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In the Supreme Court of Pennsylvania

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In the Supreme Court of Pennsylvania IN THE SUPREME COURT OF PENNSYLVANIA _____________ No. 1 AB _____________ IN RE: JANE DOE ______________ BRIEF OF AMICI CURIAE PENNSYLVANIA FAMILY INSTITUTE AND THE PENNSYLVANIA PRO-LIFE FEDERATION ______________ Appeal from the Order of the Superior Court affirming the denial of Appellant’s Judicial Bypass Randall L. Wenger, Esq., I.D. No. 86537 Mailee Smith, Esq. Attorney of record for Amici Curiae Of counsel for Amici Curiae INDEPENDENCE LAW CENTER AMERICANS UNITED FOR LIFE 23 N. Front Street, 2nd Floor 655 15th St., NW Harrisburg, Pennsylvania 17101 Suite 410 Telephone: (717) 657-4990 Washington, DC 20005 with Telephone (202) 289-1478 Sarah Jelsema* Bradley S. Tupi, Esq., I.D. No. 28682 Matthew S. Bowman, Esq. Owen McGrann, Esq., I.D. No. 307697 Steven H. Aden, Esq. 1500 One PPG Place Of counsel for Amici Curiae Pittsburgh, Pennsylvania 15222 ALLIANCE DEFENSE FUND Telephone: (412) 594 5545 801 G Street NW, Suite 509 Washington, DC 20001 Telephone: (202) 393-8690 *Third-year student at Harvard Law School. Counsel are grateful for the assistance of this student in preparation of this brief. TABLE OF CONTENTS Page(s): TABLE OF AUTHORITIES……………………………………………………………...ii ARGUMENT……………………………………………………………………………...2 I. THE SUPERIOR COURT EMPLOYED THE CORRECT STANDARD OF REVIEW FOR THE DENIAL OF A JUDICIAL BYPASS FOR A MINOR SEEKING AN ABORTION…………………..………………………………2 A. Abuse of Discretion is the Appropriate Standard Due to the Intensive Factual Determinations Involved………………………………………….3 B. Abuse of Discretion is the Correct Standard Since Best Interest and Maturity Determinations are Inherently Subjective…………………..…...5 C. Abuse of Discretion (or Clearly Erroneous) is the Standard Used by Nearly Every Other State that has Addressed this Issue………………..…7 D. Abuse of Discretion is the Standard Used with Other Matters Involving Factual Considerations—Even Those Involving Fundamental Rights…………………………………………………………………….10 E. A Heightened Standard that Would Result in Making the Grant of a Judicial Bypass Even More Routine would Undermine Legislative Intent, the Place of the Legislature, and the Important Interests the Legislature Sought to Protect……………………………………………….………...12 II. PENNSYLVANIA LAW PROTECTS MINORS BY PLAINLY REQUIRING EITHER ONE-PARENT CONSENT OR AN APPROVED JUDICIAL BYPASS PRIOR TO PERFORMING AN ABORTION ON A MINOR……………...……………………………………………………….16 III. THE COMMONWEALTH HAS A COMPELLING INTEREST IN PROTECTING MINORS FROM THE HARMS OF ABORTION PERFORMED WITHOUT PARENTAL INVOLVEMENT, ESPECIALLY IN LIGHT OF THE SCIENTIFICALLY ESTABLISHED DIMINISHED MATURITY OF MINORS………………………………………………..…20 A. Not Only are the Risks Significant, But Due to the Proven Lack of Maturity of Minors, the Need for Parental Oversight is All the More Profound………………………………………………………………….20 i B. Minors Who Abort Face Demonstrated Physical Risks………………....25 1. Short-Term Physical Risks of Abortion………………………..25 2. Long-Term Physical Risks of Abortion………………………..27 C. Minors Who Abort Face Demonstrated Psychological Risks……………31 IV. CONCLUSION……………..………………………………………………..38 ii TABLE OF AUTHORITIES Cases: Page(s): Am. Coll. of Obstetricians & Gynecologists v. Thornburgh, 737 F.2d 283, 296 (3d Cir.1984)………………...……………………………….