Amicus Curiae Brief submitted in support of abortion by the Zero Population Growth and a Chapter of the National Organization for Women

What is below was compiled and produced by Linda Greenhouse and Reva B. Siegel in their Before Roe v. Wade:  Voices that shaped the abortion debate before the Supreme Court’s ruling.  The ellipses reflect deletions by those authors.  Anyone who can locate the full, unabridged text, is kindly asked to contact the administrators of this site.

Amicus Curiae Brief in Support of Jane Roe

California Committee to Legalize Abortion; South Bay Chapter of the National Organization for Women; Zero Population Growth, Inc.; Cheriel Moench Jensen; and Lynette Perkes

The lawyer who filed this brief was Joan K. Bradford, Esq.

Each of the organizations and individuals urges upon the Court the position that laws restricting or regulating abortion as a special procedure violate the Thirteenth Amendment by imposing involuntary servitude without due conviction for a crime and without the justification of serving any current national or public need….


The Thirteenth Amendment to the Constitution provides:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the Unit­ed States, or any place subject to their jurisdiction.

The Amendment, by its very language, prohibits both slavery and involuntary servitude, and requires due conviction of a crime as a condition precedent to all forms of involuntary servitude regardless of racial contexts.

From the outset, the Amendment has been interpreted by this Court to apply to all persons without regard to race or class, and to guarantee universal freedom in the United States….

It is the purpose of this brief to show that anti-abortion laws, which force an unwillingly pregnant woman to continue pregnancy to term, are a form of invol­untary servitude without the justification of serving any current national or public need.

Involuntary Pregnancy and Childbearing as Involuntary Servitude.

Pregnancy is not a mere inconvenience. “The physical and functional alterations of pregnancy involve all the body systems,” displacing body parts, depleting the body of its necessary elements and changing its chemical balance.

The pregnant woman’s body is in a state of constant service, providing warmth, nutrients, oxygen and waste disposal for the support of the conceptus. These activities are always to the detriment of the woman’s body. They are performed for the benefit of the conceptus alone unless an interest of the pregnant woman is also served thereby, that is, unless the pregnant woman defines the pregnancy as wanted.

During pregnancy, enlargement of the uterus within the abdominal cavity displaces and compresses the other abdominal contents including the heart, lungs and gastrointestinal tract. The resulting pressure has a direct effect on circula­tion of the blood and increase in venous pressure, sometimes leading to irreversible varicose veins and hemorrhoids and, with predictable frequency, to disabling thrombophlebitis. The gastrointestinal tract experiences functional interference causing constipation and displacement of the urinary tract, thus urinary tract infections occur in six to seven per cent of all pregnant women and such infec­tions, in turn, lead to kidney infections. During the second and third months, bladder irritability is quite constant. Tearing and overstretching of the muscles of the pelvic floor occurs frequently during delivery, causing extensive and irreparable damage to the pelvic organs and their supporting connections. Surgery is often required to return these organs to position. Bladder control may be permanently lost. The weight of the contents of the uterus causes sacroiliac strain accompanied by pain and backache, with the effects of the pressure being felt as far as the out­ermost extremities of the woman’s body. The weight causes such pressure on the cervical spine as to result in numbness, tingling and proprioceptive acuity reduction in the hands.

During pregnancy estrogen levels exhibit severe increase, this phenomenon accounting for the symptoms of nausea and vomiting occurring in one-half or more of all pregnant women. If this condition is prolonged, hospitalization is required. Evacuation of the contents of the uterus results in immediate and dra­matic relief of symptoms. In severe cases blood protein may be destroyed. Bodies of women who have died from this condition exhibit the symptoms of starvation, acidosis, dehydration and multiple vitamin deficiencies.

The excess progesterone produced by the placenta causes fluid retention, increase in blood pressure, weight gain, irritability, lassitude, severe emotional tension, nervousness, inability to concentrate, and inability to sleep. At least 40 per cent of pregnant women have symptomatic edema, distorting the hands, face, ankles and feet. A woman’s lungs respire 45 per cent more air than normal in an attempt to obtain the needed oxygen, but oxygen absorbed is less than normal despite the extra effort of the crowded lungs.

Because the conceptus utilizes almost twice as much calcium as the pregnant woman can assimilate from administered and dietary calcium, extra calcium must be drawn from a woman’s calcium stores, mostly from her long bones. Thus, the pregnant woman is likely to suffer leg cramps. In young women, permanent bone deformation results.

Total loss of a woman’s iron stores during pregnancy and delivery is measured at 680 mg. Thus anemia of pregnancy is high and almost all pregnant women, especially those having repeated pregnancies, require supplementary iron. Efforts to correct this condition may fail because many pregnant women cannot tolerate iron supplements.

With such extensive effects, can pregnancy be considered as merely a “natural” state of being?

Amici ask this Court to consider the lack of options open to the pregnant woman at the time of onset of her pregnancy.

A. Contraceptive failure.

Contraceptives are never foolproof. Any act of intercourse between a fertile man and woman constitutes some risk of conception, no matter what contraceptives are used….

If 100,000 women who do not wish to become pregnant take the pill, three will probably die within the year and 1,000 will become pregnant.

