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Teresa Collett, Esp.
Professor of Law
University of St. Thomas Law School
June 23, 2005
UNITED STATES SENATE COMMITTEE ON THE JUDICIARY
HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS AND PROPERTY RIGHTS:
"The Consequences of Roe v. Wade and Doe v. Bolton"
June 23, 2005
Prepared Testimony of
Professor Teresa Stanton Collett*
Good afternoon Chairman Brownback, Senator Feingold, Members of the Subcommittee, and other distinguished guests. My name is Teresa Stanton Collett and I
am a Professor of Law at the University of St. Thomas School of Law in Minneapolis, Minnesota.
I am honored to have been invited to testify on the consequences of Roe v. Wade and Doe v. Bolton.2 My testimony represents my professional knowledge and opinion as a law professor who writes on the topic of family law, and specifically on the topic of abortion. It also represents my experience in assisting legislators and citizen groups across the country evaluate proposed abortion laws during the legislative process and
defending such laws in the courts. I am currently serving as special attorney general for the State of Oklahoma assisting in the defense of two abortion related laws of that state, and I have served as a member of the Texas Supreme Court Subadvisory Committee
* Professor of Law, University of St. Thomas School of Law, MSL 400, 1000 LaSalle Avenue,
Minneapolis, MN 55403-2015, telephone 651-962-4973, fax (651) 962-4996, email
tscollett@stthomas.edu.
1 410 U.S. 113 (1973).
2 410 U.S. 173 (1973).
3 Nova Health Systems v. Gandy, 388 F.3d 744 (10th Cir. 2004) (abortion provider did not have standing to
sue state offices asserting facial challenge to abortion liability law which contained only civil damages)
(motion for rehearing pending); and Nova Health Systems v. Edmondson, No. 05-5085 (10th Cir.) (abortion
provider has challenged procedural aspects of the judicial bypass contained in the newly enacted parental
2
charged with proposing court rules implementing the parental notification in that state. I
also currently represent a group of New Hampshire legislators before the United States
Supreme Court in defense of that state's parental notification law.4 My testimony today is
not intended to represent the views of my employer, the University of St. Thomas, or any
other organization or person.
Contrary to the intention of their authors and proponents, Roe v. Wade and Doe v.
Bolton have significantly undermined the well being of women and children in the United
States, as well as seriously damaged the political fabric of American civil society. Due to
the time constraints of the committee, my testimony today will just address the first issue.
Throughout this country's history women have struggled to gain political, social,
and economic equality.5 By 1972 however, the year before Roe and Doe were decided,
women were making considerable strides towards achieving these goals. According to a
1972 report by the United States Census Bureau, "Women who had completed 4 (sic)
years or more of college were as likely as men with the same education to be
professional, technical, administrative, or managerial workers."6 In 1964 Margaret Chase
Smith became the first woman in our nation's history to be nominated for the presidency
of the United States by a national political party.7 In 1967 Muriel Seibert became the
first woman to own a seat on the New York Stock Exchange, and five short years later
Juanita Kreps became the first woman director of that eminent institution. Women were
notification law).
4 Planned Parenthood of Northern New England v. Heed, 390 F.3d 53 (1st Cir. 2004) sub nom Ayotte v.
Planned Parenthood of Northern New England, cert. granted, No. 04-1144.
5 See e.g. Letter of Abigail Adams to John Adams, dated March 31, 1776 suggesting in the drafting of the
laws for the new country that he "remember the ladies", lest they "foment a rebellion" and not hold
themselves "bound by any laws in which we have no voice or representation."
6 U.S. Bureau of the Census, Current Population Reports, Series P-20, No. 242, "Educations Attainment:
March 1972," at 2 U.S. Government Printing Office, Washington, D.C. , 1972.
