Brief Amicus Curiae of the United Kingdom in Support of Petitioner - Term Paper Example

No. 09-9998 ====================================================== In The Supreme Court of the United s ________________________ JANE ROE Petitioner, V BUSSEY, GOVERNOR OF FREEDONIA, ET AL. Respondent. ____________________________ On Writ of Certiorari To The Supreme Court of the United States ________________________ BRIEF AMICUS CURIAE OF THE UNITED KINGDOM IN SUPPORT OF PETITIONER _____________________________ INTEREST OF AMICUS CURIAE 3-4 SUMMARY OF ARGUMENT 4-5 ARGUMENT I The Requirement of Parental Consent and Parental Notification Prior to Abortion for Women Below 18 Years of Age without Qualifications is Contrary to the Provisions of the ICCPR, the 5th and 14th Amendments of the Constitution 5-12 II The Provision of the Freedonia Abortion Law of 2009 Imposing an Informed Consent Lecture and Forty-Eight Hour Waiting Period Violates s1, Article II of the ICCPR 12-15 CONCLUSION 15-18 INTEREST OF AMICUS CURIAE1 The United Kingdom respectfully submits this brief before the Court as an amicus curiae for the purpose of pointing out to the Court the errors of law committed by the Supreme Court of Freedonia when it upheld the state of Freedonia over the herein petitioner Jane Roe in regard to the constitutionality of the Freedonia Abortion Act 2009. The UK and the United States are both State Parties to the International Covenant on Civil and Political Rights (ICCPR hereafter). On December 16, 1966 in New York, the ICCPR, a United Nations initiated covenant, was declared open for signature. The UK signed it on September 16, 1968 with its ratification papers duly submitted to the Committee on May 20, 1976. As per the Committee records, the US signed the covenant on October 5, 1977 and ratified it on June 8, 1992 (UN Treaty Collection). Under international laws, the US is obliged to comply with the provisions of international treaties, like the ICCPR to which it is a state party. In upholding international treaties, like the ICCPR, respecting civil rights of citizens, the UK has passed into law the Abortion Act of 1967 and other related laws like the Human Fertilisation Act 1990 (amended in 2000). Unlike the US federal system in which fifty-states are free to enact their respective abortion-related laws so long as they do not contravene the US Constitution, the UK, a unitary state, has one set of abortion laws applicable all throughout its jurisdiction, except for Northern Ireland in respect to abortion laws. In UK, except for Northern Ireland, abortion is legal. A woman can opt for abortion up to the 24th week of conception if two doctors can attest that she or her children, runs a risk, physically and mentally, if the pregnancy is carried to its full term. The limit, however, is not applicable if two doctors agree that a woman’s pregnancy places her life at risk if she continues with the pregnancy or the child is likely to be born with serious physical or mental defects or to save the woman’s life or to prevent grave permanent injury. A medical emergency authorises abortion without the concurrence of a second medical doctor. Other than the medical opinions of the doctors, the UK abortion law requires no consent from other persons. Minors however, or those below sixteen year-olds, require consent of parents subject to a certain exception known as the mature minor test prescribed in the case of Gillick v. West Norfolk and Wisbech Area Health Authority. 2 The law also provides that no impediment shall be caused precluding a woman to see another doctor for abortion reference in case her own GP refuses to refer her on the ground of conscientious objection. 3 _______________________________ SUMMARY OF ARGUMENT The Supreme Court of Freedonia committed an error of law in sustaining the Freedonia Abortion Act of 2009. It failed to take into account the important provision of the ICCPR related to rights of all persons in the exercise of self-determination provided in s1 Article 1, Part I and the obligation of all state parties to ensure that all persons within their territories and subject to their authority should enjoy all civil rights under the treaty as laid down in the said article. The obligation of the US to comply with the ICCPR is not only underpinned by its being a signatory to the said agreement but by paragraph 2 of Article VI of the US Constitution which obligated all states and all courts to give due regard to treaties as part of the law of the land. In addition, the Freedonia Abortion Act of 2009 violates the rights of women under the US Constitution: the right not to be deprived of, among others, liberty, without due process, guaranteed under the 5th Amendment, and; the right to equal protection of the laws under the 14th Amendment. ______________________________________ ARGUMENT I The Requirement of Parental Consent and Parental Notification Prior to Abortion for Women Below 18 Years of Age without Qualifications is Contrary to the Provisions of the ICCPR, the 5th Amendment and 14th Amendment of the US Constitution One of the provisions of the