;
KELLY A. AYOTTE, ATTORNEY GENERAL OF NEW HAMPSHIRE, Petitioner,
v. PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND, ET AL., Respondents
No. 04-1144
SUPREME COURT OF THE UNITED STATES
2004 U.S. Briefs 1144; 2005 U.S. S. Ct. Briefs LEXIS
527
August 8, 2005
[**1]
On Writ of Certiorari to the United States Court of Appeals for the First
Circuit.
BRIEF AMICI CURIAE OF AMERICAN ASSOCIATION OF PRO LIFE
OBSTETRICIANS AND GYNECOLOGISTS, CHRISTIAN MEDICAL ASSOCIATION, CATHOLIC MEDICAL
ASSOCIATION, ALLIANCE DEFENSE FUND, NATIONAL ASSOCIATION OF EVANGELICALS, CONCERNED WOMEN FOR AMERICA AND CHRISTIAN LEGAL SOCIETY IN
SUPPORT OF PETITIONERSteven H. Aden, (Counsel of Record),
CENTER
FOR LAW & RELIGIOUS FREEDOM OF THE CHRISTIAN LEGAL SOCIETY,
4208 Evergreen Lane, Suite 222, Annandale, Virginia 22003, Tel.: (703)
642-1070.
Counsel
for Amici Curiae.
[*i] View Table of Contents
View Table
of Authorities
[*1] STATEMENTS OF INTEREST OF AMICI CURIAE
n1
n1 Amici curiae file this
brief by consent of the parties, and copies of the letters of consent are on
file with the Clerk of the Court. Counsel
for Amici authored this brief
in its entirety. No person or entity, other than the amici curiae, their
supporters, or their counsel, has made a monetary contribution to the
preparation or submission of this brief. Amici wish to gratefully acknowledge
the contributions of Steven R. Zielinski, M.D., J.D., who served as principal
medical consultant
for this brief.
American
Association of Pro Life Obstetricians and Gynecologists ("AAPLOG") is a
national organization of over 2,500 obstetricians and gynecologists who reaffirm
the unique value and dignity of individual human life in all stages of growth
and development from conception onward.
The
Christian Medical Association ("CMA") was founded in 1931 and today
represents over 16,000 members--primarily practicing physicians representing the
entire range of medical specialties. These members, who include physicians
licensed to practice in the State of New Hampshire, share a common commitment to
the principles of biblical faith and the integration of those principles with
professional practice. Among other functions, the CMA Medical Ethics Commission
coordinates member experts in the field of medical ethics who formulate
positions on vital issues. These positions are subsequently voted upon
for adoption, amendment, or rejection by over 100 elected representatives
to the national convention of the Association. CMA's members have an interest in
the case before the Court because it raises the prospect of a constitutional
rule that may result in poorer access to family support structures necessary
for providing medical care in the best interests of their patients.
[*2]
The Catholic Medical Association is a professional association of
American and Canadian physicians, who seek to respond to the unique
responsibility which belongs to all health-care personnel as guardians and
servants of human life and human dignity. Its members are conscious of the fact
that their patients entrust themselves to the knowledge acquired by physicians.
This suggests an important tension. As John Paul, II noted in On Faith and
Reason, "On the one hand, the knowledge acquired through belief can seem an
imperfect form of knowledge, to be perfected gradually through personal
accumulation of evidence; on the other hand, belief is often humanly richer than
mere evidence, because it involves an interpersonal relationship and brings into
play not only a person's capacity to know but also the deeper capacity to
entrust oneself to others...." This capacity to entrust oneself to others lies
at the heart of the patient-physician relationship, and at the heart of this
case. The Catholic Medical Association has an interest in assisting the Court in
properly understanding that relationship.
Alliance
Defense Fund ("ADF") is a not-
for-profit public interest organization
that provides strategic planning, funding, and training to attorneys and
organizations to reform American law so that all human life will be respected
and protected from conception to death. Its membership includes hundreds of
lawyers and numerous public interest law firms. ADF has advocated
for the
rights of Americans in hundreds of significant cases throughout the United
States, having been directly or indirectly involved in at least 500 cases and
legal matters, including cases before this Court regarding life issues such as
Vacco v. Quill, 521 U.S. 793 (1997), and Washington v. Glucksberg, 521 U.S. 702
(1997).
[*3] The National Association of
Evangelicals ("NAE") is a nonprofit association of evangelical Christian
denominations, local churches, para-church organizations, and individuals, and
includes more than 50,000 local churches from 51 denominations, as well as over
250 other religious ministries. NAE serves a constituency of over 30 million
people. The Association believes that human life is sacred, that civil
government has no higher duty than to protect human life, and the duty is
particularly applicable to the life of unborn children because they are helpless
to protect themselves.
Concerned Women for America ("CWA") is
the nation's largest public policy organization
for women. Located in
Washington, D.C., CWA is a non-profit organization that provides policy analysis
to Congress, state and local legislatures and assistance to pro-family
organizations through research papers and publications. CWA seeks to inform the
news media, academic community, business leaders and the general public about
marriage, family, cultural and constitutional issues that affect the nation. CWA
has participated in numerous amicus curiae briefs in the United States Supreme
Court, lower federal courts and state courts.