7 It was at the Republican National Convention.
3
making great progress in our society, and it is not by means of denying their capacity to
conceive and bear children. Rather than furthering these achievements while
accommodating the unique maternal capacity of women, Roe and Doe adopted the sterile
"male model" of society effectively forcing women to conform to ideal of childlessness
in order to gain equality.8
It was no accident that the early feminists, such as Elizabeth Cady Stanton and
Susan B. Anthony, opposed abortion. They saw it as a tool of oppression, manifesting
men's domination and mistreatment. Elizabeth Cady Stanton wrote, "When we consider
that women are treated as property, it is degrading to women that we should treat our
children as property to be disposed of as we see fit."9 Susan B. Anthony was of the same
opinion. "Guilty? Yes. No matter what the motive, love of ease, or a desire to save from
suffering the unborn innocent, the woman is awfully guilty who commits the deed. It will
burden her conscience in life, it will burden her soul in death; But oh, thrice guilty is he
who drove her to the desperation which impelled her to the crime!"10 In their newspaper
devoted to women's equality, The Revolution, Matilda Joslyn Gage wrote "[This] subject
lies deeper down in woman's wrongs than any other...I hesitate not to assert that most of
[the responsibility for] this crime lies at the door of the male sex."11 So strongly did these
women reject abortion that they put the solvency of their publication, The Revolution, at
risk rather than accept advertisements from abortionists.
8 "The ability of women to participate equally in the economic and social life of the Nation has been
facilitated by their ability to control their reproductive lives." Planned Parenthood v. Casey, 505 U.S. 833,
856 (1992).
9 Letter to Julia Ward Howe, October 16, 1873, recorded in Howe's diary at Harvard University Library.
10 Susan B. Anthony, The Revolution, 4(1):4 July 8, 1869.
11 Matilda Joslyn Gage, The Revolution, 1(14):215-6 April 9, 1868.
4
By their rejection of abortion, these women demanded something more
meaningful (and more radical) than what the majorities of the Roe and Doe Courts
ordered - they demanded equality as full women, not as chemically or surgically altered
surrogates of men. The early feminists understood that abortion on demand, not
motherhood, posed the real threat to women's rights. The early feminists recognized that
abortion was the product, not of choice, but of pressure, particularly from the men in
women's lives. The current regime of abortion which Roe instigated has not changed this
sad fact. A 1998 study published by the Guttmacher Institute, a research affiliate of
Planned Parenthood, indicates that relationship problems contributed to the decision to
seek abortions by 51% of American women.
Underlying this general reason are such specific ones as that the partner
threatened to abandon the woman if she gives birth, that the partner or the
woman herself refuses to marry to legitimate the birth, that a break-up is
imminent for reasons other than the pregnancy, that the pregnancy resulted
from an extramarital relationship, that the husband or partner mistreated
the woman because of her pregnancy, or that the husband or partner
simply does not want the child. Sometimes women combined these
reasons with not being able to afford a baby, suggesting the importance of
having a partner who can offer both emotional and financial support.12
The simple fact is that today, as in the 19th century, for many women abortion is the
man's solution for what he views as the "woman's problem."13
Roe's harmful effects on women have not been confined to the social realm.
Medical science has shown that abortion damages women's physical and mental health as
12 Akinrinola Bankole, Susheela Singh and Taylor Haas, Reasons Why Women Have Induced Abortions:
Evidence from 27 Countries, 24 International Family Planning Perspectives 117 (1998) citing statistics
from Aida Torres and Jacqueline Darroch Forrest, Why Do Women Have Abortions?, 20 Family Planning
Perspectives 169 (July/August 1988).
13 To date, when women have resisted the pressure to obtain an abortion, the courts have rejected claims by
their sexual partners that men should be able to avoid paternal obligations since they did not choose to
become fathers. See e.g. Wallis v. Smith, 22 P.3d 682 (N.M. 2001) (rejecting man's claim for
contraceptive fraud).