Freedonia Abortion Act of 2009 assailed by the herein petitioner is the requirement that a woman below eighteen years old need to obtain the consent of both her parents before she can legally undergo abortion even if her pregnancy is within the pre-viable stage or the first 24-months as laid down in the case of Planned Parenthood of Pennsylvania v Casey.4 In addition, the said provision also requires that abortion providers send notification to parents of the minor. These requirements can be done away with only by a judicial bypass. The requirements of parental consent and parental notification impose physical, emotional and mental burden on a woman which operate to diminish her capacity to freely exercise her right to determine sexual-reproduction. In this sense, this particular provision stands contrary to the provisions of ICCPR, to which the US is obliged to comply being a signatory thereto. The ICCPR provision states that “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” 5 Previous studies have shown that requiring under-age women to obtain the written permission of their parents have effectively interfered with their decisions to seek and undergo abortion. Such a measure has proved to have a discouraging effect on women’s decision to undergo abortion, compelling them to opt instead for the easier way of carrying pregnancies to their full term. The measure, for example, is instrumental in increasing the incidences of teenage motherhood in the 1980s and the 1990s. In a study conducted in the state of Minnesota which imposed its own version of the parental-consent-prior-to-abortion measure in 1981, a considerable decrease in abortion incidence was reported. Prior to 1981, 18.8 women for every 1,000, on the average, sought abortion in the years 1978, 1979 and 1980. After the adoption of the measure, the rate dropped to 12.8 women for every 1000 in 1982. 6 The requirement of parental consent serves no purpose if its aim is to foster goof family life. It is a futile exercise by the state of infringing into the family life of its citizens, an infringement that is unfortunately borne by the minor. Sharing confidences is a natural expression of love and trust and a consequence of good relationship between child and parents. It does not emanate from purely extrinsic matters like state legislations but from the respect, love and trust that parents have carefully cultivated and nurtured at home with their children. If parents have done their duty, such an atmosphere necessarily prevails at home and children naturally confide their secrets to their parents. It is therefore unnecessary for the state to legislate it. On the other hand, a bad family life creates tension among its members and the sharing of confidences by a child to her parents is unlikely. This cannot be altered by state legislation no matter how well-intentioned they are. The implication is that a legislation which forces a young girl to share her confidential secret with her parents like an unwanted pregnancy and abortion will not likely alter, by making better, the family life at home. On the contrary, there is every indication that a girl who is precluded, by an atmosphere of distrust and animosity, to share confidences with her parents will most likely find another way, even if compelled to do so by legislation, to keep that secret from them by all means. If she does divulge that secret, it will be likely with a heavy heart which can affect her mental and physical well-being.7 In addition, the requirement of two-parent consent is an undue burden on a young girl. It is established that boys are closer to their fathers and girls to their mothers. In topics like pregnancy and abortion, a young girl, even in the presence of a goof family life, will most likely feel uncomfortable conversing with her father than her mother. 8 The inevitable conclusion therefore is that parental consent laws are unnecessary because family relationships are not determined by legislations. This is especially true if the young girl is afraid that the revelation of her condition to her parents will be met by violence. A study to this effect illustrates this perspective. Data shows that 30% of the young girls interviewed reported that they did not tell their parents of their pregnancy and subsequent abortion because they had experienced violence previously and were scared that doing so will be meted by more violence. On the other hand, 61% of young women who got pregnant told their parents about their pregnancy and their plan to undergo abortion even when there were no state laws that require them to obtain consent from their parents before undergoing abortion. 