CWA's
vision statement calls
for women and like-minded men to come together to
restore the family to its traditional purpose because this allows each family
member to realize their God-given potential and be more responsible citizens.
The inalienable right to life documented in the Declaration of Independence and
shored up by strong families is a touchstone of liberty. CWA's defense of
minors' ability to rely on the protection and wisdom of their parents is a
long-standing part of CWA's educational and grassroots efforts.
[*4] The Christian Legal
Society ("CLS"), founded in 1961, is a nonprofit interdenominational
association of Christian attorneys, law students, judges, and law professors
with chapters in nearly every state and most law schools. Since 1975, the
Society's legal advocacy division, the Center
for Law and Religious
Freedom, has worked
for the protection of human life from conception to
natural death.
SUMMARY OF ARGUMENT
In imposing a constitutional standard
for parental notice
statutes that mandates a broadly interpreted "health" exception, the Circuit
Court of Appeals has relied precipitously upon the testimony of one
physician-Plaintiff in the case. The Court's Amici seek to bring to the Court's
attention supplemental medical authority that suggests that none of the acute
medical complications of pregnancy cited by the Court of Appeals or Respondents
and their amici necessarily mandates immediate termination of pregnancy by
abortion as the accepted standard of practice. Moreover, Respondents' assertion
that abortion is a relatively "safe" medical procedure relies upon maternal
mortality
[**6] data that is
unintended
for that purpose and unsuitable to it.
ARGUMENT
i. INTRODUCTION.
In 2003, the New Hampshire legislature enacted the "Parental
Notification Prior to Abortion Act" to require parental notification before
abortions may be performed on unemancipated minors. 2003 N.H. LAWS 173, codified
at N.H. REV. STAT. ANN. ("RSA") § 132:24-28 (2003); see Planned Parenthood of
Northern New England v. Heed, 390 F.3d 53, 55
[*5] (1st Cir. 2004). The Act provides:
No abortion shall be performed upon an unemancipated minor or upon
a female for whom a guardian or conservator has been appointed pursuant
to RSA 464-A because of a finding of incompetency, until at least 48 hours
after written notice of the pending abortion has been delivered in the manner
specified in paragraphs II and III.
RSA 132:25; 390 F.3d at 55. Written notice must be addressed to the
parent at the usual place of residence; notification by certified mail is
permitted. Id. However, notice is not required in the fashion provided by the
statute if the person entitled to notice certifies they have received it, or if
the physician certifies that abortion is necessary
[**7] to prevent the minor's death and there is
insufficient time to provide the requisite notice. RSA 132:26; 390 F.3d at
55.
The District Court held the Act facially invalid
pursuant to this Court's decisions in Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.S. 833 (1992) and Stenberg v. Carhart, 530 U.S. 914 (2000). 390
F.3d at 56-57; Planned Parenthood of Northern New England v. Heed, 296 F.
Supp.2d 59, 64-65 (D. N.H. 2003). The District Court found the Act
unconstitutional due to the lack of an explicit exception to protect the health
of the minor and the narrowness of the Act's exception
for abortions
necessary to prevent the minor's death. 390 F.3d at 56-57; 296 F.Supp.2d at 65
(health exception) and 67 (death exception). The lower court relied upon the
affidavit of the only physician plaintiff in the case, Dr. Wayne Goldner, who
listed five specific conditions that, in his view, could require abortion to
protect a minor's health. 390 F.3d at 56, n.2; 296 F. Supp.2d at 56. Although
the District Court did not discuss these conditions
[*6] in its opinion,
[**8] they were cited by the Court of Appeals as
examples of medical conditions that may require an abortion to preserve a
minor's health:
Dr. Wayne Goldner listed in his unopposed declaration five
specific conditions that could require abortion to protect a minor's health:
pre-eclampsia, eclampsia, premature rupture of the membranes surrounding the
fetus, spontaneous chorioamnionitis, and heavy bleeding during
pregnancy.
390 F.3d 53, 56, n.2. The
Court's Amici, who include thousands of obstetricians, gynecologists, surgeons
and internal physicians, respectfully take issue with the courts' reliance upon
Dr. Goldner's assertions. In the case of each of these pregnancy complications,
as well as in the case of most if not all other recognized complications,
immediate termination by abortion is not only not indicated, in many cases it is
actually contraindicated. See Appendix A to Brief of Amici ("Comparison Chart:
Pregnancy Complications and Treatments"). Amici submit that the medical-legal
issue
for the Court to consider in the circumstances contemplated by the
New Hampshire parental notification act is not whether a particular complication
may necessitate consideration
[**9]
of termination as a therapeutic response generally, but whether Respondents have
adequately demonstrated (primarily through Dr. Goldner's assertions) that
immediate termination within 48 hours in the primary clinical setting of
Respondent women's health centers is indicated
for such complications. In
Amici's view, accepted medical authority directly contradicts Respondent's
position.
I. NEW HAMPSHIRE'S PARENTAL NOTIFICATION LAW
WILL NOT INCREASE MATERNAL MORBIDITY AND MORTALITY AMONG THE STATE'S
[*7] TEENAGERS.
Teenage pregnancy, while not desirable, does not result in
excess maternal mortality provided the mother receives proper prenatal care.
