Nos. 18-1323 and 18-1460

In the

Supreme Court of the United States

On Writs Of CertiOrari tO the United states COUrt Of appeals fOr the fifth CirCUit

BRIEF OF AMICI CURIAE NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES, ALPHA CENTER, HEARTBEAT INTERNATIONAL, INC., CARE NET, CARING TO LOVE MINISTRIES, AND LOUISIANA

ALLIANCE FOR LIFE, IN SUPPORT OF RESPONDENT/CROSS-PETITIONER

293480

JUNE MEDICAL SERVICES L.L.C., et al.,

Petitioners,

v.

REBEKAH GEE, SECRETARY, LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS,

Respondent.

REBEKAH GEE, SECRETARY, LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS,

Cross-Petitioner,

v.

JUNE MEDICAL SERVICES L.L.C., et al.,

Respondents.

harold J. CassIdy

Counsel of RecordJoseph r. Zakhary

thomas J. VIggIano, IIIderek m. CassIdy

the CassIdy law FIrm

750 Broad Street, Suite 3Shrewsbury, New Jersey 07702(732) 747-3999hjc@thecassidylawfirm.com

Counsel for Amici Curiae

i

QUESTION PRESENTED

These Amici Curiae address only the first question presented in Respondent’s Cross-Petition:

Can abortion providers be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients absent a “close” relationship with their patients and a “hindrance” to their patients’ ability to sue on their own behalf?

ii

TABLE OF CONTENTS

Page

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

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

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . vii

INTEREST OF AmiCi CuRiAe . . . . . . . . . . . . . . . . . .1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . .3

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

I. Third-Party Standing is the Narrow and Generally Disfavored Exception to the Rule Prohibiting Litigants from Claiming What They Assert to be the

Constitutional Rights of a Non-Party. . . . . . . . . .6

II. The Pregnant Mother Has a Fundamental, Intrinsic, Natural Right to Maintain Her Relationship With Her Child Protected Under the Fourteenth Amendment Throughout

Pregnancy and Under Louisiana Law . . . . . . . . .9

A. The Pregnant Mother has a Fundamental Intrinsic Right to Continue and Maintain

Her Relationship with Her Child . . . . . . . . .9

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Page

B. Louisiana Has Uniformly Acted to Protect a Pregnant Mother Against Involuntary or Uninformed Termination

of Her Relationship With Her Child . . . . . .12

(1) Protection by the Fetal Homicide Statute . . . . . . . . . . . . . . . . . . . . . . . . . . .13

(2) Protection by the Wrongful Death Statute . . . . . . . . . . . . . . . . . . . . . . . . . . .14

(3) Protections Under the State’s Adoption Statute . . . . . . . . . . . . . . . . . .14

(4) State Efforts to Protect the Rights of Pregnant Mothers in the Abortion Context are Routinely Stymied by Courts Presuming that Abortion Providers have Standing to Advance What They Purport to be the Rights and Interests of All

Unidentified Pregnant Mothers . . . . . .15

III. Abortion is the Employment of a Medical Procedure to Achieve a Non-Medical Objective: The Termination of the Pregnant Mother’s Constitutionally Protected

Relationship with Her Child . . . . . . . . . . . . . . . .19

A. A Doctor Treating a Pregnant Mother Has Two Patients . . . . . . . . . . . . . . . . . . . . .19

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B. The Primary Decision of a Pregnant Mother Faced With the Prospect of an Abortion is Non-Medical: Can and Should She Maintain Her Relationship

with Her Child? . . . . . . . . . . . . . . . . . . . . . . .20

C. An Abortion Terminates the Life of a Whole, Separate, Unique, Living Human Being; a Consent for an Abortion Immunizes the Abortion Physician from

Criminal Prosecution for Homicide . . . . . .21

IV. In the Majority of Cases, Abortion Providers Cannot Satisfy the Prudential Considerations for Third-Party Standing to Litigate the Rights and Interests of

Pregnant Mothers . . . . . . . . . . . . . . . . . . . . . . . . .23

A. There is No True Doctor-Patient Relationship in the Abortion Context. . . . .23

B. Many Pregnant Mothers are Pressured or Coerced into Having Abortions That They Do Not Want, Abortion Providers Do Not Assess for Coercion and Pressure, and Fail to Properly Counsel Pregnant

Mothers Before Taking a Consent . . . . . . .26

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C. The Lack of Any True Physician-Patient Relationship and the Conflicts Between the Interests of the Abortion Providers and Those of the Pregnant Mother Precludes Recognition of

Standing in the Abortion Providers . . . . . .29

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32

vi

TABLE OF APPENDICES

Page

APPENDIx A — INTEREST OF AmiCi CuRiAe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1a

APPENDIx B — DECLARATION OF B.H.. . . . . . . .6a

APPENDIx C — STATE OF SOUTH DAKOTA NINETIETH SESSION LEGISLATIVE

ASSEMBLY, 2015. . . . . . . . . . . . . . . . . . . . . . . . . . . .18a

vii

TABLE OF CITED AUTHORITIES

Page

CASES

Barrows v. Jackson, 346 U.S. 249 (1953). . . . . . . . . . . . . . . . . . . . . . . . . 3, 6-7

Burgess v. the Superior Court of Los Angeles, 831 P.2d 1197 (Cal. 1992) . . . . . . . . . . . . . . . . . . . . . . .20

Caban v. mohammed, 441 U.S. 380 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Caplin & Drysdale v. u.S., 491 U.S. 617 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 8

Comm. v. Crawford, 722 N.E.2d 960 (Mass. 2000) . . . . . . . . . . . . . . . . . . .13

Craig v. Boren, 429 U.S. 190 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Danos v. St. Pierre, 402 So. 2d 633 (La. 1981) . . . . . . . . . . . . . . . . . . . . . . .14

Draper v. Jasionowski, 858 A.2d 1141 (N.J. App. Div. 2004). . . . . . . . . . . .4, 20

Glona v. Amer. Guar. & Liab. ins. Co., 391 U.S. 73 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

viii

Cited Authorities

Page

Harrison v. united States, 284 F.3d 293 (1st Cir. 2002). . . . . . . . . . . . . . . . . . . . .20

Hughson v. St. Francis Hosp. of Port Jervis, 459 N.Y.S.2d 814 (N.Y. App. Div. 1983) . . . . . .4, 19, 20

in re A.C., 573 A.2d 1235 (D.C. 1990) . . . . . . . . . . . . . . . . . . . . . .20

in re Cert. of Question of Law from u.S. District Court v. mt. marty Hospital Assoc.,

387 N.W.2d 42 (S.D. 1986) . . . . . . . . . . . . . . . . . . . . . .20

Kowalski v. Tesmer, 543 U.S. 125 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Lassiter v. Department of Soc. Serv., 452 U.S. 18 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Ledford v. martin, 359 S.E.2d 505 (N.C. Ct. App. 1987) . . . . . . . . . . . . .20

Lehr v. Robertson, 463 U.S. 248 (1983). . . . . . . . . . . . . . . . . . . . .4, 5, 10, 29

Lexmark int’l, inc. v. Static Control Components, inc.,

572 U.S. 118 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

m.L.B. v. S.L.J., 519 U.S. 102 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

ix

Cited Authorities

Page

meyer v. Nebraska, 262 U.S. 390 (1923). . . . . . . . . . . . . . . . . . . . . . . . . . . .10

moore v. City of east Cleveland, 431 U.S. 494 (1977). . . . . . . . . . . . . . . . . . . . . . . .4, 9, 11

Nold ex rel. Nold v. Binyon, 31 P.3d 274 (Kan. 2001). . . . . . . . . . . . . . . . . . . . . . . . .20

Ob-Gyn Associates of Albany v. Littleton, 386 S.E.2d 146 (Ga. 1989) . . . . . . . . . . . . . . . . . . . . . .20

Planned Parenthood of minn., N.D., S.D., et al. v. Daugaard, et al.,

799 F. Supp. 2d 1048 (D.S.D.2011) . . . . . . . . . . passim

Planned Parenthood v. Casey, 505 U.S. 833 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Planned Parenthood of minn., N.D., S.D., et al. v. Rounds, Alpha Center, et al.,

530 F.3d 724 (8th Cir. 2008) (en banc) (“Rounds i”) . . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 16, 21

Planned Parenthood, et al. v. Rounds, Alpha Center, et al.,

653 F.3d 662 (8th Cir. 2011) (“Rounds ii”) . . . . . 16-17

x

Cited Authorities

Page

Planned Parenthood, et al. v. Rounds, Alpha Center et al.,

686 F.3d 889 (8th Cir. 2012) (en banc) (“Rounds iii”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

Planned Parenthood, et al. v. Rounds, Alpha Center, et al.,

650 F. Supp. 2d 972 (Dist. SD, 2009) . . . . . . . . . . . . .16

Powers v. Ohio, 499 U.S. 400 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 8

Quilloin v. Alcott, 434 U.S. 246 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Roberts v. Patel, 620 F. Supp. 323 (N.D. Ill. 1985). . . . . . . . . . . . . . . . .20

Roe v. Wade, 410 U.S. 113 (1973) . . . . . . . . . . . . . . . . . . . . . . 5, 12, 29

Santosky v. Kramer, 455 U.S. 745 (1982) . . . . . . . . . . . . . . . . . . . . .5, 9, 11, 29

Singleton v. Wulff, 428 U.S. 106 (1976) . . . . . . . . . . . . . . . . . . . . . . . . .3, 6, 8

Skinner v. Oklahoma, 316 U.S. 535 (1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

xi

Cited Authorities

Page

Smith v. Organization of Foster Families, 431 U.S. 816 (1977) . . . . . . . . . . . . . . . . . . . . . .4, 5, 9, 29

Spokeo, inc. v. Robins, 136 S. Ct. 1540, __ U.S. __, (2016) . . . . . . . . . . . . . . . .7

Sprint Communications, inc. v. Jacobs, 571 U.S. 69 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Stanley v. illinois, 405 U.S. 645 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . 9-10

State v. Rollen, 133 S.W.3d 57 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . .13

Troxel v. Granville, 530 U.S. 57 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Tuan Anh Nguyen v. immigration and Naturalization Services,

523 U.S. 53 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Walker v. Pizano v. mart, 790 P.2d 735 (Ariz. 1990) . . . . . . . . . . . . . . . . . . . . . . .20

Wilson v. Town of mamou, 972 So. 2d 461 (La. 2007). . . . . . . . . . . . . . . . . . . . . . .14

xii

Cited Authorities

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STATUTES

18 U.S.C. § 1841(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

18 Pa. C.S.A. § 106. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

21 Okl. St. Ann § 691. . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

720 ILCS 5/9-1.2 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . .13

Ala. Code 1975 § 13A-6-1 . . . . . . . . . . . . . . . . . . . . . . . . .13

Alaska Stat. § 11.41.150 . . . . . . . . . . . . . . . . . . . . . . . . . .13

Ariz. Rev. Stat Ann. § 13-1103(A)(5) . . . . . . . . . . . . . . . .13

Ark. Code Ann. § 5-1-102(13)(B)(i)(ii)(iii) . . . . . . . . . . . .13

Cal. Penal Code § 187(a) . . . . . . . . . . . . . . . . . . . . . . . . . .13

Fla. Stat. Ann. § 782.09 (2005) . . . . . . . . . . . . . . . . . . . .13

Ga. Code Ann. § 16-5-80. . . . . . . . . . . . . . . . . . . . . . . . . .13

Idaho Code Ann. § 11-4001. . . . . . . . . . . . . . . . . . . . . . . .13

Idaho Code Ann. § 18-4006 . . . . . . . . . . . . . . . . . . . . . . .13

Ind. Code Ann. § 35-42-1-3. . . . . . . . . . . . . . . . . . . . . . . .13

Kan. Stat. Ann. § 21-5419. . . . . . . . . . . . . . . . . . . . . . . . .13

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Cited Authorities

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Ky. Rev. Stat. Ann. § 507A.010. . . . . . . . . . . . . . . . . . . . .13

Ky. Rev. Stat. Ann. § 507A.020 . . . . . . . . . . . . . . . . . . . .13

La Child Code Ann. art. 120 . . . . . . . . . . . . . . . . . . . . . .15

La Child Code Ann. art. 1122 . . . . . . . . . . . . . . . . . .14, 15

La Child Code Ann. art. 1148 . . . . . . . . . . . . . . . . . . . . .15

La Child Code Ann. art. 1195 . . . . . . . . . . . . . . . . . . . . .15

La. Civ. Code Ann. art. 26 . . . . . . . . . . . . . . . . . . . . . . . .14

La. Civ. Code Ann. art. 2315.2. . . . . . . . . . . . . . . . . . . . .14

La. Rev. Stat. Ann. §§ 14:32.5 - 14-32.9 . . . . . . . . . . .4, 13

La. Rev. Stat. Ann. § 14:2A(7) . . . . . . . . . . . . . . . . . . .4, 13

La. Rev. Stat. Ann. § 14:2A(11) . . . . . . . . . . . . . . . . . .4, 13

La. Rev. Stat. Ann. § 40:1061.10 . . . . . . . . . . . . . . . . . . .26

La. Rev. Stat. Ann. § 40:1061.16 . . . . . . . . . . . . . . . . . . .15

La. Rev. Stat. Ann. § 40:1061.17 . . . . . . . . . . . . . . . . . . .15

Md. Crim. Cd. § 2-103 . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Mich. Comp. Laws Ann. § 750.322 (1970) . . . . . . . . . . . .13

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Minn. Stat. Ann. § 609.266. . . . . . . . . . . . . . . . . . . . . . . .13

Miss. Code. Ann. § 97-3-37. . . . . . . . . . . . . . . . . . . . . . . .13

Mo. Rev. Stat. § 1.205 . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Mont. Code Ann. § 45-5-102. . . . . . . . . . . . . . . . . . . . . . .13

N.C. Gen. Stat. Ann. § 14-23.1 . . . . . . . . . . . . . . . . . . . . .13

N.D. Cent. Code Ann. § 12.1-17.1-02 . . . . . . . . . . . . . . . .13

N.H. Rev. Stat. Ann. § 630L1-a . . . . . . . . . . . . . . . . . . . .13

Neb. Rev. Stat. § 28-388 . . . . . . . . . . . . . . . . . . . . . . . . . .13

Nev. Rev. Stat. § 200.210. . . . . . . . . . . . . . . . . . . . . . . . . .13

Ohio Rev. Code Ann. § 2903.01 . . . . . . . . . . . . . . . . . . . .13

R.I. Gen. Laws 1956 § 11-23-5 . . . . . . . . . . . . . . . . . . . . .13

S.C. Code Ann. 1977 § 16-3-1083 . . . . . . . . . . . . . . . . . . .13

S.D. Codified Laws § 22-16-1.1. . . . . . . . . . . . . . . . . . . . .13

S.D. Codified Laws § 34-23-1.7 . . . . . . . . . . . . . . . . . . . .16

S.D. Codified Laws § 34-23A-10.1(1) . . . . . . . . . . . . . . . .16

S.D. Codified Laws § 34-23A-10.1(1)(b). . . . . . . . . . . . . .22

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Cited Authorities

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S.D. Codified Laws § 34-23A-10.1(2) . . . . . . . . . . . . . . . .16

