Amicus Brief — Akron v. Akron Center for Reproductive Health, Inc.

No. 81-746

ALEXANDER L. STEVAS.

In Tus CLERK

Supreme Court of the United States

Ocroszr Term, 1982

CITY OF AKRON,

Petitioner,

V.

AKRON CENTER FOR REPRODUCTIVE HEALTH NO., et al.,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Sixth Circuit

BRIEF AMICUS CURIAE OF

AMERICANS UNITED FOR LIFE IN SUPPORT

OF PETITIONER, CITY OF AKRON

Dennis J. Horan

Victor G. RosenstuM

Patrick A. TRUEMAN

Tuomas J. Marzen*

Mauna K. Qurntan

Americans United for Life

Legal Defense Fund

230 N. Michigan, Suite 915

Chicago, IIlinois 60601

(312) 263-5029

Counsel for Amicus

July 29, 1982

* Counsel of Record

—

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

—

a

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . :

INTEREST OF THE AMICUS CURIAE ..........

SUMMARY OF ARGUMENT .. . .

ARGUMENT:

I.

Appropriate Respect For State Legislative

Discretion Requires That Strict Scrutiny Be

Invoked Only When Clearly Warranted By

. —— centichiscbiicrssuniaeedinhdaddekbesiesininn

II.

To Select The Correct Level Of Review For

A Law Which Relates To Abortion, A Court

Must Determine Whether The Law In Fact

Has A Constitutionally Cognizable Impact

On The Roe Liberty, Whether Any Impact

That Does Exist Primarily Benefits Or Bur-

dens Its Exercise, And Whether Any Burden

Is Substantial Or Insubstantial ......................

A. A Law Which Relates To Abortion But

Has No Impact On The Roe Liberty Is

000

B. A Law Which Impacts On The Roe

Liberty By Benefiting Its Exereise In-

vokes Not Striet ee But Rational

1 Ä AAA

C. A Law Which Substantially Burdens The

Roe Liberty Invokes Strict Scrutiny But

A Law Which Insubstantially Br:rdens

ae Liberty Invokes Only Rational Basis

TTP. ͤ TE RAE SYA RR TRE SER

ii

III.

A Law Which Relates To Abortion Is Consti-

tutional Unless, When The Impact Of The

Law On The Roe Liberty Is Considered

Together With The State Interests The Law

Serves, And These Are Weighed In Accord-

ance With The Applicable Level Of Review,

The Law Unduly Burdens That Liberty . 21

e .. 26

TABLE OF AUTHORITIES

Cases

Akron Center for Reproductive Health, Inc. v.

City of Akron, 651 F.2d 1198 (6th Cir. 1981) .... 5, 19

Bellotti v. Baird I, 428 U.S. 132 (1976) ...... 18, 22, 25

Bellotti v. Baird II, 443 U.S. 622 (1979) ............ 20, 22

Carey v. Population Services Int’l., 431 U.S. 678

— K 3, 8, 18, 19, 21

Charles v. Carey, 627 F.2d 772 (7th Cir. 1980) ..... 5, 7

Colautti v. Franklin, 439 U.S. 379 (1979) ........... 10

Connecticut v. Menillo, 423 U.S. 9 (1975) ........... 8, 10

Doe v. Bolton, 410 U.S. 179 (1973) .......... 7, 10, 20, 21

Griswold v. Connecticut, 381 U.S. 479 (1965) .... 18

H.L. v. Matheson, 450 U.S. 398 (1981) ................ 9

Harris v. McRae, 448 U.S. 297 (1980) ........... 7, 9, 17

Maher v. Roe, 432 U.S. 464 (1977) . . . .