5
well.14 By aborting their pregnancies, women lose the health benefits that childbirth and
its accompanying lactation bring, including reduced risk of breast, ovarian, and
endometrial cancer.15
One-third of all women in the U.S. will suffer from cancer in their lifetime.16
Cancer is the second leading cause of death in the United States. 17
Breast cancer is the most common cancer diagnosed in women, and the second
leading cause of cancer death in women.18 It is estimated that about 211,240 women in
the United States will be diagnosed with invasive breast cancer in 2005, and about 40,410
women will die from the disease.19 One of the recognized risk factors for breast cancer is
having no children or delaying childbearing until after the age of thirty.20
In 1970 the World Health Organization published the results of an international
study of breast cancer and reproductive experience involving 250,000 women from seven
areas. The study established that women having their first child under age 18 have only
about one-third the breast cancer risk of those whose first birth is delayed until age 35 or
older. The researchers also noted that "data suggests an increased risk [of breast cancer]
associated with abortion contrary to the reduction in risk associated with full-term
births."21
14 See ELIZABETH RING-CASSIDY &IAN GENTLES,WOMEN'S HEALTH AFTER ABORTION (2d. 2003).
15 See John M. Thorp et al., Long-term Physical and Psychological Health Consequences of Induced
Abortion: Review of the Evidence, 58 Obstetrical & Gynecological Survey 67 (2003);V. Beral et al, Does
Pregnancy Protect Against Ovarian Cancer?, THE LANCET (May 20, 1978) at 1083 ("pregnancy - or some
component of the childbearing process - protects directly against ovarian cancer"); and G. Albrektsen et
al., Is the Risk of Cancer of the Corpus Uteri Reduced by a Recent Pregnancy? A Prospective Study of 765,
756 Norwegian Women, 61 INT'L. J. CANCER 485 (1995).
16 American Cancer Society, Cancer Facts and Figures: 2005 at 2, available at
17 Id.at 1.
18 Id. at 9
19 Id.
20 Id.
21 B. MacMahon, Age at First Birth and Breast Cancer Risk, 43 BULLETIN OF THE WORLD HEALTH
ORGANIZATION, 209 (1970). See also P.M. Layde et al, The Independent Associations of Pariety, Age at
6
Childbirth also has a protective effect against ovarian cancer.22 Ovarian cancer is
the seventh most common cancer, but ranks fourth as the cause of cancer death in
women.23 It causes more deaths than any other cancer of the female reproductive
system.24 The American Cancer Society estimates that there will be about 22,220 new
cases of ovarian cancer in this country in 2005. About 16,210 women will die of the
disease. While less common than breast cancer, it is more likely to be fatal. Childbirth
reduces this risk.25
Endometrial cancer is a cancer that develops from the inner lining of the uterus.
In 2005, 40,880 new cases of endometrial cancer are expected to be diagnosed, and 7,310
women are expected to die from this cancer.26 Researchers have found that the process of
childbirth results in the shedding of malignant or pre-malignant cells which lead to
endometrial cancer.27 This protective effect increases with each birth.28
In contrast, abortions render women thirty percent more likely to develop breast
cancer29 and also increase the likelihood of developing cervical30 and ovarian cancer.31
First Full Term Pregnancy, and Duration of Breastfeeding with the Risk of Breast Cancer, 42 J. CLINICAL
EPIDEMIOLOGY 963 (1989).
22 V. Beral et al, Does Pregnancy Protect Against Ovarian Cancer?, THE LANCET (May 20, 1978) at 1083
("pregnancy - or some component of the childbearing process - protects directly against ovarian cancer");
and D. Purdie et al, Reproductive and Other Factors and Risk of Epithelial Ovarian Cancer: An
Australian Case-Control Study, 62 INT'L J. OF CANCER 678 (1995) (finding a reduced risk of ovarian cancer
with increasing number of children).