9 Neither does the judicial bypass remedy built into the law as an alternative to parental consent, provides relief to the minor woman but instead operates as additional mental, physical and emotional obstacle that a young girl, naturally a greenhorn to judicial processes, has to take if she cannot stand telling her parents about her condition or that her parents have refused to give their consent. Studies have shown that because a judge’s consent is easier to obtain than parents consent, there are young girls who resort to judicial bypass than obtain parental consent. However, although consent through judicial bypass is relatively more certain to be obtained by a minor than a parental consent, it has been proven that the process of acquiring one exposes a minor to more difficulties like the inconvenience of court hours that may get in the way of school time as well as relatively less accessible locations of courts specifically designated to hear abortion petitions. 10 The ill effects of a parental consent law where young girls are determined to keep their condition and plan to get an abortion a secret from their parents is that these girls unnecessarily exposed themselves to certain risks. Some young girls resort to back-alley operated abortion clinics of unlicensed operators who will conduct abortions without parental consent and parental notification. Since they are unregulated, these back-alley operators may not practice the most hygienic and safe medical procedures thereby exposing young girls to the risk of infection and even death. Other young girls seek abortion beyond the state territory, seeking abortion clinics in other states where there are no parental consent and notification laws in force, and exposing themselves to the potential risks of unfamiliar surroundings and unscrupulous persons. 11 Justice Blackmun wrote, in the case of Planned Parenthood v Danforth 12 that minors, like adults, are possessed of, and are protected with constitutional rights. The fact that these rights are not coextensive with those of the adults does not justify the state’s imposition on the right of minors to exercise their freedom to opt for abortion. 13 Minors, like adults, for example, are entitled to enjoy the right not to be deprived of, among others, liberty without due process of law, a right guaranteed under the Fifth Amendment. The right of US citizens, subject to its jurisdiction, to enjoy this right, among others, is furthermore protected by the 14th Amendment on the equal protection clause. The implication of these two constitutional clauses is that young women are entitled to the right of determination in sexual-reproduction, which right cannot be deprived them without due process, and a law cannot be passed that singles out minors and deprives them of certain rights when the same law does not have the same application for others in the same class. The history of the parental consent law however, reveals that even this Court had not been unanimous in its determination of the role of legislation in the exercise by minors of their right to undergo abortion. In the case, for example, of Hodgson v Minnesota, 14 the Court is split on the parental consent issue. On the issue of two-parent notice with no bypass, the Court decided 4-5 to declare its unconstitutionality; on the issue of one-parent notice with no bypass the Court decided 4-5 to declare its unconstitutionality; on the issue of two-parent notice with bypass the Court ruled 5-4 favoring its constitutionality, and; on the issue of one-parent notice with bypass the Court ruled 6-3 for its constitutionality. This prompted Justice Scalia to remark that “The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyers’ – and hence not in the judge’s – workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have the authority to do so.” 15 Although it may not necessarily violate the undue burden test as laid down in the case of Planned Parenthood v Casey, the provision referring to the requirement of two-parent consent, parental notification by the abortion provider and the alternative measure of judicial bypass, all operate to diminish the freedom of a minor to freely dispense and exercise her right to determine for herself her reproductive options. According to Casey, undue burden is defined as “a state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”16 Moreover, “A statute with this purpose (undue burden) is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”17 The Casey case itself ruled that parental consent is not unconstitutional citing the findings in the Hodgson case which states that parental consent is deliberately designed to be in keeping with the State’s interest in “the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely.” 18 The UK acknowledges that the State has certainly a legitimate interest in guiding minors whose inexperience may lead them to make erroneous decisions. The UK itself, in establishing its own adoption law has ensured that minors are kept properly informed to help them in their decisions to obtain abortion. However, as earlier said minors are in their own right possessed of the same freedoms and liberties that adults have subject only to a general guidance whose aim and purpose is to make sure that the minors understand the substance and consequences of their actions. After ensuring that, young girls have every right to determine for themselves whether to undergo an abortion or not. The State’s only interest here is to ensure that the minor has complete understanding of her choices. Considering