S.D. Codified Laws § 34-23A-10.1(3) . . . . . . . . . . . . . . . .16

S.D. Codified Laws § 34-23A-54(1) . . . . . . . . . . . . . . 17, 25

S.D. Codified Laws § 34-23A-54(2) . . . . . . . . . . . . . . 17, 25

S.D. Codified Laws § 34-23A-54(3) . . . . . . . . . . . . . . 17, 25

S.D. Codified Laws § 34-23A-54(4) . . . . . . . . . . . . . . . . .17

S.D. Codified Laws § 34-23A-54(5) . . . . . . . . . . . . . . . . .17

S.D. Codified Laws § 34-23A-59 . . . . . . . . . . . . . . . . . . .17

S.D. Codified Laws § 34-23A-59(1)(d) . . . . . . . . . . . . . . .18

S.D. Codified Laws § 34-23A-59(1)(e) . . . . . . . . . . . . . . .18

S.D. Codified Laws §§ 34-23A-1.2 - 34-23-1.7 . . . . . . . .16

S.D. Codified Laws §§ 34-23A-53 - 34-23A- 62 . . . . . . .17

S.D. Codified Laws §§ 34-23A-75 - 88 . . . . . . . . . . . . . . .18

Tenn. Code. Ann. § 39-13-214. . . . . . . . . . . . . . . . . . . . . .13

Tex. Penal Code Ann. § 1.07, 19.01-19.06 . . . . . . . . . . . .14

U.C.A. 1953 § 76-5-201 . . . . . . . . . . . . . . . . . . . . . . . . . . .14

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VA Code Ann. § 18-2-32.2. . . . . . . . . . . . . . . . . . . . . . . . .14

W. Va. Code § 61-2-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

W. Va. Code § 61-2-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

W. Va. Code § 61-2-7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

W. Va. Code § 61-2-30 . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Wisc. Stat. Ann. § 940.04 . . . . . . . . . . . . . . . . . . . . . . . . .14

Wash Rev. Code Ann. § 9A.32.060 . . . . . . . . . . . . . . . . .14

RULES

Supreme Court Rule 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . .1

Supreme Court Rule 56.1(a) . . . . . . . . . . . . . . . . . . . . . . .22

CONSTITUTIONAL PROVISIONS

U.S. Const., amend. XIV . . . . . . . . . . . . . . . . . . . . passim

U.S. Const., Art. III . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 7

OTHER AUTHORITIES

ACOG Comm. On Ethics, AM. Coll. of Obstetrics and Gynecologists, Patient Choice in the maternal-Fetal Relationship, in Ethics in Obstetrics and

Gynecology (ACOG, 2d ed. 2004) . . . . . . . . . . . . . .4, 19

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Cited Authorities

Page

Diana Cheng & Isabelle L. Horon, intimate-Partner Homicide Among Pregnant and Postpar tum Women , 115:6 Obstetr ics

& Gynecology 1181 (2010) . . . . . . . . . . . . . . . . . . . . . .27

Harrison, M.R., Golbus, M.S., Filly, R.A. (Eds); The Unborn Patient: Prenatal Diagnosis and Treatment (Michael R. Harrison, MD,

et al. eds. 2d ed. 1991) . . . . . . . . . . . . . . . . . . . . . . . . .19

Jacobus tenBroek, The Antislavery Origins of the Fourteenth Amendment (1951) . . . . . . . . . . . . .9

Priscilla Coleman, David C. Reardon, Max C. Lee, Women’s Preferences for information a n d Ra t in gs o f t h e Se r i o u s n e ss o f Complications Related to elective medical

Procedures, 32 J. Med. Ethics 435 (2006) . . . . . . . . .28

Report of the South Dakota Task Force to St udy A b or t ion (2 0 0 5 ) , Ta sk For c e created by H.B. 1233,85thSess.:http: //sd leg is latu re .gov/sess ions / 2 0 0 5 / bi l l s /

HB1233SST.htm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

State of South Dakota Concurrent Resolution No . 10 0 4 (2 015 ) , fou nd a t : ht t p s : / /sdlegislature.gov/Legislative_Session/Bill.aspxFile=HCR1004ENR.htm&Session=2

015&Version=Enrolled&Bill=HCR1004 . . . . . . . . . .11

1

INTEREST OF AMICI CURIAE1

Amici are non-profit entities which serve pregnant mothers by helping them to maintain their relationships with their children.2 National Institute of Family and Life Advocates (“NIFLA”), Heartbeat International, Inc., and Care Net are the three largest and most inf luential pregnancy help center (“PHC”) national affiliation organizations which provide administrative assistance and educational and training materials in support of local pregnancy centers. Amici, Caring to Love Ministries (“CTLM”) and Louisiana Alliance for Life operate cooperative networks of Louisiana PHCs which provide counseling, educational programs, and practical assistance directly to women in need. The local pregnancy help centers affiliated with CTLM and Louisiana Alliance for Life represent the majority of all PHCs in Louisiana.

Amicus, Alpha Center, is a South Dakota Registered Pregnancy Help Center, which is statutorily authorized to provide counseling to pregnant mothers before an abortion doctor can take a consent for an abortion. That third-party counseling was mandated by a 2011 Anti-Coercion Abortion Statute which the legislature passed as a result of the South Dakota abortion provider’s ongoing dereliction of its duty to the pregnant mothers. The state legislation was designed to protect a pregnant mother’s

1. Pursuant to Supreme Court Rule 37.6, no counsel for any party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund its preparation or submission. The parties have consented to the filing of this brief.

2. The individual amici are listed and described in more detail in Appendix A to this brief. App., infra, 1a–4a.

2

interest in her relationship with her child. Because of actual conflicts between the abortion provider and the mothers’ interests, Alpha has litigated as an Intervenor in defense of statutes expressly designed to protect the pregnant mother’s constitutionally protected interest in her relationship with her child.

All of the amici PHCs, and all of the PHCs associated with the amici umbrella organizations, provide pre-abortion counseling to pregnant mothers who are considering submitting to an abortion. The vast majority of amici PHCs and PHCs associated with the amici national organizations also provide post-abortion counseling to women who have suffered emotional trauma as a result of their prior abortions. All pre and post abortion counseling is provided completely free of charge.

Amici have decades of experience working with millions of pregnant mothers who are considering submitting to an abortion and women who have been psychologically traumatized by their prior abortions. Amici know that many pregnant mothers are pressured or coerced by others into having abortions which they do not want. Amici have also learned that many women have submitted to abortions after receiving inadequate pre-abortion counseling, or as a result of being provided with false or misleading information by the abortion provider.

Amicis’ experience demonstrates that the financial and ideological interests of the abortion providers are frequently in direct and actual conflict with the true interests of the pregnant mothers they claim to serve. Amici’s experience also proves that the policies and practices of abortion providers frequently impair

3

the pregnant mothers’ ability to advance their actual interests in maintaining their constitutionally protected relationship with their children.

SUMMARY OF ARGUMENT

For more than four decades following this Court’s decision in Singleton v. Wulff, 428 U.S. 106 (1976), courts have invariably, and without scrutiny, granted all abortion providers the legal standing to litigate what they purport to be the interests of all pregnant mothers.

This broad grant of authority and control ceded to abortion providers, concerning what interests of pregnant mothers are litigated in the courts, conflicts with both third-party standing jurisprudence and the rights and interests of the mothers themselves.

Third-party standing is the exception to the fundamental doctrine that a party cannot litigate the constitutional rights of another. Barrows v. Jackson, 346 U.S. 249, 255 (1953). A litigant must establish Article III jurisdiction by demonstrating a direct interest in the outcome of the litigation. That litigant must also satisfy certain “prudential considerations.” See, e.g., Caplin & Drysdale v. u.S., 491 U.S. 617, 624 n.3 (1989).

However, a court does not have Article III jurisdiction to decide the rights of pregnant mothers if those rights are in conflict with the interests the abortion providers seek to promote, because there is no “case or controversy” pertaining to the mothers’ rights which have not been presented to the court.

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The pregnant mother has a fundamental, intrinsic right to maintain her relationship with her child protected under the Fourteenth Amendment. Lehr v. Robertson, 463 U.S. 248, 260 n.16 (1983); moore v. City of east Cleveland, 431 U.S. 494, 503 (1977); Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977).

Louisiana protects the pregnant mother’s interest in her relationship with her child in many ways. It is, for instance, a criminal homicide to intentionally kill an unborn child in utero at any age after conception. La. Rev. Stat. Ann. §§14:32.5 through 14-32.9; and La. Rev. Stat. Ann. §14:2A (7) & (11).

Abortion is the employment of a medical procedure to achieve a non-medical objective: the termination of the pregnant mother’s constitutionally protected relationship with her child. An abortion terminates that protected relationship by terminating the life of a whole, separate, unique, living human being. Planned Parenthood of minn., N.D., S.D., et al. v. Rounds, Alpha Center, et al., 530 F.3d 724 (8th Cir. 2008) (en banc) (Rounds i). Abortion, therefore, is a state-authorized method of waiving an intrinsic, fundamental right.

Because a physician who has a pregnant mother as a patient has two separate patients, the mother and the unborn child, and owes duties to both (ACOG Comm. On Ethics, AM. Coll. of Obstetrics and Gynecologists, Patient Choice in the maternal-Fetal Relationship, in Ethics in Obstetrics and Gynecology, 34-6 (ACOG, 2nd ed. 2004); Hughson v. St. Francis Hosp. of Port Jervis, 459 N.Y.S.2d 814, 816 (N.Y. App. Div. 1983); Draper v. Jasionowski, 858 A.2d 1141, 1146 (N.J. App. Div. 2004)), a physician who

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proposes to perform an abortion, proposes to terminate the life of one of his patients. The paper serving as a consent operates to immunize the physician from criminal prosecution for homicide.

Nowhere is there a greater need to ensure that a consent is truly informed and voluntary, and nowhere is there a greater risk of the violation of a mother’s fundamental right to her relationship with her child.

There are two separate lines of cases which courts are duty bound to follow: that of Lehr v. Robertson, Santosky v. Kramer, Smith v. Organization of Foster Families, and 12 other decisions of this Court (See II A above), which hold that a mother has an intrinsic right to maintain her relationship with her child; and that of Roe v. Wade, 410 U.S. 113 (1973) and its progeny, which required states to permit terminating the mother’s fundamental right to her relationship with her child by an abortion. For most mothers, many of whom find themselves at an abortion clinic, it is the protection provided by this first line of cases which they want and seek. Often they seek protection from having the “right” or “interest” created by the second line of cases imposed upon them.

Women report that they have lost children they wanted because abortion providers claim they represent the rights and interests of the pregnant mothers – when their interests conflict with those of the pregnant mothers – and obtain court orders that destroy the mothers’ rights which they want protected. Declaration of B.H., Appendix B, App., infra, 5a–17a; Declaration of Brittany Weston, at ¶¶20-44, PP v. Daugaard, ECF No. 40-8 (“Weston”).

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This Court must direct lower courts to require abortion providers to establish that their interests are not in conflict with the rights of the pregnant mothers they claim to represent, including the mothers’ right in maintaining their relationship with their children.

ARGUMENT

Since this Court’s decision in Singleton v. Wulff, 428 U.S. 106 (1976), federal courts have invariably and uncritically granted all abortion clinics and their physicians the legal standing to litigate what they purport to be the constitutional rights and interests of all pregnant mothers. Standing is presumed although the abortion providers have no relationship with the pregnant mothers, have never met them, and do not know their experiences, circumstances, or desires. Standing is presumed even when the interests of the pregnant mothers are in conflict with those of the abortion provider, including pregnant mothers who do not want an abortion. As a result, the rights and interests of many pregnant mothers go unprotected and are even defeated. To protect the rights of pregnant mothers, this Court must insist upon adherence to the established principles of third-party standing followed in other contexts.

I. Third-Party Standing is the Narrow and Generally Disfavored Exception to the Rule Prohibiting Litigants from Claiming What They Assert to be the Constitutional Rights of a Non-Party

Third-party standing is the exception to the general rule that a litigant may not claim standing “to vindicate the constitutional rights of some third-party.” Barrows v.

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Jackson, 346 U.S. 249, 255 (1953). Ordinarily, “a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal interests and rights of third parties.” Powers v. Ohio, 499 U.S. 400, 410 (1991).

A litigant must establish that he has suffered a “concrete,” “particularized,” and “fairly traceable” injury-in-fact sufficient to satisfy Article III’s case or controversy requirement. Spokeo, inc. v. Robins, 136 S. Ct. 1540, 1547-1548, __ U.S. __, (2016).

It is necessary to distinguish between cases in which a litigant seeks to advance the constitutional rights of a third-party from those cases in which a litigant seeks to assert a third-party’s statutory rights. When a court permits a litigant to advance the constitutional rights of others, the court is making an exception – based on its inherent jurisdictional authority – to the general prohibition against raising another person’s legal rights. In the context of a litigant asserting the statutory claims of third persons, in contrast, the court is merely determining “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark int’l, inc. v. Static Control Components, inc., 572 U.S. 118, 127 (2014). Because a court’s indulgence of a litigant’s effort to advance the constitutional rights of a third-party are not legislatively derived, courts should be especially wary of granting an exception to the general prohibition against doing so. See Warth, 422 U.S. at 509 (noting that “Congress may remove [the prudential standing rule of self-governance] by statute.”)

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When a litigant seeks to advance the constitutional rights of a third-party, the court must ask “whether the party asserting the right has a ‘close’ relationship with the person who possesses the right … [and] whether there is a ‘hindrance’ to the possessor’s ability to protect his own interests.” Kowalski v. Tesmer, 543 U.S. 125, 130 (2004). Stated more particularly, the court must analyze “three factors: the relationship of the litigant to the person whose rights are being asserted; the ability of the person to advance his own rights; and the impact of the litigation on third-party interests.” Caplin & Drysdale v. u.S., 491 U.S. 617, 624 n. 3 (1989).

Of particular significance here, there must be a “congruence of interests” between the litigant and the third-party. Powers, 499 U.S. at 414. Where the litigant has an interest he seeks to promote which is not aligned, or is in outright conflict, with the interests of the third-party, the litigant does not have cognizable third-party standing.

While a court has a “virtually unflagging” obligation (Sprint Communications, inc. v. Jacobs, 571 U.S. 69, 77 (2013)) (citation omitted) to address federal questions properly brought before it, a court has an equally unflagging obligation to evaluate the standing of parties to ensure that the litigant “is fully, or very nearly, as effective a proponent of the right” (Singleton, 428 U.S. at 115) as the third-party whose interests he purports to represent. Even where third-party standing has not been challenged in the trial courts, this Court has deemed it necessary to determine the effectiveness of the advocacy by the third party. See Craig v. Boren, 429 U.S. 190, 194 (1976); see also Singleton, 428 U.S. at 115.