Numerous studies support the value of proper prenatal care as essential to the
well-being of the adolescent mother and child. n2 "Women without any prenatal
care were almost twofold at increased risk
for maternal death
[*8] relative to those who
received prenatal care." n3 Nothing in the growth or physiology of an adolescent
specifically contraindicates pregnancy. n4 In fact, the opposite is true, as
"women aged 35-39 years carry a 2.6-fold increased risk of maternal death and
those >/= 40 years have a 5.9 fold increased risk." n5
[**10] This is reflected in New Hampshire's own
recent experience; State Health Department statistics demonstrate that
for the period 1999 to 2002, New Hampshire has recorded no deaths due to
pregnancy, childbirth and the puerperium
for patients under 22 years of
age. See Appendix B, Health Statistics and Data Management Section of the Bureau
of Disease Control and Health Statistics, Department of Health and Human
Services, Table, NH Female Leading Causes of Deaths from 1999 to 2002.
n2 The quantity and quality of
prenatal care have a direct and significant effect on the pregnant woman and her
offspring. The most striking examples of the value of prenatal care occur in
teenage pregnancies. The unique medical problems of the pregnant teenager can be
controlled and the results of proper prenatal care prove to be no different from
that in the general population. Israel and Woutersz, Teenage Obstetrics, 85 AM.
J. OBSTET. GYNECOL. 869 (1963); Anderson, Comprehensive Management of the
Pregnant Teen-ager, 7 CONTEMPORARY OB/GYN 75 (1976); Briggs, Herren, et. al.,
Pregnancy in the Young Adolescent, 84 AM. J. OBSTET. GYNECOL. 436 (1962); Dwyer,
Managing the Teenage Pregnancy, 12 OB-GYN OBSERVER 2 (1975); Webb, Briggs,
Brown, A Comprehensive Adolescent Maternity Program in a Community Hospital, 84
AM. J. OBSTET. GYNECOL. 442 (1962); Houde and Conway, Teen-age Mothers: a
Clinical Profile, 7 CONTEMPORARY OB/GYN 71 (1976); Sarrel and Klerman, The Young
Unwed Mother, 105 AM. J. OBSTET. GYNECOL. 575 (1969); Dott and Fort, Medical and
Social Factors Affecting Early Teenage Pregnancy, 125 AM. J. OBSTET. GYN-ECOL.
532 (1976); Clark, Wong, et al., The Pregnant Adolescent, 142 ANN. N.Y. ACAD.
SCI. 813 (1970); Zaeckler, Adelman, et al., The Young Adolescent as an
Obstetrical Risk, 103 AM. J. OBSTET. GYNECOL. 305 (1969). These results show the
benefits of proper pre-natal care
for the pregnant teenager. There are no
studies indicating any medical benefits of abortion
for the pregnant
teenager, nor is abortion recommended as the form of treatment. Many health
problems prevalent among teenagers can be diagnosed and treated concurrently
with pregnancy; such treatment may not occur should the patient choose
abortion.
[**11] n3 Dildy, G. (Ed.), et
al., CRITICAL CARE OBSTETRICS 6 (4th ed. 2003), citing Atrash, H.K., et al.,
Maternal and Perinatal Mortality, 4 CURR. OP. OBSTET. GYNECOL. 61 (1992).
n4 Seeley, et al., ANATOMY AND PHYSIOLOGY
937-955 (5th ed. 2000).
n5 CRITICAL CARE
OBSTETRICS at 6.
Physicians have long known that an
excessive reliance on abortion as a treatment
for adolescent pregnancy
was unfounded. The Court should be extremely wary of abortion as a treatment
for the health problems of teenagers since severe, long-term
complications and handicaps have developed due to such abortions. n6 Further,
since an individual's first pregnancy may also be her only one and existing
health problems in an adolescent only tend to worsen over time, n7 an adolescent
should not be hastily
[*9]
rushed into an abortion when future child bearing may be placed at greater risk.
As adolescents are not fully developed with regard to future planning and risk
assessment, n8 parental notification, knowledge and involvement are essential to
ensure positive overall outcomes.
n6 Bulfin, A New Problem in Adolescent Gynecology, 72 SOUTHERN MED. J.
967-968 (Aug. 1979).
n7 Most
constitutional illnesses, e.g., diabetes, hypertensive and vascular disorders,
rheumatological disorders and genetic disorders tend to worsen an individual's
health over time. See generally Habermann, T. (Ed. in Chief), MAYO CLINIC
INTERNAL MEDICINE BOARD REVIEW 2002-2003.
[**12] n8 See generally John J. Mitchell, THE NATURAL LIMITATIONS
OF YOUTH: THE PREDISPOSITIONS THAT SHAPE THE ADOLESCENT CHARACTER (Ablex Pub.
Co. 1998).
II. MEDICAL COMPLICATIONS OF PREGNANCY DO
NOT REQUIRE ABORTION AS A TREATMENT IN THE CIRCUMSTANCES CONTEMPLATED BY THE NEW
HAMPSHIRE STATUTE.