. 7, 8, 15, 18, 19, 20, 22

Massachusetts Bd. of Retirement v. Murgia, 427

AOE UR ne 4, 24

Planned Parenthood of Central Missouri v. Dan-

R passim

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

San Antonio Independent Sch. District v. Rodri-

n A. 13, 14

Whalen v. Roe, 429 U.S. 589 (1977) . . .. 8, 10, 11

Wynn v. Scott, 449 F. Supp. 1302 (1978), affd sub

nom. Wynn v. Carey, 559 F.2d 193 (1979) ...... 10

Constitutional Provisions

U.S. Const. amend. V V. eee eee 6

. —Ar Zn TLE BD vascscicesedssscsnsesszcsacdacsce 6, 8

Other Authorities

Gunther, The Supreme Court, 1971 Term Fore-

word: In Search of Evolving Doctrine on a

Changing Court: A Model for a Newer Equal

Protection, 86 Harv. L. Rev. 1 (1972) .............. 4, 5

Zekman & Warrick, The Abortion Profiteers

%%Fſ ͤAATVTTVTd0TTTTTTTT 23

IX Tue

Supreme Court of the United States

Octoser Term, 1982

CITY OF AKRON,

Petitioner,

V.

AKRON CENTER FOR REPRODUCTIVE HEALTH INC., et al.,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Sixth Circuit

BRIEF AMICUS CURIAE OF

AMERICANS UNITED FOR LIFE IN SUPPORT

OF PETITIONER, CITY OF AKRON

INTEREST OF THE AT S CURIAE

Americans United for Life (AUL) is a national educa-

tional foundation organized to promote better under-

standing of the humanity and value of unborn human

life, and to assure equal protection under law for all

members of the human family regardless of age, Health,

or condition of dependency. The national office of Amer-

icans United for Life is located in Chicago, Illinois.

AUL is supported by thousands of Americans from

every state of the union.

*

SUMMARY OF ARGUMENT

The threshold question in evaluating the con-

stitutionality of abortion-related legislation is whether to

employ strict scrutiny or the rational basis standard, a

question that often determines whether the law will be

stricken or upheld. Due deference to state legislative

discretion counsels that strict scrutiny should be in-

voked only when the Constitution clearly warrants its

application, yet lower federal courts have hastened to

apply it to virtually all legislation bearing on abortion.

There is a need, therefore, for this Court to set out

clearly articulated principles governing the application

of strict scrutiny to abortion-related legislation. It is the

purpose of this brief to set forth those principles as ap-

plied in the previous decisions of this Court.

In evaluating the constitutionality of abortion-related

legislation, a court should first ask whether a statutory

provision impacts on the freedom of choice to abort or

bear a child. That liberty has been delineated by this

Court, not as a right to abortion, but as a right to choose

and to have safe access to the effectuation of that choice.

Laws which do not create obstacles in the way of an

abortion do not impact on the liberty, whether they are

laws which may influence a woman to carry her child to

term, laws which impact on physicians who provide

abortions, laws which assure the medical consultation

without which the liberty does not exist, or laws protec-

tive of the fetus or of other state interests. Therefore,

such laws are constitutional.

The court’s second inquiry should be whether statu-

tory provisions that do impact on the Roe liberty do

so in a manner that benefits or burdens its exercise. To

3

the extent that a provision enhances the exereise of the

liberty, it should not be subject to striet serutiny. The

rationale behind strict scrutiny is that heightened

judicial vigilance is called for when a legislature acts to

threaten a fundamental right. This rationale disappears

when the effect of the enactment is to foster the right.

This conclusion, which is congruent with the conduct

of the Court in previous cases, has implications for

issues currently before this Court. It suggests that laws

in areas such as informed consent, pathological report-

ing, and hospitalization and waiting period requirements

may be subject only to rational basis review since the

impact of such provisions on the Roe liberty may be

primarily to benefit its exercise.

The Court’s third inquiry should be whether any

burden that does exist is substantial or insubstantial.

Under Carey v. Population Services, 431 U.S. 675, 688 &

688n.5 (1977), only laws that completely prohibit or sub-

stantially restrict access to abortion are subject to strict

scrutiny. If the burden is only insubstantial, the rational

basis test applies.

Once the court has established the standard of review,

it must apply it to particular circumstances in order to

determine whether the provisions at stake “unduly bur-

den” the Roe liberty. In the case of provisions which

both benefit and burden the liberty, the court must

analyze the benefit and burden to decide which out-

weighs the other. The provisions should be upheld as

constitutional unless, when weighed against the benefit

to the protected interests of the pregnant woman and

against any other state interests at stake, the burden

associated with the provisions is found to be “undue.”

ee ea

ARGUMENT

I

APPROPRIATE RESPECT FOR STATE LEGIS-

LATIVE DISCRETION REQUIRES THAT STRICT

SCRUTINY BE INVOKED ONLY WHEN CLEARLY

WARRANTED BY THE CONSTITUTION.

