1 Griswold v. Connecticut, 381 U.S. 479, 484 (1965).

2 Id. at 485.

3 410 U.S. 113 (1973).

4 Id. at 152-53. The fourteenth amendment states in relevant part: “No State shall make or enforce any law which shall … deprive any person of life, [or] liberty … without due process of law.” U.S. CONST. amend. XIV.

5 Id. at 154. Protection of this right is, however, limited. See infra notes 47-65 and accompanying text.

6 Id. at 130 (citing A. COSTIGLIONI, A HISTORY OF MEDICINE 84 (E. Krumbhaar trans. 2d ed. 1947)).

7 Quay, Justifiable Abortion, 49 GEO. L.J. 395, 405 (1961)Google Scholar(citing The Zend-Avesta, in I SACRED BOOKS OF THE EAST 174-75 (F. Muller ed. J. Darmesteter trans. 1880)).

8 Comments, , The Culmination of the Abortion Reform Movement - Roe v. Wade and Doe v. Bolton, 8 U. RICH. L. REV. 75, 76 (1973)Google Scholar(citing L. LADER, ABORTION (1966)).

9 Comments, supra note 8, at 76 (citing Sands, , The Therapeutic Abortion Act: An Answer to the Opposition, 13 UCLA L. REV. 285, 293-94 (1966)Google Scholar).

10 Id.

11 Id.

12 Id.

13 Id. at 76 n.11 (citing DORLAND's ILLUSTRATED MEDICAL DICTIONARY 1261 (24th ed. 1965)).

14 Roe v. Wade, 410 U.S. 113, 133-34 (1973).

15 Id.: 410 U.S. at 136; Quay, supra note 7, at 431-32; Comments, supra note 8, at 76 (citing 2 H. BRACTON, ON THE LAWS AND CUSTOMS OF ENGLAND 341 (S. Thorne ed. 1968)).

16 Id.

17 The Abortion Act, 1967, ch. 87.

Id.

18 Roe, 410 U.S. at 138; Comments, supra note 8, at 76.

19 CONN. GEN. STAT. § 20, 14 (1821), cited in Roe, 410 U.S. at 138.

20 Id.

21 N.Y. REV. STAT., pt. 4, ch. 1, tit. 2, art. 1, § 9, p. 661, and tit. 6 § 21, p. 694, (1829), cited in Roe, 410 U.S. at 138.

22 See, e.g., ARK. CODE ANN. § 6 (1838); Ill. REV. STAT. ch. 46 (1827); OHIO REV. CODE ANN. §§ 111(1), 112(2) (Anderson 1841).

23 See, e.g.. ME. REV. STAT. ANN. ch. 160, §§ 13-14 (1840); Mo. REV. STAT. § 10 (1835).

24 Roe v. Wade, 410 U.S. 113, 139 (1973).

25 Id. (citing Quay, supra note 7, at 447-520); see also Comments, A Survey of the Present Statutory Case Law on Abortion: The Contradictions the Problems, 1972 U. Ill. L.F. 177, 179Google Scholar.

26 See Comments, supra note 8, at 78-79.

27 Id. Mortality rates for women undergoing legal abortions are as low as mortality rates for women undergoing childbirth. Id. (citing U.S. Dept. of HEW, Pub. Health Serv.); Abortion Mortality, 20 MORBIDITY & MORTALITY 208, 209 (June 12, 1971)Google Scholar; see also Tietze, , United States: Therapeutic Abortion, 1963-1968, 59 STUD. FAM. PLANNING 5, 7 (1970)Google Scholar.

28 Id.

29 AMERICAN MED. ASS'N, PROCEEDINGS OF THE AMA HOUSE OF DELEGATES 220 (June 1970), cited in Roe v. Wade, 410 U.S. 113, 143-44 (1973).

30 Id. (opinion rendered by the AMA Judicial Council), cited in Roe, 410 U.S. at 144 n.39.

31 Roe, 410 U.S. at 148-50.

32 Id.

33 MODEL PENAL CODE 230.3 (Proposed Draft 1962).

An abortion is allowed by a licensed physician under the following circumstances:

1. (1)

   (1) if the physician believes that there is a substantial risk to the mother's health or that her mental health would severely deteriorate if pregnancy were to continue; or

2. (2)

   (2) if the child would be born seriously crippled in mind or body; or (3) if the pregnancy were the result of forcible rape or incest.

Comments, supra note 8, at 79 n.29.

34 Comments, supra note 8, at 79 n.30; see ARK. CODE ANN. §§ 41-303 to 41-310 (Supp. 1971); CALIF. HEALTH & SAFETY CODE §§ 25950-25955.5 (Supp. 1972); COLO. REV. STAT. §§ 40-2-50 to 53 (Supp. 1967); DEL. CODE ANN., tit. 24, §§ 1790-1793 (Supp. 1972); 1972 FLA. LAWS 72-196; GA. CODE ANN. §§ 26-1201 to 1203 (1972); KAN. STAT. ANN. § 21-3407 (Supp. 1971); MD. ANN. CODE art. 43, §§ 137-139 (1971); MISS. CODE ANN. § 2223 (Supp. 1972); N.M. STAT. ANN. §§ 40A-5-1 to 3 (1972); N.C GEN. STAT. § 14-45-1 (Supp. 1971); OR. REV. STAT. §§ 435.405 to 495 (1971); S.C CODE ANN. §§ 16-82 to -89 (Law. Co-op. 1962 & Supp. 1971); VA. CODE ANN. §§ 18.1-62 to -62.3 (Supp. 1972); see also Roe, 410 U.S. at 140 n.37.

35 Comments, supra note 8, at 79.

36 Roe, 410 U.S. at 120.

37 TEX. PENAL PROB. CODE ANN. arts. 1191-94, 1196, cited in Roe, 410 U.S. at 117.

38 Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970).

39 Roe, 410 U.S. at 167.

40 Id. at 122.

41 Id. at 126-29. The physician, Dr. Halliford, had criminal charges pending in the Texas state courts for violating the challenged abortion statute. Id. at 125-26. The Court found that Dr. Halliford sought declaratory and injunctive relief without alleging “any substantial and immediate threat to any federally protected right that cannot be asserted in his defense against the state prosecutions.” Id. at 126. Absent this threat, the physician would have to show harassment or bad-faith prosecution to pursue his claims in federal court. Dr. Halliford was without standing because no such allegations were made. Id at 126.

The married couple, the Does, also were not appropriate plaintiffs in Ms. Roe's action. Although their claims were virtually identical to Ms. Roe's, some differences were present: (1) Ms. Doe was not pregnant; (2) the couple had no children; and (3) neither spouse wanted to have children. “[T]heir alleged injury rest[ed] on possible contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health.” Id. at 128. The Court dismissed their complaint as mere speculative injury. Id. at 128-29.

42 Id. at 125.

43 See supra notes 1-34 and accompanying text.

44 Roe, 410 U.S. at 152.

45 Id. at 152-53 (construing U.S. CONST, amends. XIV, I, IV, V, IX).

46 Id. at 153.

47 Id. at 152 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).

48 Id. at 152-53 (citing Loving v. Virginia, 388 U.S. 1, 12 (1967)).

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

50 Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972).

51 Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

52 Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

53 Roe v. Wade, 410 U.S. 113, 154 (1973)(this right is qualified, not absolute).

54 Id. at 158.

55 Id. at 157 (citing U.S. CONST, art. I, § 2, cls. 2 & 3, § 3, cl. 3, § 9, cls. 1 & 8; art. II, § 1, cls. 2 & 5; art. IV, § 2, cl. 2; amend. V, XII, XIV, XXII).

56 Id. at 158.

57 Id. at 155.

58 Id. at 153.

59 Id. at 162.

60 Id. at 173 (Rehnquist.J., dissenting).

61 Id. (citing Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955) (Rehnquist, J., dissenting)).

62 U.S. CONST, amend. XIV.

63 Roe, 410 U.S. at 155.

64 Id..

65 Id. (citing Griswold v. Connecticut, supra note 1, at 485; Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-08 (1940)).

66 Id. at 162-63.

67 Id. at 163.

68 Id. at 149.

69 Id. at 163.

70 Id.

71 Id.

72 Id.

73 Id. at 159.

74 Id.

75 Id.

76 Id. at 162.

77 Id.

78 Id. at 163.

79 Id. at 163-64. The Court fails to explain why danger to the mother's life or health limits the state's interest in protecting the life of the fetus even after it is viable.

80 Id. at 160-62.

81 Id. at 166.

82 Id. at 165.

83 Id. at 152.

84 Ely, , The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L. REV. 856, 932 (1973)Google Scholar.

85 Id. at 929.

86 Id. at 930.

87 Note, Haunting Shadows From the Rubble of Roe's Right of Privacy, 9 SUFFOLK U.L. REV. 145, 150 (1974)Google Scholar(citing Griswold v. Connecticut, 381 U.S. 479 (1965)).

88 Ely, supra note 84, at 927-28 (citing Edwards v. California, 314 U.S. 160 (1941)).

89 The right in interstate travel “was one the framers intended to protect … by the Privileges and Immunities Clause of Article IV.” Id. (citing United States v. Wheeler, 254 U.S. 281, 194 (1920); Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 75 (1872); U.S. ARTS. CONFED. art. IV; 3 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 112 (1911); cf. THE FEDERALIST NO. 42, at 307 (Wright ed. 1961)). This right “is plausibly inferable from the system of government, and the citizen's role therein contemplated by the Constitution.” Id. at 927 (citing Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867); C. BLACK, STRUCTURE AND RELATIONAHIP IN CONSTITUTIONAL LAW (1969)).

90 Conley, & McKenna, , The Supreme Court On Abortion — A Dissenting Opinion, 19 CATH. LAW. 19, 25 (1973)Google Scholar; id. at 25-26 (citing U.S. DECLARATION OF INDEPENDENCE para. 1)(“[W]e hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.“).

Also, note that at the time of Roe v. Wade, a majority of states had anti-abortion statutes. See Roe v. Wade, 410 U.S. 113, 175 (1973). Commentators also have argued that use of the “compelling state interest” standard, normally applied in equal protection cases, is not appropriate in the due process context and in fact is not constitutionally supported. These scholars would apply the traditional minimum rationality standard rejected by the majority.

91 O'Meara, Abortion: The Court Decides a Non-Case, 1974 SUP. CT. REV. 337, 370.

92 Id.

93 Id.

94 198 U.S. 45 (1905).

95 Id.

96 See, e.g., Jay Burns Baking Co. v. Bryan, 264 U.S. 504 (1942)(setting the weight of loaves of bread); Adkins v. Children's Hosp., 261 U.S. 525 (1923) (setting minimum wages for women); Coppage v. Kansas, 236 U.S. 1 (1915)(“yellow dog contracts“).

97 Ferguson v. Skrupa, 372 U.S. 726, 730 (1963)(citations omitted).

98 See Ely, supra note 923, at 84; O'Meara, supra note 91.

99 See, e.g., Aptheker v. Secretary of State, 378 U.S. 500 (1964)(right to travel); Wieman v. Updegraff, 344 U.S. 183 (1952)(right of association); Pierce v. Society of Sisters, 268 U.S. 510 (1925)(right to direct child's education); Meyer v. Nebraska, 262 U.S. 390 (1923) (right to marry, establish a home, and bring up children).

100 Kauper, , Penumbras, Peripheries, Emanations, Things Fundamental & Things Forgotten: The Griswold Case, 64 MICH. L. REV. 235, 258 (1965)CrossRefGoogle Scholar, cited in Note, , Constitutional Law — A New Constitutional Right to An Abortion, 51 N.C.L. REV. 1573, 1580 (1973)Google Scholar.

101 Roe, 410 U.S. at 168.

102 Id. at 167-70.

103 Id. at 175.

104 O'Meara, supra note 92, at 339 (citing Roe, 410 U.S. at 152 (Rehnquist, J., dissenting)).

105 Conley & McKenna, supra note 89, at 21.

1 The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever; their person or station, from having matters which they may properly prefer to keep private, made public against their will. Brandeis, & Warren, , The Right To Privacy, 4 HARV. L. REV. 193, 214-15 (1890)Google Scholar.

2 See, e.g., Stanley v. Georgia, 394 U.S. 557 (1969)(“If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.” Id. at 565.).

3 See, e.g., Katz v. United States, 389 U.S. 347 (1967).

4 See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Shelton v. Tucker, 364 U.S. 479 (1960).

5 Griswold v. Conecticut, 381 U.S. 479 (1965).

6 Olmstead v. United States, 277 U.S. 438, 478 (1928)(Brandeis,J., dissenting); overruled, Katz v. United States, 389 U.S. 347, 352 (1967)(court departed from the “trespass doctrine” by holding that the seizure of intangible objects also falls within the ambit of the fourth amendment).

7 See infra notes 59-61 and accompanying text.

8 One commentator made three observations about the right to privacy: it is not and cannot be absolute, it is linked intimately with “other cherished human values,” and, according to Dioniosopoulos and Ducat, it is not a single abstract principle, but can be “place-oriented, person-oriented, or relational….” Watson, The Ninth Amendment: Source of a Substantive Right to Privacy, 19 J. MARSHALL L. REV. 959, 960 (1986); see generally P. DIONIOSOPOULOS & C. DUCAT, The Right to Privacy, in PRIVACY IN THE PLACE 31 (1976).

In Whalen v. Roe, 429 U.S. 589 (1977), Justice Stevens commented that the protection of privacy embraces an “individual interest in avoiding disclosure of personal matters,” and an “interest in independence in making certain kinds of important decisions.” Id. at 599-600.

9 L. TRIBE, AMERICAN CONSTITUTIONAL LAW, § 15-1, at 1302 (1988) (citing Fried, Privacy, YALE L.J. 475, 477-78 (1968)). In Fried's opinion, “privacy creates the moral capital which we spend in friendship and love…. Privacy grants the control over information which enables us to maintain degrees of intimacy.” Fried, Privacy in LAW, REASON AND JUSTICE, 45, 56 (G. Hughes ed. 1969).

10 Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891); see also infra notes 31-32 and accompanying text.

11 Union Pacific, 141 U.S. at 251.

12 Johnstone, , The Right to Privacy: An Ethical Perspective, 29 AM. J. JURIS. 73, 76 (1984)CrossRefGoogle Scholar.

13 Brandeis & Warren, supra note 1. The article explained that the privacy law developed from a remedy “for physicial interference with life and property,” to “a recognition of man's spiritual nature.” Id. at 193.

14 Id. at 205; Johnstone, supra note 12, at 75-76. This right was to protect “the acts and sayings of a man in his social and domestic relations” from the relentless press. Johnstone, supra note 12, at 76.

15 381 U.S. 479 (1965).

16 Henkin, , Privacy and Autonomy, 74 COLUM. L. REV. 1410, 1421 (1974)CrossRefGoogle Scholar.

One commentator has described privacy as requiring three terms, which are repose, sanctuary and intimate decision: “repose refers to freedom from unwanted stimuli; sanctuary, to protection against intrusive observation; and intimate decision, to autonomy with respect to the most personal of life's choices.” L. TRIBE, supra note 9, § 15-1, at 1302 (construing Comment, A Taxonomy of Privacy: Repose, Sanctuary and Intimate Decision, 64 CAL. L. REV. 1447 (1976)CrossRefGoogle Scholar.

A survey of the definitions of privacy can be found in P. O'BRIEN, PRIVACY, LAW AND PUBLIC POLICY 3-19 (1979).

17 Gerety, , Redefining Privacy, 12 HARV. C.R.-C.L. L. REV. 233, 244 & n. 39 (1977)Google Scholar. Specific rulings have been made upholding a constitutional and common law right to privacy. See, e.g., Stanley v. Georgia, 394 U.S. 557, 564-66 (1969)(in the home); Rochin v. California, 342 U.S. 165 (1952) (forcible extraction of petitioner's stomach contents for criminal conviction violated due process of fourteenth amendment); Griswold v. Connecticut, 381 U.S. 479 (1965)(penumbras of Bill of Rights create zones of privacy that prohibit the use of contraceptives in marital bedroom).

18 Id.

19 Note, , Analyzing the Reasonableness of Bodily Intrusions, 68 MARQ. L. REV. 130 (1984)Google Scholar; Gerety, supra note 17, at 266.

20 Id

21 Id. at 130. The protection against unreasonable search and seizures afforded by the fourth amendment has been called the most fundamental privacy right. Id.

22 Id. The critical question is whether the search was reasonable and thus permissible under the fourth amendment. Id.

23 Other areas of privacy such as bodily intrusions are beyond the scope of this discussion.

24 46 Mich. 160, 9 N.W. 146 (1881).

25 Id. at 165, 9 N.W. at 149.

26 Id.

27 Id.

28 116 U.S. 616(1886).

29 Id. at 630, 633-35.

30 Id. at 630.

31 141 U.S. 250 (1891).

32 Id. at 251.

33 Johnstone, supra note 12, at 76; see also Tribe, , The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence, 99 HARV. L. REV. 330 (1985)CrossRefGoogle Scholar.

34 277 U.S. 438 (1928).

35 See, e.g., Winston v. Lee, 470 U.S. 753, 758 (1985); Roe v. Wade, 410 U.S. 113, 152 (1973); Eisenstadt v. Baird, 405 U.S. 438, 454 (1972); Stanley v. Georgia, 394 U.S. 557, 564 (1969); Griswold v. Connecticut, 381 U.S. 479, 494 (1965);

36 Olmstead, 277 U.S. 478. Brandeis's dissent continued: “to protect that right, every unjustifiable intrusion by the government…. whatever the means employed, must be deemed a violation of the Fourth Amendment.” Id.

The right to privacy that has developed from Brandeis’ language, however, is much broader in scope and reaches beyond the boundaries of the fourth amendment.

37 Johnstone, supra note 12, at 76.

38 Smith, , The Right to Privacy: Roe v. Wade Revisited, 43 JURIST 289, 291 (1983)Google Scholar. Fundamental rights are “valid as against the federal government by force of the specific pledges of particular amendment [and] have been found to be implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 324-25 (1937).

39 Gerety, supra note 17, at 239.

40 The Declaration of Independence (U.S. 1776); see also Smith, supra note 38, at 291.

41 L. TRIBE, supra note 9, § 15-3, at 1309.

42 Smith, supra note 38, at 291 (citing U.S. CONST, amend. XIV, § 1).

43 Smith, supra note 32, at 292 (citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).

44 Id. (citing Malinski v. New York, 324 U.S. 401, 417 (1945)).

45 Id. (citing Lochner v. New York, 198 U.S. 45, 56 (1905)).

46 Gerety, supra note 17, at 239 n.25.

47 Id.; see Katz v. United States, 389 U.S. 347, 360-62 (1967) (Harlan, J., concurring).

48 Gerety, supra note 17, at 239 n.25.

49 Smith, supra note 38, at 293; see Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

50 Griswold v. Connecticut, 381 U.S. 479, 486-99 (1965)(Goldberg, J., concurring); see Tribe, , Contrasting Visions of Real and Unreal Differences, 22 HARV. C.R.-C.L. L. REV. 95, 101-09Google Scholar.

51 L. TRIBE, supra note 9, § 15-3, at 1309; see Redlich, Are There Certain Rights… Retained by the People?, 37 N.Y.U. L. REV. 787 (1962)Google Scholar; PATTERSON, THE FORGOTTEN NINTH AMENDMENT (1955).

52 Whalen v. Roe, 429 U.S. 589, 598 n.23 (1977).

53 L. TRIBE, supra note 9, § 15-3, at 1309.

54 Henkin, supra note 16, at 1410.

55 Id. at 1418-19.

56 Id. at 1419.

57 Id. Learned Hand had a contrary opinion. He believed the term “fundamental” is one “whose office, usually, though quite innocently, is to disguise what [judges] are doing and impute to it a derivation far more impressive than their personal preferences, which are all that in fact lies behind the decision.” L. HAND, THE BILL OF RIGHTS 70 (1958).

58 Gerety, supra note 17, at 1419.

59 Hafen, , The Constitutional Status of Marriage, Kinship, and Sexual Privacy - Balancing the Individual and Social Interests, 81 MICH. L. REV. 463, 558 (1983)CrossRefGoogle Scholar.

60 Id. at 548.

61 Feinberg, , Autonomy, Sovereignty and Privacy: Moral Ideals in the Constitution, 58 NOTRE DAME L. REV. 445, 488 (1983)Google Scholar.

62 Id.

63 L. TRIBE, supra note 9, § 15-10, at 1337-38. This Note does not discuss the issue of privacy with respect to a person's right to die. For a useful overview of the subject, see N. CANTOR, LEGAL FRONTIERS OF DEATH AND DYING (1987).

64 381 U.S. 479 (1965).

65 Id. at 484.

66 Id. at 486.

67 Id. at 487 (Goldberg, J., concurring). He called the right to privacy “a fundamental personal right, emanating from the totality of the constitutional scheme under which we live.” Id. at 494 (quoting Poe v. Ullman, 367 U.S. 497, 521 (1961)).