Respondents evidence a fundamental
misunderstanding of the proper role of the physician in the care of the high
risk pregnant adolescent. Proper medical care mandates evaluation and diagnosis
prior to undertaking life altering surgical procedures. Such action is not only
prudent from the medical perspective, it is essential in the context of induced
abortion, since the pregnant adolescent is likely to be at risk in any future
pregnancies and the best opportunity to have offspring might be her first and
only pregnancy.
All of the potentially catastrophic
medical conditions cited by opponents would also mandate care in an advanced
medical facility. Specialized units have been developed
for the provision
of such care. n9 Such care would, of necessity, go beyond the immediate abortion
procedure and would likely involve complex decision-making. Prudent medical care
and planning would therefore
[**13] consistently involve parental
involvement and consultation, if not outright
[*10] consent. Encouraging parental knowledge
and involvement at the earliest opportunity would serve to protect the
adolescent in difficult circumstances, particularly when the adolescent cannot
advocate
for herself. n10
n9 CRITICAL CARE OBSTETRICS at 13-16.
n10 The confidentiality advocated by Respondents is designed to keep
the information only from the parent. Since pregnancy in an otherwise
unemancipated adolescent raises at least the question of statutory rape or child
sexual abuse, the unnecessary allegiance to confidentiality may only serve to
maintain the adolescent in an abusive situation or allow others with knowledge
of the adolescent's history to use the threat of exposure
for continued
coercion or abuse.
The Court's Amici believe that the
litany of complex medical complications of pregnancy cited as necessitating a
health exception, including Eisenmenger's Syndrome, n11 Pulmonary Hypertension,
Pre-Eclampsia/Eclampsia, Premature Rupture of the Membranes/Chorioamnionitis,
Placenta Previa and Abruptio Placenta, and Marfan's Syndrome, n12 do not
necessarily warrant immediate abortion
[**14] as the primary therapeutic response,
for the reasons discussed herein.
n11 See Brief Amici Curiae of Society
for
Adolescent Medicine, et al., in Support of Appellees at 11.
n12 Id.
Eisenmenger's Syndrome is
a form of cyanotic heart disease which involves severe pulmonary hypertension
originating from a left to right shunting of blood. n13 As the pulmonary
hypertension worsens, the shunt reverses, forcing unoxygenated blood to bypass
the heart. While Eisenmenger's Syndrome is considered a contraindication to
[*11] pregnancy and some
authorities might advocate termination early in a pregnancy, nothing in the
medical literature requires emergent or even urgent termination. The vast
majority of deaths occur peri-partum (i.e., during delivery) and post-partum.
n13 Atrial septal defect,
ventricular septal defect and patent ductus arteriosis can all be sources of the
original left-to-right shunt. Epstein, P. (Ed. in Chief) and Foster, E. (Ed.),
MEDICAL KNOWLEDGE SELF-ASSESSMENT PROGRAM 89 (13th ed. 2003).
The accepted treatment
for Eisenmenger's Syndrome in pregnancy
is supplemental oxygen, bed rest, early hospitalization with close hospital
monitoring, decreased cardiac
[**15] workload and maintenance of venous
return, appropriate vascular volume and right ventricular filling. n14 In fact,
some studies indicate increased maternal mortality with surgical intervention in
the latter half of pregnancy compared to vaginal delivery. n15
n14 Burrow, et al. (Eds.), MEDICAL
COMPLICATIONS DURING PREGNANCY 110-111 (6th ed. 2004); CRITICAL CARE OBSTETRICS
at 257.
n15 CRITICAL CARE OBSTETRICS at
257.
Several points regarding Eisenmenger's Syndrome
are important to consider. First, the occurrence of late stage Eisenmenger's
Syndrome with significant pulmonary hypertension in the adolescent population is
extremely rare. Eisenmenger's syndrome does not develop spontaneously. "Over
many years, the prolonged presence of high flow and pressure in the pulmonary
arteries causes the pulmonary vessels to constrict and thicken." n16 "These are
exceedingly rare conditions." n17
n16
http://tchin.org/resource_room/c_art_06.htm (emphasis
added).
n17 T. Murphy Goodwin, M.D.,
Medicalizing Abortion Decisions, 61 FIRST THINGS 33-36 (March 1996).
Second, hormonal changes secondary to pregnancy may
provide some protective effect by decreasing pulmonary
[*12] vascular
[**16] resistance. n18 The loss of these
protective hormones by surgical abortion may have significant adverse
consequences.
n18 CRITICAL
CARE OBSTETRICS at 257.
Third, since the vast majority
of complications are periand post partum, the existence of Eisenmenger's
Syndrome is highly unlikely to produce adverse health consequences during the
period when parental notification, under the New Hampshire law, will be at
issue.
Fourth, no responsible physician would undertake
the care of a pregnant Eisenmenger's patient, whether
for surgical
abortion or delivery, outside of the hospital setting.
For an adolescent
patient, close contact and consultation with the parents or other responsible
guardian would be essential
for appropriate immediate treatment, case
management and follow-up care.
Finally, delivery of an
adolescent mother, while problematic, may be preferable from a health standpoint
compared to the risk of a later pregnancy which is likely to occur in the same
mother only with a worsened cardiovascular status. Complex decisions regarding
potential termination in a setting where future pregnancy is contraindicated are
best done in a careful, well planned manner with appropriate
[**17] familial and
medical support. The New Hampshire law is consistent with such appropriate
parental involvement.