23 American Cancer Society, Cancer Facts and Figures: 2005 at 10, available at
24 Id. at 16.
25 See n. 22 supra.
26 American Cancer Society, Cancer Facts and Figures: 2005 at 20, available at
27 G. Albrektsen et al., Is the Risk of Cancer of the Corpus Uteri Reduced by a Recent Pregnancy? A
Prospective Study of 765, 756 Norwegian Women, 61 INT'L. J. CANCER 485 (1995).
28 L.A. Brinton et al, Reproductive, Menstrual, and Medical Risk Factors for Endometrial Cancer: Results
from a Case-Control Study, 167 AMERICAN J. OBSTETRICS & GYNECOLOGY 1317 (1992).
29 RING-CASSIDY, supra note 14, at 17. "Since 1957, evidence liking induced abortion to the later
development of breast cancer has been observed in 23 of 37 studies worldwide, including 10 of 15 U.S.
studies." Id. See also Joel Brind, et al. Induced Abortion as an Independent Risk Factor for Breast
Cancer: A Comprehensive Review and Analysis, 50 J. EPIDEMILOGY &COMMUNITY HEALTH 481; and
Nancy Kreiger, Exposure, Susceptibility, and Breast Cancer Risk: A Hypothesis Regarding Exogenous
Carcinogens, Breast Tissue Development, and Social Gradients, Including Black/White Differences in
7
Abortion also creates numerous health hazards for subsequent pregnancies, including
increasing the likelihood of death during childbirth.32 Furthermore, women who have
had abortions experience varying degrees of emotional distress33 and are more likely to
exhibit self-destructive behaviors, including suicide.34
While it is often said that abortion is significantly safer than completing the
pregnancy, the fact is we simply don't have the statistical information to know. Abortion
providers have concede this fact in the published literature.35 Yet any attempts to remedy
Breast Cancer Incidence, 13 BREAST CANCER RESEARCH AND TREATMENT 205 (1989). See generally John
Kindley, The Fit Between the Elements for an Informed Consent Cause of Action and the Scientific
Evidence Linking Induced Abortion with Increased Breast Cancer Risk, 1998 WIS. L. REV. 1595 (1998).
30 David A. Grimes, Sequelae of Abortion, in MODERNMETHODS OF INDUCING ABORTION 95, 105 (David
T. Baird et al. eds., 1995).
31 RING-CASSIDY, supra note 14, at 35. "[C]hildbirth provides women with protection from cancers of the
reproductive system." Id.
32 See RING-CASSIDY, supra note 14, at 41. "These complications include: cervical damage leading to
future problems in carrying a pregnancy to term; uterine damage resulting in placenta previa which
increases the morbidity and mortality risks for both mother and infant; and ectopic pregnancy. Data
indicate that in the past twenty years the incidence of these complications has risen sharply. Studies reveal
that induced abortion can put a woman at a seven-fold increased risk of placenta previa and a 30 to 510 per
cent increased risk of delivering a premature infant. Children born prematurely are at an enormously
increased risk of developing cerebral palsy. Ectopic pregnancies are reaching epidemic proportions, the
rates having doubles or triples in many parts of the world in direct proportion to the increase in induced
abortions." Id. Abortion also increases the risk of infertility, pelvic inflammatory disease, and Chlamydia
trachomatis. Id. at 64-69. For a thorough discussion of abortion's contribution to maternal mortality see id.
at 85-98.
33 RING-CASSIDY, supra note 14, at 131. See also Anna Glasier, Counseling for Abortion, in MODERN
METHODS OF INDUCING ABORTION 112, 117 (David T. Baird et al. eds., 1995); Jo Ann Rosenfeld,
Emotional Responses to Therapeutic Abortion, 45 AM. FAM. PHYSICIAN 137, 138 (1992) ("Teenagers who
do not tell their parents about their abortion have an increased incidence of emotional problems and
feelings of guilt.") Additional sources are collected and discussed in Thomas R. Eller, Informed Consent
Civil Actions for Post-Abortion Psychological Trauma, 71 NOTRE DAME L. REV. 639 (1996). For cases
involving claims of psychological injury see Edison v. Reproductive Health Servs., 863 S.W.2d 621 (Mo.