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Accordingly, any third-party standing analysis must begin with an identification and evaluation of the nature of the rights and interests being asserted by the litigant and the rights and interests of the third parties who that litigant claims to represent. If the prudential considerations cannot be satisfied, then the court has no jurisdiction over that issue because the mother’s rights are not being presented, and, therefore, there is no “case or controversy” concerning those issues.

II. The Pregnant Mother Has a Fundamental, Intrinsic, Natural Right to Maintain Her Relationship With Her Child Protected Under the Fourteenth Amendment Throughout Pregnancy and Under Louisiana Law

A. The Pregnant Mother has a Fundamental Intrinsic Right to Continue and Maintain Her Relationship with Her Child

The relationship between parents and their children has always been protected as fundamental. moore v. City of east Cleveland, 431 U.S. 494, 503 (1977); Santosky v. Kramer, 455 U.S. 745, 753, 759 (1982). This liberty interest has as its source the individual’s intrinsic natural rights which derive from the existence of the individual, not rights conferred by government in the first instance, but reaffirmed by the Fourteenth Amendment. Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977); moore, 431 U.S. at 503; Jacobus tenBroek, The Antislavery Origins of the Fourteenth Amendment, 221 (1951). This is an interest in the “companionship” with one’s children. Santosky, 455 U.S. at 759; Lassiter v. Department of Soc. Serv., 452 U.S. 18, 27 (1981); Stanley

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v. illinois, 405 U.S. 645, 651 (1972). The entitlement to protection of this right is self-evident. Lehr, 463 U.S. 248 (1983); meyer v. Nebraska, 262 U.S. 390 (1923). It is perhaps the oldest recognized fundamental liberty. Troxel v. Granville, 530 U.S. 57, 65 (2000).

Since the interest protected is the interest in the relationship itself, the mother’s interest is always protected as fundamental during pregnancy. The majority in Lehr, adopting the reasoning of Justice Stevens’ dissent in Caban v. mohammed, 441 U.S. 380, 398-99 (1979), emphasized the difference between the father’s relationship and that of the mother: “[t]he mother carries and bears the child, and in this sense her parental relationship is clear.” Lehr, 463 U.S. at 260 n.16. Lehr thus recognized the mother’s protected interest based upon the scientific reality that the mother has an actual relationship with her child during pregnancy. It is the “biological” relationship which controls, not the “legal” status accorded by a state. Glona v. Amer. Guar. & Liab. ins. Co., 391 U.S. 73, 75-76 (1968).

In contrast to the pregnant mother, the mere fact that a man is genetically related to a child does not give rise to a liberty interest under the Fourteenth Amendment. See and compare, Stanley, 405 U.S. 645; Caban, 441 U.S. 380; Quilloin v. Alcott, 434 U.S. 246 (1978); Lehr, 463 U.S. 248. The difference in the reproductive roles of the mother who carries the child and the man who “fathers” the child not only distinguishes how their parental rights can be established, but justifies different treatment under the Fourteenth Amendment. See, e.g., Tuan Anh Nguyen v. immigration and Naturalization Services, 523 U.S. 53, 62-73 (2001) (citing Lehr).

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A state court cannot enter an order terminating the mother’s right to her relationship with her child unless the basis for such termination is proven by clear and convincing evidence. Santosky. That standard applies even when the state is not a party to the action. m.L.B. v. S.L.J., 519 U.S. 102 (1996).

This Court has proclaimed “that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.” moore, 431 U.S. at 503 (see also, cases cited therein at 499).

No relationship is more central to the family than that of mother and child. The South Dakota legislature observed:

“...the cherished role of a mother and her relationship with her child, at every moment of life, has intrinsic worth and beauty; that the intrinsic beauty of motherhood is inseparable from the beauty of womanhood; and that this relationship, its unselfish nature and its role in the survival of the race is the touchstone and core of all civilized society. Its denigration is the denigration of the human race.”

State of South Dakota Concurrent Resolution No. 1004 (2015) at 8, found at: https://sdlegislature.gov/Legislative_ Session/Bill.aspx?File=HCR1004ENR.htm&Session=2015&Version=Enrolled&Bill=HCR1004.3

3. The Concurrent Resolution, which outlines how litigation by abortion providers frustrates the state’s efforts to protect the rights of mothers and their children, is reproduced in its entirety as Appendix C to this brief. App., infra, 18a–47a.

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South Dakota’s Task Force to Study Abortion noted that “[o]ur laws are based upon the premise that the mother’s intrinsic natural right [to that relationship] is fundamental, and its termination is a great loss to the mother.” See Report of the South Dakota Task Force to Study Abortion at 55 (2005), Task Force created by H.B. 1233,85thSess.:http://sdlegislature.gov/ sessions/2005/bills/HB1233SST.htm.

That relationship is most worthy of protection and it enjoys protection throughout pregnancy under the Fourteenth Amendment.4

B. Louisiana Has Uniformly Acted to Protect a Pregnant Mother Against Involuntary or Uninformed Termination of Her Relationship With Her Child

Louisiana protects the pregnant mother’s relationship with her child during pregnancy by deterring conduct which terminates the relationship through criminal prohibitions and civil causes of action. Louisiana also provides safeguards against involuntary or uninformed termination in the context of adoption.

4. Related to the pregnant mother’s right to maintain her relationship with her child is her fundamental right to procreate. See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). While her right to procreate may be satisfied upon conception, that right, being “one of the basic rights of man” (id.), is rendered meaningless if the mother’s resulting relationship with her child is left unprotected. It is the mother’s right to procreate in the first instance, and the constitutional protection of the pregnant mother’s relationship with her child thereafter, which prohibits a state to demand that a mother abort her child, not this Court’s decision in Roe v. Wade as suggested in dicta in Planned Parenthood v. Casey, 505 U.S. 833, 859 (1992).

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(1) Protection by the Fetal Homicide Statute

Louisiana makes it a criminal homicide to intentionally kill a mother’s unborn child at any age after conception. La. Rev. Stat. §§14:32.5 through 14-32.9; and La. Rev. Stat. §14:2A (7)&(11). Thirty-eight states and the federal government make it a criminal homicide to kill an unborn child. In 31 of these jurisdictions, killing an unborn child at any age after conception is a homicide.5 Consequently,

5. Alabama, Ala. Code 1975 §13A-6-1 (2001) (conception); Alaska, AS. §11.41.150 (2006) (conception); Arizona, Ariz. Rev. Stat §13-1103 (A)(5); Arkansas, ARST §5-1-102(13)(B)(i)(ii)(iii) (2013) (conception); California, Cal. Penal Code §187(a) (1970) (fetal stage); Federal, 18 U.S.C. §1841(C) (2004) (conception); Florida, F.S.A. §782.09 (2005) (quickening); Georgia, Ga. Code Ann. §16-5-80 (2006) (conception); Idaho §§11-4001; 18-4006 (2006) (conception); Illinois, 720 ILCS 5/9-1.2 (2010) (conception); Indiana, IC 35-42-1-3 et seq. (1997) (viability); Kansas, K.S.A. §21-5419 (2011) (conception); Kentucky, KRS §§507A.010, 507A.020 (2004) (conception); Louisiana, LSA-RS Ann §14:32.5 et seq. (2006) (conception); Maryland, Md. Crim. Cd. §2-103 (2005) (viability); Massachusetts, Comm. v. Crawford, 722 NE.2d 960 (Mass. 2000) (viability); Michigan, M.C.L.A. §750.322 (1970) (quickening); Minnesota, M.S.A. §609.266 et seq. (2007) (conception); Mississippi, Miss. Code. Ann. §97-3-37 (2011) (conception); Missouri, V.A.M.S. 1.205 (Mo. 1988) (conception) and State v. Rollen, 133 SW.3d 57 (2003); Montana, M.C.A. §45-5-102 (2013) (8 weeks); Nebraska, Neb. Rev. St. §28-388 et seq. (2002) (conception); New Hampshire, N.H. Rev. Stat. §630L1-a (2018) (20 weeks post conception); Nevada, N.R.S. 200.210 (1995) (quickening); North Carolina, N.C.G.S.A. §14-23.1 et seq. (2011) (conception); North Dakota NDCC 12.1-17.1-02 et seq. (1987) (conception); Ohio, R.C. §2903.01 et seq. (1996) (conception); Oklahoma, 21 Okl. St. Ann §691 (2006) (conception); Pennsylvania, 18 Pa. C.S.A. §106 (1997) (conception); Rhode Island, Gen. Laws 1956 §11-23-5 (1975) (quickening); South Carolina, Code 1977 §16-3-1083 (2006) (conception); South Dakota, SDCL §22-16-1.1 (1995) (conception); Tennessee, T.C.A. §39-13-214 (2011) (conception);

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failure to obtain a written consent for an abortion in these states exposes a physician to conviction for homicide.

(2) Protection by the Wrongful Death Statute

Louisiana protects a pregnant mother’s relationship with her child through its wrongful death statute. La. Civ. Code Ann. art. 2315.2 creates a cause of action for the wrongful death of a mother’s child at any time after conception. See La. Civ. Code Ann. art. 26; Danos v. St. Pierre, 402 So.2d 633 (La. 1981). The damages recoverable in such wrongful death claims is for the loss of the relationship. Wilson v. Town of mamou, 972 So.2d 461, 470 (La. 2007).

(3) Protections Under the State’s Adoption Statute

Louisiana will not recognize or enforce a pregnant mother’s relinquishment of her parental rights if it is signed prior to five days after she has given birth. La Child Code Ann. art. 1122. The nine months of pregnancy and the period following birth gives the mother the opportunity to reflect upon her circumstances, secure any needed emotional or material support, and to hold her child. The mother cannot sign that relinquishment, however, unless she has first participated in at least two separate counseling sessions with a licensed professional.

Texas, V.T.C.A. Penal Code §1.07, 19.01-19.06 (2011) (conception); Utah, U.C.A. 1953 §76-5-201 et seq. (2010) (conception); Virginia, VA Code Ann. §18-2-32.2 (2004) (fetal stage); Washington, Wash Rev. Code Ann. §9A.32.060 (2004) (quickening); West Virginia, W. Va. Code §61-2-30, 61-2-1, 61-2-4, 61-2-7 (2005) (conception); Wisconsin, W.S.A. 940.04 et seq. (2012) (quickening).

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Id. at art. 120. A court must review the affidavits of those counselors and approve the proposed termination of parental rights. If the mother waives her right to appear in open court to affirm her consent to termination of her rights, she is given an additional 90 days in which she can revoke her relinquishment. Id. at art. 1195, 1148.

(4) State Efforts to Protect the Rights of Pregnant Mothers in the Abortion Context are Routinely Stymied by Courts Presuming that Abortion Providers have Standing to Advance What They Purport to be the Rights and Interests of All Unidentified Pregnant Mothers

Since none of the safeguards provided in the context of adoption can be provided in the context of an abortion, the states face challenges in their efforts to protect pregnant mothers against involuntary or uninformed termination by abortion.

Louisiana has made repeated efforts to ensure that a pregnant mother’s decision to terminate her relationship with her child through an abortion is informed and voluntary. See, e.g., LSA-R.S. 40:1061.16&17. However, in many instances, the State’s efforts are met with court challenges initiated by abortion providers who are presumed to have standing to litigate what they claim to be the rights and interests of all pregnant mothers frustrating the State’s efforts to provide reasonable and necessary protections of pregnant mothers’ true rights and interests.

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The experience of South Dakota, which has undertaken expressly-stated and sustained efforts to protect the pregnant mother’s right to her relationship with her child is illustrative of the barriers all states face when trying to protect the interests of pregnant mothers in the abortion context.

In 2005, South Dakota passed an Abortion Informed Consent Statute, which was designed to ensure that the pregnant mother’s decision to terminate her relationship with her child by an abortion was fully informed. S.D. Codified Laws §§34-23A-1.2 through 34-23-1.7; S.D. Codified Laws §§34-23A-10.1(1), (2) & (3). In doing so, South Dakota reaffirmed its existing reasonable patient standard for medical disclosures. id. at §34-23A-1.7. Because of the extraordinary nature of the abortion procedure, the state imposed additional requirements to protect the pregnant mother’s Fourteenth Amendment liberty interest in her relationship with her child. §§34-23A-1.2 through 34-23A-1.7; §34-23A-10.1(1), (2) & (3).

Before the statute went into effect, however, abortion providers filed a lawsuit which claimed that the required disclosures violated the physicians’ First Amendment rights and what they claimed were the interests of the pregnant mothers. That litigation lasted over seven years, and the litigation required the State and Alpha Center, one of the amici on this brief, to win four different Eight Circuit decisions, including decisions by two separate en banc panels. See Planned Parenthood of minn, N.D., S.D., et al. v. Rounds, Alpha Center, et al., 530 F.3d 724 (8th Cir. 2008) (en banc) (“Rounds i”); Planned Parenthood, et al. v. Rounds, Alpha Center, et al., 650 F. Supp. 2d 972 (Dist. SD, 2009); Planned Parenthood, et al. v. Rounds, Alpha

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Center, et al., 653 F.3d 662 (8th Cir. 2011) (“Rounds ii”); Planned Parenthood, et al. v. Rounds, Alpha Center et al., 686 F.3d 889 (8th Cir. 2012) (en banc) (“Rounds iii”). During the pendency of that litigation, because of the entry of a preliminary injunction, South Dakota women were denied the protections of the statute.

In 2011, South Dakota passed an Anti-Coercion Abortion Statute designed to protect pregnant mothers from being coerced or pressured into an abortion they didn’t want. S.D. Codified Laws §§34-23A-53 through 34-23A- 62 (2011). In passing the statute, the legislature found: “[i]t is a necessary and proper exercise of the state’s authority to give precedence to the mother’s fundamental interest in her relationship with her child over the irrevocable method of termination of that relationship by induced abortion.” id. at §34-23A-54(5). The statute was remedial legislation to protect the pregnant mother’s rights against the harmful practices of the abortion providers. id. at §34-23A-54(1-4). The statute, among other things, provided the mothers the opportunity to obtain help and counseling at a registered pregnancy help center if she really wanted to keep her child before an abortion doctor could take her consent to perform an abortion. The Registered PHCs are highly regulated by statute and mandatory policies and procedures.

The counseling includes an assessment to determine if the woman is being subjected to coercion or pressure to have an abortion she does not want, and to receive information about resources and support that are available to her if she prefers to keep her child. id. at §34-23A-59.

