New York City on Deaths 
Associated with Pregnancy; A Two-Year Exper­
ience , 49 BULL. N. Y. ACAD. MEDICINE 804
(1973).
33/ Mallory, Rubenstein, Drosness, Kleiner 
& Sidel, Factors Responsible for Delay in

35



these later abortions that most need hospital 
care and observation. If public hospitals 
are deterred from providing second trimester 
abortions, the maternal mortality rate is 
likely to rise sharply and disproportionately 
among low-income mothers who are frequently 
unable to obtain earlier abortions and who 
will likely be forced once again to risk 
serious complications and death in undergoing 
"crude attempts at abortion by unskilled non­
medical individuals."

33/ cont'd.
Obtaining Interruption of Pregnancy, 40 OBSTET.
& GYN. 556 (1972); Berger, Tietze, Pakter, & 
Katz, Maternal Mortality Associated with Legal 
Abortions in New York State, July 1, 1970-June 
30, 1972, 43 OBSTET. & GYN. 315 (1974); Bracken 
& Swigar, Factors Associated with Delay in 
Seeking Induced Abortions, 113 AM. J. OBSTET.
& GYN. 301, 302 (1972).

36



Affirmation of appellant1s cpnviction 
would severely undercut the constitutional 
right of personal privacy recognized in Roe 
v. Wade and Doe v. Bolton. Moreover, the 
impact would be disproportionately felt by 
low-income women who often have great 
difficulty in diagnosing pregnancy, obtain­
ing funds for an abortion, finding a facility, 
and scheduling an abortion. The economic 
realities of this nation's health care system 
makes it inevitable that poor women as a 
group will delay longer in seeking abortions 
than women from higher income groups. Medical 
care (including abortion services.) for black 
and low-income women during pregnancy is 
now grossly inadequate. The threat of man­
slaughter prosecution of doctors making good-

37



faith medical judgments will further inhibit 
public hospitals from providing abortions, 
thereby increasing present economic inequities. 
The ability to exercise fundamental consti­
tutional rights should not depend on economic 
status. Cf. Griffin v. Illinois, supra, 351 
U.S. at 19. The affirmance of this conviction 
would seriously erode for minority and poor 
women the guarantee under the Ninth and Four­
teenth Amendment of a constitutional right

34/

34/ see Roe v. Wade, supra, 410 U.S. at 165:
"The decision vindicates the right 
of the physician to administer 
medical treatment according to his 
professional judgment up to points 
where important state interests pro­
vide compelling justifications. Up 
to those points, the abortion deci­
sion in all its aspects is inherent­
ly, and primarily, a medical decision, 
and basic responsibility must rest 
with the physician. If the individ­
ual practitioner abuses the privilege 
of exercising proper medical judgment,

38



of personal privacy in medical care during 
pregnancy guaranteed by Roe v. Wade and Doe

v. Bolton.
Appellant's conviction should be 

reversed.
RESPECTFULLY SUBMITTED,

JACK GREENBERG 
JAMES M. NABRIT, III 
MARILYN HOLIFIELD 
DAVID E. KENDALL 
PEGGY C. DAVIS 
LINDA GREENE

ATTORNEYS FOR AMICUS CURIAE

34/ cont'd.
the usual remedies, judicial 
and intra-professional are 
available."

39