Under the present state of contraceptive failure, a woman does not have the option of remaining free of pregnancy by making careful use of contraceptives. She is at some risk in using the most effective methods of contraception available.

B. Limitations on the right to refuse.

The average married woman expects to bear two to three children, yet coitus takes place between a couple married during the period of the woman’s reproductive years (age 18 to 43) an average of 2,535 times. The frequency of coitus stated in the Kinsey Report is average behavior between married couples. If the woman wishes to remain free of pregnancy once her desired family size is reached, her only sure method of remaining so free of pregnancy is complete abstinence from sexual intercourse. If she embarks on such a course, will the law uphold her decision?

A wife has no legal power to refuse to participate in the intimacies of married life. If she refuses her husband’s forced attentions, there is no law to intervene in her behalf. She cannot charge her husband with rape. Indeed, if a married woman attempts to practice abstinence, the laws of most states treat her behavior as a denial of the marital right of the husband….

Under present law, a married woman has two choices: she can attempt to refuse to fulfill the sexual obligations of the marriage and thus risk termination of her marriage; or she can participate in normal marital relations and risk unwanted pregnancy and childbirth. With a choice of either alternative, she risks the con­sequence of a legally imposed penalty. The woman is left with no non-punishable course of action.


The women who bear children and the medical experts who assist them testify that pregnancy and childbearing are indeed labor. The fact that many women enter into such labor voluntarily and joyfully does not alter the fact that other women, under other circumstances, find childbearing too arduous, become preg­nant through no choice of their own, and are then forced to complete the preg­nancy to term by compulsion of state laws prohibiting voluntary abortion.

It is the purpose of the Thirteenth Amendment to prohibit a relationship in which one person or entity limits the freedom of another person. In the absence of a compelling state interest or due conviction for a crime, the state’s forcing the pregnant woman through unwanted pregnancy to full term is a denial of her Thirteenth Amendment right to be free from “a condition of enforced compulsory service of one to another.” This is the very essence of involuntary servitude in which the personal service of one person is “disposed of or coerced for another’s benefit.”….


….[E]ven if the position were accepted, arguendo, that the fetus is a “person” or “potential person,” such recognition of the fetus would not provide the state with a compelling interest to justify encroachment upon the pregnant woman’s possession and free control of her own person.

Let us assume, for the time being, that the pregnant woman and the fetus she carries within her body have come before the law as equal “persons.” The woman desires an abortion. May the state legitimately intervene to prevent the abortion? At the present stage of medical knowledge and ability to control human incuba­tion, the fetus cannot survive and develop into a separate self-sustaining person without contribution of the bodily force of the single female individual who carries that particular fetus within her body. Yet the laws prohibiting and regulating abortion, unlike all other laws in respect of persons, compel this pregnant woman to breathe, process food and donate blood for the sustenance of another human entity, either fully or partially developed. In no other instance does the law compel one individual to donate his/her bodily force to another individual. In no other instance does the law give another human—even a fully developed human—a right to life beyond that which the person himself can sustain.

The law does not give a person in need of blood the right to receive blood from an unwilling donor; the conclusiveness of the law on this subject being so clearly recognized that it is difficult even to imagine testing such a principle in the courts.

The law does not give a person whose kidneys or other body parts are not functioning the right to demand another person’s kidneys or body parts….

Abortion laws alone compel the contribution of one individual’s organs, blood, breath and life support system for another individual, either fully or partially formed….

If the pregnant woman, as potential donor, and the fetus, as potential donee, come before the law as equal “persons,” one may not command involuntary servitude of the other; and so the potential donor retains her sovereignty over her body and her right to refuse. Therefore, it follows that the fetus, a potential person, can have no greater right over a potential donor. Unless the state has some other compelling interest in forcing the donation of the pregnant woman’s body to the service of the fetus, the state must stand aside in the abortion conflict; it cannot legitimately intervene in preventing the pregnant woman from withholding her life force from the fetus….


….A state cannot seriously contend today that restrictions on abortion are justified by an overriding state interest in increasing population. See Ehrlich, The Popula­tion Bomb, 1968. On the contrary, it is accepted government policy to limit family size and to encourage family planning. Such state interest is expressed in Population and the American Future, The Report of the President’s Commission on Population Growth and the Future (March, 1972) p. 192:

Recognizing that our population cannot grow indefinitely, and appreciating the advantage of moving now toward the stabilization of population, the Commission recommends that the nation welcome and plan for a stabilized population.

The President’s Commission recognizes the acceptability of voluntary abor­tion as a method of achieving population stability….

Today, this country’s population has moved far beyond its needed growth, and current government policy is to encourage population control. Anti-abortion laws have outlived their purpose if regarded in historical perspective. Rights of the individual pregnant woman can no longer be ignored.

The Thirteenth Amendment’s promise of freedom has long provided to male citizens the sovereign control of their own bodies.

In 1942, this Court protected the civil right of a male person, even one duly convicted of crime, to control his own reproductive system. Skinner v. Oklahoma (1942). Is it any the less important that this Court protect the right of a female person to control her body and her reproductive system?

We respectfully request this Court to recognize that the anti-abortion laws which force an unwillingly pregnant woman to continue pregnancy to term are a form of involuntary servitude without due conviction for a crime and without the justification of serving any national or public need.

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