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Again, before the statute took effect, the state’s sole abortion provider instituted a lawsuit challenging virtually every provision of the statute claiming that the law violated the constitutional rights of the pregnant mothers – including the provisions of the statute intended to protect those mothers against the negligence and derelictions of the abortion providers. Based solely upon the “interests” which the abortion providers attributed to the pregnant mothers, the court enjoined the entire statute, including the civil causes of action given to the pregnant mothers for the negligence of the abortion providers. Planned Parenthood of minn., N.D., S.D., et al. v. Daugaard, et al., 799 F.Supp.2d 1048 (D.S.D.2011). Alpha Center then intervened. However, pregnant mothers who wanted their children lost their children by an abortion because of the injunction. See e.g., Declaration of B.H., Appendix B, App., infra, 5a–17a.

In 2018, the South Dakota legislature was again forced to pass remedial legislation as a result of the abortion provider’s ongoing dereliction of its duty to protect the mother’s relationship with her child. Despite over a decade of litigation and four Eighth Circuit decisions, including two en banc panels, the abortion provider steadfastly refused to make the disclosures required by statute, upheld by the courts, and specifically directed by court order. See S.D. Codified Laws §34-23A-59(1)(d)&(e); Findings id. at §§34-23A-75 through 88.

As demonstrated by South Dakota’s history, the courts routinely assume that abortion providers have the standing to identify, limit, describe, and promote only those interests which they attribute to the pregnant mothers, to the detriment of those mothers.

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III. Abortion is the Employment of a Medical Procedure to Achieve a Non-Medical Objective: The Termination of the Pregnant Mother’s Constitutionally Protected Relationship with Her Child

A. A Doctor Treating a Pregnant Mother Has Two Patients

It is well established that a physician who has a pregnant woman as a patient has two separate patients, the mother and her unborn child, and that the physician has a professional and legal duty to both. ACOG Comm. On Ethics, Am. Coll. Of Obstetrics and Gynecologists, Patient Choice in the maternal-Fetal Relationship, in Ethics in Obstetrics and Gynecology 34-6 (ACOG, 2nd ed. 2004) (“The maternal-fetal relationship is unique in medicine … because both the fetus and the woman are regarded as patients of the obstetrician”); Harrison, M.R., Golbus, M.S., Filly, R.A. (Eds); The Unborn Patient: Prenatal Diagnosis and Treatment (Michael R. Harrison, MD et al. eds. 2nd ed. 1991). Numerous courts have recognized that the doctor has a duty to the unborn child to disclose the risks and consequences of the procedure to the child by informing the mother of those risks; the mother makes the decision for her child.6

6. The lead case is Hughson v. St. Francis Hospital, 92 A.D.2d 131, 459 N.Y.S.2d 814 (1983) Hughson v. St. Francis Hosp. of Port Jervis, 459 N.Y.S.2d 814, 816 (N.Y. App. Div. 1983) (“both the mother and child in utero may each be directly injured and are each owed a duty, independent of the other”). Courts have specifically recognized this concept in the informed consent context, stating that the doctor has a duty to provide the mother – as surrogate for the child – the information regarding the consequences and risks the proposed

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B. The Primary Decision of a Pregnant Mother Faced With the Prospect of an Abortion is Non-Medical: Can and Should She Maintain Her Relationship with Her Child?

The first and most important question the pregnant mother faces is the primary and central question of whether she should keep her relationship with her child. Having adequate counseling as the mother contemplates that question is essential to her needs, interests, and rights. Only if the pregnant mother decides for herself that she should give up her relationship does she then need to determine which method of termination she should employ.

treatment would have for the child. id; see also Harrison v. united States, 284 F.3d 293 (1st Cir. 2002)Harrison v. United States, 284 F.3d 293, 301 (1st Cir. 2002) (Massachusetts law); Roberts v. Patel, 620 F.Supp. 323 (N.D. Ill. 1985)Roberts v. Patel, 620 F.Supp. 323, 326 (N.D. Ill. 1985); Walker v. mart, 164 Ariz. 37, 790 P.2d 735 (1990)Walker v. Pizano v. Mart, 790 P.2d 735, 739 (Ariz. 1990); in re A.C., 573 A.2d 1235 (D.C. 1990)In re A.C., 573 A.2d 1235, 1246 n.13 (D.C. 1990); Nold v. Pinyon, 272 Kan. 87, 31 P.3d 274 (2001)Nold ex rel. Nold v. Binyon, 31 P.3d 274, 289 (Kan. 2001); Draper v. Jasionowski, 372 N.J.Super. 368, 858 A.2d 1141 (App. Div. 2004)Draper v. Jasionowski, 858 A.2d 1141, 1146 (N.J. App. Div. 2004); Ledford v. martin, 87 N.C.App. 88, 359 S.E.2d 505 (1987)Ledford v. Martin, 359 S.E.2d 505, 507 (N.C. Ct. App. 1987). Other cases have recognized this two-patient concept in other malpractice contexts. See, e.g., Burgess v. the Superior Court of Los Angeles, 2 Cal.4th 1064, 831 P.2d 1197, 9 Cal.Rptr.2d 615 (1992)Burgess v. the Superior Court of Los Angeles, 831 P.2d 1197, 1203, (Cal. 1992); Ob-Gyn Associates of Albany v. Littleton, 259 Ga. 663, 386 S.E.2d 146 (1989)Ob-Gyn Associates of Albany v. Littleton, 386 S.E.2d 146, 147 (Ga.1989); see also In re Certification of Question of Law from U.S. District Court (Farley), 387 N.W.2d 42 (S.D. 1986)In re Cert. of Question of Law from U.S. District Court v. Mt. Marty Hospital Assoc., 387 N.W.2d 42 (S.D. 1986).

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In the context of adoption, as regulated in the State of Louisiana, termination of the mother’s rights is treated as the last option, and every effort is made to ensure that the mother has every opportunity to avoid termination of her constitutional right to keep her child. See II B (3) above.

Abortion is the other method by which the pregnant mother can terminate her relationship with her child. Properly understood, therefore, abortion is a medical procedure employed to achieve a non-medical objective.

The PHCs assist the mother to keep her relationship with her child by providing protection against pressure and coercion, and information about financial and other assistance available to her if she prefers to keep her child.

By contrast, the abortion providers exist solely to terminate the mother’s relationship by terminating the life of the child. Unlike promising to give up her rights in an adoption, the abortion is totally irrevocable. This decision – which may be the most important decision she makes in her entire life – is made in a single day without her receiving any meaningful counseling.

C An Abortion Terminates the Life of a Whole, Separate, Unique, Living Human Being; a Consent for an Abortion Immunizes the Abortion Physician from Criminal Prosecution for Homicide

An abortion terminates the life of a whole, separate, unique, living human being regardless of the age of the unborn human being. Planned Parenthood of minn., N.D., S.D., et al. v. Rounds, Alpha Center, et al., 530 F.3d 724 (8th Cir. 2008) (en banc) (“Rounds i”).

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That fact has been established in litigation challenging South Dakota’s Informed Consent Abortion Law which requires a physician to disclose to a pregnant mother “[t]hat the abortion will terminate the life of a whole separate, unique, living human being.” S.D. Codified Laws §34-23A-10.1(1)(b). The South Dakota Planned Parenthood affiliate sued the state alleging that the compelled disclosure violated the physician’s Fourteenth Amendment right of free speech and violated constitutional rights of pregnant mothers. An en banc court of the Eighth Circuit held that the disclosure was a statement of scientific fact – not a statement of ideology as maintained by Planned Parenthood – and that it was truthful, non-misleading, and relevant to the pregnant mother’s decision of whether or not to consent to an abortion. All of the scientific proofs overwhelmingly support that fact. See e.g., the following from Planned Parenthood of minn., N.D., S.D., et al. v. Rounds, et al., No. 4:05-cv-4077-KES (D.S.D.): Declarations of Bruce Carlson, M.D., Ph.D., ECF Nos. 24 and 186; Report of Dr. Carlson, ECF No. 82-6; Declarations of David Fu-Chi Marks, Ph.D., ECF Nos. 25, 82-2, and 196; Declaration of Marie Peeters-Ney, Ph.D., ECF No. 27; Reports of Dr. Peeters-Ney, ECF Nos. 82-3 and 85-3; Declarations of Ola Didrik Saugstad, M.D., ECF Nos. 26 and 82-5; Report of T. Murphy Goodwin, M.D., ECF No. 101-2; Declarations of Dr. Goodwin, ECF Nos. 122-1 and 185; Report of Jacob Langer, M.D., ECF No. 82-4; and Intervenors’ Amended Rule 56.1(a) Statement of Material Facts, ECF No. 296 ¶¶87 through 104 (“Statement of Material Facts”).

Thus, when a physician proposes to perform an abortion, he is proposing to terminate the life of a separate human being, who is one of the physician’s patients. The

23

paper that acts as the consent operates to immunize the physician from what is otherwise a criminal homicide.

Nowhere is there a greater need to ensure that a mother’s consent to a medical procedure is truly informed and voluntary.

IV. In the Majority of Cases, Abortion Providers Cannot Satisfy the Prudential Considerations for Third-Party Standing to Litigate the Rights and Interests of Pregnant Mothers

A. There is No True Doctor-Patient Relationship in the Abortion Context

Abortion doctors do not have any doctor-patient relationship with the pregnant mothers on whom they perform abortions. The South Dakota litigation in which Alpha Center has participated has uncovered a nearly uniform national model utilized by the nation’s abortion providers. In that national model, the abortion doctor is not involved in conducting pre-abortion counseling. Patricia Giebink, M.D., the last South Dakota physician who performed abortions at the state’s only abortion facility, explained the process used by the abortion providers.7

7. The procedures used at Planned Parenthood’s Sioux Falls, S.D. facility which are described in the following paragraphs are detailed in Dr. Giebink’s declaration filed in the current South Dakota litigation. Declaration of Patricia Giebink, M.D. at ¶¶14-15, Planned Parenthood of minn., N.D., S.D., et al. v. Daugaard, et al., No. 4:11-cv-04071-KES (D.S.D. Jul 1, 2011) (hereafter, “PP v. Daugaard”), ECF No. 40-5 (“Giebink”). Planned Parenthood’s practices are also documented by Brittany Weston, who was pressured to have an abortion she didn’t want at their clinic on

24

If someone calls the abortion facility to ask about an abortion, the clerk answering the phone schedules surgery, even if the person making the call is someone other than the pregnant mother (sometimes a person coercing the abortion), and even without speaking with the pregnant mother. Once the pregnant mother arrives at the abortion facility, she is required to sign a consent at the reception desk and pay for the procedure. The pregnant mother then meets a “patient educator,” whose primary responsibility is to ensure that she has signed consent forms. These “education” sessions are extremely brief. The pregnant mother sees the abortion doctor for the first – and last – time, stripped from the waist down in the procedure room. Statement of Material Facts, ¶¶49 through 72.

The pregnant mother’s interaction with the abortion doctor is limited to the amount of time it takes to perform the abortion. Giebink at ¶25; Weston at ¶¶39-44. The abortion doctor does not engage the pregnant mother in an informed consent process, having entrusted that responsibility to untrained and uneducated “educators.” Giebink at ¶¶16-30; Weston at ¶¶28-38. Statement of Material Facts, ¶¶18 through 45. In fact, at Planned Parenthood Sioux Falls, the abortion doctor did not conduct pre-abortion counseling. Giebink at ¶24.

Dr. Giebink concluded: “Planned Parenthood did not follow normal accepted standards of medical practice, and

September 23, 2005. Declaration of Brittany Weston at ¶¶20-44, PP v. Daugaard, ECF No. 40-8 (“Weston”). Those procedures were also verified by Planned Parenthood in the prior litigation. Statement of Material Facts, ¶¶49 through 72.

25

there was no true doctor-patient relationship.” Giebink at ¶28.

In South Dakota and other parts of the country, the out-of-state physicians fly into the state in the morning and out later the same day, never to see the mother again Statement of Material Facts, ¶¶18-19. The South Dakota legislature concluded that there is usually no doctor-patient relationship, and that the abortions performed in its state “are among the worst form of itinerant surgery, the kind of surgery which mainstream medicine considers unethical.” “Concurrent Resolution”; see also S.D. Codified Laws §34-23A-54(1) through §34-23A-54(3).

These policies and practices are not unique to South Dakota. Abby Johnson ran a Planned Parenthood abortion clinic in Texas and testified that the abortion doctors do not conduct the pre-abortion counseling or provide the disclosures which should be used during the consent process. Declaration of Abby Johnson at ¶6; PP v. Daugaard, ECF No. 40-6 (“Johnson”). Dr. Giebink also testifies that the policies and practices described by Abby Johnson were the same as those used at the South Dakota abortion clinic. Giebink at ¶13.

Ms. Johnson further reports that the model for pre-abortion counseling and the informed consent process which was used at her Texas clinic and in South Dakota, was a uniform model employed across the country. Johnson at ¶¶6, 21.

The Louisiana legislature found that most of the mothers at Louisiana’s abortion facility “do not have any relationship with the physician who performs the abortion,

26

before or after the procedure.” La. Rev. Stat. §40:1061.10 (2014).

B. Many Pregnant Mothers are Pressured or Coerced into Having Abortions That They Do Not Want, Abortion Providers Do Not Assess for Coercion and Pressure, and Fail to Properly Counsel Pregnant Mothers Before Taking a Consent

1.

Forced abortions are so common that several organizations have emerged to assist pregnant mothers who are being subjected to coercion or pressure to have abortions against their will. The largest such organization is The Justice Foundation’s Center Against Forced Abortions (“CAFA”), which provides direct legal help to pregnant mothers and collaborates with attorneys across the country to provide free legal assistance to pregnant mothers who are being unduly pressured or coerced into unwanted abortions. See https://thejusticefoundation.org/cafa (last visited December 30, 2019). CAFA estimates that since its founding in 2009, they have helped save about 20,000 pregnant mothers from coerced abortions.

The South Dakota litigation demonstrates many examples of pregnant mothers being pressured or coerced into having abortions they didn’t want. Declaration of Leslee Unruh at ¶21, PP v. Daugaard, ECF No. 40-2 (“Unruh”). Declaration of Kimberly Martinez at ¶¶11, 14, 22, 26, PP v. Daugaard, ECF No. 40-1 (Martinez). Sometimes, a young college student is pressured by a parent into submitting to an abortion. Declaration of

27

Alexandra Szameit at ¶¶2-3, PP v. Daugaard, ECF No. 40-9. Sometimes a woman is pressured by an older boyfriend to have an abortion that she does not want. Weston at ¶¶8-19. Other times, the pregnant mother is subjected to violence or threats of violence by the child’s father. Declaration of Vixie Miller at ¶¶3-10, PP v. Daugaard, ECF No. 40-10 (“Miller”).

Homicide is the number one cause of death among pregnant mothers. Diana Cheng & Isabelle L. Horon, intimate-Partner Homicide Among Pregnant and Postpartum Women, 115:6 Obstetrics & Gynecology 1181 (2010).8

2.