68 Id. at 499, 502 (Harlan & White, JJ., concurring).

69 405 U.S. 438 (1972).

70 Id. at 453.

71 Id.

72 Id. at 442-43.

73 Id. at 446-47.

74 L. TRIBE, supra note 9, § 15-10, at 1339.

75 Roe v. Wade, 410 U.S. 113, 153 (1973). The state may not decide for an individual whether he or she will have the capacity to reproduce. Recognizing “the fundamental personal character of [an individual's] right to reproductive autonomy,” id., the Court, in Skinner v. Oklahoma, 316 U.S. 535 (1942), invalidated a statute mandating sterilization of twice convicted “moral turpitude” felons.

76 L. TRIBE, supra note 9, § 15-10, at 1352.

77 Id.

78 Id.

79 Craven, , Personhood: The Right To Be Let Alone, 1976 DUKE L.J. 699 (1976)CrossRefGoogle Scholar. Activities which would be included in this right are: to attend a baseball game, to ride a bicycle to work, and to refuse to attend a political rally. Id.

80 Kent v. Dulles, 357 U.S. 116 (1958). The Court stated: “[t]ravel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads.” Id. at 126. Thus, the Court acknowledged that “lesser rights may be as highly valued as more fundamental ones.” Craven, supra note 79, at 699 n.2.

81 Craven, supra note 79, at 702; see Freund, , Privacy: One Concept or Many, in XIII NOMOS 182, 195-96 (1971)Google Scholar.

82 Craven, supra note 79, at 701. Craven has formulated a three-part test for the right of personhood: “(1) does the proscribed activity harm anyone other than the actor?; (2) what is the state's interest in regulating this conduct?; and (3) does this interest outweigh the individual's right to be let alone?” Id. at 711.

John Stuart Mill expressed the philosophical formulation: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others …. Over himself, over his own body and mind, the individual is sovereign.” J. MILL, ON LIBERTY 68-69 (1984). “As soon as any part of a person's conduct affects prejudicially the interests of others, society has jurisdiction over it.” Id. at 141.

83 425 U.S. 238 (1976).

84 Id. at 240-41. The reglulation prohibited beards and regulated the length and style of hair. The respondent claimed it was “not based upon the generally accepted standard of grooming in the community.” Id. at 241.

85 Id. at 249.

86 Id. at 247.

87 Id. at 244.

88 Id.

89 Id. at 249.

90 Id. at 250.

91 Id. (quoting Boiling v. Sharpe, 347 U.S. 497, 499 (1954)).

92 Id. at 251.

93 Id. at 253 (citing Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891); Olmstead v. United States, 277 U.S. 438 (1928)(Brandeis, J., dissenting)).

94 Id. at 251. Over two hundred cases dealing with regulations seeking to control dress or grooming have been decided since the 1960s. L. TRIBE, supra note 9, § 15-15, at 1384-85; see, e.g.. King v. Saddleback Junior College Dist., 425 F.2d 426 (9th Cir. 1970), on remand, 318 F. Supp. 89 (CD. Cal. 1970), rev'd, 445 F.2d 932 (9th Cir.), cert, denied, 404 U.S. 979 (1971)(Douglas & White, JJ., dissenting); Landsdale v. Tyler Junior College, 470 F.2d 659 (5th Cir. 1972)(en banc), cert, denied, 411 U.S. 986 (1973)(Douglas, J., dissenting).

95 562 F.2d 838 (2nd Cir. 1977).

96 Id. at 841; see Stradley v. Andersen, 478 F.2d 188, 190-91 (8th Cir. 1973); Yarbrough v. City of Jacksonville, 363 F. Supp. 1176, 1181 (M.D. Fla. 1973).

97 East Hartford, 562 F.2d at 841.

98 Id. at 842. The court determined a first amendment right existed in addition to the fourteenth amendment interest. Stating that the presense of these two interests invoked a higher degree of scrutiny than the presence of one interest alone, the case was remanded. Id. at 846.

99 539 F.2d 803 (1st Cir. 1976).

100 An average of 150 bathers went to the area per day in 1972, increasing to 300-600 in 1975, and acquiring as many as 1200 one day in 1975. Id. at 805.

101 Id. at 807.

102 Id.

103 Id. The crowds threatened the fulfillment of conservation goals.

104 324 F.2d 450 (9th Cir. 1963), cert, denied, 376 U.S. 939 (1964).

105 Id. at 456.

106 Id.

107 Id.

108 Id.

109 Arnold v. Carpenter, 459 F.2d 939, 941 n.5 (7th Cir. 1972).

110 Richards v. Thurston, 424 F.2d 1281, 1284-85 (1st Cir. 1970).

111 See Rochin v. California, 324 U.S. 165 (1952).

1 “The cases sometimes characterized as protecting ‘privacy’ have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in making certain kinds of important decisions.” Whalen v. Roe, 429 U.S. 589, 598-600 (1977).

2 Katz v. United States, 389 U.S. 347 (1967)(warrantless wiretap of phone booth violated the fourth amendment right “to assume that the words [spoken] into the mouthpiece will not be broadcast to the world.” Id. at 352).

3 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)(right to privacy fades when newsworthy information appears in public court records).

4 Nixon v. Administrator of Gen. Servs., 433 U.S. 425 (1977)(“the merit of appellant's claim of invasion of his privacy cannot be considered in the abstract;… any intrusion must be weighed against the public interest in … archival screening.” Id. at 458)(citations omitted); Whalen, 429 U.S. 589 (1977)(footnotes omitted); Paul v. Davis, 424 U.S. 693 (1976).

5 PERSONAL PRIVACY IN AN INFORMATION SOCIETY - THE REPORT OF THE PRIVACY PROTECTION STUDY COMMISSION 4 (1977) [hereinafter PRIVACY COMMISSION]; Ehlke, , The Privacy Act After a Decade, 18 J. MARSHALL L. REV. 829 (1985)Google Scholar; Miller, , The Privacy Revolution: A Report From the Barricades, 19 WASHBURN L.J. 1 (1979)Google Scholar.

6 PRIVACY COMMISSION supra note 5, at 4-5.

7 Id. at 14.

8 See, e.g., Green v. Philbrook, 576 F.2d 440 (2d Cir. 1978).

9 PRIVACY ACT OF 1974, 5 U.S.C. § 552a (1982); see Trubow, , The Development and Status of “Informational Privacy” Law and Policy in the United States, in INVITED PAPERS ON PRIVACY: LAW, ETHICS, AND TECHNOLOGY 1, 4 (1981)Google Scholar.

10 “The Privacy Act represents a large step forward, but it has not resulted in the general benefits to the public that either its legislative history or the prevailing opinion as to its accomplishments would lead one to expect.” PRIVACY COMMISSION supra note 5, at 502.

11 Id. at 512-16. The Commission found that although the Act provides for an individual's right to challenge accuracy, collection, and disclosure of information, individuals, as a practical matter, have very little power or control over collecting agencies.

12 PRIVACY ACT OF 1974, 5 U.S.C. § 552a (1982).

13 Disclosure may be made without consent: (1) to officials and employees of the collecting agency; (2) as required by the Freedom of Information Act, 5 U.S.C. § 552 (1982); (3) for “routine uses;” (4) to the Bureau of the Census; (5) for statistical research; (6) to the National Archives; (7) for law enforcement activities; (8) under compelling circumstances affecting the health and safety of a third party; (9) to either House of Congress; (10) to the Comptroller General; or (11) pursuant to a court order. 5 U.S.C. § 552a(b).

14 5 U.S.C. § 552a(5).

15 See Note, , The Interest in Limiting the Disclosure of Personal Information: A Constitutional Analysis, 36 VAND. L. REV. 139, 149 (1983)Google Scholar; Comment, The Use & Abuse of Computerized Information: Striking a Balance Between Personal Privacy Interests and Organizational Information Needs, 44 ALB. L. REV. 589-91 (1980)Google Scholar.

16 5 U.S.C. §552a(b)(3).

17 5 U.S.C. § 552a(a)(7); see § 552a(e)(4)(D)(reporting of routine uses in Federal Register).

18 While treating the routine use provision narrowly for some purposes, most agencies have employed it in combination with other laws to facilitate the flow of information to and between law enforcement and investigative units…. Under section 534 of Title 28, the Department of Justice is required to maintain a central law enforcement information bank and to provide a clearinghouse for such information…. Agencies have understood this provision to be a congressional endorsement of the exchange of law enforcement information.

PRIVACY COMMISSION, supra note 16, at 517-18.

19 See, e.g.. Family Educational Rights & Privacy Act of 1974, 20 U.S.C. § 1232g (1982 & Supp. 1987)(relating specifically to access to academic records); Privacy Protection Act of 1980, 42 U.S.C. § 2000aa (1982) (providing protection from law enforcement-related searches of journalists’ and publishers’ records); see also Trubow, supra note 9.

20 H.R. 145, 100th Cong., 1st Sess., 133 CONG. REC. S18634-35 (daily ed. Dec. 21, 1987)(hereinafter Computer Security Act).'

21 H.R. REP. NO. 100-153, 100th Cong., 1st Sess. 7 (1987).

22 Computer Security Act, supra note 20, at § 2(b)(1)!

23 400 U.S. 433 (1971).

24 Id. at 434-35.

25 Wis. STAT. § 176.26 (1967). Violation of the posting order was a misdemeanor. Wis. STAT. §176.28 (1967).

26 Constantineau, 400 U.S. at 437.

27 Id. at 436.

28 Id. at 437.

29 Id. at 436. “The police power of the states over intoxicating liquors was extremely broad even prior to the twenty-first amendment…. The only issue present here is … the label or characterization given a person by ‘posting,’ ….” Id.

30 424 U.S. 693, 729-30 (1975).

31 Id. at 695. The flyer distributed to local merchants included names and photographs of persons “arrested during 1971 and 1972 or … active in various criminal fields in high density shopping areas.” Id.

32 Id. at 695-96. Shoplifting charges were outstanding. His guilt or innocence had not been resolved in December, 1972, when the flyer was released but he had pleaded not guilty in September, 1971. Id.

33 Id. at 696.

34 Essentially, Davis claimed that either (a) the due process clause and § 1983 create a cause of action to redress wrongs otherwise cognizable in a state-law tort action, or (b) a state-inflicted stigma to a person's reputation is a deprivation of liberty or property under the fourteenth amendment, and is therefore cognizable under § 1983 even if other state-inflicted wrongs are not. Id. at 693, 701.

35 400 U.S. 433 (1971); see supra notes 23-29 and accompanying text.

36 paul, 424 U.S. at 697 (quoting Davis v. Paul, 505 F.2d 1180, 1182 (6th Cir. 1974)).

37 Id. at 706 (footnote omitted); see Cafeteria Workers v. McElroy, 367 U.S. 886 (1961) (discharge of employee by a government contractor held “not … government action … with an attendant foreclosure from other employment opportunity“); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951) (Attorney General's designation of organizations as “communist” is not, without further consequences, itself violative of due process); United States v. Lovett, 328 U.S. 303 (1946)(congressional act which forbade payment of any compensation to three named government employees accused of “subversive activity” held unlawful bill of attainder).

38 Paul, 424 U.S. at 719, n.6 (Brennan, J., dissenting).

39 Id. at 721 (emphasis in original).

40 429 U.S. 589(1977).

41 New York Controlled Substances Act of 1972, N.Y. PUB. HEALTH LAW § 3372 (McKinney 1987).

42 Specifically, the Court addressed “immediate [or] threatened impact… on either the reputation or independence of patients.” Whalen, 429 U.S. at 603.

43 The right to collect and use [personal and potentially embarrassing] data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. Recognizing that in some circumstances that duty arguably has its roots in the Constitution, nevertheless New York's statutory scheme, and its implementing administrative procedures, evidence a proper concern with, and protection of, the individual's interest in privacy.

Id. at 605.

44 “The central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information, and I am not prepared to say that future developments will not demonstrate the necessity of some curb on such technology.” Id. at 607.

45 Id. at 602.

46 433 U.S. 425 (1977).

47 Id. at 455-56.

48 44 U.S.C. §2107(1980).

49 Id.; see Nixon, 433 U.S. at 429.

50 Nixon, 433 U.S. at 457 (citing Whalen v. Roe, 429 U.S. 589, 599 (1977)).

51 Id. at 458.

52 Id. at 459-60. Nixon conceded that he saw no more than 200,000 of the 42,000,000 pages of documents and 880 tape recordings in issue; he therefore had no expectation of privacy whatever in 99.5% of the documents. Id.

53 Id. at 460.

54 Id. at 465.

55 See, e.g., New York Times v. Sullivan, 376 U.S. 254 (1964).

56 Nixon, 433 U.S. at 462.

57 420 U.S. 469(1975).

58 Id. at 471-72; GA. CODE ANN. § 26-9901 (1972).

59 Id. at 472-73. The case thus did not involve any intrusion into a private area, or publication of false information. Id. at 489.

60 Id. at 473-74.

61 “[T]he First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.” Id. at 495.

62 Trubow, supra note 9, at 4. Trubow divides informational privacy into three components: “(1) What personal information is collected; (2) The circumstances in which someone can see personal information; and (3) How the personal information is protected.” Id. at 1.

63 Cox Broadcasting, 420 U.S. at 496.

64 440 U.S. 301 (1979).

65 Id. at 304, 306-08.

66 Id. at 313.

67 Id. at 318.

68 Id. at 308 n.16; see, e.g., PRIVACY ACT OF 1974, 5 U.S.C § 552a (1980).

69 Detroit Edison, 440 U.S. at 311.

70 Id. at 319-20.

71 In certain circumstances an individual may be subject to the collectin of medical information as well. In Shoemaker v. Handel, 795 F.2d 1136 (3d Cir. 1986), the Third Circuit upheld the constitutionality of state drug-testing regulation, relying on the confidentiality provision of the regulation. Id. at 1144. The statute mandates breathalyzer and urinalysis testing of all officials, jockeys, trainers, and grooms engaged in horse racing. Id. at 1138 nn. 1-2; see abo N.J. ADMIN. CODE tit. 13, § 70-14A.10-11 (1985). After separately considering the fourth amendment issues, the court concluded that a cause of action would lie if the drug testing regulations failed to preserve confidentiality. Shoemaker, 795 F.2d at 1144.

In the abortion context, limited reporting requirements do not violate a patient's right to privacy. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976). A statute, however, which is designed to identify the patient by requiring nonmedical information violates the patient's right to privacy. Thornburgh v. American College of Obstetricians, 106 S. Ct. 2169 (1986).

72 See, e.g., Whalen v. Roe, 429 U.S. 589, 600-01 (1977).

73 581 F.2d 35 (2d Cir. 1978).

74 Id. at 37.

75 Id. at 36.

76 Id. at 37. In a footnote, the court noted that the state's method for ensuring confidentiality “is not foolproof so that the risk of inadvertent disclosure remains.” Id. at 37 n.2.

77 801 F.2d 1164 (9th Cir. 1986).

78 Id. at 1169 (citing Whalen v. Roe, 429 U.S. 589, 602 (1977)).

79 Id. at 1169.

80 See, e.g., Whalen, 429 U.S. at 602.

81 425 U.S. 435 (1976).

82 Id. at 444-45.

83 544 F.2d 543 (1976).

84 Id. at 546.

85 575 F.2d 1119(1978).

86 Id. at 1134-35.

87 Warren, & Brandeis, , The Right to Privacy, 4 HARV. L. REV. 193 (1890)CrossRefGoogle Scholar.

1 410 U.S. 113 (1973).

2 See George, , State Legislatures versus the Supreme Court: Abortion Legislation in the 1980's, 12 PEPPERDINE L. REV. 427, 434 (1985)Google Scholar.

3 N.J. REV. STAT. § 2A:87-1 (West 1985)(repealed in 1979 with no replacement although N.J. REV. STAT. § 2A:65A-1 (West 1987) provides that no person or institution shall be required to perform service); TEX. REV. CIV. STAT. ANN. arts. 4512.1 to .4, .6 (Vernon 1976)(arts. 4512.1 to .4, .6 recorded as unconstitutional under Roe v. Wade). TEX. REV. CIV. STAT. ANN. arts. 4512.7 to .8 (Vernon 1976) provide a right not to perform abortions and for facility reporting of abortions.

4 NEV. REV. STAT. § 442.260 (1985); OHIO REV. CODE ANN. § 3701.341(A) (Anderson 1980).

5 See, e.g., IDAHO CODE §§ 18-612-18-615 (1987)(contains standby provisions which are to be enacted should the Supreme Court reverse its constitutional stance); ILL. ANN. STAT. ANN. ch. 38, para. 81-21 (Smith-Hurd 1977 & Supp. 1987)(“[T]he unborn child is a human being from the time of conception and is, therefore, a legal person for purposes of the unborn child's right to life and is entitled to the right to life from conception under the laws and Constitution of this State.“); IND. CODE ANN. § 16-10-3-4 (West 1984)(“childbirth is preferred, encouraged and supported over abortion“); KY, REV. STAT. §311.710(5) (Michie/Bobbs-Merrill 1983)(“[i]f, however, the United States Constitution is amended or relevant judicial decisions are reversed or modified, the declared policy … to protect the lives of all human beings regardless of their degree of biological development shall be fully restored“); MONT. CODE ANN. § 50-20-102 (1987)(“tradition of the state of Montana to protect every human life, whether unborn or aged … we reaffirm the intent to extend the protection of the laws of Montana in favor of all human life“); NEB. REV. STAT. § 28-325(2) (1985)(“[t]hat the members of Legislature expressly deplore the destruction of the unborn human lives which has and will occur in Nebraska as a consequence of the United States Supreme Court's decision … .“); N.D. CENT. CODE § 14-02.3-01 (1981 & Supp. 1985)(“[b]etween normal childbirth and abortion, it shall be the policy of the state of North Dakota that normal childbirth is to be given preference, encouragement, and support by law and by state action ….“).

6 Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 67, app. at 85 (1976); see also City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416,442-43 (1983)(citing Danforth, 428 U.S. at 67).

7 Colautti v. Franklin, 439 U.S. 379, 394 (1979).

8 Note, , Abortion Regulation: The Circumscription of State Intervention by the Doctrine of Informed Consent, 15 GA. L. REV. 681, 695 (1981)Google Scholar.

9 Id.

10 Id.

11 Danforth, 428 U.S. at 65-67; see, e.g., COLO. REV. STAT. § 18-6-101(1) (1986); IDAHO CODE § 18-609(6) (1987); KY. REV. STAT. ANN. § 311.732 (Michie/Bobbs-Merrill Supp. 1986); N.M. STAT. ANN. § 30-5-l(C) (1978); N.D. CENT. CODE § 14-02.1-03.1 (1981 & Supp. 1987); WASH. REV. CODE ANN. § 9.02.070(a) (1988).

12 DEL. CODE ANN. tit. 24, § 1794(a) (1987); FLA. STAT. ANN. § 390.001(4) (West 1986 & Supp. 1988); MD. HEALTH-GEN. CODE ANN. § 20-211(d)(1987); MASS. GEN. L. ch. 112, § 12Q (1983); Mo. ANN. STAT. § 188.027 (West 1983 & Supp. 1987); NEB. REV. STAT. §§ 28-326(8), 28-327 (1985 & Supp. 1986); NEV. REV. STAT. § 442.252 (1985); OKLA. STAT. ANN. tit. 63, § 1-738(A)(2) (West 1984); 18 PA. CONS. STAT. ANN. § 3205(a)(3) (Purdon 1983 & Supp. 1987); R.I. GEN. LAWS § 23-4.7-2 (1985); S.C CODE ANN. § 44-41-10(h) (Law. Co-op. 1985); S.D. CODIFIED LAWS ANN. § 34-23A-7 (1986); TENN. CODE ANN. § 39-4-202(a) (1982 & Supp. 1987); UTAH CODE ANN. § 76-7-305(1) (1978); VA. CODE § 18.2-76 (1982 & Supp. 1987).

13 MD; HEALTH-GEN. CODE ANN. § 20-211(d); 18 PA. CONS. STAT. ANN. § 3205(a)(3); Mo. ANN. STAT. § 188.039(2) (West 1983 & Supp. 1988); MONT. CODE ANN. § 50-20-106(2) (1987).

14 See, e.g., NEV.’ REV. STAT. 442.253(3) (1985).

15 See, e.g, DEL. CODE ANN. tit. 24, § 1794(b) (1987); FLA. STAT. ANN. § 390.001(4)(c) (West 1986 & Supp. 1988); IND. CODE ANN. § 35-l-58.5-2(1)(B) (West 1986); IOWA CODE ANN. § 707.8(2) (West 1979); MONT. CODE ANN. § 50-20-106(3) (1987); NEB. REV. STAT. § 28- 327 (1985); S.C CODE ANN. § 44-41-30(a), (d) (Law. Co-op. 1985).