that young girls in western countries are considerably knowledgeable of the world than their counterparts in other parts of the globe, minority, in relation to maturity, is a relative term. There are girls who are very tender in age but have mature perspectives of the world around her. Realising the relativity of the term minority, the UK laws have provided a mechanism to ensure that even minors, who are mature far beyond their years, are not deprived of their right to determine their self-reproduction by complications brought about by the requirement of parental consent. It devised a test called the Gillick Test (after the case Gillick v. West Norfolk and Wisbech Area Health Authority 19) a test that can be administered by any General Practitioner (GP), which determines if a child sixteen years old or younger is mentally mature to be able to give consent to his or her own medical treatment without the need of medical consent. This test is underpinned by the declaration of Lord Scaman that “As a matter of law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed.” 20 The bottom line here is that the only line that separates a minor woman from an adult woman with respect to the right to exercise freedom of choice in sexual-reproduction is the ability to fully understand abortion. Without that, both are entitled to the free exercise of their rights. In the Freedonia Abortion Law of 2009, the parental consent can be done away with through a judicial bypass which essentially determines the same thing as the Gillick Test. On the surface this is good because it is in keeping with the Constitutional guarantee of liberty deprivation only after due process. There is an inherent difficulty, however, in obtaining a judicial bypass which amounts to the undermining of the due process and equal protection clauses of the Constitution. Whereas in the Gillick Test, for example, a minor can just visit her GP and ask that the latter determines her maturity for abortion, the judicial bypass entails going through a process that presents impractical inconveniences which can operate as constructive obstacles to a decision to opt for abortion. A young girl may have to take a long and unfamiliar trip to a court particularly designated as an abortion court on weekdays which may entail her skipping classes and stand before and go through an intimidating judge and judicial processes. The requirement of parental consent of both parents with parental notification and the alternative judicial bypass, clearly tip the balance of choices between abortion and no abortion towards the latter side and therefore diminishes a minor’s freedom to exercise the right to determine her own sexual-reproduction. II The Provision of the Freedonia Abortion Law of 2009 Imposing an Informed Consent Lecture and Forty-Eight Hour Waiting Period Violates s1, Article II of the ICCPR The Freedonia Abortion Law 2004 has likewise included a provision which requires a woman about to undergo an abortion to listen to lectures from a health department agent, lectures which include, among others, descriptions of the fetus from the first week to the next and the hazards to abortion on the life and health of the woman in the guise of an informed consent. In addition the same provision requires an additional forty-eight hour waiting period before the actual abortion procedure. This provision is applicable even to women who are to undertake abortion within the pre-viability period, or the period before the unborn is determined to have the capability to live outside of its mother’s womb, which the Casey case has determined to be within the first 24 weeks. These provisions of the said abortion law serve no purpose and on the contrary, undermine women’s intelligence and ability to pursue with confidence their reproductive choices. They violate the provisions of the ICCPR on the right to self-determination as well as constructively operate to undermine the 5th Amendment on due process. It is clear that the lectures to be conducted by the Department of Health in the guise of properly educating the woman the process and consequences of adoption to qualify her consent as ‘informed’ is a strategy to make her feel guilty and sway her away from the adoption course. In the case of Planned Parenthood of Missouri v Danforth, 21 the US Supreme Court had the opportunity to review the Missouri abortion law which included a provision on informed consent. The Court upheld its constitutionality because it did not impose a burden and was not rigorous on the woman but operated as a necessary complement to her right to give consent. The Missouri case became the standard test case for the competence and propriety of informed consents. In the subsequent cases of Montana and Illinois, where the informed consent included a graphic presentation of the fetal positions of the unborn at every development including at the point of abortion as well as lectures on the hazards of abortion on the health and safety of the aborting mothers, the Supreme Court struck them down for having transcended the limits set down in the Missouri