Abortion providers assume that every pregnant mother who enters an abortion clinic has already decided to have an abortion. See Statement of Material Facts at ¶61; Unruh at ¶20; Johnson at ¶15. As a result, abortion providers do not engage in any informed consent process where the pregnant mother’s decision-making is explored or evaluated. Giebink at ¶23; Johnson at ¶15, 19. Neither do they perform any assessment to determine if the pregnant mother is being subjected to coercion or pressure to have an abortion that she doesn’t want. Giebink at ¶¶29-30; Johnson at ¶6; Weston at ¶¶31-32.

Abortions are performed even when it is clear that the mother is ambivalent, conflicted, or being subjected

8. An expert in the South Dakota litigation has documented over 100 cases of pregnant mothers who were murdered because they refused to have an abortion.

28

to coercion or pressure. For example, some women cry during the “counseling” session, but the abortions are performed anyway. Johnson at ¶16. Brittany Weston was openly “bawling” during the pre-abortion “counseling” session, but still no assessment for pressure or coercion was conducted. Weston at ¶¶32-33.

A large percentage of pregnant mothers considering abortion would actually prefer to keep their children, but feel constrained to have an abortion because of a lack of material resources or emotional support. Unruh at ¶16. Many other women are forced to the abortion clinic against their will.

3.

In addition to coercion from others, many pregnant mothers are also subjected to improper persuasion or manipulation by the abortion provider. Unruh at ¶24. Since upon their arrival at the abortion clinic, many pregnant mothers have not made a final decision whether to keep their relationship with their child or to terminate that relationship. The vast majority of women (95%) want to be informed of all possible complications associated with elective medical treatments, including abortion. See Priscilla Coleman, David C. Reardon, Max C. Lee, Women’s Preferences for information and Ratings of the Seriousness of Complications Related to elective medical Procedures, 32 J. Med. Ethics 435 (2006).

However, any rel iance on the abortion cl inic is misplaced. Abby Johnson testifies that Planned Parenthood’s “counselors” “routinely took the job of convincing women to have abortions.” Johnson at 20.

29

She relates that many of the answers provided by their “counselors” are “designed to steer the woman to an abortion” and are “scripted” by Planned Parenthood Federation of America. Johnson at ¶21. Ms. Johnson also relates that abortion clinic staff were trained to overcome the pregnant mothers’ concerns that abortion was inconsistent with their own moral or religious values. Johnson at ¶23. Ms. Johnson testifies that the abortion clinics had to meet quotas for the number of abortions, and that they relied on the performance of abortions for needed revenue. Johnson at ¶18. Similarly, Dr. Giebink testifies that there “was constant pressure to ‘sell’ surgery.” Giebink at ¶22.

C. The Lack of Any True Physician-Patient Relationship and the Conflicts Between the Interests of the Abortion Providers and Those of the Pregnant Mother Precludes Recognition of Standing in the Abortion Providers

There are two separate lines of cases which courts are duty bound to follow: that of Lehr, Santosky, Smith v. Organization of Foster Families, and 12 other decisions of this Court (See II A above), which hold that a mother has an intrinsic right to maintain her relationship with her child; and that of Roe v. Wade, 410 U.S. 113 (1973) and its progeny, which required states to permit termination of the mother’s fundamental right to her relationship with her child by an abortion. For most mothers, many of whom find themselves at an abortion clinic, it is the protection provided by this first line of cases which they want and seek. Often they seek protection from having the “right” or “interest” created by the second line of cases imposed upon them.

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Ms. Weston concludes that the abortion provider was not the proper party to represent her interests in court and that her rights, and the rights of pregnant mothers similarly situated, are better represented by PHCs like Alpha Center. Weston at ¶¶6(c-d).

The essential difference between the PHC and the abortion provider is that the PHC provides help that increases the mother’s ability to exercise her right to maintain her relationship with her child, while the abortion provider irrevocably terminates her relationship, usually in a single day and without adequate counsel.

The experience of B.H., who was forced to have an abortion, illustrates how the interests of the abortion providers are in direct conflict with the true interests of the pregnant mothers. Declaration of B.H. attached as Appendix B to this brief, App., infra, 5a-17a.

B.H. was forced to have an abortion in March of 2012 at Planned Parenthood Sioux Falls, South Dakota. B.H.’s father scheduled the abortion, drove her to the clinic, and paid for the abortion. Planned Parenthood Sioux Falls did not perform any assessment to determine whether she was being coerced, and did not explore whether she even wanted an abortion.

In fact, Planned Parenthood had filed a lawsuit in 2011 to prevent pregnant mothers like B.H. from obtaining the help they want. Planned Parenthood had claimed that it had the standing to litigate B.H.’s rights in court and those of other pregnant mothers like her, and that the third-party counseling enacted by the 2011 South Dakota Anti-Coercion Abortion Statute violated the

31

rights of mothers like B.H. Planned Parenthood obtained a preliminary injunction which prevented the third-party counseling from going into effect. As a result, B.H. was enjoined from receiving the assistance she needed, and she lost the child she wanted.

In her sworn Declaration, B.H. concludes:

“It is especially heartbreaking to realize that if that injunction had not been in place, I would have received the counseling that I so desperately needed, and I know that if I had been given a chance to go to Alpha Center, I would have my child today.”

...

“What is especially upsetting and offensive to me, is that I now understand that Planned Parenthood claimed that they had the right to go to court to litigate my rights, or what they claimed were my rights. I don’t understand how they can claim that it was unconstitutional for me to get the help I needed to protect my right to keep my child. That was the right I wanted protected and Planned Parenthood prevented it. Planned Parenthood didn’t represent me and my interests, and they do not represent the interests of other women like me.”

B.H. Declaration, Appendix B, App., infra, 5a-17a.

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CONCLUSION

This Court must direct all lower courts to require abortion providers to establish that their interests are aligned with, and not in conflict with, the interests of the pregnant mothers they claim to represent, including the mothers’ interest in maintaining their relationship with their children.

Respectfully submitted,

harold J. CassIdy

Counsel of RecordJoseph r. Zakhary

thomas J. VIggIano, IIIderek m. CassIdy

the CassIdy law FIrm

750 Broad Street, Suite 3Shrewsbury, New Jersey 07702(732) 747-3999hjc@thecassidylawfirm.com

Counsel for Amici Curiae

APPENDIX

Appendix A

1a

APPENDIX A — INTEREST OF AMICI CURIAE1

The National Institute of Family and Life Advocates (“NIFLA”)1 was founded in 1993, and provides legal counsel, education, and training to pregnancy help centers across the country. NIFLA currently has a national network of approximately 1,500 affiliate member pregnancy help centers, over 1,200 of which operate as medical clinics. NIFLA-affiliated clinics operate in all 50 U.S. states and the District of Columbia; 18 are located in Louisiana. NIFLA is the national leader in helping pregnancy centers convert to licensed medical clinics, and all NIFLA affiliate medical clinics provide free ultrasounds to confirm pregnancy. All NIFLA member centers provide counseling for pregnant mothers, and the majority of NIFLA members also provide post-abortion support to women who have been traumatized by their prior abortions. A vital element of NIFLA’s mission is to help protect a pregnant mother’s constitutionally protected interest in her relationship with her child. To that end, NIFLA affiliates provide services which seek to ensure that a pregnant mother’s decision about whether or not to terminate her existing relationship is fully informed and fully voluntary, and provide counseling about all of the help, both financial and non-financial, from public and private sources, which help pregnant mothers keep their children if that is what they truly want.

Alpha Center, founded in 1984, is a South Dakota Registered Pregnancy Help Center which provides pre-

1. Pursuant to Supreme Court Rule 37.6, no counsel for any party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund its preparation or submission. The parties have consented to the filing of this brief.

Appendix A

2a

abortioncounseling, practical assistance and material support to pregnant mothers, and post-abortion counseling to women completely free of charge. Alpha’s central mission is to protect the pregnant mother’s interest in her relationship with her unborn child.

For the past 14 years, Alpha has litigated as an Intervenor in defense of South Dakota statutes designed to protect pregnant mothers’ right to maintain their relationship with their children. As a pregnancy help center on the State’s registry maintained by the South Dakota Department of Health, Alpha is highly regulated and required to follow strict policies and procedures dictated by statute. Alpha successfully litigated in defense of the rights of pregnant mothers against abortion providers, winning four different decisions in the Eighth Circuit.

Alpha Center is currently in litigation defending the rights and interests of pregnant against abortion providers, and Alpha’s interests are closely interwoven with the rights of the pregnant mothers, such that they have a unique interest in the third-party standing presented by this case.

Heartbeat International, Inc. was founded in 1971, and is the largest affiliate organization of pregnancy help ministries across the globe. Heartbeat has over 2,500 affiliate pregnancy help center (“PHC”) locations internationally, with over 1,300 affiliate pregnancy center locations in the U.S. alone. Heartbeat’s PHC affiliates are located in all 50 states and the District of Columbia, with

Appendix A

3a

19 locations in Louisiana. One of Heartbeat’s core missions is the protection of the mother-child relationship. Every Heartbeat affiliate pregnancy center location provides pregnancy counseling to women who are considering submitting to an abortion. Most of Heartbeat’s PHC affiliate locations in the U.S. also provide post-abortion counseling programs for women who have been emotionally traumatized by their abortions.

Care Net is a national non-profit corporation and one of the largest affiliation organizations for pregnancy centers in North America. Care Net provides education, support, and training for its approximately 1,100 affiliates, eight of which are located in Louisiana. Care Net also runs the only national call center providing immediate assistance to pregnant mothers considering abortion. In providing services in support of local pregnancy centers, Care Net seeks to protect the interests pregnant mothers have in their constitutionally protected relationship with their children.

Caring to Love Ministries (“CTLM”), was established and began serving clients in 1980. CTLM operates Care Pregnancy Clinic, a pregnancy help center located in Baton Rouge, Louisiana. Beginning in 2002, through the Louisiana Life Choice Project, CTLM has administered a collaborative network of ten pregnancy help centers, located in Louisiana, which provide pregnant mothers, their partners and family members, with resources, information, and counseling to promote healthy pregnancies and childbirth. In the most recent fiscal year, the Life Choice Project provided services to nearly

Appendix A

4a

2,800 pregnant mothers living in communities across the state, extending to 52 of Louisiana’s 64 parishes. Since its founding, CTLM has served over 131,382 clients, 84,991 of whom were pregnant mothers seriously considering submitting to an abortion. Approximately 80,000 of those pregnant mothers kept and raised their children, in large measure because of the counseling and support they received through CTLM. CTLM, through its work with pregnant mothers over the years, knows how the interests of abortion providers most often conflict with the interests of the pregnant mothers. The abortion clinics do not provide help to these mothers to help them maintain their relationship with their children, but only act to terminate that relationship.

Louisiana Alliance for Life is a cooperative network of 18 pregnancy help centers operating 20 locations in various communities across Louisiana. LA Alliance provides administrative support and training assistance to its network PHCs and helps them to secure funding. All LA Alliance PHCs provide pre abortion and post abortion counseling to women completely free of charge. Each year, approximately 2,100 pregnant mothers receive pre-abortion counseling at a LA Alliance PHC. All of the LA Alliance PHCs are dedicated to helping pregnant mothers preserve their relationship with their children.

Appendix B

5a

Appendix b — declArAtion of b. h.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

Case No. Civ. 11-4071-KES

PLANNED PARENTHOOD MINNESOTA, NORTH DAKOTA, SOUTH DAKOTA,

AND CAROL E. BALL, M.D.

Plaintiffs,

v.

DENNIS DAUGAARD, GOVERNOR, MARTY JACKLEY, ATTORNEY GENERAL, KIM

MALSAM-RYSDON, SECRETARY OF HEALTH, DEPARTMENT OF HEALTH, AND JEFFREY A. MURRAY, M.D., PRESIDENT, BOARD OF

MEDICAL AND OSTEOPATHIC ExAMINERS, IN THEIR OFFICIAL CAPACITIES,

Defendants,

ALPHA CENTER AND BLACK HILLS CRISIS PREGNANCY CENTER,

Intervenors.

Appendix B

6a

declArAtion of b. h. pUrSUAnt to 28 U.S.c. § 1746

B. H. , being of full age, deposes and says:

l. On March 26, 2012, I was forced to have an abortion at the Planned Parenthood facility in Sioux Falls, South Dakota. At the time, I lived with my father in Pierre, South Dakota and attended Stanley County High School in Fort Pierre. My mother lived in Texas.

2. My name is B. H. and I reside at [REDACTED], Texas. I am currently 22 years old and raising my two young sons. I live in close proximity to my mother. I understand that my Declaration containing my full name and address will be filed with the Court under seal. Because of my current situation, I prefer that my full name and address not appear in a document that will be made public record. I have asked that a redacted version of this Declaration be publicly filed with only my initials and the name of the state I currently live in.

3. My parents separated when I was a baby, and I was placed in my father’s custody. When I was growing up in my father’s home, he was often angry and abusive toward me. He made repeated derogatory and angry comments. Just about anything would set him off into a tirade. He raised his voice at me for the smaller things. If my grades were lower than an ‘A’, he would scream at me. Sometimes, my father would forcefully push me against a wall or put his hands around my throat. I was terrified of him and lived in fear.

Appendix B

7a

4. In addition to being emotionally and verbally abusive, my father was also very controlling. I worked two jobs, but my father would take all my pay which made me completely dependent on him for every little thing. He seemed to know everything that I did and would look through my call history and text messages on my cell phone.

5. Naturally, I was dependent on my father for a place to live and for money to spend. But I also had to drive his truck to both my jobs and he paid for the auto insurance. I had a phone, but no credit or debit cards, and my father took all the money from my paychecks.

6. When I was in high school, I started dating a young man who was four years older than me. We dated for nine months and we were in a committed, exclusive relationship, and I thought that I loved him. In my boyfriend I found the love and emotional support that I never had from my father.

7. One day when I returned home after school, my father told me that there was a pregnancy test in the bathroom and demanded that I test myself. I couldn’t refuse. I tested positive. When I came out of the bathroom, I told my father the results. He became extremely angry. I was 15 years old at the time and my boyfriend was 19.

8. My father said something like: “Well you know what we’re gonna’ do, right?” He then demanded an abortion. He told me that it was “statutory rape,” and under the law, my boyfriend – the man I felt I loved – could be prosecuted. My

Appendix B

8a

father told me that if I didn’t have an abortion, he would report my boyfriend to the police, and he would make sure that he would be a registered sex offender. Because of my father’s threats, I thought I would be stuck living in his abusive home with a newborn while my boyfriend was in jail. My father also demanded that I not tell anyone that I was pregnant. In retrospect, I realize that this was part of how he wanted to isolate me, so I had no help to resist his demands.

9. The next day at school, however, I texted my boyfriend to tell him that I was pregnant. At the time, he was a freshman at Lake Area Technical Institute in Watertown. He would come home on weekends and we would spend time together. During the week, we would talk or text every day. By the time I texted my boyfriend, my father had already called him. My boyfriend told me that my father had told him that I was going to have an abortion and that if I didn’t have one, he would report my boyfriend to the police for statutory rape.