16 IND. CODE ANN. § 35-1-58.5-4 (West 1986)(felony or misdemeanor); MASS GEN. L. ch. 112, § 12N (1983)(imprisonment); 18 PA. CONS. STAT. ANN. § 3205(c) (Purdon 1983 & Supp. 1987)(loss of license); S.D. CODIFIED LAWS ANN. § 34-23A-10.2 (1986)(misdemeanor); UTAH CODE ANN. § 76-7-314(2), (3) (1978)(felony or misdemeanor).

17 See, e.g., DEL. CODE ANN. tit. 24, § 1794(a)(5) (1987); ME. REV. STAT. ANN. tit. 22, § 1599(2)(d) (Supp. 1986); MASS. GEN. L. ch. 112, § 12S (1983 & Supp. 1986); NEB. REV. STAT. § 28-326(8)(a) (1985 & Supp. 1986); N.D. CENT. CODE § 14-02.1-02(5)(f) (Supp. 1985); 18 PA. CONS. STAT. ANN. § 3205(a)(2)(i-iii) (Purdon 1983 & Supp. 1986); R.I. GEN LAWS § 23-4.7-5(b)(1) (1985); TENN. CODE ANN. § 39-4-202(b)(5) (1982); UTAH CODE ANN. § 76-7-305(2) (Supp. 1986).

18 See, e.g., MASS GEN. L. ch. 112, § 12S (1983 & Supp. 1986); 18 PA. CONS. STAT. ANN. § 3208(a)-(c) (Purdon 1983 & Supp. 1986); R.I. GEN. LAWS § 23-4.7-5(b) (1985); UTAH CODE ANN. § 76-7-305.5(1)(a) (Supp. 1986).

19 See, e.g., ARK. CODE ANN. tit. 20, § 16-601(c) (1987); CAL. HEALTH & SAFETY CODE § 25955.3 (West 1984); DEL. CODE ANN. tit. 24, § 1791(c) (1987); ME. REV. STAT. ANN. tit. 22, § 1591 (1980 & Supp. 1986); MD. HEALTH-GEN. CODE ANN. § 20-214(c) (1982); MASS. GEN. L. ch. 112, § 12S (1983 & Supp. 1986); MINN. STAT. ANN. § 145.414 (West 1987); Mo. ANN. STAT. § 197.032(2) (Vernon 1983); OR. REV. STAT. § 435.435 (1986); 18 PA. CONS. STAT. ANN. § 3215(g) (Purdon 1983 & Supp. 1986).

20 City of Akron v, Akron Center for Reproductive Health, Inc., 462 U.S. 416, 444 n.33 (1983).

21 DEL. CODE ANN. tit. 24, § 1794(a) (1987); FLA. STAT. ANN. § 390.025(2) (West Supp. 1986)(information provided by counselors); Kv. REV. STAT. § 311.726(2) (Michie/Bobbs-Merrill 1983 & Supp. 1986); ME. REV. STAT. ANN. tit. 22, § 1599(2) (Supp. 1986); MASS. GEN. L. ch. 112, § 12S (1983 & Supp. 1987); Mo. ANN. STAT. § 188.039(2) (West Supp. 1988); MONT. CODE ANN. § 50-20-104(3) (1987); NEV. REV. STAT. § 442.253(1) (1985); N.D. CENT. CODE § 14-02.1-02(5) (1981); 18 PA. CONS. STAT. ANN. § 3205(a) (Purdon 1983 & Supp. 1987)(held unconstitutional in Thornburgh v. American College of Obstetricians, 476 U.S. 747 (1986)); R.I. GEN. LAWS § 23-4.7-3 (1985); TENN. CODE ANN. § 39-4-202(b) (1982 & Supp. 1987); UTAH CODE ANN. § 76-7-305(2)(1978); VA. CODE ANN. § 18.2-76 (1982 & Supp. 1987).

22 See, e.g., NEV. REV. STAT. § 442.253(3) (1985); 18 PA. CONS. STAT. ANN. 3208(a) (Purdon 1983 & Supp. 1986); R.I. GEN. LAWS § 23-4.7-5(c) (1985).

23 See City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 445 (1983).

24 Thornburgh v. American College of Obstetricians, 476 U.S. 747, 762 (1986); Akron, 462 U.S. at 443-44.

25 Charles v. Carey, 627 F.2d 772, 782 (7th Cir. 1980) (construing Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S 52 (1976)); see also Akron, 462 U.S. at 445; Leigh v. Olson, 497 F. Supp. 1340, 1345 (D. N.D. 1980).

26 627 F.2d 772 (7th Cir. 1980).

27 Id. at 780-81.

28 Id.

29 Note, Abortion Regulation, supra note 8, at 707.

30 Charles, 627 F.2d at 781.

31 641 F.2d 1006, 1021-23 (1st Cir. 1981).

32 Id. at 1021-23; see also Charles, 627. F.2d at 784; Planned Parenthood Ass'n of Kansas City v. Ashcroft, 483 F. Supp. 679, 698 (W.D. Mo. 1980).

33 Ashcroft, 655 F.2d 848, 868 (8th Cir. 1981)(quoting Ashcroft, 483 F. Supp. at 698).

34 Id.; see also Bellotti, 641 F.2d at 1021-22.

35 City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 443-44 (1983).

36 Bellotti, 641 F.2d at 1022.

37 UTAH CODE ANN. § 76-7-305.5(1)(B) (Supp. 1986); see also 18 PA. CONS. STAT. ANN. §§ 3205 (informed consent), 3208 (printed information)(Purdon 1983 & Supp. 1986).

38 Thornburgh v. American College of Obstetricians, 476 U.S. 747 (1986).

39 476 U.S. at 761-62 (quoting Akron, 462 U.S. at 443-44).

40 Id. at 762 (quoting Akron, 462 U.S. at 443).

41 Id. at 763.

42 Id. at 764.

43 See Akron, 462 U.S. at 445 (quoting Whalen v. Roe, 429 U.S. 589 (1977)).

44 410 U.S. 113, 163 (1973).

45 Illustrative is the Abortion Control Act enacted by Pennsylvania:

74 P.L. 639, No. 209, 35 PA. CONS. STAT. §§ 6601-6603(b) (1975).

States did not require the consent of unwed fathers. See Doe v. Doe, 365 Mass. 556, 314 N.E.2d 128 (1974)(plaintiff, an unwed father, held to be without standing to enjoin the mother and her doctor from proceeding with the abortion of the couple's child).

46 Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 68 (1976)(decision affirming in part and reversing in part the judgment of the United States District Court for the District of Missouri upholding selected provisions of the Missouri abortion statute).

47 Jones v. Smith, 278 So. 2d 339 (Fla. Sup. Ct. 1973), cert, denied, 415 U.S. 958 (1974).

48 Doe v. Zimmerman, 405 F. Supp. 534, 537 (Pa. 1975); Planned Parenthood Ass'n v. Fitzpatrick, 401 F. Supp. 554 (D.C. Pa. 1975). Other courts, in states without consent laws, heard actions brought by husbands seeking to prevent their wives from having abortions. Coe v. Gerstein, 376 F. Supp. 695 (S.D. Fla. 1974)(finding spousal consent law unconstitutional, a state cannot interfere on behalf of husband to protect his interest in the mother's health until the end of the first trimester, and husband's interest in the fetus cannot be justified until the fetus is viable); Doe v. Rampton, 366 F. Supp. 189 (D. Utah 1973); see Ponter v. Ponter, 135 N.J. Super. 50, 342 A.2d 574 (1975); Jones, 278 So.2d at 339.

49 See Zimmerman, 405 F. Supp. at 537.

50 Id. at 534.

51 Id. at 537.

52 See, e.g., Poe v. Gerstein, 517 F.2d 787, 795 (5th Cir. 1975).

53 Scheinberg v Smith, 659 F.2d 476, 485 (5th Cir. 1981)(citing Gerstein, 517 F.2d at 796).

54 Gerstein, 517 F.2d at 787.

55 Id. at 795.

56 316 U.S. 535 (1942).

57 428 U.S. 52, 67-72 (1976).

58 Id. at 69 (quoting Planned Parenthood of Cent. Mo. v. Danforth, 392 F. Supp. 1362, 1375 (E.D. Mo. 1975)).

59 See, e.g., FLA. STAT. ANN. § 390.001(4)(b) (1986)(statute which required spousal notice and consultation before abortion declared unconstitutional in Scheinberg v. Smith, 482 F. Supp. 529 (S.D. Fla. 1979), aff'd in part, vacated in part and remanded, 659 F.2d 476 (5th Cir. 1981), rehg denied, 667 F.2d 93, on remand 550 F. Supp. 1112 (S.D. Fla. 1982)); MONT. CODE ANN. § 50-20-107 (1973)(statute which contained a spousal notice requirement declared unconstitutional in Doe v. Deschamps, 461 F. Supp. 682 (D. Mont. 1976)).

60 Danforth, 428 U.S. at 69-71.

61 Some states that failed to repeal their laws and declaratory judgments were required to lift them from the books. See, e.g., Floyd v. Anders, 440 F. Supp. 535 (1977). At least one state tried to retain its consent provision by requiring it for an abortion in the second trimester. Wolfe v. Schroering, 541 F.2d 523 (6th Cir. 1976). The state tried to justify the statute by relying on the father's interest in the health of the mother. It was held unconstitutional because it interfered with the woman's right to a second trimester abortion. Id. at 525.

62 Illustrative of this action is the spousal notification statute of Rhode Island. This statute provides: “[I]f a married woman consents to an abortion as such consent is required by chapter 4.7 of this title the physician who is to perform the abortion or his authorized agent shall, if reasonably possible, notify the husband of such woman of the proposed abortion before it is performed.” R.I. GEN. LAWS § 23-4.8-2 (1982); see also N.D. CENT. CODE § 14- 02.1-03 (1981); WASH. REV. CODE ANN. § 9.02.070 (1988).

Notification was not required if: 1) the woman provided a written statement that she gave notice to her husband; 2) the couple was separated; 3) the physician received written affirmation that the husband was not the father of the child; or 4) an emergency requiring immediate action occurred.

Some states, however, prior to Danforth opted to enact notification statutes instead of consent laws. See Roe v. Rampton, 535 F.2d 1219 (10th Cir. 1976).

63 States generally advanced the interests of protecting the marital entity and the interests of the father.

64 See Rampton, 535 F.2d at 1219 (challenge to notification statute brought by woman pregnant with the child of a man other than her husband).

65 461 F. Supp. 682 (D. Mont. 1976).

66 Id. at 686.

67 659 F.2d 476 (5th Cir. 1981).

68 Comment, Spousal Notice: Weighing the Burden on a Woman's Abortion Decision, 12 STETSON L. REV. 250, 254 (1982)Google Scholar.

69 Scheinberg, 659 F.2d at 483.

70 Id.

71 Experts in psychology, gynecology and obstetrics, psychology and social work all testified that they uniformly encouraged married couples to consult with each other on abortion decisions. Id. at 484.

72 Id. at 485.

73 Id. The case was remanded to the district court for a finding as to whether an abortion affects the woman's future fertility. The court wrote that spousal notification would be appropriate, even if the father did not sire the child in question, if her fertility were endangered. On remand, the district court found that abortions performed according to methods approved by prevailing medical standards posed only a de minimus risk to a woman's future ability to bear children. On the basis of this finding that the woman's fertility was not endangered, the district court held the notification requirement was unconstitutional. Scheinberg v. Smith, 550 F. Supp. 1112, 1123 (S.D. Fla. 1982). The case includes an extended discussion of the expert testimony concerning the health and fertility risks of abortion. The court's inquiry focused on whether the procedure posed a greater than de minimus risk due to the complications that arise in some instances. The Fifth Circuit denied a motion for a rehearing. Scheinberg v. Smith, 667 F.2d 93 (5th Cir. 1981); see Note, Scheinberg v. Smith: Toward Recognition of Minor's Constitutional Right to Privacy in Abortion Decisions, 6 NOVA L.J. 475 (1982)Google Scholar (refers to potential notification of minors); Note, , Spousal Notification arid Consent in Abortion Situations: Scheinberg v. Smith, 19 Hous. L. REV. 1025 (1982)Google Scholar; Comment, supra note 68; Note, Spousal Notification Requirement is Constitutionally Permissible Burden on Woman's Right to Privacy in Abortion: Scheinberg v. Smith, 13 TEX. TECH. L. REV. 1495 (1982)Google Scholar.

74 604 F. Supp. 141 (W.D. Ky. 1984).

75 Id. at 148.

76 Id.

77 Id.

78 598 F. Supp. 625 (D.R.I. 1984).

79 462 U.S. 416 (1983) (Supreme Court struck down various provisions of a city ordinance regulating abortions). The degree to which a regulation interferes with a fundamental right is irrelevant in determining whether it burdens the right. The interference is significant to the issue of whether the statute is drawn as narrowly as possible to effect its purposes.

80 Id. at 427 & n.78.

81 Planned Parenthood, 598 F. Supp. at 634.

82 Id. at 637.

83 Id. at 638.

84 Id. at 639 (citing Zablocki v. Redhail, 434 U.S. 374 (1978); Moore v. City of E. Cleveland, 431 U.S. 494 (1977); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942)).

85 Id.

86 Id. at 641.

87 Id. at 642 (quoting Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 71 (1976)).

88 City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983); Planned Parenthood Ass'n of Kansas City v. Ashcroft, 462 U.S. 476 (1983); H.L. v. Matheson, 450 U.S. 398 (1981); Bellotti v. Baird, 443 U.S. 622 (1979)(hereinafter Bellotti II); Bellotti v. Baird, 428 U.S. 132 (1976); Danforth, 428 U.S. 52 (1976).

89 Comment, Constitutional Law: The Minor's Right to Consent to Abortion: How Far is Oklahoma From Akron?, 37 OKLA. L. REV. 780, 783 (1984)Google Scholar.

90 Carey v. Population Serv. Int'l, 431 U.S. 678 (1976).

91 Buchanan, , The Constitution and the Pregnant Teenager, 24 ARIZ. L. REV. 553, 554 (1979)Google Scholar. ,

92 Id. (citing Parham v. J.R., 442 U.S. 584 (1979)(Court found no denial of a child's due process right when admitted to a state mental hospital against his will by his parents)); see also Colon v. Collazo, 729 F.2d 32 (1984) (a request for injunctive and declaratory relief was denied when nondelinquent youths, committed on a temporary basis, claimed that commitment without a hearing or a court order deprived them of a liberty interest without due process of law); Percy v. Terry, 443 U.S. 902 (1979)(judgment vacated and case remanded in light of Parham).

93 Under the common law “emancipated minors” are persons who have not reached legal adult status but have married or are living independently from their parents making them “emancipated” from their parent's authority. See, e.g.. Angel v. McLellan, 16 Mass. 27 (1819). “When a [minor] leaves his parent's house voluntarily, for the purpose of seeking his fortune in the world, or to avoid [domestic] discipline and restraint …, the parent is under no obligation to pay for his support. Id.; see also Note, California's Emancipation of Minor's Act: Costs and Benefits of Freedom from Parental Control, 18 C.W.L.R. 482 (1982)Google Scholar (discussing a proposed act whereby a child may become emancipated and break away from his or her parents).

94 See supra notes 46-60 and accompanying text.

95 See, e.g.. ARK. CODE. ANN. § 41-2555 (1987).

96 See Noe v. True, 507 F.2d 9 (6th Cir. 1974).

97 Breed v. Jones, 421 U.S. 519 (1975)(prohibition against double jeopardy); In re Winship, 397 U.S. 358 (1970)(standard of proof “beyond a reasonable doubt“); Tinker v. Des Moines Ind. Comm. School Dist., 393 U.S. 503 (1969)(armbands to protest the Vietnam War); Application of Gault, 387 U.S. 1 (1967)(when there is a risk of incarceration a minor is entitled to notice* counsel and privilege against self-incrimination).

98 Bellotti II, 443 U.S. 622, 634,(1979).

99 See supra note 59 and accompanying text.

100 428 U.S. 52 (1976).

101 Id. at 72-75.

102 Id. at 75.

103 Id. at 74.

104 Id. at 75.

105 Id.

106 443 U.S. 662 (1979).

107 See MASS. GEN. L. ch. 112. § 12S (Supp. 1979).

108 Id.

109 Bellotti II, 443 U.S. at 637; see also MASS. GEN. L. ch. 207, §§7, 24, 25, 33, 33A (1958 & Supp. 1979).

110 Bellotti II, 443 U.S. at 642.

111 Id. 643-44.

112 Id. at 644.

113 Id. at 647.

114 Id. at 648.

115 Id at 650.

116 See, e.g., ARIZ. REV. STAT. ANN. § 36-2152(B)(1) (Supp. 1987); FLA. STAT. ANN. § 390.001(4)(a) (West Supp. 1987); ILL. ANN. STAT. ch. 38, para. 81-54(3) (Smith-Hurd Supp. 1987); IND. CODE ANN. § 35-1-58.5-2.5 (West 1987); KY. REV. STAT. ANN. § 311.732(3) (Baldwin Supp. 1986); MASS. GEN. L. ch. 112, § 12S (1983 & Supp. 1986); MINN. STAT. ANN. § 144.343(6)(e)(i) (Supp. 1987); Mo. ANN. STAT. § 188.028(2) (Vernon Supp. 1987); NEB. REV. STAT. § 28-347(2) (1985); N.D. CENT. CODE § 14-02.1-03.1(2) (1982 & Supp. 1985); 18 PA. CONS. STAT. ANN. § 3206(c)-(f), (h) (Purdon 1983 & Supp. 1987); R.I. GEN. LAWS § 23-4.7-6 (1987).

117 See Planned Parenthood Ass'n, Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476 (1983); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983); Women's Services, P.C. v. Thone, 483 F. Supp. 1022 (D. Neb. 1979); Smith v. Bentley, 493 F. Supp. 916 (E.D. Ark. 1980); Margaret S. v. Edwards, 488 F. Supp. 181 (E.D. La. 1980)(holding statute unconstitutional for failure to provide alternative authorizing procedure).

118 Margaret S., 488 F. Supp. at 203.

119 462 U.S. 476(1983).

120 462 U.S. 416(1983).

121 Id. at 440.

122 Id. at 441. The ordinance read in relevant part:

Akron Codified Ordinances, ch. 1870, § 5, cited in Akron, 462 U.S. at 422.

123 Akron, 462 U.S. at 442.

124 Ashcroft, 462 U.S. at 493; Mo. REV. STAT.§ 188.028 (Supp. 1988).

125 See Eubanks v. Brown, 604 F. Supp. 141, 147 (1984).

126 See C.L.G v. Webster, 616 F. Supp. 1182 (D.C. Mo. 1985)(although the plaintiffs lacked standing, the court upheld Missouri consent law finding it constitutional on its face); Margaret S. v. Treen, 597 F. Supp. 636 (E.D. La. 1984)(upholding Louisiana consent statute).

127 See, e.g., ME. REV. STAT. ANN. tit. 22, § 1597(2) (1980 & Supp. 1986); MD. HEALTH-GEN. CODE ANN. § 20-103(a) (1980 & Supp. 1987); MINN. STAT. ANN. § 144.343(2)(West Supp. 1988); MONT. CODE ANN. § 50-20-107(1)(b) (1987); NEB. REV. STAT. §28-347(1) (1985); NEV. REV. STAT. § 442.255 (1985); TENN. CODE ANN. § 39-4-202(f) (1987).

128 See, e.g., ME. REV. STAT. ANN. tit. 22, § 1597(2)(b) (1980 & Supp. 1986); MD. HEALTH-GEN. CODE ANN. § 20-103(d) (Supp. 1987); NEB. REV. STAT. § 28-347(1); NEV. REV. STAT. §442.255(1) (1985).

129 See Bellotti II, 443 U.S. 622, 640-41 (1979); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 91 (1976)(Stewart, J., concurring).

130 See, e.g., MASS. GEN. L. ANN. ch. 112, § 12S (1983 & Supp. 1987).

131 633 F. Supp. 1123, 1132 (N.D. Ohio 1986)(quoting Bellotti II, 443 U.S. at 647).

132 Id. at 1132.

133 450 U.S. 398 (1981).

134 Id. at 409-10.

135 To enable the physician to exercise his best medical judgment [in considering a possible abortion], the state provides that the physician shall:

• (1) Consider all factors relevant to the well being of the woman upon whom the abortion is to be performed including, but not limited to,

• (a) Her physical, emotional and psychological health and safety,

• (b) Her age,

• (c) Her familial situation.

• (2) Nofity, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor or the husband of the woman, if she is married.

UTAH CODE ANN. § 76-7-304 (1978).

136 Matheson, 450 U.S. at 406. Despite this lack of maturity, she sought counseling from a social worker, contacted a doctor, retained an attorney and began a legal action. For a discussion of this aspect of the case and what constitutes a “mature minor,” see Buchanan, supra note 91, at 578.

137 Matheson, 450 U.S. at 407.

138 Id.

139 Id.

140 Id. at 409.

141 Id. at 413.

142 Id. at 439.

143 Id. at 441.

144 450 U.S. 398 (1987).