case. 22 Although the Roe v Wade 23 case had been qualified by subsequent rulings particularly the Casey case, its central finding which is that women, during the pre-viability period of pregnancy, are free to determine whether to opt for abortion with virtually no state interference still holds true. The state of Freedonia, however, in imposing the lectures on pregnancy development clearly goes against the basic principle of the seminal case considering that the informed consent with detailed lectures is a statutory burden imposed by the state on women who are opting for abortion even when such abortions take place during the pre-viable period. The 48-hour period of waiting before abortion procedure actually proceeds has a similar effect. It delays the process unnecessarily undermining women’s intelligence to arrive at the correct determination of what is personally good and right for them. In the present case, the Freedonia’s informed consent has clearly gone beyond the limits set in the Missouri case. Although no graphic presentations of the development of the unborn were shown the women, they were nevertheless given very detailed descriptions of the development of the fetus during the conception. The detailing of these developments to the women clearly manifests the intent of the state to make the women feel guilty rather than be informed of their decision to undergo abortion. In addition, the DOH personnel include in their discussions risks and hazards to women as a result of abortion which have no scientific basis. An example for this is the linking of abortion to potential breast cancer, long-lasting psychological effects, and the claim that fetuses feel the pain of the abortion procedure. This and the unnecessary 48-hour waiting period constitute undue emotional and mental burden on the part of the women and constructively operates to impede on their freedom to exercise the decision to regulate and determine their own reproductive course. _________________________________ Conclusion An error of law has been committed by the Supreme Court of Freedonia in finding for the herein respondent by sustaining the constitutionality of the assailed provisions of the Abortion Law 2009. The Supreme Court of Freedonia has failed to take into account the provisions of the ICCPR particularly s1, Article I of Part I thereof. In addition, the Court failed to consider the effect of the law on the constitutionally guaranteed rights of due process and equal protection as set forth in the 5th and 14th Amendments, respectively. Since the US is a State Party to the ICCPR, a treaty the US Congress has duly ratified in accordance with the US Constitution, it is therefore obliged to comply with its provisions. From the foregoing however, it is clear that the assailed provisions in the Freedonia Abortion Act of 2009, requiring that: a minor, below eighteen years of age, must obtain a two-parent consent with parental notification from the abortion provider or in their stead, a judicial bypass, and; women attend a lecture on the development of fetuses during pregnancies and the hazards and risks to abortion before abortion and an additional 48-hour waiting time before the actual procedure of abortion, - effectively undermining the right set out in s1 of Article I of the ICCPR. As a State Party, the US and therefore its courts, is obliged to comply with the ICCPR not only by the terms of the latter and under international law but also by the US Constitution itself. The second paragraph of Article VI of the said basic document states that: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the Supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or in the laws of any State to the contrary notwithstanding.”24 The implication of Article VI as to the superiority of treaties, to which the US is bound to by virtue of its being a State Party, is clear. Treaties, along with the US Constitution and the laws furthering its provisions, are ranked higher than state laws including state constitutions. As between state laws and duly signed and ratified treaties therefore, the latter has more authority and in determining which between them should take precedence, it is clearly the duly signed and ratified treaty. The applicability of the said ICCPR provision is clear because abortion is concerned with the right of sexual-reproduction and the law in issue has effectively diminishes that right. All of the provisions taken together have made it more difficult to choose abortion as a reproductive alternative because the provisions have strategically and effectively tipped the balance between abortion and no-abortion to the side of no-abortion. The no-abortion option is easier to take because impediments have, on account of these assailed provisions, made the abortion option very difficult to choose. Real liberty and freedom to choose has therefore become illusory so that women are forced to take the easy way by opting for the no-abortion side. The requirement, for example, of the law to obtain consent from both mother and father in addition to parental notification on minor