10. I realized that my father figured I would tell my boyfriend about the pregnancy and my father wanted to prevent him from involving anyone who could help me. My boyfriend said that he wanted to start a family with me, but that there was no way we could have the baby if my father was going to report him to the police. We talked about the possibility of me living with my mom in Texas and my boyfriend joining me and the baby once he finished his two-year degree in another year. My boyfriend was afraid of my father and thought none of those plans could materialize if my father reported him to the police.

Appendix B

9a

Although we wanted to have our baby and get married, we couldn’t figure out the best way to resist my father’s threats.

11. Within a week of the home pregnancy test, my father took me to my family doctor in Pierre to confirm the pregnancy. The nurse told me that I was pregnant and started to talk to me about “options” including raising my baby. My father interrupted and told her firmly that we already knew what we were going to do. My father told me “you are getting an abortion.” On a prior occasion, my father told me “If you don’t get an abortion, I will make your life a living hell.” I didn’t want to have an abortion, and I saw that the nurse could tell I was afraid of my father. She looked emotionally upset as the nurse and I made eye contact. I was teary eyed. My father immediately took me home.

12. As soon as we got home, my father called Planned Parenthood in Sioux Falls to schedule the abortion. The woman on the phone scheduled the abortion for March 26, 2012. She did not ask to speak with me and did not get my permission to schedule the abortion.

13. On the morning the abortion was scheduled, my father and his girlfriend drove me to the Planned Parenthood facility in Sioux Falls for the abortion. Because Sioux Falls is about 3 ½ hours away, we left early in the morning. When we got to Planned Parenthood, the two of them walked me into the building. My father’s girlfriend and I sat in the waiting room while my father checked me in and paid for the abortion. After paying, my

Appendix B

10a

father sat next to me in the waiting room and filled-out the paperwork. I didn’t read any of the paperwork and no one explained to me what was in it. I don’t remember what I signed, but what I signed was put in front of me by my father and I was told to sign it. At some point thereafter, I realized that one of the papers signed in the waiting area must have been the “consent” for the abortion. At the time I signed the papers, I had not spoken with any Planned Parenthood staff or doctors.

14. A short time later, my name was called, and I went back to a small enclave in the hall where a worker pricked my finger and reviewed the paperwork. She asked me questions like what was the first day of my last menstrual period and whether I had any drug allergies. She also told me about various types of birth control. She didn’t tell me anything about the abortion. The worker did not ask if anyone was pressuring me or forcing me to have an abortion that I didn’t want. She never asked me about my boyfriend or whether we wanted to raise our child together. She never asked me if I wanted to know what help was available for me if I wanted to explore keeping my baby. She didn’t even ask me if I had ever discussed my pregnancy with anyone or sought advice. The Planned Parenthood worker did not ask me anything about how the decision to have an abortion was arrived at and did not talk to me about the possibility of raising my child myself. She didn’t even ask me if I had thought about adoption. She asked me one question. Did I want the abortion? I was numb and completely overwhelmed and overpowered by my father. He was in the waiting room and I had to face him. I had no way to get home without him. I have

Appendix B

11a

never felt so alone before or since. No one was on “my side.” I answered the question “Yes.” I wanted her to ask me about why and how the decision was made so I could have explained that I wanted my baby, but there was no counseling or further discussion. I wanted her to ask me if I wanted my baby. I wanted to engage in a discussion about that. I got no help. I was helpless to stop what my father put in motion.

15. I was then taken to a separate room to have an ultrasound done. The nurse turned the computer screen away so I couldn’t see anything. She didn’t ask me anything about the decision to have an abortion.

16. After the ultrasound, I was taken to an area where approximately 8 to 10 women had been herded to receive information about the abortion procedure itself. Afterwards, we were told to take a lunch break and return for our procedures.

17. My father and his girlfriend took me to Wendy’s for lunch. His girlfriend told me not to resist my father’s demands. They then took me back to Planned Parenthood for the abortion. I did not want to have an abortion, but I was completely overwhelmed and helpless. The three of us then waited in the waiting room together.

18. After waiting for some time, I was called back for the abortion. A worker took me to a separate room with a reclining-type chair used in obstetrical offices. A female doctor introduced herself for the first time and explained how the procedure would be performed. She did not ask

Appendix B

12a

me any questions about how I arrived at the decision to have an abortion, or if anyone was forcing me to have an abortion I didn’t want. She didn’t give me any counseling of any kind about the decision to have an abortion. She didn’t ask me if I considered keeping my baby. As soon as the procedure was over, the doctor left the room. I never saw her again. I don’t even remember her name.

19. After the abortion, a worker brought me to a recovery-room type area where other women were sitting in chairs which reclined slightly. It was my understanding that I had to sit there for some predetermined period of time before I was cleared to leave the facility. Eventually, my father’s girlfriend came to the room and I was allowed to leave. My father drove us all home.

20. I was devastated, During my entire time at Planned Parenthood, nobody tried to talk to me about why I was there or what was motivating me to have an abortion. Nobody asked me if I needed any help. Everyone there was so cold; none of them showed that they cared about my feelings at all.

21. The day after the abortion, I called my maternal grandmother. She was like a second mother to me, and she lived in Fort Pierre. I needed someone to confide in. She picked me up from school and drove me to her sister’s house. I told her about the abortion and how my father made me do it. My grandmother was extremely upset. She called my mother in Texas.

Appendix B

13a

22. The day after I met with my grandmother, my mother picked me up from school unexpectedly and a couple of days later brought me down to Texas to live with her.

23. Immediately after the abortion, I started to have major psychological problems. I was racked with guilt and wished that there had been a way for me to prevent my father and Planned Parenthood from killing my child. I realized that I should have called my mother right away and that she would have helped me. For the first year following the abortion, I had nightmares about the abortion almost every night When I had the nightmares, I would relive seeing parts of my baby pass through the tube I was hooked up to.

24. Because the nightmares were so frequent, I developed insomnia because I was scared to fall asleep. Sometimes in the nightmares, I would relive the drive to Sioux Falls. I relived the experience of desperately wanting to find some way out of the abortion and the distress of experiencing the Planned Parenthood workers and doctor who didn’t seem to care about me at all. I would relive the abortion procedure itself. I have envisioned that tube hundreds of times.

25. I would also have panic attacks four or five times a week. I would zone out and have flashbacks of that awful day. My chest would hurt, and I would have trouble breathing.

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26. Although I have gotten better at dealing with the trauma of my forced abortion, I am still devastated by it. I still think about the abortion. I lost my child because I was terrified of my abusive father and what would happen to my boyfriend. I continue to wonder about my baby who was never born. For some reason, I feel strongly that she was a baby girl. I wonder what she would be like today. What would I have named her? She would be in school now. I wonder how she would look and what her favorite color would be.

27. I no longer have panic attacks, but still have nightmares approximately twice a week. I still see that tube. I still think about my child who would now be in school, and how my two boys would have had an older sister. Recently during a quiet time, I sat and cried for over an hour just thinking about all the joy I could have had with my daughter which has been forever lost.

28. I often wish that I had called my mother as soon as I found out that I was pregnant or had someone else right there to help me. My mother could have helped me keep my child and provided me with the necessary support to raise my baby. I recognize that I would have been a very young mother, but after the abortion I met another man and we got married.

29. I gave birth to two baby boys, and I have been able to take care of my two sons and I am confident that I could have taken care of my first child as well. My husband and I lived in Minnesota for a while.

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30. I wanted my baby who died in the abortion. I feel that I had the right to keep her and that right should have been respected. I am the one forced to live with the pain of losing my baby, the isolation of it and the guilt and depression that followed.

31. While I was pregnant with my second baby boy in 2016, I was referred by a woman at social services to Alpha Center in Sioux Falls. At the time, I was living in Pipestone, Minnesota, about 30-40 minutes from Sioux Falls. I went to Alpha Center to get more information about services to help me raise my son, and while there I had the chance to speak with someone about my abortion experience. The office was very welcoming, and it felt like a safe and secure place to unburden myself. The woman I spoke with was very sweet, and the counseling session was extremely helpful to me. I left with resource information, diapers, and wipes. Shortly after being at Alpha Center, I moved back to Texas.

32. I have been advised of South Dakota’s anti-coercion statute which requires that pregnant mothers receive limited counseling by licensed counselors at a registered pregnancy help center prior to signing a consent for an abortion. It is my understanding that the trained personnel conduct an assessment for pressure and coercion. It is also my understanding that the law was passed in 2011, but that the court enjoined the third-party counseling requirement. It is especially heartbreaking to realize that if that injunction had not been in place, I would have received the counseling that I so desperately needed, and I know that if I had been given a chance to go to Alpha Center, I would have my child today.

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33. What I have learned is that South Dakota’s anti-coercion statute was passed the year before I was forced to have an abortion. My child and I should have been a beneficiary of that law. I now know that the only reason that I did not get the help from that required counseling at Alpha Center is because Planned Parenthood went into court and got an injunction blocking my ability to get that counseling.

34. In effect, I was enjoined. I was prevented from getting the help I needed.

35. What is especially upsetting and offensive to me, is that I now understand that Planned Parenthood claimed that they had the right to go to court to litigate my rights, or what they claimed were my rights. I don’t understand how they can claim that it was unconstitutional for me to get the help I needed to protect my right to keep my child. That was the right I wanted protected and Planned Parenthood prevented it. Planned Parenthood didn’t represent me and my interests, and they do not represent the interests of other women like me.

34. If I had the benefit of receiving counseling by a trained professional at a pregnancy help center like Alpha Center, in a private setting outside of my father’s controlling presence, I would have been able to ask for the help that I couldn’t figure out how to request while he was controlling the process. Alpha Center could have called my mother and my grandmother, and Alpha Center could have counseled me through those discussions. If I had received that counseling, I would have been in a

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safe place and would have gotten the help I needed. It is obvious to me that Planned Parenthood does not care about my rights which I cared about. Without Planned Parenthood’s interference, my baby would probably be alive, and I could have enjoyed a lifetime with my child. Instead, Planned Parenthood made sure my father got what he wanted and ensured that I alone would suffer the emotional consequences of being forced to have an abortion that I didn’t want.

Pursuant to 28 U.S.C. § 1746, I certify under penalty of perjury that the foregoing is true and correct.

Dated: April 8, 2019

/s/ B. H. B. H.

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APPENDIX C — STATE OF SOUTH DAKOTA NINETIETH SESSION LEGISLATIVE

ASSEMBLY, 2015

STATE OF SOUTH DAKOTA NINETIETH SESSION

LEGISLATIVE ASSEMBLY, 2015

436W0292

HOUSE CONCURRENT RESOLUTION NO. 1004

Introduced by:

Representatives Hunt, Anderson, Bolin, Brunner, Campbell, Craig, Cronin, Deutsch, DiSanto, Gosch, Greenfield (Lana), Haggar (Don), Haugaard, Hickey, Hunhoff (Jean), Johns, Klumb, Latterell, Mickelson, Munsterman, Novstrup (Al), Qualm, Rounds, Russell, Schoenbeck, Sly, Stalzer, Stevens, Verchio, Westra, Wiik, and Zikmund and Senators Rave, Brown, Greenfield (Brock), Haggar (Jenna), Heineman (Phyllis), Holien, Jensen (Phil), Monroe, Novstrup (David), Olson, Peterson (Jim), Rampelberg, and Van Gerpen

A CONCURRENT RESOLUTION addressed to the United States Supreme Court setting forth certain facts and expressly enumerating the grievances of the People of the State of South Dakota, through their elected representatives, with that Court’s decision in Roe v. Wade,

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410 U.S. 113 (1973), and its progeny and calling for that Court to now protect the intrinsic, natural, fundamental rights of the children of our State and Nation and the intrinsic, natural, fundamental rights of their pregnant mothers in their relationship with their children, and the mothers’ health by reconsidering and overturning the Court’s decision in Roe.

WHEREAS, we observe that ours was the first great sovereign nation in all of history founded on the precept of Equal Rights and Equal Respect for all human persons subject to its jurisdiction; that our Declaration of Independence declared that all human beings are endowed by their Creator with intrinsic and inalienable rights by virtue of their existence and humanity; that it was the promise of our young nation, that its newly formed government would protect its people against the deprivation of their natural, intrinsic and inalienable rights, which instilled the admiration of the whole world; and that promise to forever strive to further the realization of those ideals inspired the peoples of each of our Sovereign States, including the People of the State of South Dakota, to accept and adopt the Constitution of the United States as their own; and

WHEREAS, in 1868, our young nation ratified the Fourteenth Amendment to the United States Constitution, some twenty-one years before the State of South Dakota joined the Union and adopted that Constitution; that the Fourteenth Amendment was understood and considered by all, both proponents and opponents alike, to be a reaffirmation of the natural and intrinsic rights of

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mankind; and that the people of the various states, both those already part of the Union before the ratification of the Fourteenth Amendment in 1868, and those which joined the Union thereafter, relied upon this understanding; and

WHEREAS, in the case of Madison v. Marbury, 5 U.S. 137 (1803), and subsequent cases, including Cooper v. Aaron, 358 U.S. 1 (1958), the United States Supreme Court ruled that that Court reserved to itself the exclusive power as final arbiter of the meaning and construction of the United States Constitution; thus, those rulings place a heavy burden on the Court to correctly interpret the meaning and scope of the Constitution; that beginning at the time of Marbury, and at all times since, the members of the United States Supreme Court have striven to faithfully discharge their solemn duty to interpret our Constitution carefully and correctly. It has been that Court’s constant and courageous efforts to fulfill that mission which has brought esteem and respect to the Court; and

WHEREAS, despite the good faith efforts of the members of the Court to interpret our Federal Constitution correctly, the United States Supreme Court has found it necessary to overturn no less than two hundred and thirty-three of that Court’s prior decisions because they had been incorrectly decided, thereby underscoring the importance of the United States Supreme Court being open and willing to correct its own errors in its interpretation of our Constitution as all too palpable: only that Court can effectively do so; and

WHEREAS, while the United States Supreme Court found it necessary to reverse itself over two hundred and

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thirty times, few of the Court’s previous errors so violated the intrinsic rights of the people of the various states that they gave rise to an active national resistence to those decisions; yet a small number of the Court’s errors that denigrated the great rights of the people could never gain acceptance and inspired national movements to free the people from the tyranny of certain erroneous decisions of the Court. Two such cases which inspired such national movements which resulted in the holdings of those cases being superceded by subsequent action of the people, or by correction by the Court itself, stand out. In 1856, the United States Supreme Court ruled in the case of Dred Scott v. Sanford, 17 How. 393, 60 U.S. 393 (1856), that a class of human beings could be bought and sold as property and be enslaved consistent with the Court’s interpretation of our Constitution, the Court stating, in part, that African Americans were “considered a subordinate and inferior class of beings, who had been subjugated by the dominant race ...” 17 How 393, 404, 60 U.S. at 404-05. That holding of the Court helped tear apart our nation as people rose up to oppose it and it has been a blemish on the record of the Court ever since, particularly because it was not the Court which corrected its error. In 1896, following, and despite, the passage of both the Thirteenth and Fourteenth Amendments to the Constitution, generally thought to have been in response to the errors of the Court, most notably that of the Dred Scott decision, the Court again erred, forcing a national movement that lasted for three-quarters of a century. In Plessy v. Furguson, 163 U.S. 537 (1896), the United States Supreme Court held that it was consistent with the Fourteenth Amendment Equal Protection Clause for a state to force the segregation of