145 584 F. Supp. 1452 (N.D. Ill. 1984), modified, 763 F.2d 1532 (7th Cir. 1985).

146 Id. at 1458 (citing Indiana Planned Parenthood Affiliates Ass'n, Inc. v. Pearson, 716 F.2d 1127 (7th Cir. 1983)).

147 Id. at 1459; but see Akron Center for Reproductive Health v. Rosen, 633 F. Supp. 1123, 1138-39 (N.D. Ohio 1986).

148 Zbaraz, 584 F. Supp. at 1462.

149 716 F.2d 1127 (7th Cir. 1983).

150 Id. at 1132.

151 See Akron Center for Reproductive Health v. Rosen, 633 F. Supp. 1123 (N.D Ohio 1986); Click v. McKay, 616 F. Supp. 322 (D.C. Nev. 1985)(preliminary enjoinment of the enforcement of the notification statute).

152 Rosen, 633 F. Supp. 1123.

153 Id. at 1131-44. The statute also was challenged on the basis of the fifth amendment right against self incrimination, failure to expedite notice, confidentiality and pleading requirements. This is because a minor woman admitting that she engages in sexual activity by using the waiver procedure exposes herself to an adjudication as an “unruly child;” once labeled as such she can be placed in a “youth home,” or a juvenile correctional institution.

154 Id. at 1144.

155 See also Hodgson v. Wilkinson, 648 F. Supp. 756 (D. Minn. 1986); H.B. v. Wilkinson, 639 F. Supp. 952 (D. Utah 1986); Rosen, 633 F. Supp. 1123 (N.D. Ohio 1986); Zbaraz v. Hartigan, 763 F.2d 1532 (7th Cir. 1985); Scheinberg v. Smith, 659 F.2d 476 (5th Cir. 1981).

156 431 U.S. 678 (1977).

157 N.Y. EDUC. LAW § 6811(8) (McKinney 1985).

158 Carey, 431 U.S. at 692.

159 Id. at 693 (citing Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 75 (1976)).

160 Id. (citing Danforth, 428 U.S. at 74).

161 Id. at 694.

162 Id. at 695 (citing Eisenstadt v. Baird, 405 U.S. 438, 448 (1972)).

163 Id. at 696.

164 Id. at 697-99.

165 615 F.2d 1162 (6th Cir. 1980).

166 Id. at 1168.

167 Id. at 1169.

168 Id.

169 582 F. Supp. 1001 (D. Utah 1983).

170 Id. at 1009.

171 An abortifacient is defined as anything which induces an abortion.

172 See, e.g., ARIZ. REV. STAT. ANN. § 13-3605 (1978)(misdemeanor); FLA. STAT. ANN. § 797.02 (West 1986)(misdemeanor); MASS. GEN. L. ch. 27, § 20 (1970)(felony); MICH. COMP. LAWS ANN. §§ 750.15, .34 (1968)(immoral advertising); Miss. CODE ANN. § 97-3-5 (1972)(misdemeanor); MONT. CODE ANN. § 50-20-109(4) (1985)(misdemeanor); NEV. REV. STAT. §442.270(1) (1985); N.D. CENT. CODE § 14-02.1-06 (1982 & Supp. 1985)(misdemeanor); VT. STAT. ANN. tit. 13, § 104 (1974 & Supp. 1985)(1-3 years imprisonment and a $200-$500 fine); WASH. REV. CODE ANN. § 9.68.030 (1977)(misdemeanor).

173 These states are: Arizona, California, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana, Lousiana, Massachusetts, Michigan, Missouri, Pennsylvania, Rhode Island, South Dakota, Vermont, Virginia, Wisconsin, Wyoming; see George, supra note 2, at 440.

174 See, e.g., Colorado and Mississippi; George, supra note 2, at 440.

175 LA. REV. STAT. ANN. § 14:88(1) (West 1974 & Supp. 1986); Miss. CODE ANN. § 97-3-5 (1972); VT. STAT. ANN. tit. 13, § 104.

176 CAL. PENAL CODE § 276 (West Supp. 1984); CONN. GEN. STAT. §§ 3-29 (1960), -31a (Supp. 1986); DEL. CODE ANN. tit. 24, § 1792 (Supp. 1986); IDAHO CODE § 18-606(1) (1979); MASS. GEN. L. ch. 272, § 20; MONT. CODE ANN. § 50-20-109(4); NEV. REV. STAT. § 442.270(1); N.D. CENT. CODE § 14-02.1-06.

177 FLA. STAT. ANN. § 797.02 (West Supp. 1986); see, e.g., ARIZ. REV. STAT. ANN. § 13-3605; MASS. GEN. L. ch. 272, § 20.

178 See Akron Center for Reproductive Health v. Rosen, 633 F. Supp. 1143-44 (N.D. Ohio 1986); see, e.g.. ILL. REV. STAT. ch. 38, para. 81-65(5)(c) (Smith-Hurd Supp. 1986); KY. REV. STAT. ANN. §331.732(3)(b) (Baldwin 1983 & Supp. 1986); MASS. GEN. L. ch. 112, § 125(1983 & Supp. 1986); NEV. REV. STAT. § 442.255(4) (1985).

179 421 U.S. 809 (1975).

180 See id.; see also George, supra note 2, at 503.

181 VA. CODE ANN. § 18.1-63 (1960). The statute reads: “If any person, by publication, lecture, advertisement, or by the sale or circulation of any publication, or in any other manner, encourages or promotes the procuring of abortion or miscarriage, he shall be guilty of a misdemeanor.“

182 Statute as amended by Va. Acts of Assembly 1972, ch. 725; 1975, chs. 14 & 15 reads: 18.2-76.1. If any person, by publication, lecture, advertisement, or by the sale or circulation of any publication, or through the use of a referral agency for profit, or in any other manner, encourage or promote the performing of an abortion or the inducing of a miscarriage to be performed in this State which is prohibited under this article, he shall be guilty of a … misdemeanor

183 Bigelow, 421 U.S. at 822.

184 Id. at 824.

185 See, e.g., CONN. GEN. STAT. §§ 53-31, -31a (1960 & Supp. 1984); IDAHO CODE §§ 18- 604, -607 (1979); MD. HEALTH-GEN. CODE ANN. § 20-210(a)(2) (Supp. 1986); VA. CODE ANN. § 18.2-76.1 (1982); Wis. STAT. ANN. § 450.11(2) (West Supp. 1984).

186 George, supra note 2, at 505.

187 Danforth, 428 U.S. at 75.

188 Roe v. Wade, 410 U.S. 113, 153.

189 Id. at 154.

190 Id. at 113.

191 See, e.g., ARIZ. REV. STAT. ANN. § 13-3603 (1978); MICH. COMP. LAWS ANN. § 750.14 (1968); N.H. REV. STAT. ANN. § 585:13 (1986); VT. STAT. ANN. tit. 13, § 101 (1974); Wis. STAT. ANN. § 940.04(5)(b) (West 1982).

192 Roe, 410 U.S. at 164. The Supreme Court has recognized the constitutional right of women to choose to abort prior to viability. Id. at 165-66. Several states have enacted a similar standard.

193 Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 430 (1983).

194 Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 61 (1976)(citing Roe, 410 U.S. at 163-65).

195 See, e.g., ALA. CODE § 13A-13-7 (1982); D.C. CODE ANN. § 22-201 (1981).

196 Roe, 410 U.S. at 163-64.

197 See, e.g., ILL. ANN. STAT. ch. 38, para. 81-25(2) (Smith-Hurd 1977 & Supp. 1987); IND. CODE § 35-1-58.5-2(3)(c) (1986); KY. REV. STAT. ANN. § 311.780 (Baldwin 1983); LA. REV. STAT. ANN. § 14:87 (West Supp. 1986); ME. REV. STAT. ANN. tit. 22, § 1598(1) (1980); Mo. ANN. STAT. § 188.030(1) (Vernon Supp. 1987); MONT. CODE ANN. § 50-20-109(1)(c) (1987); NEB. REV. STAT. § 28-329 (1985); OKLA. STAT. ANN. tit. 63, § 1-732(A) (West 1984); UTAH CODE ANN. § 76-7-302(3) (1978).

198 See, e.g., FLA. STAT. ANN. § 390.001(2) (West 1986); IOWA CODE ANN. § 707.7 (West 1979); MASS. GEN. L. ch. 112, § 12M (1983)(24 weeks); MINN. STAT. ANN. § 145.412(3) (West Supp. 1988); NEV. REV. STAT. § 442.250(1)(c) (1985)(after 24th week); N.Y. PENAL LAW § 125.05(3) (McKinney 1987)(after 24 weeks); N.C. GEN. STAT. § 14-45.1(b) (1986)(after 20th week); N.D. CENT. CODE § 14-02.1-04(3) (1981); S.C. CODE ANN. § 44-41-20(c) (Law. Co-op. 1985); S.D. CODIFIED LAWS ANN. § 34-23A-5 (1986)(after 24th week).

199 See, e.g.. ARK. CODE ANN. § 20-16-705(c) (1987); DEL. CODE ANN. tit. 24, § 1790(a)(3)(b) (1987); IDAHO CODE § 18-608(1) (1987); KAN. STAT. ANN. § 21-3407(2) (1981); MD. HEALTH-GEN. CODE ANN. § 20-208(a)(4) (1987); Miss. CODE ANN. § 97-3-3(1)(b) (1973); N.M. STAT. ANN. § 30-5-1 (C)(3) (1978).

200 See, e.g.. ARK. CODE ANN. § 20-16-705(c); CAL. HEALTH & SAFETY CODE § 25951(c)(2) (West 1984); COLO. REV. STAT. § 18-6-101(1)(b) (1986); DEL. CODE ANN. tit. 24, § 1790(a)(3)(a) (1987); IDAHO CODE § 18-608(1); KAN. STAT. ANN. § 21-3407(2); N.M. STAT. ANN. § 30-5-1(C)(4) (1984).

201 See, e.g., MD. HEALTH-GEN. CODE ANN.§ 20-208(a)(4); N.M. STAT. ANN. § 30-5-1(C)(3).

202 See, e.g., MD. HEALTH-GEN. CODE ANN.§ 20-208(a)(4). The relevant text provides:

Id.

203 Id.

204 See, e.g., DEL. CODE ANN. tit. 24, § 1790(a)(2) (1987); IDAHO CODE § 18-608(1); KAN. STAT. ANN. § 21-3407(2); MD. HEALTH-GEN. CODE ANN. § 20-208(a)(3) (1987); N.M. STAT. ANN. § 30-5-1(C)(2) (1984).

205 MD. HEALTH-GEN. CODE ANN. § 20-208(a)(3) (1987).

206 See, e.g., ALASKA STAT. § 18.16.010 (1986); CAL. HEALTH & SAFETY CODE § 25951 (West 1984); COLO. REV. STAT. § 18-6-101(1) (1986); DEL. CODE ANN. tit. 24, § 1790(a) (1987); FLA. STAT. ANN. §§ 390.001 (1)(a), (3) (West 1986); GA. CODE ANN. § 16-12-140(a) (1984); IDAHO CODE §§ 18-604(2), -608 (1987); ILL. ANN. STAT. ch. 38, paras. 81-22(2), -23.1 (Smith-Hurd Supp. 1987); IND. CODE ANN. §§ 35-1-58.5-1(d), .5-2 (West 1986); IOWA CODE ANN. § 707.7 (West 1979); KAN. STAT. ANN. § 21-3407(2); KY. REV. STAT. ANN. §§ 311.720(7), .723(1) (Michie/Bobbs-Merrill 1983); LA. REV. STAT. ANN. §§ 37.1285 (8)(b)(ii), (9)(ii) (West Supp. 1988); ME. REV. STAT. ANN. tit. 22, §§ 1598(1), (3)(A) (1980); MD. HEALTH-GEN. CODE ANN. §§ 20-207, -208(a) (1987); MASS. GEN. L. ch. 112, §§ 12K, 12L, 12M (1987); MINN. STAT. ANN § 145.412(1)(1) (West Supp. 1988)(also allows abortion to be performed by a physician in training under the supervision of a licensed physician); Mo. ANN. STAT. § 188.015(5), .020 (Vernon Supp. 1988); MONT. CODE ANN. § 50-20-109(1)(a) (1987); NEB. REV. STAT. §§ 28- 326(3), -335 (1985); NEV. REV. STAT. §§ 442.250(1)(a) (1985); N.M. STAT. ANN. § 30-5-KQ (1978); N.Y. PENAL LAW §§ 125.05(3), .40, .45 (McKinney 1987)(also allows a pregnant female to perform an abortion on herself under certain circumstances); N.C. GEN. STAT. §§ 14- 45.1(a), (b) (1987); N.D. CENT. CODE §§ 14-02.1-02(6), -04(1) (1981); OKLA. STAT. ANN. tit. 63, § 1-731(A) (West 1984) (also allows a pregnant female to perform an abortion on herself under certain circumstances); S.C. CODE ANN. §§ 44-41-10(b),-20 (Law. Co-op. 1985); S.D. CODIFIED LAWS ANN. §§ 34-23A-l(2), -2 to -5 (1986); TENN. CODE ANN. § 39-4-201(c) (1982); UTAH CODE ANN. §§ 76-7-301(2), -302(1) (1987); VA. CODE ANN. §§ 18.2-72 to -74.1 (1982); WASH. REV. CODE ANN.§§ 9.02.060, .070 (1988)(also allows a pregnant female to perform an abortion on herself under certain circumstances); WYO. STAT.§§ 35-6-101(a)(v), -111 (1977).

207 Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 447 (1983)(citing Connecticut v. Menillo, 423 U.S. 9, 11 (1975); Roe v. Wade, 410 U.S. 113, 165 (1973)).

208 Colautti v. Franklin, 439 U.S. 379, 387 (1979)(discussing Roe, 410 U.S. at 166).

209 See, e.g., Mo. ANN. STAT. § 188.030(3) (Vernon 1983); N.Y. PUB. HEALTH LAW § 4164(1) (McKinney 1985)(although statute pertains to abortions performed after the twentieth week of pregnancy it does not define the term viable); compare N.Y. PENAL LAW § 125.05(3) (McKinney 1987)(statute restricts abortions after twenty-four weeks of pregnancy); see also N.D. CENT. CODE § 14-02.1-05 (1981); OKLA. STAT. ANN. tit. 63, § 1-732(E) (West 1984).

210 Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 485-86 (1983).

211 Id.

212 Id.

213 Id.

214 476 U.S. 747, 770 (1986)(paraphrasing Ashcroft, 462 U.S. at 482-86).

215 Id. at 770-71.

216 See, e.g., KAN. STAT. ANN.§ 21-3407(2) (1981)(except in emergency situations, “three persons licensed to practice medicine and surgery, one of whom may be the person performing the abortion, [must] have certified in writing their belief in the justifying circumstances“); Miss. CODE ANN. § 97-3-3(2) (1973)(except when pregnancy is caused by rape, abortion only is permitted when it is necessary for the preservation of the mother's life; additionally the abortion must be performed based upon the prior advice by two reputable licensed physicians); Wis. STAT. ANN. § 940.04(5)(b) (West 1982)(abortion either must be necessary to save the life of the mother or must be advised by two physicans, other than the physician performing the procedure, as necessary to save the life of the mother).

217 See, e.g., CAL. HEALTH & SAFETY CODE§ 25951(b) (West 1979); COLO. REV. STAT. §§ 18-6-101(1), (4) (1986); Mb. HEALTH-GEN. CODE ANN. § 20-208(b)(2) (1987); N.M. STAT. ANN. §§ 30-5-1(C), (D) (1978).

218 410 U.S. 179(1973).

219 Id.

220 Id. at 195-200.

221 Id. at 199.

222 Id. at 197.

223 See, e.g., FLA. STAT. ANN.§ 390.001 (2)(a) (West 1986)(except in emergency situations, two physicians must certify in writing that “to a reasonable degree of medical probability, the termination of pregnancy is necessary to save the life or preserve the health of the pregnant woman“); GA. CODE ANN.§ 16-12-141(c) (1984)(after the second-trimester, “the physician and two consulting physicians [must] certify that the abortion is necessary, in their best clinical judgement, to preserve the life or health of the woman“); IDAHO CODE § 18-608(3) (1987)(the judgement of the attending physician must be “corroborated by a like opinion of a consulting physician concurring there with“); S.C. CODE ANN. § 44-41-20(c)(Law. Co-op. 1985) (one consulting physician must certify in writing that “the abortion is necessary based upon [his] best medical judgement to preserve the life or health of the woman“; VA. CODE ANN. § 18.2-74(b) (1982)(two consulting physicians must certify that “in their medical opinion, based upon their best clinical judgement, the continuation of the pregnancy is likely to result in the death of the woman or substantially and irremediably impair the mental or physical health of the woman“).

224 See, e.g., MONT. CODE ANN.§ 50-20-109(2)(b) (1987); N.D. CENT. CODE § 14-02.1-04(3) (1981).

225 planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 485-86 (1983); see supra notes 210-15 and accompanying text.

226 See, e.g., ALASKA STAT. § 18.16.010(a)(2) (1986); COLO. REV. STAT. § 18-6-101(1), (2) (1986); CONN. GEN. STAT. ANN. § 53-31a(c) (West 1985); Wis. STAT. ANN.§ 940.04(5)(c) (West 1982)(unless “an emergency prevents [it],” an abortion must be performed in a licensed maternity hospital).

227 See, e.g., CAL. HEALTH & SAFETY CODE§ 25951(a) (West 1984).

228 Doe v. Bolton, 410 U.S. 179, 193 (1973).

229 Id. at 194.

230 Id. at 193-94.

231 See e.g., IDAHO CODE § 18-608(1)-(3)(1987); KY. REV. STAT. ANN. §311.760(2) (Michie/Bobbs-Merrill 1983); LA. REV. STAT. ANN. § 37:1285(8)(b)(iii) (West Supp. 1988); MASS. GEN. L. ch. 112, § 12Q.(1983); Mo. ANN. STAT.§ 188.025 (West Supp. 1987)(hospitalization requirement after just 16 weeks or later); MONT. CODE ANN. § 50-20-109(1)(b) (1987); N.Y PUB. HEALTH LAW §4164(1) (McKinney 1985); N.C. GEN. STAT.§ 14-45.1(a), (b) (1987)(hospitalization requirement after first 20 weeks); N.D. CENT. CODE §§ 14-02.1-04(2), (3) (1981); OKLA. STAT. ANN. tit. 63, § 1-731(B) (West 1984); S.C. CODE ANN.§ 44-41-20(a)(c) (Law. Co-op. 1985); TENN. CODE ANN.§ 39-4-201(c)(2)(3) (1982); see also George, supra note 2, at 476 & n.305.

232 462 U.S. 416(1983).

233 Id. at 431-39; accord Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 481-82 (1983).

234 Akron, 462 U.S. at 434.

235 Id. at 434-35 (“The Court of Appeals noted that there was testimony that a secondtrimester abortion costs more than twice as much in a hospital as in a clinic.“)($850-$900 for second-trimester abortions in a hospital compared to $350-$400 for second-trimester abortions in a clinic).

236 Id. at 435-37.

237 Rhoden, , Trimesters and Technology: Revamping Roe v. Wade, 95 YALE L.J. 639, 649 (1986)CrossRefGoogle Scholar. The increased safety was due primarily to the use of the dilation and evacuation procedure (D & E) for second-trimester abortions. Akron, 462 U.S. at 436. The D & E procedure involves dilating the cervix and using large forceps to remove the fetus. Id.

238 George, supra note 2, at 477.

239 See, e.g., GA. CODE ANN. § 16-12-141( b) (1984); IDAHO CODE § 18-608(1) (1987)(subsection (1) permits a non-hospital environment in first-trimester, while sub-sections (2) & (3) require hospitalization for second and third-trimesters); IND. CODE ANN.§ 35-l-58.5-2(2)(B) (West 1986)(recognizes non-hospitals after the first trimester and before viability); MINN. STAT. ANN.§ 145.412 (West Supp. 1988)(requires hospitalization when the “fetus is potentially viable“); NEV. REV. STAT. § 442.250(2) (1985)(requires hospitalization after the twenty-fourth week); N.C. GEN. STAT.§ 14-45.1(a), (b) (1987)(sub-section (b) requires hospitalization after the 20th week); S.C. CODE ANN. § 44-41-20(b) (Law. Co-op. 1985)(sub-section (b) recognizes clinics and hospitals for the second-trimester, while sub-section (c) only permits hospitals in the third-trimester); S.D. CODIFIED LAWS ANN. § 34-23A-4 (1986)(permits abortion in clinics only if hospital is not available and then only between the twelfth and twenty-fourth weeks; after the twenty-fourth week abortions are permitted only in a hospital and for a medical necessity); UTAH CODE ANN. §§ 301(3), -302(2) (1978); VA. CODE ANN. §§ -73, -74 (1982)(subsection 73 requires second-trimester abortions to be performed in a hospital or licensed clinic, while sub-section 74 requires hospitalization after the second-trimester); WASH. REV. CODE ANN. § 9.02.070(c) (1988) (permits use of a “facility” for women “not more than four lunar months after conception“); see also George, supra note 2, at 477 & n.308.