Pulmonary Hypertension in
pregnancy carries with it similar concerns to those noted
for
Eisenmenger's Syndrome. Recent medical advances (e.g., epoprostenol, n19
[*13] inhaled nitric oxide
n20) may prove beneficial in decreasing morbidity and mortality in these
patients regardless of the planned clinical outcome.
For both
Eisenmenger's Syndrome and Pulmonary Hypertension, appropriate clinical
evaluation and initial stabilization therapy will provide more than ample time
for either parental notification or judicial bypass.
n19 See generally
http://www.nlm.nih.gov/medlineplus/druginfo/uspdi/203429.html.
n20 CRITICAL CARE OBSTETRICS at 258.
Cardiac surgery during pregnancy is not absolutely
contraindicated, but should be optimized as to time, place, gestation and level
of care. n21 However, surgical abortion as a treatment
for certain
cardiovascular conditions, such as congestive heart failure, has long been known
to carry severe inherent risks:
For the patient who is not in
cardiac failure there is no need to terminate and if she is in failure
termination [**18] is next
door to manslaughter . . .
On no account may
obstetrical intervention be undertaken until the patient's cardiac failure is
under control, although the situation may seem so grim that one may be tempted
to interfere. To do so would simply seal the patient's fate. Once failure has
been controlled, however, the need to intervene in the pregnancy has passed.
n22
n21 MEDICAL KNOWLEDGE SELF-ASSESSMENT PROGRAM at 96-97.
For
peripartum cardiomyopathy, "Treatment is supportive and includes standard
treatment
for congestive heart failure." MEDICAL KNOWLEDGE
SELF-ASSESSMENT PROGRAM at 100. See generally id., at 99 (discussing benefits
and risks of continuing or interrupting pregnancy in cardiac patients).
n22 Donald, I., PRACTICAL OBSTETRIC PROBLEMS
169-170 (5th ed. 1979) (emphases added).
[*14] Pre-eclampsia is a
disease unique to pregnancy and pregnancy related conditions. n23 Pre-eclampsia
is defined as maternal hypertension, proteinuria and edema beginning after the
20th week of gestation. n24 Optimal treatment consists of bed rest, blood
pressure monitoring and control, regulation of fluid intake and output, close
hospital monitoring and medication
[**19] for neurologic indications. n25
Treatment
for pre-eclampsia has been fairly standardized
for
decades, n26 and newer anti-hypertensive medications have improved treatment and
control. n27 Early delivery, not necessarily abortion, is considered if the
condition worsens after attempts at medical control. n28
n23 MEDICAL COMPLICATIONS DURING PREGNANCY at
45. Eclampsia, which involves maternal seizures in the setting of pre-eclampsia,
is included here. "The incidence of eclampsia has declined since the 1920s,
largely because of the greater availability of prenatal care." MEDICAL
COMPLICATIONS DURING PREGNANCY at 46.
n24
MEDICAL COMPLICATIONS DURING PREGNANCY at 45-47.
n25 MEDICAL COMPLICATIONS DURING PREGNANCY 54-56; CRITICAL CARE
OBSTETRICS at 438.
n26 CRITICAL CARE
OBSTETRICS at 438-39; MAYO CLINIC INTERNAL MEDICINE BOARD REVIEW 2002-2003 at
553.
n27 CRITICAL CARE OBSTETRICS at
441-444.
n28 "When severe pre-eclampsia is
diagnosed, immediate delivery, regardless of gestational age, has generally been
recommended." National High Blood Pressure Education Program Working Group
(1990), quoted in CRITICAL CARE OBSTETRICS at 438.
While some authorities advocate
[**20] outpatient monitoring and expectant
management
for pre-eclampsia, n29 such care is not likely to be
appropriate in the setting of adolescent pregnancy, particularly in the absence
of parental notice and
[*15]
involvement. n30 It would be difficult, if not impossible, to imagine a
situation where the adolescent would receive appropriate medical management in a
suitable clinical setting, n31 regardless of the intended pregnancy outcome,
without parental notice and parental involvement. Further, the health risks and
concerns
for the adolescent do not terminate merely because the pregnancy
does n32 and follow-up in a supportive environment would be essential to prevent
any late complications.
n29
E.g., CRITICAL CARE OBSTETRICS at 438-439.
n30 MEDICAL COMPLICATIONS DURING PREGNANCY at 55. Optimal outpatient
management would include twice weekly fetal monitoring, ultrasound evaluations
and frequent laboratory and clinical evaluations.
n31 See CRITICAL CARE OBSTETRICS at 438-439 ("...intensive maternal and
fetal monitoring in a tertiary care center").
n32 MEDICAL COMPLICATIONS DURING PREGNANCY at 56 ("Late postpartum
eclampsia has also been observed, the seizures occurring after the first
postpartum week.").