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a person who has any degree of African American blood from those persons fully of the Caucasian race. It took the Court fifty-eight years – fifty-eight years during which people of the states suffered the deprivation of their God-given liberty and God-given equality – to correct its error in Plessy. The Court did so in multiple decisions in 1954, in Brown, et al. v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954); (See also, Brown, 349 U.S. 294 (1955)); in 1955, in Mayor and City Council of Baltimore v. Dawson, 350 U.S. 877 (1955); Holmes v. Atlanta, 350 U.S. 879 (1955); and in 1956, in Browder v. Gayle, 352 U.S. 903 (1956). Ultimately, after decades of resistence by the Court, the Court acknowledged that its decision in Plessy was incorrectly decided at the time it was issued in 1896. The implication of Brown was that the argument advanced by the segregationists that whole cultures had relied upon the Plessy decision and, therefore, principles of Stare Decisis required honoring the legal precedent of Plessy for the sake of consistency – even if wrongly decided – could never justify honoring a profoundly unjust decision because no person, and no culture has the right to rely upon the ability to commit an inherently unjust and immoral act; and

WHEREAS, these cases demonstrate that the fact that the United States Supreme Court has held that certain conduct is constitutional or protected by the Constitution, does not mean, in and of itself, that such a decision is correct or beyond subsequent scrutiny or that the conduct in question is just, or moral. The history of the Court in which the Court has admitted to past errors – and especially those cases involving grave injustices –

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demonstrate that the Court must always be vigilant and introspective in revisiting past decisions when errors are brought to its attention. This is especially true when it becomes evident that a decision fails to be accepted by a large part of our citizenry because it promotes deep injustice, rightly inspiring great criticism over decades. There are no words to describe the importance of the Court correcting its errors in the matters we discuss here; and

WHEREAS, there remains today such a tragic case left on the record of the Court, which, together with its progeny, continues to violate the intrinsic rights of two large classes of human beings, and bars the people of the Sovereign States, and their elected representatives, from taking effective, corrective action to protect the intrinsic rights of those human beings. The decisions of the United States Supreme Court in 1973, in the case of Roe v. Wade, 410 U.S. 113 (1973), and its companion case, Doe v. Bolton, 410 U.S. 179 (1973), have never been – nor should be – accepted as valid constitutional jurisprudence by most legal experts. Roe v. Wade and Doe v. Bolton have been the subject of constant criticism from the people of the states, and legal scholars in even measure. They are not – nor should be – accepted by the People of South Dakota and they are not – nor should be – accepted by us, their elected representatives. In short, the errors of the Court in Roe v. Wade and its progeny have stood, and still stand, in the way of our ability to discharge our duties to the People of our State; and

WHEREAS, Roe and Doe have even been rejected by the Plaintiffs themselves in those cases, Jane Roe

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(Norma McCorvey) and Mary Doe (Sandra Cano); that in an extraordinary, unprecedented, historic fashion, the Plaintiffs in those landmark cases filed Rule 60 motions asking the United States Supreme Court to overturn their own victories. Both Plaintiffs, acting independently, moved the Court to vacate the judgments they each obtained because the Court’s decisions were incorrect and led to the legal protection of such extraordinary harm to the women and children of the nation that they felt compelled to ask the Court to correct its errors. McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), cert. denied 543 U.S. 1154 (2005); Cano v. Baker, 435 F.3d 1337 (11th Cir. 2006), cert. denied 549 U.S. 972 (2006); and

WHEREAS, scholarly legal works which disparage the legal reasoning of the Court in Roe v. Wade are too vast in number to enumerate in this resolution, but they operate to hold the Roe decision and its Court in ill repute, resulting in the realization of the Court’s greatest fear – that of significant damage to the perception of the Court’s legitimacy. See, e.g., Planned Parenthood of S.E. PA v. Casey, 505 U.S. 833, 864-869 (1992). Scholarly works irrefutably establish that Roe v. Wade was fraught with legal and factual errors and wrongly decided. Examples of such works are: Keown, J., Abortion, Doctors and the Law, Cambridge University Press, Cambridge, England, 1988; Dellapenna, J., Dispelling the Myths of Abortion History, Carolina Academic Press, Durham, 2006; Forsythe, C., Abuse of Discretion, Encounter Books, New York, 2013. The incorrect factual and legal analysis of the Court in Roe, combined with the powerful evidence now available of the harm that decision has caused the women

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and children of our state and nation has left a stain on the record of the Court which requires correction and returning the policy issues to the people. If, in fact, the people have a preferred policy, that preference will be known and implemented without it being dictated to them by the Court; and

WHEREAS, lack of respect for the Court’s decision in Roe v. Wade has been enflamed by a majority of the Court leveling serious criticism against Roe, and numerous reliable accounts reporting that a majority of the Court even voted to overturn Roe in the 1992 case which reaffirmed Roe by a five to four vote, Planned Parenthood of S.E. PA v. Casey, 505 U.S. 833 (1992). See, Dellapenna, Dispelling the Myths of Abortion History, (2006) at 850 and footnote 124; Lazarus, E., Closed Chambers, Random House, 1998. Associated Press article, Blackmun Papers Reveal Doubts on Abortion Ruling, March 4, 2004. The people of the various states will never have confidence in, or acceptance of, the Roe decisions; and will not have confidence in the Court that reaffirmed a decision which a majority of its members knew and admitted was wrongly decided, until the Court corrects its errors of Roe; and

WHEREAS, for the past ten years, our legislature has held no less than twenty public hearings on various abortion related matters and legislation. In 2005, we created, by statute, an Abortion Task Force to study abortion, which after many months of study and public hearings, submitted to our legislature a seventy-one page report. Virtually every statute we have passed to protect the interests of pregnant mothers has been attacked in

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court by an abortion clinic and its physicians claiming that Roe v. Wade prohibits our rational and carefully thought out legislation. Much of that legislation was designed to protect the pregnant mothers against the negligence and dereliction of the abortion providers themselves. Despite clear conflict of interest, the abortion providers claimed in court to represent the rights of the pregnant mothers, and based upon Roe and its progeny, the Federal District Court permitted the abortion providers to stand in the place of the very women whose rights they violated. In December, 2012, litigation over South Dakota’s 2005 Informed Consent Law was finally concluded. South Dakota prevailed on all of the issues, but the case took seven and a half years to litigate and South Dakota had to prevail in three different decisions of the United States Court of Appeals, including two separate opinions by two en banc courts. The defense of the litigation over laws designed to protect the women of our State was time consuming and lower court injunctions prevented the laws from becoming effective for a number of years, robbing the children and their mothers of the Law’s protection. The fact that abortion providers know that courts following Roe often produce erroneous outcomes to their advantage has operated to encourage ill advised suits. This kind of experience operates to substantially deter most state legislatures from protecting the women and children of their states. The People of South Dakota and its elected officials have stayed true to its mission of protecting its people, but, yet again, find itself embroiled in litigation over its efforts to protect the rights of its pregnant mothers. Another challenge, this time to South Dakota’s 2011 Anti-Coercion Statute, is now in the courts; and

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WHEREAS, we, the duly elected representatives of the People of South Dakota, who serve the people by discharging the highest duty of government to protect the intrinsic natural rights of its people, are charged with the sacred obligation to enumerate those great intrinsic rights and to take all reasonable measures to preserve and protect them. In our continuing effort to succeed in that sacred endeavor we must now observe and proclaim that:

The right and duty to preserve life cannot co-exist with a right or duty to destroy it. The right and duty to preserve and protect the cherished relationship between mother and child cannot co-exist with a right and duty to destroy it. It is the law, as it represents the collective interests of the individuals for whom it exists, that must choose which set of interests it must protect, and long ago our law was required to choose life over death; the mother’s beautiful interest in her child’s life over its destruction; the protection of innocent children over the misguided philosophies and trends in social thought which come and go.

If there are any self-evident and universal truths that can act for the human race as a guide or light in which social and human justice can be grounded, they are these: that life has intrinsic value; that each individual human being is unique and irreplaceable; that the cherished role of a mother and her relationship with her child, at every moment of life, has intrinsic worth and beauty; that the intrinsic beauty of motherhood is inseparable from the beauty of womanhood; and that this relationship, its unselfish nature and its role in the survival of the race

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is the touchstone and core of all civilized society. Its denigration is the denigration of the human race. This relationship, its beauty, its survival, its benefits to the mother and child, its benefits to society, all rest in the self-evident truth that a mother is not the owner of her child’s life – she is the trustee of it; and

WHEREAS, our sacred mission to preserve and protect some of those cherished intrinsic rights has been diminished and even destroyed by those certain tragic, flawed and destructive court decisions and the exercise of power by the United States Supreme Court in Roe and Doe, so that we find it our sacred and solemn obligation to point to the errors of that Court as part of our duties to protect the rights of our people:

NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE NINETIETH LEGISLATURE OF THE STATE OF SOUTH DAKOTA, THE SENATE CONCURRING THEREIN, THAT OUR FOLLOWING FINDINGS AND OBSERVATIONS OF FACT AND OUR EXPRESSLY ENUMERATED GRIEVANCES WITH THE UNITED STATES SUPREME COURT’S OPINION IN ROE v. WADE, 410 U.S. 113 (1973), AND ITS PROGENY, AS SET FORTH HEREIN ON BEHALF OF THE PEOPLE OF SOUTH DAKOTA, AND OUR CALL TO THAT COURT TO RECONSIDER AND OVERTURN ROE, BE DELIVERED TO THE JUSTICES OF THE UNITED STATES SUPREME COURT BY DELIVERY OF THIS CONCURRENT RESOLUTION TO THE CLERK OF THAT COURT:

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Section 1. The damage we perceive that the Roe decision has caused to the intrinsic rights of children and their mothers and to their persons is too grave and too vast, and the error of the Court too plain for us not to act on behalf of those we serve. The injustice to the child, whose life is terminated by an abortion, has long been easily perceived and readily understood by most. The injustice to their mothers and the harm to the rights, interests and health of their mothers has only more recently become apparent and only now widely appreciated.

A.

The equal right of a human being to live is an inherent, intrinsic, inalienable right of every human being by virtue of his or her existence and humanity. The insight that the equal protection of the laws applies to all living, existing human beings was enunciated and embraced in the United States Supreme Court decision in Levy v. Louisiana, 391 U.S. 68, 70 (1968). This right to live surely obtains for every human being at every moment of life. It is now established beyond dispute that the unborn child is a whole, separate, unique, living human being throughout gestation from fertilization to full gestation. Planned Parenthood, et al. v. Rounds, Alpha Center, et al., 530 F.3d 724 (8th Cir. 2008) (en banc); Rounds, 650 F.Supp. 2d 972 (D.S.D. 2009), affirmed 653 F.3d 662 (8th Cir. 2011). It is now widely accepted that the physician, who has a pregnant mother as his patient, has two separate patients, the mother and her unborn child, and the physician owes a professional and legal duty to both patients. American College of Obstetrics & Gynecology, Ethics in Obstetrics

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and Gynecology, 34 (2nd ed. 2004). The physician who proposes to perform an abortion proposes to terminate the life of one of his patients. The killing by a physician of one of his patients – regardless of whose request inspires it – is contrary to the basic purpose and ethics of the medical profession and its promotion and protection denigrates a great and noble profession. In South Dakota, the killing of an unborn child at any age of gestation is a criminal homicide. The creation of an exception to that protection of the child, which exception is forced upon the State by Roe, thus immunizing the physician who kills the child by abortion, further denigrates that profession. In the strictest sense, a typical abortion is not a true medical procedure which is intended to promote the health of a physician’s patient. The abortion procedure is so contrary to accepted principles of medicine and the accepted values of the medical profession and the People of our State, that the lone abortion clinic in South Dakota is unable, despite its continued efforts, to convince a single South Dakota doctor to perform abortions at its clinic, requiring the clinic to recruit physicians from other states. Roe v. Wade and its progeny have prevented the people of the states from effectively protecting the lives and rights of these children.

B.

We find that Roe v. Wade and its progeny promote and protect the deprivation and destruction of numerous intrinsic rights and interests of the pregnant mothers themselves. The People of our State have an interest in protecting each of these rights and interests. We

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enumerate some of them here because we have found that the Court’s decision in Roe v. Wade precludes our ability to discharge our duties to effectively protect them.

(1) The pregnant mother has a personal intrinsic right to her relationship with her child. Lehr v. Robertson, 463 U.S. 248 (1983); Santosky v. Kramer, 455 U.S. 745 (1982); Quillion v. Walcott, 434 U.S. 246 (1978); Planned Parenthood, et al. v. Rounds, Alpha Center, et al., 653 F.3d 662 (8th Cir. 2011).

A mother’s unique relationship with her child during pregnancy is the most intimate, the most important and the one most worthy of protection. Although the mother and child are two separate persons, their relationship is so intimate that the unique bond between them, beginning as it does in utero, creates a human relationship which may be the most rewarding in all of human experience;

(2) Although closely related to the pregnant mother’s first interest, the pregnant mother also has both a protectable interest in her child’s life and an interest in defending and protecting her child’s life and rights;

(3) The pregnant mother has an interest in her own health. The experiences with abortion since Roe v. Wade have revealed impressive evidence of profound risk of physical and psychological harm to which the mother is subjected when her

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child’s life is terminated by abortion, including the increased risk of suicide ideation and suicide. Planned Parenthood, et al. v. Rounds, Alpha Center, et al., 686 F.3d 889 (8th Cir. 2012) (en banc). The devastating harm to the mother and her fundamental interests is too profound and tragic for us to ignore;

(4) The pregnant mother has an interest in preserving her personal dignity in her role as mother, a role that does not simply ennoble her, or merely enrich her life, but one which distinguishes her as unique as the mother of the unique person she carries. A legal policy which denigrates her role in carrying her child is not one which protects her actual interests. It destroys them. A policy which chooses to protect the destruction of her relationship with her child instead of a policy which clearly protects it, is a denigration of women, because a policy which is based upon the assumption that it is a distressing experience to be a mother is a statement that it is bad to be a woman;

(5) A woman has an interest in not being exploited. Abortion embodies societal pressures which destroy her interests as a mother to satisfy the interests of third parties, including, in various cases, the father of the child, her employer, her parents, abortion clinics, segments of society and others, who may have personal interests in conflict with those of mother and child. Abortion

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exploits women by treating the mother as if she is not a whole woman. It assumes she can be sexually exploited and, when that exploitation results in pregnancy, act as though she is not, in fact, a mother. Abortion demands that she detach herself from her experience and her bond, love, and sense of duty to herself and her child. It expects a mother to prevent the bonding process despite the fact that this natural process is both psychological and physiological. The assumption that the culture and society “relies” upon abortion, is an assumption that the society at large is free to use the mother as a sexual object without regard for the harm abortion can cause her. It allocates all of the risk, guilt, psychological and physical pain to her and further isolates her in her circumstance of an unplanned pregnancy by placing the responsibility of killing her child entirely upon her;

(6) A woman has an interest in having the law extend to her dignity and respect by recognizing that she is capable of living with dignity in the family, and happily competing in the commercial and professional life of this nation, rather than being denigrated by specially and artificially crafted “principles of law” which ingrain the belief that she is inherently inferior because she cannot be happy in life without an exclusive “right” to terminate the life of her own child.