240 See, e.g.. ILL. ANN. STAT. ch. 111 1/2, paras. 157-8.1 to -8.16 (Smith-Hurd 1977 & Supp. 1987); MD. HEALTH-GEN. CODE ANN. § 20-203 (1987); S.C. CODE ANN. § 44-41-70 (Law. Co-op. 1985); see also George, supra note 2, at 477 n.309.

241 George, supra note 2, at 477.

242 See, e.g., ALASKA STAT. § 18.16.010(a )(4) (1987)(30 days); DEL. CODE ANN. tit. 24, § 1793 (1987) (one hundred twenty days unless there is an emergency; an emergency is defined as a “continuation of pregnancy likely to result in the death of the mother“); TENN. CODE ANN. § 39-4-201(d) (1982); WASH. REV. CODE ANN.§ 9.02.070(b) (1988)(90 days).

243 410 U.S. at 200.

244 Id.

245 Id.

246 Id.

247 See, e.g., IDAHO CODE § 18-611 (1987); ILL. ANN. STAT. ch. 38, paras. 81-25(2), 81-30 (Smith-Hurd Supp. 1987); IND. CODE ANN. § 35-1-58.5-2(3)(c) (West 1986); Mo. ANN. STAT. §188.052 (Vernon 1983); NEV. REV. STAT. § 442.252 (1985); N.Y. PUB. HEALTH LAW § 4164(3) (McKinney 1985); N.D. CENT. CODE § 14-02.1-07 (1981); OKLA. STAT. ANN. tit. 63, §§ 1-732(B)-(D), -738, -739 (West 1984); R.I. GEN. LAWS§§ 23-4.7-5, -4.8-3(4) (1984); UTAH CODE ANN. § 76-7-313 (Supp. 1987); see abo George, supra note 2, at 444 nn.100-02, 486 n.367.

248 George, supra note 2, at 486 n.368.

249 Id. at 487 n.370.

250 Id. at 487 n.369.

251 See, e.g., DEL. CODE ANN. tit. 24, § 1790(c) (1987); GA. CODE ANN. § 16-12-141(d) (1984); KAN. STAT. ANN. § 65-445 (1985); KY. REV. STAT. ANN. § 213.055 (Michie/Bobbs-Merrill 1982); MD. HEALTH-GEN. CODE ANN. § 20-208(c) (1987); N.M. STAT. ANN. § 24-14-18 (1981); N.Y. PUB. HEALTH LAW§ 4164(3); N.C. GEN. STAT. § 14-45.1(c) (1987); N.D. CENT. CODE § 14-02.1-07; UTAH CODE ANN. § 26-2-23(3) (1984); VA. CODE ANN. § 32.1-264 (1982 & Supp. 1987); see also George, supra note 2, at 487 n.371.

252 See, e.g., CAL. HEALTH & SAFETY CODE§§ 429.50(3), 25955.5 (West 1984); ILL. ANN. STAT. ch. 38, para. 81-30; IND. CODE ANN. § 35-1-58.5-3 (West 1986); MASS GEN. L.ch. 112, § 12R (1983); MICH. COMP. LAWS ANN. § 333.2835 (West 1980); Mo. ANN. STAT. § 188.052; NEB. REV. STAT. § 28-343 (1985); S.D. CODIFIED LAWS ANN. § 34-23A-19 (1986); TENN. CODE ANN. § 39-4-201(c) (3) (1982); UTAH CODE ANN. § 76-7-313; see abo George, supra note 2, at 487& n.372.

253 ME. REV. STAT. ANN. tit. 22, § 1596(2) (1980); MONT. CODE ANN. §50-20-106(2) (1987); OHIO REV. CODE ANN. § 3701.34.1(2) (Anderson 1980); OKLA. STAT. ANN. tit. 63, § 1- 738; S.C. CODE ANN. § 44-41-60 (Law. Co-op. 1985); WYO. STAT. § 35-6-107 (1987).

254 See, e.g., CAL. HEALTH & SAFETY CODE§ 25955.5; KY. REV. STAT. ANN. §211.027 (Michie/Bobbs-Merrill 1982); MINN. STAT. ANN. § 145.413. (West Supp. 1988); NEV. REV. STAT. § 442.260(2) (1985); see abo George, supra note 42, at 444 nn;100-02.

255 See, e.g., ARK. CODE ANN. § 20-18-603 (B)(3) (Supp. 1987); CAL. HEALTH & SAFETY CODE § 25955.5; DEL. CODE ANN. tit. 24, § 1790(c) (1987); GA. CODE ANN.§ 16-12-141(d); KAN. STAT. ANN. § 65-445; ME. REV. STAT. ANN. tit. 22, § 1596(2); MD. HEALTH-GEN. CODE ANN.§ 20-208(c); MICH. COMP. LAWS ANN. § 333.2835 (3) (West 1980); MINN. STAT. ANN. § 145.413; Mo. ANN. STAT. §§ 188.055(2), 188.070 (Vernon 1983); NEB. REV. STAT. § 28-343; N.M. STAT. ANN.§ 24-14-18(B) (1986); N.C. GEN. STAT. § 90-14(A)(2) (1985); N.D. CENT. CODE § 14.02.1-07(2)(a) (1981); S.C. CODE ANN.§ 44-41-60; S.D. CODIFIED LAWS ANN. § 34- 23A-19 (1986); TENN. CODE ANN. § 68-3-505 (1983); UTAH CODE ANN.§ 76-7-313; WYO. STAT. §35-6-107.

256 Thornburgh v. American College of Obstetricians, 476 U.S. 747, 766 (1986) (citing Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 80 (1976)):

257 George, supra note 2, at 488; see also Thornburgh, 476 U.S. at 766.

258 Ford, , The Evolution of a Constitutional Right to Abortion: Fashioned in the 1970's and Secured in the 1980's, 4 J. LEG. MED. 271, 287 (1983)Google Scholar (citing Danforth, 428 U.S. at 80-81).

259 See, e.g., ALASKA STAT. § 18.16.010(c ); ARK. CODE ANN. § 41-2551 (1977); COLO. REV. STAT.§ 18-6-102 (1986); DEL. CODE ANN. tit. 24, § 1790(a) (1987); D.C. CODE ANN. § 22-201 (1981); FLA. STAT. ANN. § 390.001(1 0) (West 1986); GA. CODE ANN. § 16-12-140(a) (1984);. IDAHO CODE§§ 18-605, -606 (1987); ILL. ANN. STAT. ch. 38, para. 81-22(6) (Smith-Hurd Supp.; 1986); IND. CODE ANN. §§ 35-1-58.5-2, -4 (West 1986); IOWA CODE ANN. § 707.7 (West 1987); KAN. STAT. ANN.§ 21-3407 (1987); KY. REV. STAT. ANN. §§ 311.750, .760(2) (Michie/Bobbs- Merrill 1983); LA. REV. STAT. ANN. § 37:1285(8) (West Supp. 1986); ME. REV. STAT. ANN. tit. 22, § 1598(3)(B) (1980); MD. HEALTH-GEN. CODE ANN. § 20-210(a)(3) (1987); MASS. GEN. L. ch. 112, §§ 12L, 12M, 12N (1983); MINN. STAT. ANN. § 145.412(1) (West Supp. 1987); Mo. ANN. STAT. § 188.080 (Vernon 1983); MONT. CODE ANN. § 50-20-109 (1983); NEB. REV. STAT. §28-335 (1985); NEV. REV. STAT. §442.250(1) (1985); N.M. STAT. ANN.§ 30-5-1(C) (1984); N.Y. PENAL LAW § 125.05(5) (McKinney 1987); N.C. GEN. STAT. §§ 14-44, 14-45.1(a), (b) (1986); N.D. CENT. CODE § 14-02.1-04(5) (1981); OKLA. STAT. ANN. tit. 63, § 1-731(A) (West 1984); S.C. CODE ANN. § 44-41-20 (Law. Co-op. 1985); S.D. CODIFIED LAWS ANN. § 34-23A-2 (1986); TENN. CODE ANN. § 39-4-201(c) (1987); UTAH CODE ANN. § 76-7-302(1) (1978); VA. CODE §§18.2-72-18.2-74.1 (1982); WASH. REV. CODE ANN. §9.02.070 (1988); Wis. STAT. ANN. § 940.04(5)(a) (West 1982); WYO. STAT. § 35-6-111 (1977).

260 George, supra note 2, at 496-97.

261 Id. at 497.

262 Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 451-52 (1983); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 81-84 (1976).

263 See, e.g., ALA. CODE § 13A-13-7 (1982 & Supp. 1987); ARK. CODE ANN. § 5-61-101 (1987); CAL. PENAL CODE § 274 (West 1970 & 1988); DEL. CODE ANN. tit. 11, § 654 (1987); D.C. CODE ANN. § 22-201; IDAHO CODE §§ 18-605, 18-608 (1987); ILL. ANN. STAT. ch. 38, para. 81-22(4); LA. REV. STAT. ANN. § 14:87(1) (West 1986); ME. REV. STAT. ANN. tit. 22, § 1598(1), (3) (1980 & Supp. 1986); MASS. GEN. L. ch. 272, § 19 (1970 & Supp. 1987); MICH. COMP. LAWS ANN. § 750.14 (1968 & Supp. 1987); Miss. CODE ANN. § 97-3-3(1) (1972); NEV. REV. STAT. § 201.120(1) (1983); N.M. STAT. ANN. § 30-5-3 (1984); N.Y. PENAL LAW § 125.05(3) (McKinney 1987); OKLA. STAT. ANN. tit. 21, § 861 (West 1983); S.C. CODE ANN. § 44-41-80(a) (Law. Co-op. 1985); TENN. CODE ANN. 39-4-201(a)(l), (2) (1982 & Supp. 1987); VT. STAT. ANN. tit. 13, § 101 (1974 & Supp. 1987); VA. CODE § 18.2-71 (1982); WASH. REV. CODE ANN. § 9.02.060 (1988).

264 See, e.g., ALA. CODE § 13A-13-7; ALASKA STAT. § 18.16.010 (1986); ARK. CODE ANN. § 5-61-101; COLO. REV. STAT. § 18-6-102(1) (1986); DEL. CODE ANN. tit. 11, § 651 (1987); IDAHO CODE § 18-605; IND. CODE ANN.§ 35-l-58.5-l(b) (West 1986); IOWA CODE ANN. §707.7; KAN. STAT. ANN. §21-3407(1) (Supp. 1988); KY. REV. STAT. ANN.§ 311.720(1) (Michie/Bobbs-Merrill 1983 & Supp. 1986); ME. REV. STAT. ANN. tit. 11, §§ 1596(a)(A), 1598(2A) (1980 & Supp. 1986); MASS. GEN. L. ch. 112, § 12K (1983 & Supp. 1987); MINN. STAT. ANN.§ 145.412 (West Supp. 1987); Miss. CODE ANN. § 97-3-3(1) (1973 & Supp. 1987); Mo. ANN. STAT. §§ 188.015(1), .020 (Vernon 1983 & Supp. 1988); MONT. CODE ANN. §§ 50- 20-104(4), -109 (1987); NEB. REV. STAT. § 28-336 (1985); N.H. REV. STAT. ANA.∼§§ 585:12, :13 (1986); N.M. STAT. ANN. § 30-5-3; N.C. GEN. STAT.§ 14-44, -45 (1986); N.D. CENT. CODE § 14- 02.1-04 (1981 & Supp. 1987); R.I. GEN. LAWS § 11-23-5 (1981); S.C. CODE ANN.§ 44-41-10(a) (Law. Co-op. 1985); S.D. CODIFIED LAWS ANN.§§ 34-23A-l(l), -3, -4 (1977); TENN. CODE ANN. § 39-4-201(a)(1) ; UTAH CODE ANN. § 76-7-302 (1978 & Supp. 1987); VA. CODE ANN.§ 18.2- 71; WASH. REV. CODE ANN. § 9.02.010(1) (1988); WYO. STAT. § 35-6-102 (1977).

265 See, e.g., CAL. PENAL CODE § 274, D.C. CODE ANN. § 22-201; ILL. ANN. STAT. ch. 38, para. 81-22(4); LA. REV. STAT. ANN. § 14:87(2) (1986); NEV. REV. STAT.§ 201.120(1); N.Y. PENAL CODE § 125.05(2) (McKinney 1987); OKLA. STAT. ANN. tit. 21, § 861; S.C. CODE ANN. § 44-41-80( a); VT. STAT. ANN. tit. 13, § 101.

266 See, e.g., ARK. CODE ANN. §§ 5-61-101; DEL. CODE ANN. tit. 24, § 1790(b)(1) (1987); IOWA CODE ANN.§ 707.7; ME. REV. STAT. ANN. tit. 22, § 1598(4) (1980 & Supp. 1986); NEV. REV. STAT. § 442.250(b)-(c) (1985); N.H. REV. STAT. ANN. § 585:13 (1986); N.Y. PENAL LAW § 125.45 (McKinney 1987); N.C. GEN. STAT. § 14-44; R.I. GEN. LAWS § 11-23-5; WASH. REV. CODE ANN. § 9.02.070 (1988).

267 All state statutes, supra notes 263-66, carry felony penalties except: Alabama, Alaska (only a misdemeanor), Illinois, Maine, New Hampshire and Washington.

268 Social Security Amendments of 1965, Pub. L. No. 83-97, §§ 1901-09, 79 Stat. 286, 343-52 (1965)(codified as amended at 42 U.S.C. §§ 1396a-1396k (1982)).

269 Social Security Act, ch. 531, 49 Stat. 620 (1935)(codified as amended at 42 U.S.C. §§301-1397f (1982)).

270 42 U.S.C. § 1396.

271 Id. State reimbursement for medical costs of the “categorically needy” is mandatory once the state has chosen to participate in the Medicaid program. The “categorically needy” include families eligible for financial assistance under the Aid to Families with Dependent Children Program, 42 U.S.C. § 601 (1982), and the aged, blind and disabled who qualify for the Supplemental Security Income Program, 42 U.S.C. § 1381 (1982). A state also has the option to supplement its Medicaid plan to include the medically needy. 42 U.S.C. § 1396a (a)(10)(C) (1982). Examples of the medically needy include individuals under the age of twenty-one, sixty-five years of age or older, blind, eighteen years of age or older and permanently and totally disabled and pregnant women, who are not deemed categorically needy and whose income and resources are insufficient to meet the cost of inpatient hospital services, outpatient hospital services, laboratory and x-ray services, prenatal care and delivery services. 42 U.S.C. § 1396d.

272 42 U.S.C. § 1396.

273 42 U.S.C. § 1396a (a)(17). “Medical assistance” refers to payment of all or part of the cost of inclusively described healthcare services for those eligible for assistance whose income and resources are insufficient to meet all of such cost. 42 U.S.C. § 1396d(a).

274 McRae v. Califano, 491 F. Supp. 630, 639 (E.D.N.Y. 1980); see 42 U.S.C. § 1396d(b).

275 410 U.S. 113 (1973).

276 The Amendment in its original form provided: “[n]one of the funds contained in this Act shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term.” Act of Sept. 30, 1976 Pub. L. No. 94-439, § 209, 90 Stat. 1418, 1434.

Congress since has changed the parameters of this funding restriction, either by amendment to the annual appropriations bill for the Department of Health, Education and Welfare (which has been reorganized and divided into the Department of Health and Human Services and the Department of Education) or by joint resolution.

Subsequent Hyde Amendments provided federal funds for necessary medical procedures when the individual is the victim of rape or incest and the incident has been reported promptly to a law enforcement agency or public health service or when two physicians have determined that severe and long-lasting physical health damage would result to the mother. Act of Nov. 20, 1979 Pub. L. No. 96-123, § 109, 93 Stat. 923, 926.

The most recent Hyde Amendment provides that federal funds shall not be used for abortions except where the life of the mother would be endangered if the fetus were carried to term. Act of Dec. 12, 1985 Pub. L. No. 99-178, § 204, 99 Stat. 1102, 1119. This version is the same as the original Hyde Amendment enacted in 1976.

277 Nontherapeutic abortions also are referred to as elective abortions, and therapeutic abortions also are referred to as medically necessary abortions.

278 Social Security Amendment of 1965, Pub. L. No. 89-97, §§ 1901-09, 79 Stat. 286, 343-52 (1965)(codified as amended at 42 U.S.C. §§ 1396a-1396k (1982)).

279 For discussion of the Hyde Amendment, see supra note 276.

280 “A participating State is free, if it so chooses, to include in its Medicaid plan these medically necessary abortions for which federal reimbursement is unavailable. We hold only that a State need not include such abortions in its Medicaid plan.” Harris v. McRae, 448 U.S. 197, 311 n.16 (1980), reh'g denied, 448 U.S. 917 (1980)(emphasis added)(citation ommitted).

281 See, e.g., MINN. STAT. ANN.§ 256B.02 (West 1982); Mo. ANN. STAT. § 208.152 (Vernon 1983).

282 See, e.g., Doe v. Maher, 40 Conn. Supp. 394, 515 A.2d 134 (1986)(administrative regulation struck down pursuant to, inter alia, the Connecticut Equal Rights Amendment); Committee to Defend Reproductive Rights v. Myers, 29 Cal. 3d 252, 172 Cal. Rptr. 866, 625 P.2d 779 (1981)(state funding restriction struck down as violative of explicit right of privacy amended to the California Constitution).

283 See, e.g., Hodgson v. Board of County Comm'rs, 614 F.2d 601 (8th Cir. 1980)(Minnesota statutory scheme which only finances abortions contemplated by the Hyde Amendment held to be unconstitutional in violation of the equal protection clause of the constitution); Doe v. Busbee, 471 F. Supp. 1326 (N.D. Ga., 1979) (Georgia's state plan for medical assistance which denied medically necessary abortions to eligible persons held to be unconstitutional).

284 Maker, 432 U.S. at 474; McRae, 448 U.S. at 317.

285 432 U.S. 464 (1977).

286 Id. at 478-80.

287 448 U.S. 297 (1980).

288 Id. at 316-18.

289 See, e.g., CAL. CONST, art. 1, § 1 (explicitly guarantees a right to privacy); CONN. CONST. art. 1, § 20 (amended by art. V (1974)(guarantees equal protection).

290 410 U.S. 113 (1973).

291 Maher, 432 U.S. at 479.

292 “[I]t was generally estimated that by 1976 there were approximately 250,000 to 300,000 federally funded abortions annually.” McRae v. Califano, 491 F. Supp. 630, 640 (E.D.N.Y. 1980).

293 432 U.S. 464 (1977). Maher was decided on the same day as Beal v. Doe, 432 U.S. 438 (1977). In Beal, the Court responded to a statutory challenge to a Pennsylvania regulation, and held that Title XIX does not require the funding of nontherapeutic abortions as a condition of participation in the Medicaid program. Id. at 446. Women who were eligible for medical assistance under Pennsylvania's Medicaid plan were denied financial assistance for desired abortions pursuant to Pennsylvania's regulations limiting such assistance to those abortions that physicians certify as medically necessary. The women failed to furnish the required certificates.

In Maher, two indigent women were unable to obtain a physician's certificate of medical necessity as required by a Connecticut Welfare Department regulation that limited state Medicaid benefits for first trimester abortions to those that are medically necessary. One woman had obtained an abortion, but the Connecticut hospital subsequently was denied reimbursement; the hospital, therefore, was pressing her to pay the bill. The other woman was unable to obtain an abortion because her physician refused to certify the procedure.

Thus, in Beal v. Doe, the Court held that the Medicaid statute does not require the funding of nontherapeutic abortions as a condition of participation in the Medicaid program. As a result of its decisions in Beal, the Court in Maker was faced with the issue of whether the Constitution, in addition to the Medicaid statute, also did not require a participating state to pay for nontherapeutic abortions when it pays for childbirth expenses. Maker, 432 U.S. at 465-66.

294 CONNECTICUT WELF. DEP'T, 3 PUBLIC ASSISTANCE PROGRAM MANUAL, ch. 111, § 275 (1975). “The Department makes payment for abortion services under the Medical Assistance (Title XIX) Program when the following conditions are met: 1. In the opinion of the attending physician the abortion is medically necessary … .” Id. at § 275, n.2.

295 Maher, 432 U.S. at 467. The women also challenged the regulation as inconsistent with the requirements of Title XIX and as violative of the fourteenth amendment's guarantee of due process. Id.