applicants for abortion is too excessive. One or any of the parents to whom the child is closest to should be adequate to meet the state’s legitimate interest over minors. In addition, the judicial bypass does not really operate as an alternative to the two-parent consent requirement nor is it necessary for the mature minor test. Again, this is an excessive measure. This does not only burden an already clogged court but unnecessarily encumbers a young girl with making representation in a strange milieu such as the judicial institution which is an added deadweight to the emotional and physical load she is experiencing. The judicial bypass being contemplated in the law in issue is unnecessary in the determination of the mature minor test. There is no need to burden a minor with making representations in an intimidating court of law. There are other more accessible, less intimidating authorities, like a medical doctor or psychologist, for instance, who can perform the test. Moreover, the requirement of the law in issue to make women undergo the lectures to be conducted by the local DOH and thereafter, wait for another 48 hours before the actual abortion to be conducted serve as delaying strategies to dissuade them from their decisions. This claim is bolstered by the fact that lectures consist of detailed presentations of data on the development of the fetus during pregnancy and the presentation of unscientifically based supposedly hazards and dangers of abortion. These provisions violate the limit, specificity and scope set forth in the Missouri case on informed consent and should therefore be struck down as unconstitutional by the Court. The aforesaid provisions clearly impede women in the free exercise of their rights to self-determination, a right guaranteed under the ICCPR and the US and its courts. As earlier stated under the US Constitution, treaties which have been entered into under the authority of the United States have the full force and effect of laws in the same way that the US Constitution and laws furthering its provisions have in the US. In the determination of the constitutionality of state laws therefore, treaties entered into under the authority of the United States, should also be taken into consideration. In the present case, the assailed provisions of the Abortion Law of 2009 of the Freedonia have violated the s1, Article I of Part I of the ICCPR and therefore should be struck down as unconstitutional. The provisions in question also violated, by implication, the guarantees set forth in the 5th and 14th Amendments. While the 5th Amendment ensures that people are not deprived of their life, liberty or property without due process clause, the 14th Amendment reinforces, among others, this guarantee by providing that all US citizens within its jurisdiction are entitled to equal protection of the law. The implication of these constitutional rights is that even minor women are entitled to the enjoyment and free exercise to choose and determine the course in life they want to take for themselves, including the right to determine sexual-reproduction, subject to the rights of others, in the same way that adults, men and women, are entitled to theirs. Although the right to life, liberty or property is impliedly not absolute because they can be deprived, the deprivation itself is subject to due process. Two ideas are significant here: minors are entitled to determine their sexual-reproduction in the same way as adult women, and; that right can only be deprived after due process. On the other hand, the 14th Amendment guarantees equal protection to all citizens subject to US jurisdiction. A law, like the Freedonia Abortion Law 2009, that deprives therefore a class of persons of their constitutionally guaranteed rights when it does not so deprive others, violate the terms of the equal protection clause. In this respect, the Freedonia Abortion Law of 2009 is unconstitutional because it violates the due process clause under the 5th Amendment and the equal protection clause under the 14th Amendment. References Baer, Judith. Historical and Multicultural Encyclopedia of Womens Reproductive Rights in the United States. Edition, illustrated. Greenwood Publishing Group, 2002 Cole, George & Stanislaw Frankowski. “Abortion and Protection of the Human Fetus: Legal Problems in a Cross-cultural Perspective,” Volume 1 of Current Issues in International and Comparative Law New Haven Studies in International Law and World Public Order. Martinus Nijhoff Publishers, 1987. “International Covenant on Civil and Political Rights.” UN Treaty Collection. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en Lynn, Richard. Eugenics: A Reassessment. Human Evolution, Behavior, and Intelligence Studies of Foreign Policies of the Great Powers. Greenwood Publishing Group, 2001 Planned Parenthood of Pennsylvania v Casey 505 US 833 {1992). Wetstein, Matthew. Abortion Rates in the United States: the Influence of Opinion and Policy SUNY Series in Health Care Politics and Policy Suny Series in Latin American and Iberian Thought and Culture. SUNY Press, 1996 Read More