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The mother contemplating an abortion is not exercising a right, she is contemplating waiving or surrendering the most important intrinsic natural right she possesses in all of life other than her own right to life itself. That fact, although simple to state, has profound implications. Protection of the integrity of the informed and voluntary nature of that waiver was ignored by Roe, and abortion as a method of terminating the mother’s relationship with her child has been proven to be unworkable in practice.

The reason the act of a doctor which terminates the life of a human being – whether or not it is cast in terms of rights belonging to the mother of the child – is not protected by Due Process is not simply because history and tradition has not demonstrated that it is a value which underlies society. Surely it is not. But the real reason – one which resonates with the compassion for the welfare of the women – is that the mother possesses liberties fundamental in nature, which the doctor destroys. It is simply impossible for the Constitution to protect the mother’s fundamental right to her relationship with her child, and at the same time protect the act of the doctor who terminates that relationship by terminating the life of the mother’s child.

These interests of the pregnant mothers and their children were largely or completely ignored by the Roe Court, and the Court ignored them in Planned Parenthood of S.E. PA v. Casey, 505 U.S. 833 (1992). In fact, Casey reaffirmed Roe stating that it need not decide this issue (whether terminating the life of the unborn child is protected by the Constitution as a liberty) as if it

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were before the Court for the first time. The Court’s joint opinion emphasized the doctrine of stare decisis which requires consistency in the Court’s decisions even if a prior decision was wrongly decided unless certain conditions are met. In upholding Roe, what the Casey Court erroneously observed about Roe’s error was that:

“Nor will courts building upon Roe be likely to hand down erroneous decisions as a consequence. Even on the assumption that the central holding of Roe was in error, that error would go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the women’s liberty.” Planned Parenthood of S.E. PA v. Casey, 505 U.S. at 858 (1992) (emphasis added).

While we are disturbed by the dismissal of the profound importance of the protection of the lives of the children, we are even more greatly disturbed by the Court’s assertion that the rights and interests of the mothers themselves are not negatively affected at all by Roe. Time, and the evidence it has provided, has proven this statement of Casey, like each of the underlying factual assumptions of Roe, to be in error. We now find it imperative that we discharge our obligations to the People of our State, by identifying and listing our numerous grievances with the decision of the United States Supreme Court in Roe v. Wade and its progeny.

Section 2. Our grievances are not with the Court itself, nor its members, but rather with the tragic errors made by

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the Court some forty-two years ago in the Court’s decision rendered in Roe v. Wade, and the Court’s subsequent errors in Planned Parenthood of S.E. PA v. Casey, which reaffirmed those errors. We issue this solemn resolution in confidence with the knowledge that the Court’s history of being open to correct its errors will serve the Court and our People well once more; and that this resolution and the call of the People of South Dakota and their elected representatives will be well received as one issued in good faith, made with respect for the Court and made with humility. It is one made in the highest tradition of our nation’s commitment to full-throated expression and discourse on matters of grave public concern.

With that confidence, we list our specific grievances with those decisions:

(1) It is manifestly obvious that the Court should not have attempted to address the constitutional issues it addressed in the cases of Roe and Doe, first and foremost, because they had no factual record, no discovery, and the Court had no evidence of any kind in the record. The record in Roe consisted of an affidavit from Jane Roe, Norma McCorvy, which she testified in her Rule 60 Motion papers that she never read. The record in Doe consisted of an affidavit from Mary Doe, Sandra Cano, which she testified in her Rule 60 Motion papers she never signed. Sandra Cano testified that her signature was forged, and that she neither sought nor wanted an abortion;

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(2) Because the Courts were so irrationally anxious to rule on the merits of the academic questions being urged on the Courts in Roe and Doe, the States of Texas and Georgia were denied discovery, including the opportunity to depose those two Plaintiffs, which would have revealed the facts they both publically disclosed years later. We take issue with the Court deciding so important a constitutional question with a complete lack of knowledge of the facts, discovery and record;

(3) The Court took it upon itself to assume facts, given the lack of a factual record. Every essential “fact” recited by the majority in Roe and Doe were uneducated assumptions all of which have been proven to be completely or largely false. We include the following among them:

(a) The Court made the false assertion that it could not be determined when the life of a human being began. It is indisputable that the unborn child is a whole, separate, unique, living human being throughout gestation from fertilization to full gestation. Planned Parenthood, et al. v. Rounds, Alpha Center, et al., 530 F.3d 724 (8th Cir. 2008) (en banc); Rounds, 650 F.Supp. 2d 972 (D.S.D. 2009), affirmed 653 F.3d 662 (8th Cir. 2011). While we conclude this fact was known in 1973, advances in science, particularly molecular biology and genetics, over the past thirty

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years removes any doubt about that fact. To the extent that the Roe Court was primarily concerned with the legal status of those human beings, it was a grave failure of the Court – one which cannot be overlooked – not to begin such a legal inquiry by observing the very existence of the human being whose life would be terminated. The Court’s failure to observe that a whole, separate, unique, living human being is killed by an abortion affects not only the issue of the child’s rights, but that failure also doomed any reasonable analysis pertaining to the mother’s rights and interests;

(b) We take issue with the fact that this failure of the Court – to acknowledge that the unborn child is a whole, separate human being – has resulted in the courts, and others, using that failure to deny the humanity of those unborn children. To the extent that the Court thought that the state of science in 1973 did not sufficiently illuminate the factual inquiry for the Court at that time, no such impediment exists today. The fact that an abortion terminates the life of a whole, separate, unique, living human being is now resolved. Planned Parenthood et al. v. Rounds, Alpha Center et al., 530 F.3d 724 (8th Cir. 2008) (en banc); Rounds, 650 F.Supp. 2d 972 (D.S.D. 2009), affirmed 653 F.3d 662 (8th Cir. 2011);

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(c) The Court assumed that the decision the pregnant mother faced was primarily a medical question the woman should reach with an abortion doctor; when, in fact, it was primarily a social question about her personal circumstances. We have long concluded that the decision a pregnant mother faces of whether or not to keep her relationship with her child is one of the most important she will make in all of life, and that the abortion doctor and the personnel at an abortion clinic are not the proper persons to assist or counsel in that decision, because, among other reasons, their pecuniary interests and personal convictions often conflict with the interests of the pregnant mother. The philosophy and interests of abortion clinics, doctors and personnel are hostile to the mother’s interest in exercising her right to keep her relationship with her child, rendering them ill-suited to properly counsel the pregnant mother about her personal question of whether she should and can maintain her relationship with her child;

(d) The Court assumed that there would be a normal and healthy physician-patient relationship. Experience has proven that usually no such relationship exists and that abortions, as performed in our state, are among the worst form of itinerant surgery, the kind of surgery which mainstream medicine considers unethical;

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(e) The Court assumed that a woman’s consent for an abortion would be informed and voluntary. The best evidence available indicates that most abortions are uninformed or not truly voluntary, or both. Evidence now demonstrates that abortion facilities do not make adequate disclosures of the facts and risks of the procedure. Evidence now proves that pregnant mothers are subjected to pressure and coercion to have abortions they do not want. Evidence now shows that there is violence against pregnant mothers to compel them to have abortions of their children they prefer to keep. It is now known that the number one cause of deaths among pregnant mothers is murder, and that most of those murders are performed by the mother’s male partner. There is impressive evidence that women are the victims of violence and even murder when pregnant mothers refuse to abort the children they carry;

(f) The Court assumed that motherhood was somehow inherently distressing. The truth is that motherhood is inherently beneficial to the mother, and motherhood lost is inherently painful and distressing, and leaves an emptiness for the mother;

(g) The Court assumed that what the mother carried was mere potential, when, in fact, she had an existing relationship with her child, a human being already in existence;

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(h) The Court assumed that abortion was a very safe procedure. This assumption has proven to be false. It possesses many dangers to the health and life of the mother, including increased risk of suicide ideation and suicide;

(4) One of Roe’s greatest errors with which we take issue is Roe’s failure to recognize and account for the pregnant mother’s fundamental right and liberty interests in her maintaining her relationship with her child. The Court ignored this right and ignored the enormous loss to the mother which abortion inflicts. The Court’s decision treats abortion only as a benefit to the woman, and assumes she loses nothing of value to her. The harmful consequences of this error of the Court are too profound and vast to overestimate;

(5) One tragic consequence of Roe was that in one impulsive swoop, the Court wiped away all of the states’ carefully created protections for pregnant mothers designed to insure that a termination of her relationship with her child (in adoption procedures) would be free from coercion and undue or unwelcome influence of others and so that no termination could take place unless it was truly informed and voluntary, was treated as a last option, and was subject to Court review;

(6) One of Roe’s central errors was its failure to define and characterize the conduct which was asserted to be protected as a liberty under the

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Fourteenth Amendment. This failure was further compounded by the use of sanitizing language which created the illusion that the conduct was relatively benign. The starting point for any Due Process analysis is for the Court to describe and define the conduct in question. Washington v. Glucksberg, 521 U.S. 702, 721-23 (1997). The Roe Court violated one of its own basic principles in failing to sufficiently describe the conduct. The conduct was that of a physician terminating the life of one of his patients. Since the conduct has been couched in the abortion providers’ terms of the right of a woman, the Glucksberg Court would have described it as the right of a mother to terminate the life of her child, which contains within it, the right to have the assistance of a physician in doing so. See, Glucksberg, 521 U.S. at 723. This failure of the Court on this initial inquiry played a significant role in the Court reaching an erroneous result;

(7) We agree with the numerous legal authorities and scholars who criticize Roe as having made from whole cloth a so-called right or liberty that cannot logically or reasonably be deduced from the Fourteenth Amendment Due Process Clause. The central problem with Roe finding such a made-up right is that it frustrates and destroys one of the oldest rights and liberty interests of the mother ever recognized by the Court. Thus, the abortion doctor’s conduct in killing one of his patients is not a liberty protected by the

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Fourteenth Amendment for the reason that the mother has no recognized rights; rather it is not protected precisely because she does have fundamental rights, rights which are destroyed by the physician’s act;

(8) We take issue with Roe’s failure to account for the child’s interests as a human being whose life is terminated;

(9) We find that the Court made certain false assumptions in Planned Parenthood v. Casey, 505 U.S. 833 (1992), in its stare decisis analysis intended to justify the Court’s reaffirmation of Roe. The Court acknowledged that satisfaction of any one of four different principles would satisfy the requirements of stare decisis to justify overturning Roe. 505 U.S. at 854-69.

Experience and the facts now available demonstrate that not one, but all four methods of satisfying stare decisis can now be met:

(1) Abortion is a completely unworkable method to terminate the mother’s constitutionally protected interest in her relationship with her child, and Roe has badly compromised the mother’s rights in a number of circumstances. Because of Roe, the mother’s long recognized fundamental rights and interests are frustrated and denied;

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(2) It cannot be said that the women of the nation rely upon a right to terminate the lives of their children, and the inherently unjust nature of an act that would be considered criminal if it were not for Roe v. Wade, cannot be said to be the kind of act that anyone has a right to rely upon. Experience has demonstrated that if anyone relies upon the legal availability of abortion, it is the man who exploits a woman and later demands that she have an abortion that he thinks it is her duty to him to obtain;

(3) The evolution of how the courts now understand the legitimacy of the state’s protection of the mother’s right to her relationship with her child, and protection against violence, coerced and uninformed consents all demonstrate that Roe was based on false assumptions and failure to recognize and consider the mother’s real rights, all of which flaws have weakened Roe, if it ever had any real strength of its own;

(4) Finally, and quite clearly, Roe’s assumptions of fact have all proven to be either totally or largely false and inaccurate.

Section 3. The errors of Roe are too clear, the harm that decision has caused the women in our State and throughout the nation too tragic, the deaths of our children too numerous, and the inherently unjust nature of the conduct too plain for our Supreme Court to fail to act to overturn that decision.

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We, the elected representatives of the People of South Dakota, call upon the Supreme Court of the United States to scrutinize abortion cases now in the courts and those which will shortly be so, to select the case that most properly presents the important issues, in order to reassess Roe and Casey, and overturn them. We suggest that it is now time for the Court to restore to the People of the States and their elected representatives the ability to freely and openly debate what policies they should adopt to protect the women and children of their states free from unjustified interference from the Court’s errors of Roe.

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The Vote Adopting Concurrent Resolution 1004 in the South Dakota House of Representatives

The 60 Representatives Voting “YES” for Adoption of the Resolution:

Anderson; Bartling; Beal; Bolin; Brunner; Campbell; Conzet; Craig; Cronin; Deutsch; DiSanto; Duvall; Feickert; Gosch; Greenfield (Lana); Haggar (Don); Harrison; Haugaard; Heinemann (Leslie); Hickey; Holmes; Hunhoff (Jean); Hunt; Johns; Kaiser; Kirschman; Klumb; Langer; Latterell; Marty; May; Mickelson; Munsterman; Novstrup (Al); Otten (Herman); Partridge; Peterson (Kent); Qualm; Rasmussen; Ring; Rounds; Rozum; Russell; Schaefer; Schoenbeck; Schoenfish; Schrempp; Sly; Solum; Stalzer; Stevens; Tulson; Verchio; Werner; Westra; Wiik; Willadsen; Wink; Wollmann; Zikmund.

The 10 Representatives Voting “NO” Against the Resolution:

Bordeaux; Dryden; Gibson; Hawks; Hawley; Jensen (Alex); Killer; McCleerey; Romkema; Soli.

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The Vote Adopting Concurrent Resolution 1004 in the South Dakota Senate

The 25 Senators Voting “YES” for Adoption of the Resolution:

Brown; Cammack; Curd; Ewing; Frerichs; Greenfield; Haggar (Jenna); Haverly; Heineman; Holien; Hunhoff; Jensen; Lederman; Monroe; Novstrup (David); Olson; Otten; Peterson; Rampelberg; Rave; Rusch; Solano; Sutton; Van Gerpen; White.

The 9 Senators Voting “NO” Against the Resolution:

Bradford; Buhl; Heinert; Parsley; Peters; Soholt; Tidemann; Tieszen; Vehle.