296 Id. at 468; see also Doe v. Wohlgemuth, 376 F. Supp. 173, 191 (1974).

297 Maher, 432 U.S. at 478. Under the traditional two-tier equal protection approach described in San Antonio Indep. School Dist. v. Rodriguez:

411 U.S. 1, 17 (1973).

298 The protected activity referred to is the right to make reproduction decisions free from state interference. Other examples of protected activities include the right of parents to direct the upbringing and education of their children, , Pierce v. Society of Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510 (1925)Google Scholar; the right to travel, Aptheker v. Secretary of State, 378 U.S. 500 (1964); and the freedom to marry regardless of race, Loving v. Virginia, 388 U.S. 1 (1967).

299 Maher, 432 U.S. at 474. The Court distinguished the nature of the state's action in Roe v. Wade from that in Maher. Roe involved a Texas law which made it a crime to procure or attempt to procure an abortion. The Court viewed this law as an impermissible interference with a pregnant woman's decision to terminate her pregnancy. According to the Court, the Texas law directly prohibited a woman from obtaining an abortion. The Court, on the other hand, viewed the Connecticut regulation in Maher as an indirect interference, inasmuch as it merely denied public financing for abortions. Cf. Buckley v. Valeo, 424 U.S. 1 (1976)(public financing of the Federal Election Campaign Act).

300 Maher, 432 U.S. at 474.

301 Id. at 469. Justice Brennan, in his dissent, stated, however, that:

Beal v. Doe, 432 U.S. 438, 451 (1977)(asserting that the legislative history of Title XIX and the Court's abortion cases compel the conclusion “that elective abortions constitute medically necessary treatment for the condition of pregnancy.” Since pregnancy is a condition requiring medical services, and abortion and childbirth are simply two alternative medical methods for dealing with this condition, it should be that either all of the procedures relating to the condition of pregnancy constitute medically necessary services or that none of these procedures do).

302 Maher, 432 U.S. at 474.

303 Id.

304 See Roe v. Wade, 410 U.S. 113, 117 (1976).

305 Maher, 432 U.S. at 478-79. Justice Brennan, however, stated in his dissent that “[s]ince only the first trimester of pregnancy is involved in this case ….” the state's interest in protecting the potential life of the fetus “is totally foreclosed if the Court is not overruling the holding of Roe v. Wade “ Id. at 489-90.

306 See id. at 480; accord Beal, 432 U.S. at 447.

307 Beal 432 U.S. at 479.

308 47 N.C. App. 209, 267 S.E.2d 335 (1980).

309 Id. at 210, 267 S.E.2d at 338.

310 Id. The State Abortion Fund created for fiscal year 1978-79 by 1977 Sess. Laws (2d Sess.), ch. 1136 appropriated 1 million for reimbursement of elective abortions. Administration of the fund was regulated by N.C. ADMIN. CODE, tit. 10, r. 42W.0001(3) which provided only for the reimbursement of abortions occurring in the first twenty weeks of pregnancy. N.C. ADMIN. CODE, see tit. 10, r. 42W.0001 (1988); Stam, 47 N.C. App. at 210-11, 267 S.E.2d at 338.

311 Stam, 47 N.C. App. at 213, 267 S.E.2d at 338. N.C. CONST, art. 1, § 1, provides: We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labors, and the pursuit of happiness.

N.C. CONST, art. 1, § 19, provides, in part:

Law of the land; equal protection of the laws. No person shall be taken, imprisoned or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.

312 Stam, 47 N.C. App. at 214, 267 S.E.2d at 340.

313 Id. at 216, 267 S.E.2d at 341.

314 Id. at 215, 267 S.E.2d at 340 (citing State v. Slagle, 82 N.C. 653, aff'd, 83 N.C. 630 (1880) (“It is not the murder of a living child which constitutes the offence (sic) but the destruction of gestation ….” Slagle, 83 N.C. at 632.)).

315 Id. (citing 1881 N.C. Sess. Laws, ch. 351, § 1).

316 Id. The North Carolina Court of Appeals noted that at common law, an unborn child could take property by will, though not by deed. Id. The right of the unborn to take by deed was changed by N.C. REV. CODE, ch. 43, § 4 (1854), which provided that an unborn infant “shall be deemed a person capable of taking by deed or other writing, any estate whatever in the same manner as if he were born.” Stam, 47 N.C. App. at 215, 267 S.E.2d at 341.

Discussing the modern successor to this statute, the North Carolina Supreme Court declared that this statute operated by a legal fiction, imputing a legal personality on an unborn child. Id. at 216, 267 S.E.2d at 341 (citing Mackie v. Mackie, 230 N.C. 152, 154-55, 52 S.E.2d 352, 354 (1949)).

The North Carolina Court of Appeals held this legal fiction to require that, as a condition precedent to the exericse of any property rights conferred on the unborn, the fetus be born alive. Id. at 216, 267 S.E.2d at 341.

317 Id. at 217, 267 S.E.2d at 341. “If the word ‘person’ in article I, §§ 1 and 19 were now broadened in meaning to include the fetus … [it] could be protected from state funding of abortions but… could not be protected in any manner inconsistent with the mother's right in Roe [v. Wade].” Id. The Court in Roe v. Wade found that a fetus is not included in the definition of the word “person” in the fourteenth amendment. See Roe v. Wade, 410 U.S. 113, 158 (1973).

318 Stam, 47 N.C. App. at 218, 276 S.E.2d at 342.

319 Id. at 223, 267 S.E.2d at 344.

320 289 Md. 620, 426 A.2d 908 (1981).

321 Id. at 622, 426 A.2d at 910.

322 MD. ANN. CODE art. 43, § 42(a)(1957 & 1980 Repl. Vol.) provides, in part: “(1) The Secretary of Health and Mental Hygiene shall administer a program of comprehensive medical and other care in the State for indigent and medically indigent persons, or either of those classes.” Kindley, 289 Md. at 623 n.1, 426 A.2d at 910 n.1.

323 Kindley, 289 Md. at 623, 426 A.2d at 910.

324 Id.; MD. ANN. CODE art. 27, § 3 (1957 & 1967 Repl. Vol.)(repealed by 1968 MD. LAWS ch. 470), denned all abortions as crimes unless the fetus was dead, or one or more physicians determined that no other treatment could secure the safety of the mother. Kindley, 289 Md. at 624,426 A.2d at 911.

325 Kindley, 289 Md. at 624, 426 A.2d at 911.

326 Id.

327 Id. at 624-25, 426 A.2d at 911.

328 Id. at 625, 426 A.2d at 911.

329 Id. (citing 2A A. SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION, § 49.01 (C. Sands ed. 4th ed. 1973)).

330 Id. at 626, 426 A.2d at 912 (citing 3 A. SUTHERLAND, supra note 329, at § 71.08 which states that construction of legislation for the relief of the poor “should at all times be liberally interpreted so that the undesirable social effects resulting from the neglect of the poor may be eliminated“).

With this guidance, the court found that defining “medical and other care” as narrowly as appellants urged was inconsistent with reasonable statutory construction. “[H]ealth care which is not medically necessary to treat a clinically diagnosable illness may still be deemed not only socially desirable but necessary to the well being of the patient, his family and society.” Id. at 627, 426 A.2d at 912.

331 Id. at 627-28, 426 A.2d at 913. The Maryland court noted as support Justice Blackmun's opinion in Roe v. Wade where he acknowledged that economic, familial, sociological and emotional factors were appropriate considerations to help a woman make her protected choice. Id. (citing Roe v. Wade, 410 U.S. at 153).

332 Id. at 629-30, 426 A.2d at 914 (citing MD. CODE, art. 43, § 42(a)(1957 & 1980 Repl. Vol.)).

333 Id. at 634, 426 A.2d at 916. The court also concluded that the plaintiffs’ additional allegation that the legislative appropriations were illegal was moot since the 1978 Budget Acts had expired. They requested no economic remedy with respect to funds already spent, and the allegation did not involve a reocurring issue. Id. at 630-31, 426 A.2d at 914-15.

334 297 Or. 562, 687 P.2d 785 (1984)(en banc).

335 The challenged administrative rule, OR: ADMIN. R. 461-14-052 (1984) provided:

• (1) Payment will not be made for elective abortions performed except under the following conditions:

• (a) Cases in which a physician, on the basis of his or her professional judgment, has certified in writing that the abortion is necessary because the life of the woman would be endangered if the fetus were carried to term.

• (b) Cases other than in subsection (a) of this section:

• (A) Payment may be made for one (1) elective abortion (in addition to an abortion in subsection (a) of this section) if the woman is 18 years of age or older and was receiving maintenance assistance from Oregon at the time determined by a physician that the conception occurred. Payment may not be made under this paragraph if payment for an abortion has been made under paragraph (B) of this subsection.

• (B) Payment may be made for two (2) elective abortions (in addition to an abortion listed under subsection (1)(a) of this rule) if the woman is 17 years of age or younger at the time determined by a physician that conception occurred and is otherwise eligible for medical assistance in Oregon.

• (2) Payment will not be made for elective abortions, unless prior authorized by the Division.

• (3) Payment for elective abortions will be limited to abortions performed in a physician's office, clinic or outpatient surgery setting unless the physician specifically requests and justifies the need for hospitalization.

  Planned Parenthood, 297 Or. at 565-66, 687 P.2d at 787-88 (citing OR. ADMIN. R. 461-14-052 (1984)).

336 Id. at 567, 687 P.2d at 788.

337 OR. CONST, art. I, § 20. This article provides: “[N]o law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.“

338 planned Parenthood Ass'n v. Dep't of Human Resources, 63 Or. App. 41, 59-62, 663 P.2d 1247, 1259-61 (1983). “[T]he Oregon Supreme Court, in analyzing Article I, § 20 claims, has eschewed the federal approach of categorizing an interest as ‘fundamental’ or ‘nonfundamental’ and has instead employed a ‘balancing test’ wherein the court weighs the detriment caused to plaintiff by a particular classification against the state's ostensible justification for the classification.” Id. at 58, 663 P.2d at 125 (quoting Cooper v. Oregon School Activities Ass'n, 52 Or. App. 425, 433, 629 P.2d 386, 393 (1981)).

The balancing test approach is significant since it enables the court to evaluate the dispute without the burden of finding fundamental rights, suspect classifications or compelling state interests. Notably, the Oregon Court of Appeals balanced the state's asserted justification of the challenged regulation against a woman's right to health rather than against a woman's protected right to make procreative choices. The framing of the dispute in this manner stems from the flexibility of the balancing test. In this instance, it permits a woman's right to health, which is not generally recognized as a fundamental interest, to be evaluated at a higher level of scrutiny than would be applied under the rigid federal two-tier equal protection analysis. See Relkin & Solomon, Using State Constitutions to Expand Public Funding for Abortions — Throwing Away the Carrot with the Stick, 9 WOMEN's RTS. L. REP. 27, 49 (1986).

339 297 Or. at 564, 687 P.2d at 787.

340 The court followed the principle that constitutional issues should not be decided where an adequate statutory basis for the decision exists. Id. (citing Douglas County v. Briggs, 286 Or. 151, 593 P.2d 1115 (1979)).

341 Id.

342 Id. at 565-72, 687 P.2d at 787-91. OR. REV. STAT.§ 414.042 (1987) provides the following standards:

• (1) the need for and the amount of medical assistance to be made available shall be determined … taking into account:

• (a) the requirements and needs of the person, his spouse and other dependents;

• (b) the income, resources and maintenance available to the person;

• (c) the responsibility to the spouse and, with respect to a person who is blind, or is permanently and totally disabled, or is under the age of 21 years, the responsibility of the parents; and,

• (d) the conditions existing in each case.

Id. at 571, 687 P.2d at 791.

343 Id. at 573, 687 P.2d at 792.

344 Id.

345 Id.; see OR. ADMIN. R.461-14-052(1)(b)(B), supra note 335.

346 See OR. REV. STAT. § 414.042 (1987) supra note 342.

347 Planned Parenthood, 297 Or. at 574, 687 P.2d at 792-93.

348 McRae, 448 U.S. 297. Note that in Beal v. Doe, 432 U.S. 438 (1977), the Court alluded to the questionable validity of the Hyde Amendment, in stating that although serious statutory questions might arise if a state Medicaid plan excluded necessary medical treatment from its coverage, the exclusion of unnecessary medical services coincides with the objectives of the Act. Id. at 444.

349 Act of Nov. 20, 1979 Pub. L. No. 96-123, § 109,93 Stat. 923, 926. This version of the Hyde Amendment is broader than the current version which provides that federal funds shall not be used for abortions except where the life of the mother would be endangered if the fetus were carried to term. Act of Dec. 12, 1985 Pub. L. No. 99-178, § 204, 99 Stat. 1102, 1119.

350 McRae, 448 U.S. at 304-05.

351 Id. at 307.

352 Id. at 311. The plaintiffs asserted that the Hyde Amendment violates the establishment clause of the first amendment because the Amendment incorporates Roman Catholic doctrine regarding the “sinfulness of abortion.” Id. at 318-19. The Court rejected the plaintiffs’ assertions, and held that the Hyde Amendment does not violate the establishment clause because the legislative purpose of the Amendment is.secular. The Court stated that a statute “does not violate the establishment clause because it a happens to coincide or harmonize with the tenets of some or all religions.” Id. at 319 (quoting McGowan v. Maryland, 366 U.S. 420, 442 (1961)). The Court further stated that “a legislative enactment does not contravene the establishment clause if it has a secular legislative purpose, if its principal or primary effect neither advances nor inhibits religion, and if it does not foster an excessive governmental entanglement with religion.” Id. at 319 (quoting Committee for Pub. Educ. & Relig. Liberty v. Regan, 444 U.S. 646, 653 (1980)).

353 McRae, 448 U.S. at 308-09; see supra note 271 and accompanying text.

354 McRae, 448 U.S. at 308.

355 Id. at 309.

356 Id. at 310. The Court relied on the decisions of various circuits, which had previously held that the Amendment altered Title XIX, thus relieving states of the obligation to fund abortions. See Roe v. Casey, 623 F.2d 829 (3rd Cir. 1980)(Hyde Amendment caused substantial modification to Medicaid Act by restricting state funding of abortions to circumstances where mother is endangered and where pregnancy was result of rape or incest); Reproductive Health Serv. v. Freeman, 614 F.2d 585 (8th Cir. 1980) (Missouri's Medicaid exclusion for therapeutic non-Hyde Amendment abortions is invalid under the equal protection clause); Hodgson v. Board of Com'rs, County of Hennepin, 614 F.2d 601 (8th Cir. 1980)(Hyde Amendment had altered trie Medicaid Act with result that, as a statutory matter, Minnesota need only finance those abortions contemplated by Hyde Amendment, but such state statutory scheme would be unconstitutional as being in violation of the equal protection clause.); Zbaraz v. Quern, 596 F.2d 196 (7th Cir. 1979)(Hyde Amendment was intended to amend Medicaid Act in regard to abortions, and thus, states are not required to provide Medicaid funding for abortions other than those covered by the Hyde Amendment); Preterm, Inc. v. Dukakis, 591 F.2d 121 (1st Cir. 1979) (the Medicaid Act, to the extent of its repugnancy with the Hyde Amendment, was altered by the Amendment); contra Planned Parenthood Affiliates of Ohio v. Rhodes, 477 F. Supp. 529 (S.D. Ohio 1979)(court held that the Hyde Amendment did not implicitly repeal any provisions of the Medicaid Act and exclusive state funding, through a statute which placed limits on the use of public funds of medically necessary abortions, would not be repugnant to the basic policy of the Medicaid system).

357 The plaintiffs claimed that the Amendment violated the “liberty” protected by the due : process clause as recognized in Roe v. Wade, 410 U.S. 113 (1973), and its progeny, specifically the freedom of personal choice in certain matters of marriage and family life, which included • the freedom to decide whether to have an abortion. McRae, 448 U.S. at 312.

358 McRae, 448 U.S. at 315-18.

359 Id. at 316, 318 (“[i]t cannot be that because government may not prohibit the use of contraceptives, or prevent parents from sending their child to a private school, government has an affirmative duty to [fund] ….“)(citations omitted).

Commentators have argued that the legally-imposed barriers to funding will hinder a woman's ability to exercise self-determination. Law, , Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 1017 (1984)Google Scholar.

Karst, , The Supreme Court 1976 Term, Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 58 (1977)Google Scholar, quotedin Law,supra, at 1017. Furthermore, according to Professor Laurence Tribe, until the government assures women that they can have autonomy in making reproductive decisions, including the right to abort, the government continues to promote “a system of relationships repugnant to our constitutional values.” Tribe, , The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence, 99 HARV. L. REV. 330, 335 (1985)Google Scholar.

360 McRae, 448 U.S. at 318.

361 Id. at 321-22.

362 Id.

363 Id. at 322; see supra note 297.

364 McRae, 448 U.S. at 322. If the Hyde Amendment constituted an infringement of a fundamental right, the Court would have subjected the Amendment to a strict scrutiny analysis. Under the analysis the Amendment would be reviewed to determine if its enactment was necessary in order to promote a compelling state interest. The Court, furthermore, stated, “we cannot, in the name of the Constitution, overturn duly enacted statutes simply ‘because they may be unwise, improvident or out of harmony with a particular school of thought'.” Id. at 326 (citing Williamson v. Lee Optical, 348 U.S. 483, 488, quoted in Dandridge v. Williams, 397 U.S. 471,484 (1970)).

365 Id. at 325; see text accompanying notes 275-284.

366 29 Cal. 3d 252, 172 Cal. Rptr. 866, 625 P.2d 779 (1981).

367 Id. at 256, 172 Cal. Rptr. at 867, 625 P.2d at 780. Both the trial court and the court of appeals issued writs staying'enforcement of the challenged budgetary provisions pending appeal to the California Supreme Court. During the pendency of the appeal, the California Legislature enacted Budget Acts of 1979 and 1980, each of which contained restrictions similar to those in the 1978 Budget Act. The plaintiffs subsequently challenged each. Id. at 258- . 60, 260 n.2, 172 Cal. Rptr. at 869-70, 862 n.2, 625 P.2d at 782-83, 782 n.2. Since the Budget Acts of 1978 and 1979 had expired, by the time these matters reached the California Supreme Court the two suits seeking to overturn the restrictions within these expired Acts were technically moot. However, because the 1980 Budget Act was sufficiently similar to raise all the issues raised in the predecessor acts, and because the trial record and briefs were filed from the previous challenges, the California Supreme Court consolidated the separate cases challenging the three similar budget provisions. Id. at 260 n.3, 172 Cal. Rptr. at 870 n.3, 625 P.2d at 783 n.3.

368 Stats. 1978, ch. 359, § 2, item 248; Stats. 1979, ch. 259, § 2, item 261.5; Stats. 1980, ch. 510, § 2, item 287.5. Prior to 1978, the California state Medicaid Program (Medi-Cal) paid for legal abortions obtained by Medi-Cal recipients.

369 Myers, 29 Cal. 3d at 259, 172 Cal. Rptr. at 869, 625 P.2d at 782.

370 Id. at 260, 172 Cal. Rptr. at 870, 625, P.2d at 783.

371 Id. at 261, 172 Cal. Rptr. at 870, 625 P.2d at 783 (citing People v. Brisendine, 13 Cal. 3d 528, 549-51, 119 Cal. Rptr. 315, 329-30, 531 P.2d 1099, 1113-14 (1975)(state courts are independently responsible for safeguarding the rights of their citizens when interpreting state constitutional guarantees)).

372 Id. at 262 n.5, 172 Cal. Rptr. at 871 n.5, 625 P.2d at 784 n.5; CAL. CONST, of 1879, art. 1, § 24 (1972). This Amendment, adopted in 1972, provides that the “[r]ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” CAL. CONST, art. 1, § 24.

373 Myers, 29 Cal. 3d at. 261,172 Cal. Rptr. at 871, 625 P.2d at 784.

374 Article I, § 1, provides: “All people are by nature free and independent and have certain inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety, happiness, and privacy.” CAL. CoNST.art. I, § 1.

375 Myers, 29 Cal. 3d at 262-63, 172 Cal. Rptr. at 871, 625 P.2d at 784 (citing City of Santa Barbara v. Adamson, 27 Cal. 3d 123, 130 n.3, 164 Cal. Rptr. 539, 543 n.3, 610 P.2d 436, 440 n.3 (1980)). Even before the right of privacy was amended to the California Constitution, the California Supreme Court in People v. Belous, 71 Cal. 2d 954, 80 Cal. Rptr. 354, 458 P.2d 194 (1969), broadly interpreted the implied right of privacy by recognizing the right to procreative choice under its constitution four years before the United States Supreme Court acknowledged a comparable right under the federal Constitution. Myers, 29 Cal. 3d at 262, 172 Cal. Rptr. at 871, 625 P.2d at 784.

376 Id. at 264, 172 Cal. Rptr. at 873, 625 P.2d at 786.

377 Id. at 265-66, 172 Cal. Rptr. at 873, 625 P.2d at 786 (quoting Babley v. Washington Hosp. Dist., 65 Cal. 2d 499, 505-07, 55 Cal. Rptr. 401, 403 421 P.2d 409, 411 (1966)).