…..19-20 Anderson v. Bessemer City, 470 U.S. 564, 573-574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)………….……………...4 Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006)………..18 Bellotti v. Baird, 443 U.S. 622 (1979) (plurality opinion) (Bellotti II)...........................6-7, 13-14, 18-19, 24 Buffalo Tp. v. Jones, 571 Pa. 637, 648 n.7 (2002)………………………………….……12 Burbage v. Boiler Eng'g. & Supply Co., 433 Pa. 319 (1969)…………………………..…3 Charles v. Stehlik, 560 Pa. 334, 340 (2000)…………………………………………..…11 Com. v. Martin, 5 A.3d 177, 204 (Pa. 2010)……………………………………….……12 Com. v. Nixon, 563 Pa. 425, 436, 761 A.2d 1151, 1157 (2000)………………….…..….17 Com. v. Treiber, 874 A.2d 21, 26, 31 (Pa. 2005)……………………………………...…11 Com., Dept. of Transportation, Bureau of Driver Licensing v. Tarnopolski, 626 A.2d 138, 140 (Pa. 1993)……………………………………………….………...…10 Com., Dept. of Transp., Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 248 (1989)…………………………………………………….……………..3 Com., Dept. of Transportation, Bureau of Driver Licensing v. Tarnopolski, 626 A.2d 138, 140 (Pa. 1993)……………………………………………………....……10 Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 400-401 (1990)……………….…….…4 D.F. Bast, Inc. v. Pa., PUC, 397 Pa. 246 (1959)……………………………………...…..3 Eddings v. Oklahoma, 455 U. S. 104, 115 (1982)…………………………………….…24 Ex parte Anonymous, 806 So. 2d 1269, 1274-76 (Ala. 2001)…………………....….5, 7-9 Graham v. Florida, 130 S.Ct. 2011 (2010)…………………………………………..21-24 iii Hodgson v. Minnesota, 497 U.S. 417, 444 (1990)………………………………...…18, 21 Indiana Planned Parenthood Affiliates Ass'n, v. Pearson, 716 F.2d 1127, 1136 (7th Cir. 1983)………………………………………………..….4, 8 In re Anonymous, 869 So.2d 498, 500 (Ala. Civ. App. 2003)……………………………8 In re B.S., 74 P.3d 285, 288-89 (Ariz. Ct. App. 2003)…………………..…………….…8 In re Coats, 849 A.2d 254, 258 (Pa. Super. 2004)……………………………………...11 In re Doe, 973 So.2d 548, 550 (Fla. App. 2008)………………………………………..19 In re Doe, 932 So. 2d 278, 283-84, 286 (Ct. App. Fl., Dis. 2, 2005)…………………….8 In re Doe, 749 N.E.2d 807 (Ohio 2001)……………………….……………………..…..8 In re Doe, 19 S.W.3d 249(Tex.2000)………………………………………………..5, 8-9 In re Doe, 974 P.2d 1067, 1077 (Haw. Ct. App. 1999)………………………….……5, 8 In re Doe, 19 Kan. App. 2d 204, 208, 210, 866 P.2d 1069 (1994)………………………8 In re Doe 2, 166 P.3d 293, 295 (Colo. Ct. App. 2007)…………………………………19 In re L.D.F., 820 A.2d 714, 716-717 (Pa. Super. 2003)……………………………….2, 8 In re Meyers (Girsh Trust), 189 A.2d 852, 859-60 (Pa. 1963)………………………….10 In re Peery, 727 A.2d 539, 540 (Pa. 1999)……………………………………………...11 In re R.B., 790 So.2d 830, 832 (Miss. 2001)……………………………………….…….8 Jackson v. Vaughn, 777 A.2d 436, 438 (Pa. 2001)………………………………….…..11 Johnson v. Texas, 509 U.S. 350, 367 (1993)………………………………………….....21 May v. Anderson, 345 U. S. 528, 536 (1953) (concurring opinion)……………………..13 McKeiver v. Pennsylvania, 403 U. S. 528, 550 (1971) (plurality opinion)………...……14 McShea v. City of Philadelphia, 995 A.2d 334, 338 (Pa. 2010)……………………...…10 Moore v. East Cleveland, 431 U. S. 494, 503-504 (1977) (plurality opinion)…………..13 Moore v. Moore, 535 Pa. 18, 634 A.2d 163, 167-68 (1993)……………………………...5 iv Norfolk & W. Ry. Co. v. Pa. Public Utility, 489 Pa. 109 (1980)……………………...…..3 Pace v. Pace, 22 P.3d 861, 865 (Wyo.2001)……………………………………….….5, 8 People ex rel. P.K., 711 N.W.2d 248, 254 (S.D. 2006)…………………………….…….4 PHRC v. Chester Housing Authority, 458 Pa. 67 (1974)………………………………....3 Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 91 (1976) (Stewart concurring)……………………………………..