[**21] Placenta
Abruptio and Placenta Previa are conditions that often present with significant
vaginal hemorrhage. Placental abruption is defined as the premature separation
of a normally situated placenta, and may be partial or complete. n33 In placenta
previa, a portion of the placenta may partially or completely cover the internal
cervical os. n34 In the setting of vaginal blood loss, appropriate initial
management includes bed rest, close hospital monitoring, fluid resuscitation,
and transfusion as needed. "Resuscitation with fluid, blood, and correction of
coagulopathy must be urgently undertaken, and invasive monitoring may be
necessary." n35 Should the clinical condition of the mother permit, ultrasound
evaluation and testing
for pregnancy
[*16] viability may be considered. But the
appropriate treatment is not abortion, since "...prompt delivery prevents
further decompensation of both mother and fetus." n36 "If the fetus is alive and
of viable gestational age at presentation, urgent delivery by caesarean section
is indicated unless vaginal delivery is imminent." n37
n33 CRITICAL CARE OBSTETRICS at 298.
n34 ANATOMY AND PHYSIOLOGY at 964.
n35 CRITICAL CARE OBSTETRICS at 298.
[**22] n36 CRITICAL CARE
OBSTETRICS at 298.
n37 CRITICAL CARE
OBSTETRICS at 298.
To undertake such care in anything
less than a full service hospital would be risky. To undertake such care in a
free-standing clinic or with mid-level health practitioners would be
unthinkable. n38 Parental notification can be easily accomplished as part of
transfer to an appropriate medical care facility or during the period of
stabilization at that facility. Parental consultation may be essential, since
the distressed adolescent may be unable to advocate
for herself or
provide
for the needs of her newborn.
n38 Amici note with concern that Respondent Planned
Parenthood of Northern New England admits that "Using mid-level practitioners
reduces costs
for patients and enables us to reach more women."
http://www.ppnne.org/site/PhotoAlbumUser?view=UserPhotoDetail&PhotoID=68499&position=3&AlbumID=7528
(last viewed 08/06/05).
Premature Rupture of Membranes
surrounding the unborn child may lead to an infectious condition known as
Chorioamnionitis. Most infections are caused by bacteria in the cervical and
vaginal flora. n39 Treatment requires prompt administration of antibiotics and
delivery. n40 Since
[**23] the required antibiotics are
administered intravenously and would be required regardless of intended
pregnancy outcome, hospitalization, monitoring of drug levels and close
[*17] observation are
mandatory. n41 As noted throughout this brief, parental notification,
consultation and support would be essential to a positive outcome
for the
adolescent.
n39 MEDICAL
COMPLICATIONS DURING PREGNANCY at 314.
n40
MEDICAL COMPLICATIONS DURING PREGNANCY at 315.
n41 Id.
Marfan's Syndrome is an autosomal
dominant genetic disease that produces abnormalities in connective tissue.
Individuals with Marfan's Syndrome are at risk
for aortic dissection and
other cardiovascular complications.
Pregnancy should be discouraged in these
individuals. Maternal activity should be limited, and prophylactic
B-adrenergic blocking therapy should be applied during pregnancy. Ideal
monitoring includes blood pressure analysis and serial echocardiographic
studies. If there is progressive aortic root dilation or if the aortic root
diameter exceeds 5.5 cm, necessary surgical repair can be carried out during
pregnancy with good outcomes. n42
Cesarean section is advised in certain circumstances.
[**24] n43
n42 MEDICAL COMPLICATIONS DURING PREGNANCY at
112, citing Elkayam, U., et al., Cardiovascular Problems in Pregnant Women with
the Marfan Syndrome, 123 ANN. INTERN. MED. 117 (1995).
n43 Id.
In summary, pregnancy
complications in the adolescent do not require a rush to abortion. Prudent
medical management requires an appropriate evaluation and an effort at
stabilization which would allow
for beneficial parental notification and
involvement. See Appendix A to Brief of Amici ("Comparison Chart: Pregnancy
Complications and Treatments").
III. STATISTICAL
COMPARISONS OF ABORTION RISKS
[*18]
AND MATERNAL MORTALITY RISKS MAY GIVE A FALSE IMPRESSION OF ABORTION SAFETY.
Respondents urge that abortion is "an extremely safe
medical procedure." Declaration of Wayne Goldner 2, P3. Dr. Goldner claimed in
the District Court that "Both in terms of mortality (death) and morbidity
(serious complications short of death) abortion is many times safer than
continuing pregnancy through to childbirth." Id. Complaint at 7. However, this
argument depends upon a fallacious comparison of maternal mortality and live
birth data. While defining maternal mortality relative to live births may
be
[**25] statistically
convenient, it improperly represents the true population at risk while including
deaths from unrelated groups. According to the Centers
for Disease
Control and Prevention,
The maternal mortality rate is computed as all maternal deaths per
100,000 live births. In contrast, the measure used for abortions is a
case-fatality rate which is computed per 100,000 abortions. These measures are
conceptually different and used by CDC for different public health
purposes.
Appendix C, Letter of July
20, 2004 from Julie L. Gerberding, M.D., M.P.H., Director, to Walter M. Weber,
American Center
for Law & Justice, p. 1.
Moreover, the Maternal Mortality Rate (MMR) is commonly defined as the
Total Maternal Deaths (TMD) divided by the number of Live Births (LB). Each
component suffers from multiple defects that make the overall MMR an
inappropriate means
for comparison to the Abortion Mortality Rate
(AMR).