378 Id. at 271, 172 Cal. Rptr. at 877, 625 P.2d at 790. Section 1400 provides, in part: “[t]he purpose of this chapter is to afford health care and related remedial or preventitive services to recipients of public assistance and to medically indigent aged and other persons … . “ CAL. WEL. & INST. CODE § 14000 (West 1980), quoted in 29 Cal. 3d at 271 n.20, 172 Cal. Rptr. at 877 n.20, 625 P.2d at 790 n.20.

379 Myers, 29 Cal. 3d at 272, 172 Cal. Rptr. at 877, 625 P.2d at 790. The California Supreme Court adopted the findings of the Harris v. McRae trial court, id., which concluded that the challenged restrictions endanger a woman's life by:

1. (1)

   (1) Precluding reimbursement in cases in which the risk of death might induce a physician to recommend abortion but the risk may be insufficient to warrant funding;

2. (2)

   (2) Precluding funding where the potential health damage cannot be characterized as longlasting and severe, irrespective of all mental health concerns.

3. (3)

   (3) Inducing some women to attempt abortion without medical assistance;

4. (4)

   (4) Inducing some women to delay the procedure in order to try and raise the money despite the greater risks of a delayed abortion;

5. (5)

   (5) Inducing some women to carry the fetus to term though medical and psychological considerations counsel otherwise, thereby increasing the risks at childbirth. Id. at 271 n.21, 172 Cal. Rptr. at 877-78 n.21, 625 P.2d at 790-91 n.21 (citing McRae v. Califano, 491 F. Supp. 630 (E.D.N.Y. 1980)).

380 Id. at 279, 172 Cal Rptr. at 882, 625 P.2d at 795.

381 Id. at 273, 172 Cal. Rptr. at 878, 625 P.2d at 791.

382 Id. at 274-75, 172 Cal. Rptr. at 879-80, 625 P.2d at 792-93 (citing People v. Belous, 71 Cal. 2d 954, 963-65, 80 Cal. Rptr. 354, 359-60, 458 P.2d 194, 199-200 (1969); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)).

383 Id. at 276, 172 Cal. Rptr. at 880, 625 P.2d at 793.

384 See id. at 273, 172 Cal. Rptr. at 878, 625 P.2d at 791. It has been widely held that although the protection of potential life is important, it cannot outweigh the health of the woman at any stage of the pregnancy. See, e.g., Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 428 (1983); Roe v. Wade, 410 U.S. 113, 163-65 (1973).

385 Myers, 29 Cal. 3d at 277, 172 Cal. Rptr. at 881, 625 P.2d at 794. The court noted Justice Blackmun's observation that “the cost of [a]n … abortion … holds no comparison whatsoever with the welfare costs that will burden the State for the new indigents and their support in the long, long years ahead.” Id. at 277-78, 172 Cal. Rptr at 881, 625 P.2d at 794 (citing Beal v. Doe, 432 U.S. 438, 463 (1977)(Blackmun, J., dissenting)).

386 Id. at 282, 172 Cal. Rptr. at 884, 625 P.2d at 797.

387 Id. at 283, 172 Cal. Rptr. at 884, 625 P.2d at 797.

388 Id. at 284-85, 172 Cal. Rptr. at 885, 625 P.2d at 798.

389 MASS. GEN. L. ch. 118E, §§ 1-20 (1988). The challenged enactments include: MASS. GEN. L. ch. 29, § 20B; 1979 Mass. Acts, ch. 393, § 2, item 4402-5000.

390 382 Mass. 629, 417 N.E.2d 387 (1981).

391 1979 Mass. Acts ch. 393, § 2, item 4402-5000 provides in part that “no funds appropriated under this item shall be expended for the payment of abortions not necessary to prevent the death of the mother.” Id.

392 Moe, 382 Mass. at 397, 417 N.E.2d at 645. Article I states: “[a]ll people are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.” MASS. CONST, pt. 1, art. I.

Article XII states in part: “[n]o subject shall be … deprived of his property, immunities, or privileges … or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.” MASS. CONST, pt. 1, art. XII.

Article X states, in pertinent part: “[e]ach individual of the society has a right to be protected by it in the enjoyment of his own life, liberty, and property, according to standing laws.” MASS. CONST, pt. 1, art. X; see Wilkins, Judicial Treatment of the Massachusetts Declaration of Rights in Relation to Cognate Provisions of the United States Constitution, 14 SUFFOLK U.L. REV. 887, 909-10 & n.l35 (1980).

393 Moe, 382 Mass. at 639-40, 417 N.E.2d at 394. Issues of subject matter jurisdiction, the adequacy of the remedy at law, and statutory conflict with federal provisions were considered before the court reached the constitutional claims.

Initially, the court affirmed its subject matter jurisdiction, rejecting respondents’ argument that the appropriations power is immune from judicial review. The court then turned to respondents’ contention that since plaintiffs had an adequate remedy at law, by simply suing for reimbursement of performed services, their requested injunctive relief should not be granted. The court found this argument to misperceive plaintiffs’ asserted interest as being reimbursement for rather than availability of abortion services. Finally, the court found no statutory conflict with the federal Medicaid legislation. Id. at 641-45, 417 N.E.2d at 395-97.

394 Id. at 646, 417 N.E.2d at 397. Notably, although the court referred to article X as a due process clause, plaintiffs labeled it an equal protection provision. Relkin & Solomon, supra note 338, at 36 n.42 (citing Plaintiff's Brief at 41-70; Moe, 382 Mass. 629, 417 N.E.2d 387 (1981)).

395 Moe, 382 Mass. at 649, 417 N.E.2d at 399 (citing District Attorney for Suffolk Dist. v. Watson, 381 Mass. 629, 411 N.E.2d 1274 (1980)(invalidating death penalty); Department of Pub. Welf. v. J.K.B., 379 Mass. 1, 393 N.E.2d 406 (1979)(right to court appointed counsel in proceeding to remove child from parents’ custody)).

396 Id. at 654-55, 417 N.E.2d at 402. The court stated that in this area of constitutional rights, the government is not free to “achieve with carrots what [it] is forbidden to achieve with sticks.” Id. (citing L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 15.10, at 933 n.77 (1987)).

397 Id. at 655, 417 N.E.2d at 402 (citing Harris v. McRae, 448 U.S. 297, 333 (1980)(Brennan, J., dissenting)). The court's due process analysis departed from that of the United States Supreme Court in McRae because it found that the protected right was infringed. This finding required a level of scrutiny higher than a mere rational relation analysis. Relkin & Solomon, supra note 338, at 41.

398 Moe, 382 Mass. at 655, 417 N.E.2d at 402 (citing Carey v. Population Serv. Int'l, 431 U.S. 678, 686 (1977)).

399 Id. at 655-56, 417 N.E.2d at 403 (citing Commissioner of Correction v. Myers, 379 Mass. 255, 399 N.E.2d 452 (1979); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977)).

400 Id.

401 91 N.J. 287, 450 A.2d 925 (1982).

402 Id. at 292, 450 A.2d at 927. The challenged statute provides, in part: “[n]o payments for medical assistance shall be made under the act hereby supplemented for the termination of a woman's pregnancy for any reason except where it is medically indicated to be necessary to preserve the woman's life.” NJ. STAT. ANN. 30:4D-6.1 (West 1981).

403 Byrne, 91 N.J. at 292, 450 A.2d at 927. NEW JERSEY CONST, art. 1, par. 1 states: “[a]ll persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” Id.

Plaintiffs based both their due process and equal protection claims on this state constitutional provision. Their due process claim, rejected by the majority, argued that the challanged statute impermissibly burdened the health interests of women seeking therapeutic operations. Justice Pashman, noted: “[I] would affirm [the trial judge]'s ruling that the right to health is fundamental under the State Constitution.” Byrne, 91 NJ. at 319 n.1, 450 A.2d at 941 n.1 (Pashman, J., concurring and dissenting in part). Consequently, Justice Pashman believed the implication of one's fundamental right to health is similar to one's “right to life itself.” Relkin & Solomon, supra note 338, at 45 n.1 18 (citing florae, 91 N.J. at 319, 450 A.2d at 941). The state may not do anything that jeopardizes the health of our citizens unless its actions are necessary to achieve a compelling state interest. Id.

404 Byrne, 91 N.J. at 299-301, 450 A.2d at 931-32 (citing State v. Schmid, 84 NJ. 535, 553, 423 A.2d 615, 625 (1980)); People v. Brisendine, 13 Cal. 3d 528, 550, 119 Cal. Rptr. 315, 329, 531 P.2d 1099, 1113 (1975); see generally Brennan, , State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489 (1979)CrossRefGoogle Scholar.

405 Byrne, 91 N.J. at 305, 450 A.2d at 934. “Indigency is not suspect partly because it is not immutable and can be escaped, and because in a market economy pricing mechanisms that exclude the poor cannot be considered invidious partly because they are necessary to allocate resources efficiently.” Cox, , The Supreme Court - 1979 Term, Foreword: Freedom of Expression in the Burger Court, 94 HARV. L. REV. 1, 98 n.13 (1980)CrossRefGoogle Scholar(citations omitted).

406 Byrne, 91 N.J. at 305-06, 450 A.2d at 934-35. “The right to choose whether to have an abortion … is a fundamental right of all pregnant women, including those entitled to Medicaid reimbursement for necessary medical treatment.” Id. Although the fundamental rights analysis departs from the federal approach, the New Jersey court's strict scrutiny analysis is similar to the federal standard.

407 Id. “By granting funds when life is at risk, but withholding them when health is endangered, the statute denies equal protection to those women entitled to necessary medical services under Medicaid.” Id.

408 Id. at 306-07, 450 A.2d at 935. This notion of government neutrality in the area of abortion funding is attributable to Justice Brennan's statment that “[t]he fundamental flaw in the [United States Supreme] Court's … analysis … is its failure to acknowledge that the discriminatory distribution of the benefits of governmental largesse can discourage the exercise of fundamental liberties just as effectively as can an outright denial of these rights through criminal and regulatory sanctions.” Harris v. McRae, 448 U.S. at 334 (Brennan, J., dissenting).

409 “Where an important personal right is affected by governmental action, [this] Court often requires the public authority to demonstrate a greater ‘public need’ than is traditionally required in construing the federal constitution. This balancing test is particularly appropriate when, as here, the statutory classification indirectly infringes on a fundamental right.” Byrne, 91 N.J. at 309-10, 450 A.2d at 936; Taxpayers Ass'n of Weymouth Township v. Weymouth Township, 80 N.J. 6, 43, 364 A.2d 1016, 1036 (1976). This approach is similar to that of the Oregon Court of Appeals in Planned Parenthood Ass'n v. Department of Human Resources, 63 Or. App. 41, 663 P.2d 1247 (1983). See supra note 338; Relkin & Solomon, supra note 338, at 49.

410 Byrne, 91 N.J. at 310, 450 A.2d at 937 (citing Committee to Defend Reproductive Rights v. Myers, 29 Cal. 3d 252, 172 Cal. Rptr. 866, 625 P.2d 779 (1981)); Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 417 N.E.2d 387 (1981). This conclusion resembles Justice Stevens's dissent in Harris v. McRae, which stated in part, that it “is misleading to speak of the government's legitimate interest in the fetus without reference to the context in which that interest was held to be legitimate. For Roe v. Wade squarely held that States may not protect that interest when a conflict with the interest in a pregnant woman's health exists. It is thus perfectly clear that neither the Federal Government nor the States may exclude a woman from medical benefits to which she would otherwise be entitled solely to further an interest in potential life when a physician, ‘in appropriate medical judgment,’ certifies that an abortion is necessary ‘for the preservation of the life or health of the mother… .’ The [United States Supreme] Court totally fails to explain why this reasoning is not dispositive here.” McRae, 448 U.S. 297, 351-52 (1980)(Stevens, J., dissenting).

411 Byrne, 91 N.J. at 310, 450 A.2d at 937. The court noted, however, that the legitimate state interest in preserving potential life may outweigh the potential adverse effects to a woman electing to have a nontherapeutic abortion. Id. at 307-08 n.6, 450 A.2d at 935-36 n.6.

412 40 Conn. Supp. 394, 515 A.2d 134 (1986).

413 The regulation which never was adopted formally was MANUAL, DEPARTMENT OF INCOME MAINTENANCE MEDICAL ASSISTANCE PROGRAM, ch. 111, § 275 (revised Jan. 22, 1981). It provided, in part, that the Department would pay for abortion service under the Medical Assistance Program only where “the attending physician has certified in writing that the life of the mother would be endangered if the fetus were carried to term.“

414 The Connecticut Equal Rights Amendment (ERA) states: “[n]o person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise, or enjoyment of his or her civil or political rights because of religion, race, color ancestry, national origin, sex, or physical or mental disability.” CONN. CONST, art. 1., § 20.

415 Maher, 40 Conn. Supp. at 394, 515 A.2d at 134.

416 The court determined that the challenged regulation also violated the state's guarantees of due process, CONN. CONST, art. 1, § 10, and equal protection, id. at §§ 1 & 20.

The court balanced the plaintiff's privacy interest under the state's due process clause against the asserted interests of preserving the potentiality of life, encouraging childbirth, safeguarding health, and maintaining medical standards. It found the State's asserted interests insufficient to outweigh the health of the woman at any stage of the pregnancy. “The excepting from the medicaid program of one single medical procedure which is absolutely necessary to preserve the health of the woman … constitutes an infringement of the right of privacy … under the constitution of the state of Connecticut.” Maker, 40 Conn. Supp. at 438, 515 A.2d at 156. “The state has failed to prove that there is any compelling reason to justify [this infringement].” Id at 440, 515 A.2d at 157.

The court then explained that the regulation did not satisfy the state's constitutional requirement of equal protection. “The Connecticut equal protection clause requires the state when extending benefits to keep them ‘free of unreasoned distinctions that can only impede [the] open and equal’ exercise of fundamental rights.” Id. at 442, 515 A.2d at 158 (citing D'Amico v. Manson, 193 Conn. 144, 147, 476 A.2d 543 (1984)(quoting Rinaldi v. Yeager, 384 U.S. 305, 310 (1966))). Since the court found that the regulation financially coerced indigent women to bear children at the risk of their health, it held that this infringement unconstitutionally discriminated on the basis of sex and physical disability. Id. at 443, 515 A.2d at 159.

417 Id. at 443, 515 A.2d at 159.

418 Id. at 443-44, 515 A.2d at 159.

419 Id. at 444 & n.53, 515 A.2d at 159 & n.53. “Pregnancy is a condition unique to women, and the ability to become pregnant is a primary characteristic of the female sex. Thus any classification which relies on pregnancy as the determinative criterion is a distinction based on. sex.” Id. (citing Massachusetts Elec. Co. v. Massachusetts Comm'n Against Discrim., 375 Mass. 160, 167, 375 N.E.2d 1192 (1978)).

420 Id. at 448, 515 A.2d at 161. In determining the proper standard of review, the Connecticut Superior Court first rejected defendants’ contention that the Connecticut equal rights amendment (ERA) should carry the same meaning and limitation as the equal protecton clause of the United States Constitution, thereby resulting in a rational relation analysis pursuant to Harris v. McRae. The court stated that “[a]lthough the Supreme Court of Connecticut has often stated that the equal protection provisions of the Connecticut and United States constitutions have the same meaning and limitations, those pronouncements were made without reference to the ERA. To equate our ERA with the equal protection clause of the federal constitution would negate its meaning … .” Id. at 446-47, 515 A.2d at 160-61 (citing Keogh v. Bridgeport, 187 Conn. 53, 66, 444 A.2d 225, 232-33 (1982)).

The court next rejected the application of so-called absolute scrutiny because the challenged regulation could not survive the application of mere strict scrutiny. Under absolute scrutiny, there is no justification, compelling or otherwise, for sex discrimination once it has been found.

The court settled on the application of strict scrutiny to equal rights claims, relying on implications of the Connecticut Supreme Court, which noted that the State of Connecticut did not deny that the “passage of the equal rights ammendment mandates the use of a ‘strict scrutiny test'.” Id. at 445, 515 A.2d at 161 (citing Page v. Welfare Comm., 170 Conn. 258, 267, 365 A.2d 1118 (1976)). In Page, the court did not need to decide whether strict scrutiny applied because it concluded that the challenged legislation could not survive any test. Id.

421 Id. at 449, 515 A.2d at 162.

422 509 Pa. 293, 502 A.2d 114 (1985).

423 Id. at 315, 502 A.2d at 126.

424 PA. STAT. ANN. tit. 62, § 453 (Purdon Supp. 1984-85) provides:

425 Article I, § 1 reads:

§ 1. Inherent Rights of Mankind

PA. CONST, art. I, § 1.

Article III, § 32 provides in part:

Id. at art. III, § 32.

426 Article I, § 26 provides:

Id. at art. I, § 26.

427 Article I, § 28, adopted in 1971, states:

Id. at art. I, § 28.

428 Fischer, 509 Pa. 293, 305, 502 A.2d 114, 120 (1985). Petitioners sought to implicate a strict scrutiny standard of review by arguing for a finding, under their equal protection claim, either that any medically necessary procedure including abortion is a fundamental right, or that the classification of indigent women is a suspect class. Id.

429 Id. at 306, 502 A.2d at 121. “Although the view of the United States Supreme Court concerning proper guidelines for its interpretation of the federal constitution is not binding upon us in interpreting the Pennsylvania Constitution, we agree that we should be guided by the same principles in interpreting our Constitution.” Id. at 306, 502 A.2d at 121 (citing Kroger v. O'Hara Township, 481 Pa. 101, 117, 392 A.2d 266, 274 (1978)).

430 Id. at 306-07, 502 A.2d at 121. The court noted that there are three standards of review with which to evaluate equal protection claims. The first standard of review is based on those claims which involve a suspect class or fundamental right are reviewed under strict scrutiny. The second standard, which is based on those claims which involve neither a suspect class nor a fundamental right, are reviewed under a rational relation analysis. The third standard arises where the equal protection claim involves important, though not fundamental, rights. These equal protection claims are evaluated under a level of review which is referred to as intermediate or heightened scrutiny. Id. at 306-07, 502 A.2d at 121 (citing James v. Southeastern Penn. Transp. Auth., 505 Pa. 137, 145, 477 A.2d 1302, 1306 (1984)(Flaherty, J.))

431 Id. at 307, 502 A.2d at 121.

432 Id.

433 “Like the United States Supreme Court, this court ‘has never held that financial need alone identifies a suspect class for purposes of equal protection analysis.’ “ Id. at 307, 502 A.2d at 121-22 (citing Maher, 432 U.S. at 471); see also supra note 405.

434 The court offered the following explanation: “We note that the United States Supreme Court found that [a denial of a benefit vital to the individual was not] affected by the funding limitations contained in the Hyde Amendment.” Id. at 308, 502 A.2d at 122.

435 Id.

436 Id. at 310-11, 502 A.2d at 123.

437 Id. at 310-11, 502 A.2d at 123 (citing McIlvaine v. Pa. State Police, 454 Pa. 129, 309 A.2d 801 (1973)).

438 394 U.S. 618 (1969).

439 415 U.S. 250(1974).

440 Fischer, 509 Pa. 293, 312, 502 A.2d 114, 124 (1985).

Id. at 311-12, 502 A.2d at 124 (quoting Maher v. Roe. 432 U.S. at 474-75 & n.8).

441 Id. at 312, 502 A.2d at 124.

442 Id. at 313-14, 502 A.2d at 125 (citing Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 659, 417 N.E.2d 387, 405 (1981) (Hennessey, C.J., dissenting)).

443 Id. at 314, 502 A.2d at 125 (quoting People v. Salinas, 191 Colo. 171, 174, 551 P.2d 703, 706 (1976)).

444 Doe v. Maher, 40 Conn. Supp. 394, 428, 515 A.2d 134, 151 (1986)(citing Memorial Hosp. v. Maricopa County, 415 U.S. 250 (1974) (durational residence requirement for medical benefits infringed on right to travel); Healy v. James, 408 U.S. 169 (1972)(state college's refusal to recognize a group infringed on freedom of association)).

1 381 U.S. 479 (1965).

2 Id. at 484.

3 Id. at 485-86.

4 See Roe v. Wade, 410 U.S. 133, 153 (1973) (privacy right protects the decision to have an abortion); Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972)(privacy right protects the decision of unmarried persons to use contraceptives); Loving v. Virginia, 388 U.S. 1, 12 (1967)(privacy right protects the decision of whom to marry).

5 277 U.S. 438(1928).

6 Id. at 478 (Brandeis, J., dissenting).

7 Note, Fraud Between Sexual Partners Regarding the Use of Contraceptives, 71 KY. L.J. 591, 613 n.118 (1982-83)Google Scholar.

8 105 Cal. App. 3d 640, 164 Cal. Rptr. 618 (1980).

9 Id. at 643, 164 Cal. Rptr. at 619.

10 Id. at 645, 164 Cal. Rptr. at 620.

11 Id. at 645, 164 Cal. Rptr. at 619.

12 Id. at 645, 164 Cal. Rptr. at 620.

13 59 N.Y.2d 1, 449 N.E.2d 713 (1983).

