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Brief Amici Curiae of Care Net, a National Affiliation Organization of 1200 Pregnancy Help Centers

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Brief Amici Curiae of Care Net, a National Affiliation Organization of 1200 Pregnancy Help Centers No. 19-1392 IN THE Supreme Court of the United States THOMAS E. DOBBS, StAte HeALTH OFFICER OF THE MISSISSIPPI DEPARTMentOF HeALTH, et al., Petitioners, v. JACKSON WOMen’S HeALTH ORGANIZATION, et al., Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES CouRT OF APPEALS FOR THE FIFTH CIRcuIT BRIEF OF AMICI CURIAE CARE NET, A NATIONAL AFFILIATION ORGANIZATION OF 1,200 PREGNANCY HELP CENTERS, AND ALPHA CENTER, A SOUTH DAKOTA REGISTERED PREGNANCY HELP CENTER, IN SUPPORT OF PETITIONERS HAROLD J. CASSIDY Counsel of Record JOSEPH R. ZAKHARY DEREK M. CASSIDY THOMAS J. VIGGIANO, III THE CASSIDY LAW FIRM LLC 750 Broad Street, Suite 3 Shrewsbury, New Jersey 07702 (732) 747-3999 [email protected] Counsel for Amici Curiae 306314 i TABLE OF CONTENTS Page TABLE OF CONTENTS..........................i TABLE OF CITED AUTHORITIES ..............iv INTEREST OF AMICI CURIAE ..................1 SUMMARY OF ARGUMENT .....................2 ARGUMENT....................................4 I. An 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, By Terminating the Life of a Whole, Separate, Unique, Living Human Being .......6 II. An Abortion is Not the Exercise of a Right; It is the Waiver, Surrender and Termination of One of the Most Important Fundamental Intrinsic Rights a Mother Has in All of Life; Roe and Casey Have Operated to Destroy that Right ..15 A. The Pregnant Mother has a Fundamental, Intrinsic Right to Maintain Her Relationship with Her Child ................................15 ii Table of Contents Page B. Be c au s e Roe and Casey have Prohibited the States from Providing Meaningful Protections for the Pregnant Mother’s Right to Her Relationship, Mothers are Losing Their Children Against Their Will ............21 1. The Primary Decision ..............21 2. Pregnant Mothers are Routinely Coerced and Pressured into Abortions, and the Derelict Practices of Abortion Clinics Exacerbate the Coercion............22 III. Because Roe and Casey are Used to Prohibit the States from Providing any Meaningful Protection of the Pregnant Mothers’ Interests, the Mother’s Due Process and Equal Protection Rights Are Being Violated ........................26 A. General Considerations ................26 B. Roe and Casey Have Operated to Prohibit Reasonable and Necessary Exercise of the State’s Authority to Protect the Fundamental Rights of Pregnant Mothers Resulting in the Violation of Their Due Process and Equal Protection Rights ....28 iii Table of Contents Page 1. The Tension and Conflict Between Two Distinct Liberty Interests ......28 2. Due Process ......................29 3. Equal Protection ..................31 (a) “Voluntary” Termination ........31 (b) The Cr i mina l Homicide Exception . .32 CONCLUSION .................................32 iv TABLE OF CITED AUTHORITIES Page Cases Aetna Ins. Co. v. Kennedy, 301 U.S. 389 (1937)............................30 Board of Regents, et al. v. Roth, 408 U.S. 564 (1972).........................15-16 Burgess v. the Superior Court of Los Angeles, 2 Cal. 4th 1064, 831 P.2d 1197, 9 Cal. Rptr. 2d 615 (1992)....................................13 Caban v. Mohammed, 441 U.S. 380 (1979)............................18 Clark v. Jeter, 486 U.S. 456 (1988)............................31 Draper v. Jasionowski, 372 N.J. Super. 368, 858 A.2d 1141 (App. Div. 2004) ..............................13 F.S. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920)............................31 Gonzales v. Carhart, 550 U.S. 124 (2007) ...........................17 Graham v. Richardson, 403 U.S. 365 (1971) ..........................2, 16 v Cited Authorities Page Griswold v. Connecticut, 381 U.S. 479 (1965)............................16 Harrison v. United States, 284 F.3d 293 (1st Cir. 2002)..................12-13 Hughson v. St. Francis Hospital, 92 A.D.2d 131, 459 N.Y.S.2d 814 (1983) ...........12 In re A.C., 573 A.2d 1235 (D.C. 1990) ......................13 In re Certification of Question of Law from U.S. District Court (Farley), 387 N.W.2d 42 (S.D. 1986) ......................13 Johnson v. Zerbst, 304 U.S. 458 (1938)............................30 Jones v. MetroHealth Med. Ctr, 89 N.E.3d 633 (Ohio Ct. App. 2017) ..............13 Ledford v. Martin, 87 N.C. App. 88, 359 S.E.2d 505 (1987) ...........13 Lehr v. Robertson, 463 U.S. 248 (1983).......................passim M.L.B. v. S.L.J., 519 U.S. 102 (1996) ............................30 vi Cited Authorities Page Massachusetts, Comm. v. Crawford, 722 NE.2d 960 (Mass. 2000)....................11 McIntyre v. Jones, 194 P.3d 519 (Colo. App. 2008) ..................10 Meyer v. Nebraska, 