[*19] First, the TMD is defined as all deaths
attributable to pregnant women during the period of their pregnancy and
for a year after delivery. n44 Such deaths might occur in women of all
races, n45 across the entire age range in which pregnancy can occur, n46
[**26] in all states of
underlying health conditions, n47 by all causes n48 and without regard to
whether or not the woman is under a physician's care. Each element noted above
has implications that make the TMD number increase, thereby increasing the MMR,
but which are not considerations as likely to occur in a population of women
seeking abortion. Women seeking induced abortions tend to be younger, healthier,
from favorable socioeconomic circumstances, of white (Caucasian) race and all,
by definition, are under a physician's care. Those with underlying medical
conditions who succumb, in whole or in part, to the stresses of an induced
abortion procedure, may have their deaths attributed to the underlying medical
condition or a subsequent condition which developed, rather than the abortion
procedure. n49 Being under a physician's care during a pregnancy has been shown
to be a significant factor in the
[*20] prevention of maternal mortality. n50
n44 Centers
for Disease
Control and Prevention, Pregnancy Related Mortality Surveillance -- United
States, 1991-1999 (MMWR), February 21, 2003, available at
http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5202a1.htm.
n45 Minorities are more commonly represented
in the population of women continuing their pregnancies and have poorer
outcomes. CRITICAL CARE OBSTETRICS at 4 ("Black maternal race confers a relative
risk of 3.7 fold
for maternal death compared to White women."); CRITICAL
CARE OBSTETRICS at 6.
[**27] n46 Id. ("women aged 35-39 years carry a 2.6-fold
increased risk of maternal death and those >/=40 years have a 5.9 fold
increased risk").
n47 See generally
MEDICAL COMPLICATIONS DURING PREGNANCY; CRITICAL CARE OBSTETRICS.
n48 CRITICAL CARE OBSTETRICS at 6.
n49 CRITICAL CARE OBSTETRICS at 6.
n50 Id. ("Women without any prenatal care
were almost twofold at increased risk
for maternal death relative to
those who received prenatal care.").
Second, the
calculation of MMR based on the number of live births falsely underestimates the
population of women who are at risk
for the complications of pregnancy
either wholly or in part. Women who experience miscarriages, stillbirths,
pre-partum intrauterine deaths and deaths from other causes may be added to the
TMD without ever having the likelihood of a live birth.
Confidentiality issues also impact the accuracy of reporting of
maternal deaths, since a pregnant or recently pregnant woman may have the
evidence of her pregnancy objectively determined, but whether her abortion is
natural or induced cannot so easily be assumed. Many women withhold the fact of
their induced abortion. Should such women suffer severe morbidity
[**28] or mortality, prior
to disclosure, their deaths might be attributed to complications of pregnancy
instead of the true cause, which is induced abortion. n51 Further,
confidentiality issues preclude the proper and objective collection and
interpretation of morbidity and mortality data in induced abortion. n52 While
[*21] maternal deaths,
whether from pregnancy or induced abortion, generally occur in the hospital
setting, induced abortions are performed in freestanding clinics not subject to
reporting laws. n53 Death and injury following an induced abortion procedure
often occurs at another location without complete knowledge of the previous
induced abortion. Follow-up on induced abortion morbidity and mortality is
incomplete and haphazard. Provider bias, including concerns about potential
malpractice or public image, may significantly impact what is reported.
n51 Id. ("...infections were the
leading cause of abortion related maternal deaths").
n52 In fact, New Hampshire is one of only 5 states that do
not mandate abortion providers to submit epidemiologically valuable reports
relative to abortion and, of course, its complications. Planned Parenthood,
among other organizations, has opposed efforts by the New Hampshire State
Department of Health and Human Services to require abortion providers to report
such data. Saul, Rebekah, "Abortion Reporting in the United States: An
Examination of the Federal-State Partnership," in Family Planning Perspectives,
Vol. 30, Number 5, Sept./Oct. 1998.
[**29] n53 See Thornburgh v. Amer. College of Obstet. & Gyn.,
476 U.S. 747 (1986).
Respondents and their amici raise
claims of increased mortality and morbidity from any restriction of immediate
access to abortions
for adolescents. Past claims of increased morbidity
and mortality, including claims by allegedly impartial government agencies, have
proven groundless. With regard to the Hyde Amendment, which restricted
governmental funding
for abortions, Dr. Willard Cates, representing the
Centers
for Disease Control Abortion Surveillance Branch, predicted a
total of 77 excess deaths to women who would seek illegal abortions and an
additional 5 excess deaths due to delays in seeking abortion. n54 The same
department would later admit that no such increase in mortality or morbidity had
occurred. n55 Even Dr. Cates would later admit, "The 'bloodbath' many predicted
simply is not happening..." n56 The Court should not be swayed by
[*22] false claims of
abortion safety compared to pregnancy or statistical claims of excess mortality
or morbidity.
n54 Pettiti and
Cates, Restricting Medicaid Funds: Projection of Excess Mortality, 67 AMER. J.
PUB. HEALTH 860-62 (Sept. 1977).
[**30] n55 Centers
for Disease Control, Morbidity and
Mortality Weekly Report, Vol. 28, No. 4, Feb 2, 1979.
n56 Cates, Willard, M.D., Centers
for Disease
Control, Interview in The Washington Post, February 16, 1978.