14 Id. at 6, 449 N.E.2d at 716 (citing Stephen K., 105 Cal. App. 3d 640, 164 Cal. Rptr. 618, P.2d.

15 Id. at 4, 449 N.E.2d at 714.

16 Id. at 6-7, 449 N.E.2d at 716.

17 See L. Pamela P. v. Frank S., 110 Misc. 2d 978, 984-85, 443 N.Y.S.2d 343, 347 (1981).

18 See L. Pamela P., 59 N.Y.2d at 5, 449 N.E.2d at 715.

19 For example, in a Washington case, Linda D. v. Fritz C, 38 Wash. App. 288, 687 P.2d 223 (1984), the mother of a child born out of wedlock brought a paternity and child support action. The father counterclaimed, alleging tort claims based on the mother's failure to use contraception. Id. at 290. The court held that the mother's failure to use birth control did not violate the father's constitutional right to procreative freedom. Id. at 297. Citing L. Pamela P., the Linda D. court explained that the right to privacy does not encompass “the right of one parent to avoid a child support obligation where the other parent's choice regarding procreation [was] not fully respected.” Id. at 297, 687 P.2d at 228; see Faske v. Bonanno, 137 Mich. App. 202, 357 N.W.2d 861 (1984); Hughes v. Hutt, 455 A.2d 623 (Pa. 1983); but see Barbara A. v.John G., 145 Cal. App. 3d 369, 193 Cal. Rptr. 422 (1983), (a woman could recover damages sustained through pregnancy). The court distinguished Stephen K., which involved wrongful birth” of a child, noting that Barbara A. involved injury to the plaintiff's body. For a further discussion of Stephen K., see infra notes 23-27 and accompanying text.

20 See L. Pamela P., 110 Misc. 2d at 984-85, 443 N.Y.S. 2d at 347.

21 113 Misc. 2d 940, 450 N.Y.S.2d 350 (1982).

22 Id. at 946, 450 N.Y.S.2d at 355.

23 Note, supra note 7, at 603.

24 Id.

25 Alice D., 113 Misc.2d at 950-51, 450 N.Y.S. 2d at 354.

26 See Carey v. Population Serv. Int'l, 431 U.S. 678 (1977); Eisenstadt v. Baird, 405 U.S. 438 (1972).

27 Linda D. v. Fritz C, 38 Wash. App. at 228, 297, 687 P.2d 223, 228 (1984)(quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)).

28 Id. at 297, 687 P.2d at 228.

29 See Doe v. Duling, 603 F. Supp. 960 (E.D. Va. 1985); State v. Saunders, 75 NJ. 200, 381 A.2d. 333 (1977). Fornication is defined as human sexual intercourse between two unmarried adults.

30 75 N.J. 200, 381 A.2d 333 (1977).

31 Id. at 209, 381 A.2d at 337 (reviewing NJ. STAT. ANN. § 2A:110-1, repealed by Law of 1978, ch. 95, § 2C:98-2 (West 1985)(“Any person who commits fornication is guilty of a misdemeanor, and shall be punished by a fine of not more than $50, or by imprisonment for not more than 6 months, or both.“).

32 Id. at 213-14, 381 A.2d at 339-40.

33 Id. at 214, 381 A.2d at 339.

34 Id. at 214, 381 A.2d. at 342.

35 See Doe v. Daling, 603 F. Supp. 960 (E.D. Va. 1985); Saunders, 75 N.J. 200, 381 A.2d. 333.

36 603 F. Supp. 960 (E.D. Va. 1985).

37 Id. at 967.

38 Id. at 962.

39 Id.

40 Id. at 967-68. The court explained that the constitutional right to make childbearing decisions protects married and single people. Inasmuch as the right to engage in sexual intercourse is implicit in the right to make childbearing decisions, the court held that “the constitutional right of privacy extends to a single adult's decision whether to engage in sexual intercourse.” Id. at 966-67 (citing Carey v. Population Serv. Int'l, 431 U.S. 678, 685 (1977); Doe v. Commonwealth's Att'y; 403 F. Supp. 1199, 1201 (E.D. Va. 1975), aff'd, 425 U.S. 901 (1976)).

41 Id. at 968.

42 Current adultery statutes include: ALA. CODE § 13A-13-2 (1982); ARIZ. REV. STAT. ANN. § 13-1408 (1978); COLO. REV. STAT. § 18-6-501 (1976); CONN. GEN. STAT. ANN. § 53a-81 (West 1985); D.C. CODE ANN. § 22-301 (West 1967); FLA. STAT. ANN. § 798.01 (West 1976); GA. CODE ANN. § 16-6-19 (1984); IDAHO CODE § 18-6601 (1987); ILL. ANN. STAT. ch. 38, para. 11-7 (1979); MD. FAMILY LAW ANN. CODE art. 27, § 4 (1982); MASS. GEN. L. ch. 272, § 14 (1987); MICH COMP. LAWS ANN. § 750.30 (West 1968); MINN. STAT. ANN. § 609.36 (West 1987); NEB. REV. STAT. § 28-704 (1985); N.H. REV. STAT. ANN. § 645:3 (1986); N.Y. PENAL LAW § 255.17 (McKinney 1980); OKLA. STAT. ANN. tit. 21, § 871-872 (West 1983); R.I. GEN. LAWS § 11-6-2 (1981); S.C. CODE ANN. § 16-15-60 (Law. Co-op. 1985); UTAH CODE ANN. § 76-7-103 (1978); VA. CODE ANN. § 18.2-365 (1982); W. VA. CODE § 61-8-3 (1984); Wis. STAT. ANN. §944.16 (West 1982).

43 See, e.g., ALA. CODE § 13A-13-2(c) (Michie 1982)(class B misdemeanor); ARIZ. REV. STAT. ANN. § 13-1408(A) (1978)(class 3 misdemeanor); CONN. GEN. STAT. ANN. § 53a-81(B) (West 1985)(class A misdemeanor); GA. CODE ANN. § 16-6-19 (Michie 1984)(misdemeanor); MD. ANN. CODE art. 27, § 4 (1982)($10 fine); UTAH CODE ANN. § 76-7-103(2) (1978)(class A misdemeanor); VA. CODE ANN. § 18.2-365 (1982)(class 4 misdemeanor); W. VA. CODE § 61-8-3 (1984)(minimum $20 fine).

44 See, e.g., MASS. GEN. L. ch. 272, § 14 (1987)(up to three years imprisonment); MICH. COMP. LAWS ANN. § 750.30-.30 (West 1968)(felony); OKLA. STAT. ANN. tit. 21, § 872 (West 1983)(up to five years imprisonment); Wis. STAT. ANN. § 944.16 (West 1982)(felony).

45 Kraus v. Barrington Hills, 571 F. Supp. 538 (N.D. Ill. 1982); see, e.g., Commonwealth v. Stowell, 389 Mass. 171, 449 N.E.2d 357 (1983).

46 See Case Comments, Limitations on the Scope of the Privacy Doctrine in Making Decisions Concerning Adultery - Commonwealth v. Stowell, 389 Mass. 171,449 N.E.2d 357 (1983)Google Scholar, 18 SUFFOLK U. L. REV. 83, 89 (1984); see, e.g.. Southern Sur. Co. v. Oklahoma, 241 U.S. 582, 586 (1916)(states may each control adultery in own way) cited in Case Comments supra, at 85 n.16.

47 389 Mass. 171, 449 N.E.2d 357 (1983).

48 Id.

49 Id. at 172, 449 N.E.2d at 358-59.

50 Id. at 172, 449 N.E.2d at 359.

51 Id. at 174, 449 N.E.2d at 359.

52 Id.

53 Id. at 174, 449 N.E.2d at 360.

54 Id. at 175, 449 N.E.2d at 360.

55 Id.

56 Id.

57 571 F. Supp. 538 (N.D. Ill. 1982).

58 Id. at 540.

59 Id. at 541.

60 Id.

61 Id.

62 Id. The plaintiff's suit for injunction was denied in part because he failed to prove enough support for his claims of deprivation of his right to privacy, free speech, assembly and association. Id. at 545. The court reasoned that the plaintiff's right to privacy was “unaffected by the acts of the police — he need only close the door and pull the drapes.” Id. at 543.

63 436 F. Supp. 1328 (W.D. Pa.), cert, denied, 439 U.S. 1052 (1972).

64 Id. at 1331.

65 Id. at 1334.

66 Id. at 1333 (quoting Roe v. Wade, 410 U.S. 113. 152 (1973)).

67 Id. (citing Paris Adult Theatre I v. Slaton, 413 U.S. 49, 66 (1973)).

68 Id. at 1334. Although the plaintiffs did not hide their living arrangement, they did not advertise it either; thus, a strong argument can be made for the plaintiffs. In a dissenting opinion to the Supreme Court's denial of certiorari, Justice Marshall recognized that the plaintiffs’ right “to pursue an open … personal relationship … closely resemble[s] the other aspects of personal privacy to which we have extended constitutional protection. He further recognized Hollenbaugh's failure to suggest that the plaintiffs’ adulterous relationship infringed upon the library's ability to serve as a public entity.

69 726 F.2d 459 (9th Cir. 1983).

70 Id. at 466.

71 791 F.2d 736 (9th Cir. 1986).

72 Id. at 741.

73 Id.

74 BLACKSTONE, W., COMMENTARIES 215 (1765)Google Scholar, cited in Rizzo, , The Constitutionality of Sodomy Statutes, 45 FORDHAM L. REV. 553, 578 n.135 (1976)Google Scholar.

75 Id.

76 Bowers v. Hardwick, 478 U.S. 186 (1986).

77 Id. at 193-94; see also Rivera, , Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 HASTINGS L.J. 799, 950-51 (1979)Google Scholar.

78 These states are: Alabama, Arizona, Florida, Georgia, Idaho, Kentucky, Louisiana, Maryland, Michigan, Minnesota, North Carolina, Oklahoma, Rhode Island, South Carolina, Tennessee, Vermont, Virginia, and the District of Columbia. See High Tech Gays v. Defense Indus. Security Clearance Office, 668 F. Supp. 1361, 1371 n.6 (N.D. Cal. 1987).

79 Bowers, 478 U.S. 186 (1986). For further discussion of Bowers, see infra notes 80-84 and accompanying text. To date, the Court has not decided whether the Constitution protects the right of married or unmarried heterosexuals to engage in sodomy.

80 Bowers, 478 U.S. 186 (1986).

81 The Court in Bowers stated that its holding does not address the right of heterosexuals to engage in sodomy. Id. at 188. The framework of the judiciary's expansion of the privacy right is significant in the context of sodomy for three reasons: (1) it establishes a legally logical basis for courts to hold that heterosexuals have a constitutionally protected right to engage in sodomy; (2) it illuminates the background against which the Supreme Court in Bowers decided that homosexuals have no such right, thus raising suspicion about the consistency of that decision with the line of privacy cases decided by the Court; and (3) it provides the basis for future challenges to Bowers.

82 See Bowers, 478 U.S. at 204 (Blackmun, Brennan, Marshall, and Stevens JJ., dissenting).

83 Id.

84 Id. at 203-04.

85 381 U.S. 479 (1965).

86 405 U.S. 438(1972).

87 Id. at 453.

88 410 U.S. 113 (1973).

89 394 U.S. 557(1969).

90 Id. at 565.

91 See generally Lasson, , Civil Liberties for Homosexuals: The Law in Limbo, 10 U. DAYTON L. REV. 645 (1985)Google Scholar.

92 See generally Skinner v. Oklahoma, 316 U.S. 535 (1942); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923); see also Poe v. Ullman, 367 U.S. 497 (1961)(Douglas, J., dissenting).

93 Griswold, 381 U.S at 486; see also Cotner v. Henry, 394 F.2d 873 (7th Cir. 1968), cert, denied, 393 U.S. 847 (1968).

94 See High Tech Gays v. Defense Indus. Security Clearance Office, 668 F. Supp. 1361, 1371 (N.D. Cal. 1987).

95 see Lovisi v. Slayton, 539 F.2d 349 (4th Cir. 1976); see also State v. Santos, 122 R.I. 799, 413 A.2d 58 (1980).

96 Lovisi, 539 F.2d at 351.

97 Id.

98 Neville v. State, 290 Md. 364, 430 A.2d 570 (1981).

99 See, e.g., State v. Santos, 121 R.I. 799, 413 A.2d 58 (R.I. 1980); State v. Poe, 40 N.C. App. 385, 252 N.E.2d 843, appeal dismissed, 298 N.C. 303, 259 S.E.2d 304, cert, denied, 445 U.S. 947 (1979); Washington v. Rodriguez, 82 N.M. 428, 483 P.2d 309 (1971).

100 See, e.g., Cotner v. Henry, 394 F.2d 873 (7th Cir. 1968); Poe v. Ullman, 367 U.S. 497 (1961); but see Bowers, 106 S.Ct. at 2856 (Stevens, Brennan, and Marshall, JJ., dissenting)(State showed no “neutral and legitimate interest” in selective application of statute against homosexuals. Presumably, this equal protection rationale similarly calls into question the “married-unmarried” distinction.).

101 Hughes v. State, 14 Md. App. 497, 504-5 (1972), 287 A.2d 299, 304 cert, denied, 409 U.S. 1025 (1972). The court stated that prosecution of married people under the statute was only “conceivable” because there are no witnesses if the acts are actually private, neither spouse is competent to testify against the other if the act was consensual, and the testimony of a spouse, if allowed, would require corroboration because the spouse's are equally guilty in the offense. Id.

102 Id.

103 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936 (1980), cert, denied, 451 U.S. 987 (1981).

104 See supra note 86 and accompanying text.

105 Onofre, 51 N.Y.2d at 488-89, 434 N.Y.S.2d at 951, 415 N.E.2d at 942.

106 Id.

107 Courts apply strict scrutiny review to classifications that disadvantage a “suspect” class or that impinge on a fundamental right. See High Tech Gays v. Defense Indus. Securityrights, worker safety, and the preservation of the environment.“115 Clearance Office, 668 F. Supp. 1361, 1368 (N.D. Cal. 1987). Examples of such classifications include race, Anderson v. Martin, 375 U.S. 399 (1964); natural origin, Castaneda v. Partida, 430 U.S 482 (1977); and alienage, Graham v. Richardson, 403 U.S. 365 (1971). It is rarely argued that classification according to sexual preference is suspect. See, e.g., State v. Walsh, 713 S.W.2d 508, 510 (Mo. 1986), but see infra note 110 and accompanying text.

108 Heightened or intermediate scrutiny governs judicial decisionmaking when the classification disadvantages a “quasi-suspect class.” See Plyler v. Doe, 457 U.S. 202, 216-17 (1982). Examples of quasi-suspect classes are women, Craig v. Boren, 429 U.S. 190 (1976); illegitimate children, Levy v. Louisiana, 391 U.S. 68 (1968); and children of illegal aliens, Plyler, 457 U.S. 202.

109 See, e.g., Walsh, 713 S.W.2d at 510; Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987).

110 See High Tech Gays, 668 F. Supp. at 1368.

111 See Bowers v. Hardwick, 478 U.S. 186, 188 (1986)(Blackmun, J., dissenting). Bowers does not address the issue of whether homosexuals are a suspect or quasi-suspect class. Bowers holds only that under the due process clause homosexuals have no fundamental constitutional right to engage in sodomy. Id.

112 See, e.g., City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). “[A] bare … desire to harm a politically unpopular group” is not a legitimate state interest. United States Dep't. of Agric. v. Moreno, 413 U.S. 528, 535 (1973).

113 713 S.W.2d 508.

114 Id. at 511.

115 Id. at 511-12 (citing Dronenbur v. Zech, 741 F.2d 1388, 1397 (D.C. Cir.), reh'g denied, 746 F.2d 1579 (D.c. Cir. 1984)).

116 403 F. Supp. 1199 (E.D. Va. 1975), aff'd, 425 U.S. 901 (1976).

117 Id. at 1200; contra People v. Onofre, 51 N.Y.2d 476, 417 N.E.2d 936 (1981). For further discussion of Onofre, 434 N.Y.S.2d 947, see supra notes 103-06 and accompanying text.

118 Commonwealth's Att'y, 403 F. Supp. at 1200.

119 Griswold, 381 U.S. at 499 (Goldberg.J., concurring)(citing Poe v. Ullman, 367 U.S. at 553 (Harlan, J., dissenting)).

120 Commonwealth's Atty, 403 F. Supp. at 1202. The court further distinguished the privacy cases by asserting that homosexuality “is obviously no portion of marriage, home or family life…“ Id. at 1201.

121 Commonwealth's Att'y, 425 U.S. 901 (1976).

122 See, e.g., Wainwright v. Stone, 414 U.S. 21 (1973); New Jersey v. Lair, 62 N.J. 388, 301 A.2d 748 (1973); Hughes v. State, 287 A.2d 299, cert denied, 409 U.S. 1025 (1972).

123 People v. Onofre, 51 N.Y.2d 476,493-94, 434 N.Y.S.2d 947, 953-54,425 N.E.2d 936, 943 (1981) (plaintiffs were homosexuals who were not threatened with prosecution under the statute).

124 Id. at 694 n.17 (citing Carey v. Population Serv. Int'l, 430 U.S. 678 (1977).

125 741 F.2d 1388 (D.C. Cir.), reh'g denied, 746 F.2d 1579 (D.C. Cir 1984).

126 Circuit Judge Robert Bork authored the opinion in Dronenburg. Circuit Judge Antonin Scalia, who is currently a justice on the United States Supreme Court, joined in Judge Bork's opinion.

127 Dronenburg, 741 F.2d at 1398; see also Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980), cert, denied, 452 U.S. 905 (1980); Parker v. Levy, 417 U.S. 733 (1974), reh'g denied, 647 F.2d 80 (9th Cir. 1981).

128 769 F.2d 289 (5th Cir. 1985).

129 Id. at 292.

130 478 U.S. 186(1986).

131 Id. (citing Palko v. Connecticut, 302 U.S. 319, 325-26 (1937)).

132 Id. (citing Moore v. E. Cleveland, 431 U.S. 494, 503 (1977)).

133 Id. at 196.

134 Id. at 190-91.

135 Id. at 195-96.

136 Id.

137 Id. Significantly, the Court distinguished Stanley v. Georgia, supra note 89, because that decision was “firmly grounded in the First Amendment,” which guarantees freedom of speech. Id. at 195.

138 TEX. PENAL CODE ANN. § 21-06 (1974).

139 GA. CODE § 16-6-2 (1984).

140 Sterilization can be classified either as both voluntary or nonvoluntary. Voluntary mental capacity to give informed consent to the procedures. See Relf v. Weinberger, 372 F. Supp. 1196, 1202 (D.D.C. 1974), modification denied, sub nom. Relf v. Mattheus, 403 F. Supp. 1235 (D.C. Dist. Col. 1975), vacated sub nom. Relf v. Weingberger, 184 App. D.C. 147, 565 F.2d 722 (1977). Nonvoluntary sterilization does not involve any choice by the person to become sterile. The person becomes sterile when sterilization is forced upon the person by a third party despite his or her objections. The third party's decision may be conscious or it may be a result of negligence.

A potential third classificaton of sterilization is “neither ‘compulsory’ nor ‘voluntary’ but as lacking personal consent because of a legal disability.” In re Grady 85 N.J. 235, 247, 426 A.2d 467, 473 (1981).

Sterilization also can be classified as either therapeutic or nontherapeutic. Nontherapeutic sterilization occurs “for the purpose of limiting the size of the person's family, as distinguished from [therapeutic] sterilization [which occurs] for medical or health reasons.” Annotation, , Legality of Voluntary Nontherapeutic Sterilization, 35 A.L.R.3d 1441 (1981)Google Scholar; see Hartke v. McKelway, 707 F.2d 1544, cert, denied, 464 U.S. 983 (1983).

141 POPULATION REP., SER. C, NO. 9, at C-125 (May 1985). Approximately 95 million women obtain sterilizations as a form of birth control. In many countries over 15% of married women obtain sterilizations for family planning; Panama (29%), China (27%), South Korea (23%), Thailand (19%), Brazil (18%), El Salvador (18%), Fiji (18%), the United States (17%), Sri Lanka (17%), and Costa Rica (17%). Id.

Male voluntary nontherapeutic sterilization is widely practiced but less common than female voluntary nontherapeutic sterilization. About 40 million men world wide have undergone such sterilization procedures. Over 90 percent of the men obtaining voluntary nontherapeutic sterilization are from four countries. These countries are China, India, the United States and the United Kingdom. POPULATION REP. SER. D, NO. 4, at D-82 (Nov.-Dec. 1983).

142 Bachrach, , & Mosher, , Use of Contraception in the United States, 1982 NAT. CENTER FOR HEALTH STATISTICS NO. 102 (Dec. 4, 1984)Google Scholar.