262 U.S. 390 (1923).........................16, 18 Michael H. v. Gerald D., 491 U.S. 110 (1989) . .16 Miller ex rel. Miller v. Dacus, 231 S.W.3d 903 (Tenn. 2007)....................13 Moore v. East Cleveland, 431 U.S. 494 (1977).........................16, 18 Morrisey v. Brewer, 408 U.S. 471 (1972) ..........................2, 16 NBC Subsidiary (KCNC-TV) Inc., v. Living Will Ctr., 879 P.2d 6 (Colo. 1994) (en banc).................10 Nguyen v. I.N.S., 533 U.S. 53 (2001).............................19 Nold v. Pinyon, 272 Kan. 87, 31 P.3d 274 (2001) ..................13 vii Cited Authorities Page Ob-Gyn Associates of Albany v. Littleton, 259 Ga. 663, 386 S.E.2d 146 (1989)...............13 Pierce v. Soc. of Sisters, 268 U.S. 510 (1925) .........................17, 18 Planned Parenthood Minn., N..D., S.D., et al. v. Rounds, Alpha Center, et al., 530 F.3d 724 (8th Cir. 2008) (en banc) .........3, 7, 8 Planned Parenthood Minn., N..D., S.D., et al. v. Rounds, Alpha Center, et al., 650 F. Supp. 2d 972 (U.S. Dist. Ct., S.D.D. 2009)..3, 9 Planned Parenthood Minn., N..D., S.D., et al. v. Rounds, Alpha Center, et al., 653 F.3d 662 (8th Cir. 2011).................3, 9, 20 Planned Parenthood Minn., N.D., S.D., et al. v. Noem, Alpha Center, et al., U.S. Dist. Ct., D.S.D., civ-11-4071 KES . .passim Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).......................passim Planned Parenthood, et al. v. Rounds, et al., Civ. No. 05-4077-KES .......................8, 20 Plyer v. Doe, 457 U.S. 202 (1982)............................31 viii Cited Authorities Page Prince v. Mass., 321 U.S. 158 (1944) ............................17 Quilloin v. Walcott, 434 U.S. 246 (1978).........................17, 18 Randall v. United States, 859 F. Supp. 22 (D.C. 1994) .....................13 Roberts v. Patel, 620 F. Supp. 323 (N.D. Ill. 1985).................13 Roe v. Wade, 410 U.S. 113 (1973) .......................passim Santosky v. Kramer, 455 U.S. 745 (1982).......................passim Skinner v. Oklahoma, 316 U.S. 535 (1942) ............................18 Smith v. Organization of Foster Families, 431 U.S. 816 (1972) .......................3, 17, 18 Snyder v. Massachusetts, 291 U.S. 97 (1934) .............................16 Stanley v. Ill., 405 U.S. 645 (1972)......................17, 18, 28 ix Cited Authorities Page State v. Post, 733 N.W. 2d 634 (Wis. 2007) ....................10 State v. Rollen, 133 SW.3d 57 (2003) ...........................11 State v. Tomaszewski, 782 N.W. 2d 725 (Wis. Ct. App. 2010) ............10 Troxel v. Granville, 530 U.S. 57 (2000)..........................18, 29 U.S. v. Gould, 536 F.2d 216 (8th Cir. 1976)......................9 U.S. v. Hanna, 293 F.3d 1080 (9th Cir. 2002) ...................10 U.S. v. Lincoln, 403 F.3d 703 (9th Cir. 2005) ....................10 Walker v. Mart, 164 Ariz. 37, 790 P.2d 735 (1990) ................13 Washington v. Glucksberg, 521 U.S. 702 (1997)......................2, 5, 6, 16 Weber v. Aetna, 406 U.S. 164 (1972) ............................31 x Cited Authorities Page Yick Wo v. Hopkins, 118 U.S. 356 (1886) ............................31 Statutes Alabama, Ala. Code 1975 §§ 13A-6-1-13A-6-4 ........10 Alaska, Alaska Stat. § 11.41.150 ...................10 Arizona, Ariz. Rev. Stat Ann. §§ 13-1102-13-1105.....10 Arkansas, Ark. Stat. Ann. §§ 5-10-102-5-10-105 ......10 California, Cal. Penal Code § 187(a) ................11 Florida, F.S.A. § 782.09 ..........................11 Georgia, Ga. Code Ann. § 16-5-80..................11 Idaho, I.C. § 18-4001 .............................11 Illinois, §§ 720 ILCS 5/9-1.2.......................11 Illinois, §§ 720 ILCS 5/9-2.1.......................11 Illinois, §§ 720 ILCS 5/9-3.2 ......................11 Indiana, IC §§ 35-42-1-1 ..........................11 Indiana, IC §§ 35-42-1-3..........................11 xi Cited Authorities Page Indiana, IC §§ 35-42-1-4..........................11 Indiana, IC §§ 35-42-1-6..........................11 Kansas, K.S.A. §§ 21-5401-5406 ...................11 Kentucky, KRS §§ 507A.020-.050 . 11 Louisiana, LA. Stat. Ann. §§ 14:29-14:32.8 ..........11 Maryland, MD CRIM LAW § 2-103 ................11 Michigan, M.C.L.A. §§ 750.322-.323................11 Minnesota, M.S.A. §§ 609.266-.2691................11 Miss. Code. Ann. § 97-3-19 ..................11, 14, 32 Miss. Code Ann. § 97-3-21(1) ......................14 Miss. Code Ann. § 97-3-37(1) ................11, 14, 32 Missouri, V.A.M.S. §§ 565.020-565.027 .............11 Montana, M.C.A. §§ 45-5-102......................11 Montana, M.C.A. §§ 45-5-103......................11 Nebraska, Neb. Rev. St. §§ 28-388-28-394 ..........11 xii Cited Authorities Page Nevada, N.R.S. 200.210 ..........................11 New Hampshire, N.H. Rev. Stat. §§ 630:1-a-630:4 ....11 North Carolina, N.C.G.S.A. §§ 14-23.1-14-23.8 .......11
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