CONCLUSION
Parental involvement in a
teenager's decision to continue or terminate her pregnancy is not only
desirable, but beneficial to the overall mental and physical health of the
teenage mother.
In this case, however, we are concerned only with minors who
according to the record range in age from children of twelve years to
17-year-old teenagers. Even the latter are less likely than adults to know or
be able to recognize ethical, qualified physicians, or to have the means to
engage such professionals. Many minors who bypass their parents probably will
resort to an abortion clinic, without being able to distinguish the competent
and ethical from those that are incompetent or unethical.
Bellotti v. Baird, 443 U.S. 622, 641 (1979).
Moreover,
The medical, emotional, and psychological consequences of an
abortion are serious and can be lasting; this is particularly so when the
patient is immature. An adequate medical and psychological [**31] case history is
important to the physician. Parents can provide medical and psychological
data, refer the physician to other sources of medical history, such as family
physicians, and authorize family physicians to give relevant
data.
H.L. v. Matheson, 450 U.S.
398, 411 (1981); accord Ohio v. Akron Ctr.
for Reproductive Health, 497
U.S. 502, 518-19
[*23]
(1990).
The teenager may have significant medical needs
following the abortion procedure that further validate the desirability and
benefits of early parental involvement. (Risks of infection, mental and physical
trauma, hemorrhage, perforation, undetected ectopic pregnancy, etc.) Further,
parental involvement can ensure the continued involvement and responsible
management of qualified health professionals who might otherwise be unaware of
or unavailable
for the continuing medical needs of the teenager.
New Hampshire's plan
for parental certification is
a safe and effective means of assuring that the mother receives treatment in a
timely manner without risking exposure to dangerous procedures and unscrupulous
providers. Should the parents be notified and fail to act in the best interest
of their
[**32] teenage child, the
physician has ample recourse either through emergency bypass or through
termination of parental rights in a child welfare proceeding.
For the reasons set forth hereinabove, the Court's Amici
respectfully submits that the decision of the First Circuit Court of Appeals
should be reversed.
Respectfully submitted,
Steven H. Aden, (Counsel of Record), CENTER
FOR LAW
& RELIGIOUS FREEDOM OF THE CHRISTIAN LEGAL SOCIETY, 4208 Evergreen Lane,
Suite 222, Annandale, Virginia 22003, Tel.: (703) 642-1070,
[*24] Counsel
for
Amici Curiae
August 8, 2005
[*1] Appendix A
COMPARISON CHART: PREGNANCY COMPLICATIONS AND TREATMENTS
| Condition Requiring |
Standard Medical |
Respondent's |
| Treatment |
Treatment |
Treatment Plan |
| Teenage Pregnancy |
Proper Prenatal Care n1 |
Immediate Abortion n3 |
|
| Social and Support |
|
| Services |
|
| Treatment of Existing |
|
| Health |
|
| Conditions n2 |
|
| Parental notification, |
|
| Consultation and Support |
|
| Eisenmenger's Syndrome |
Oxygen n4 |
Immediate Abortion n5 |
|
| Bed Rest |
|
| Close Hospital Monitoring |
|
| Optimize Cardiovascular |
|
| Function |
|
| Post-Partum Observation |
|
| General Cardiac |
Surgery Not |
Immediate Abortion n7 |
| Conditions |
Contraindicated n6 |
|
| Optimize Cardiovascular |
|
| Function |
|
| Pulmonary Hypertension |
See Eisenmenger's |
Immediate Abortion n9 |
|
| Syndrome, supra. |
|
| Medication to decrease |
|
| Pulmonary Vascular |
|
| Resistance. n8 |
|
| Preeclampsia/Eclampsia |
Bed Rest n10 |
Immediate Abortion n12 |
|
| Blood Pressure Monitoring |
|
| & Control |
|
| Regulation of fluid |
|
| intake and |
|
| output |
|
| Close Hospital Monitoring |
|
| Medication for Neurologic |
|
| Complications |
|
| Early Delivery if |
|
| needed n11 |
|
| Abruptio Placenta |
Prompt Delivery n13 |
Immediate Abortion n14 |
|
| Fluid Resuscitation |
|
| Blood Transfusion |
|
| Hospital Monitoring |
|
| Bed Rest |
|
| Ultrasound and Lab (HCG) |
|
| Evaluation |
|
| Placenta Previa |
Fluid Resuscitation n15 |
Immediate Abortion n16 |
|
| Blood Transfusion |
|
| Hospital Monitoring |
|
| Bed Rest |
|
| Ultrasound and Lab (HCG) |
|
| Evaluation |
|
| Cesarean and Early |
|
| Delivery If |
|
| needed |
|
| Premature Rupture of |
Monitor for signs of |
Immediate Abortion n18 |
| Membranes |
infection n17 |
| Chorioamnionitis |
Intravenous Antibiotic |
|
| Therapy |
|
| Fluid Support |
|
| Delivery if needed |
|
| Marfan's Syndrome |
Blood Pressure Analysis |
Immediate Abortion n21 |
|
| n19 |
|
| Frequent |
|
| Echocardiographic |
|
| Evaluation |
|
| B-Blocker Therapy |
|
| Surgery if needed n20 |