Ct. App. 1993), and Showery v. State, 678 S.W.2d 103 (Tex. App.--El Paso 1984, writ ref'd).
34 RING-CASSIDY, supra note 14, at 189. "Post abortion behaviors tend to be self-destructive and include
suicide, both actual and attempted; deliberate self-harm such as mutilation and other punishments;
unconscious self-harm in the form of substance abuse, smoking, and various eating disorders; and unstable,
often abusive and battering, relationships. . . . [T]he suicide rate following abortion is six times greater than
that following childbirth, and three times the general suicide rate." Id. See also Mika Gissler, Suicides
After Pregnancy in Finland 1987-1994: Register to Linkage Study, 313 BRIT. MED. J. 1431, 1433 (1996);
and H. David et al., Postpartum and Postabortion Psychotic Reactions, 13 FAMILY PLANNING
PERSPECTIVES 889 (1981).
35 "The primary limitation of many U.S. studies is that they use data on average characteristics of abortion
patients, rather than directly matching records, and they rely on complicated algorithms and corrections that
introduce opportunities for measurement error." J. Richard Udry, A Medical Report Linkage Analysis of
Abortion Underreporting, 28 FAMILY PLANNING PERSPECTIVES, 228 (1996) available at
advocates.36
Yet women are not the only ones harmed by the mentality reflected in the Roe and
Doe holdings. It is often said that these Courts did not understand the physical
development of the unborn at the time the cases were heard. Yet I recently had occasion
to go back and read the briefs presented to the Roe Court and was amazed by the amount
of detail concerning the development of the unborn child, even in 1973. While there
were no pictures as compelling as tiny Samuel Armas' hand apparently grasping the
finger of the perinatal surgeon who was repairing his spine while Samuel was still in his
mother's womb37 or those currently available from a 4-D ultrasound system, our common
humanity was made clear by the Attorney General of Texas from the medical materials
available, even at that time. The failure of the Court to engage this material in its opinion
deeply troubles me.
usa.org/pubs/journals/2822896.html>. See also Stanley K. Henshaw, Unintended Pregnancy and Abortion:
A Public Health Perspective in A CLINICIAN'S GUIDE TO MEDICAL AND SURGICAL ABORTIONS at 20
(Maureen Paul et al., eds. 1999) ("The abortion reporting systems of some countries and states in the
United States include entries about complications, but these systems are generally considered to
underreport infections and other problems that appear some time after the procedure was performed.");
Haishan Fu et al., Measuring the Extent of Abortion Underreporting In the 1995 National Survey of Family
Growth, 30 FAMILY PLANNING PERSPECTIVES 128 (1998) available at
Statistics on Abortion (1997) available at
Pregnancy-Related Morbidity in CDC's Public Health Surveillance for Women, Infants, and Children,
From Data to Action: CDC's Maternal & Child Health Monograph 1994 at 137, available at
abortion-related morbidity have been available or collected since the 1970's"); and David Reardon, The
Cover-Up: Why U.S. Abortion Mortality Statistics Are Meaningless available at
www.afterabortion.org/PAR/V8/n2/abortiondeaths.html.
36 See e.g. Planned Parenthood v. Casey, 505 U.S. 833 (1992)(contesting statistical reporting requirement
of Pennsylvania law).
37 The photo and story can be found at Doctors Give Little One a Hand, The Tennessean (Sept. 7, 1999)
available at http://www.tennessean.com/sii/99/09/07/fetus07.shtml.