…14, 19 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 841, 899 (1992) (plurality opinion)……………………………….17-18, 24 Roper v. Simmons, 543 U.S. 551, 569 (2005)……………………………………..…21, 23 Schotz v. Oliver, 361 So.2d 605, 607 (Ala. Civ. App. 1978)……………………….…….8 Sears v. Fryman, 2003 WL 22750946, No. 2003-CA-000024-DG, at *1 (Ky. App. Nov. 21, 2003)………………………..…4-5 Smith v. Organization of Foster Families For Equality and Reform, 431 U.S. 816, 836 n.36 (1977)……………………………………………………………6 Upon the Petition of Jane Doe, 166 P.3d 293 (Col. Ct. App. 2007)……………….…….5 Statutes: 1 Pa.C.S.A. § 1921…………………………………………………………………….…15 18 Pa.C.S.A. § 3202, et seq……………………………………………………….…passim La. Rev.Stat.Ann. § 40:1299.35.5(B)(7) (2010)………………………………………..…9 N.C. Gen.Stat.Ann. 90-21.8(h) (2010)………………………………………………...…..9 Neb. Rev.Stat. § 71-6904(6) (2010)…………………………………………………….…9 Tenn. Code Ann. §37-10-304(g) (2010)…………………………………………………..9 Court Rules: v Fed.R.Civ.P. 52(a)(6)……………………………………………………………………...4 Iowa Ct.R. 6.401(3)……………………………………………………………………….9 Secondary Sources: A. Bonny, Parental Consent and Notification Laws in the Abortion Context: Rejecting the “Maturity” Standard in Judicial Bypass Proceedings, UC DAVIS JOURNAL OF JUVENILE LAW & POLICY 11(2):324, 333 (2007)……..……….....6 Abortion and depression: A population-based longitudinal study of young women, SCANDINAVIAN J. PUB. HEALTH 36(4):424 (2008)……………………………………....33 A.C. Gilchrist et al., Termination of pregnancy and psychiatric morbidity, BRIT. J. PSYCHIATRY 167:243 (1995)………………………………………………...….35 American Association of Pro-Life Obstetricians & Gynecologists, Dr. Iams (2010), available at http://www.aaplog.org/get-involved/letters-to-members/dr-iams/ (last visited Dec. 22, 2010)………………………………………………………………28 APM Health Europe, Italy questions safety of Exelgyn's abortion pill, approval still not granted (June 23, 2009), available at http://www.apmhe.com/story.php?mots=MIFEPRISTONE&searchScope=1&searchType=0&nu mero=L15579 (last visited Dec. 22, 2010)…………………….…………..……..27 B. Luke, EVERY PREGNANT WOMAN’S GUIDE TO PREVENTING PREMATURE BIRTH 32 (1995)..…..29 B. Rooney & C. Calhoun, Induced Abortion and Risk of Later Premature Births, J. AM. PHYSICIANS & SURGEONS 8(2):46, 46-47 (2003)…………………………...…28-29 C. Moreau et al., Previous Induced Abortions and the Risk of Very Preterm Delivery: Results of the EPIPAGE Study, BRIT. J. OBSTET. & GYN. 112:430, 431 (2005)…...……27 D. Avonts & P. Piot, Genital infections in women undergoing therapeutic abortion, EURO. J. OBSTET. GYNECOL. & REPROD. BIO. 20(1):53 (1985)………………………………………….….26 D.C. Reardon et al., Deaths Associated with Abortion Compared to Childbirth: A Review of New and Old Data and the Medical and Legal Implications, J. CONTEMP. HEALTH LAW & POL’Y 20(2):279 (2004)………………………………..…30 vi D.C. Reardon & P.C. Coleman, Relative Treatment Rates for Sleep Disorders and Sleep Disturbances Following Abortion and Childbirth: A Prospective Record-Based Study, J. SLEEP 29:105-06 (2006)…………………………………………………………...…..35 D.M. Fergusson et al., Abortion in Young Women and Subsequent Mental Health, J. Child Psychol. & Psychiat. 41(1):16, 19 (2006)…………………...…...…….31, 34, 36 Emotional distress and its correlates, J. OBSTET. & GYNECOL. 5:504 (2004)……..……33 Emotional distress following induced abortion: A study of its incidence and determinants among abortees in Malmo, Sweden, EUROPEAN J.
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