9
Courts have traditionally recognized some rights in unborn children,38 and
medical science continues to demonstrate with increasing veracity that even at the earliest
stages of development, an unborn child is a human being.39 Even Roe recognized that the
States have a compelling interest in protecting this human life.40 Nevertheless, this
decision authorized expectant mothers to choose abortion over life, and since 1973, over
thirty-nine million legal abortions have been performed in the United States.41 In this
country alone, roughly 700 pregnancies per year continue after an initial abortion attempt,
and children born after these failed attempts are likely to suffer from developmental
abnormalities.42 Also, as previously noted, children conceived after an abortion and
carried to term run a higher risk of prenatal complications.43
Perhaps even more troubling is the mounting evidence that abortion has
contributed to the reemergence of the idea of children as possessions. In 1972, one year
before the Roe v. Wade decision, there were 2.05 reported abuse cases per 1,000 children,
according to the U.S. Bureau of the Census. In April, 2004 the U.S. Department of
Health and Human Services reported 12.3 out of every 1,000 children were victims of
abuse or neglect. In the six short years from 1986 to 1993 the total number of children
38 See Jack Balkin, ed., WHAT ROE SHOULD HAVE SAID (NYU Press 2005), at 191 (Collett). "[S]tates have
recognized a child's right to sue for prenatal injuries. Family law courts have recognized the right of the
unborn child to sue for the financial support of his parents. Unborn children have long been included as
heirs and testamentary beneficiaries of decedents." Id.
39 See BALKIN, supra note 38, at 207 (Paulsen) ("A conceived human embryo is, biologically, human life. .
. . There is simply no room for disagreement with the scientific and medical evidence concerning the
biological beginning of human life."); id. at 191 (Collett) ("At five and a half weeks the fetal heartbeat is
similar to that aof an adult, and at forty-three days of gestation brain waves can be noted. 'By the end of
the first trimester (12th week) the fetus is a sentient moving being.'" (quoting ARNOLD GESELL, THE
EMBRYOLOGY OF BEHAVIOR 65 (1945))).
40 See Roe v. Wade, 410 U.S. 153, 164-65 (1973).
41 BALKIN, supra note 38, at 5.
42 RING-CASSIDY, supra note 14, at 124-25. In one highly documented case in Canada, a child born after a
botched abortion was left without oxygen for forty minutes until she was taken to intensive care. The child
consequently developed cerebral palsy. Id. at 125.
43 See supra note 32 (discussing the increased risk of premature birth and ectopic pregnancy after an
10
endangered quadrupled.44 While many factors may have contributed to this increase, the
attitude that we are free to dispose of human life that is "unwanted" certainly must be
among them.
With the advent of in vitro fertilization, technology that only became available
five years after Roe v. Wade, some would-be parents now dream of "custom-order"
children resulting in today's debate regarding the morality of selecting the sex and other
characteristics of a child. The parameters of this debate have expanded so far as to
include those who defend the right of two deaf lesbians to intentionally create a deaf
child.45
All of these facts lead me to agree with a recent opinion of Judge Edith Jones of
the United States Court of Appeals for the Fifth Circuit:
Hard and social science will of course progress even though the Supreme
Court averts its eyes. It takes no expert prognosticator to know that
research on women's mental and physical health following abortion will
yield an eventual medical consensus, and neonatal science will push the
frontiers of fetal "viability' ever closer to the date of conception. One may
fervently hope that the Court will someday acknowledge such
developments and re-evaluate Roe and Casey accordingly.46
Some of us think that day needs to be now.
Thank you, Mister Chairman, for allowing me the time to appear before the
committee and to extend my remarks in the form of this written testimony.
abortion).
44 Andrea J. Sedlak and Diane D. Broadhurst, THIRD NATIONAL INCIDENCE STUDY OF CHILD ABUSE AND
NEGLECT (1996).
45 Liza Mundy, A World of Their Own. The Washington Post, 31/3/2002, p.W22.
46 McCorvey v. Hill, 585 F. 3d 846, 852-53 (5th Cir. 2004) (Jones, J. concurring).
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