The threshold issue arising in the context of a case

that involves abortion legislation—or, indeed, any

legislation that implicates a fundamental right—

concerns the appropriate judicial posture in considering

the constitutionality of the law. The question is whether

the challenged provision warrants “close” or “strict”

judicial scrutiny, or whether it merits the “relatively

relaxed” “rational-basis standard.” Massachusetts Bd. of

Retirement v. Murgia, 427 U.S. 307, 312 (1976).

The answer to this initial inquiry will often pre-

determine the outcome of the ensuing judicial analysis.

Few laws can withstand the systematic scepticism ap-

propriate to heightened judicial scrutiny. Of the hun-

dreds of thousands of statutes, ordinances, and regu-

lations that have issued from our various legislative

bodies few relate to such traditionally vital concerns or

immediately urgent matters that they serve “compelling”

interests. Even fewer are drawn with such fine precision

and careful attention to individual circumstances that

they are “narrowly drawn” to serve only compelling

governmental interests. See Gunther, The Supreme Court,

1971 Term—Foreword: In Search of Evolving Doctrine

on a Changing Court: A Model for a Newer Equal Pro-

tection, 86 Harv. L. Rev. 1, 8 (1972).

On the other hand, few Jaws fail to serve some “valid”

or “legitimate” governmental interest, and few of those

that do are so incoherent or misdirected that they bear

me ae

no conceivable “rational relation” to the valid interests

they purport to serve. See id.

The question whether strict or relaxed scrutiny of a

law is appropriate implicates issues central to the proper

role of the judiciary and the posture it should take to-

ward the legislature. Applying strict judicial scrutiny to

duly enacted legislation when not clearly required by

the Constitution provides insufficient deference to the

legislature, an equal branch of government, and to the

democratic process which generates statutory law.

“Strict scrutiny” flows from the duty of the judici-

ary to protect constitutionally recognized rights from

overbearing democratic majorities. At the same time,

strict scrutiny should not be employed unless the law

at issue clearly and substantially limits the exercise

of some fundamental right. Unwarranted use of this

ultimate weapon in the judicial arsenal implies insuf-

ficient respect for legislative rights and the integrity of

the democratic process.

The Sixth Circuit in this case hastened to apply

strict scrutiny to virtually any legislation that bears

upon abortion. Akron Center for Reproductive Health

v. City of Akron, 651 F.2d 1198, 1203-1204 (6th Cir.

1981); see also, Charles v. Carey, 627 F.2d 772, 776-

78 (7th Cir. 1980). To avoid such errors, there is a press-

ing need for this Court clearly to articulate the princi-

ples to be used in selecting the appropriate standard for

reviewing abortion related legislation.

The limited purpose of this brief is to assist the Court

in that task by distilling a basic framework of analysis

from this Court’s previous opinions.

This framework suggests that a court reviewing

legislation relating to abortion should first ask whether

~

the legislation’s provisions in fact impact on the liberty

recognized in Roe v. Wade, 410 U.S. 113 (1973). If they

do not, a challenge based on the Due Process Clauses of

the Fifth and Fourteenth Amendments should fail, while

one based on the equal protection components of these

amendments should be examined under the rational

basis standard. See this brief at p. 17 n. 5.

Second, the Court should ask whether legislation which

does have an impact on the Roe liberty primarily bene-

fits the exercise of that right. If it does, even if its im-

pact on the liberty is substantial, it should be examined

under the rational basis standard—unless it also creates

a substantial burden on the liberty.

Third, the court should ask whether the provisions

which do burden the exercise of the liberty do so sub-

stantially or insubstantially. Only substantial burdens

should invoke strict scrutiny. “therwise the rational

basis standard should apply.

Once the proper level of review has been selected, the

court should apply the well-established criteria for bal-

ancing the rights of the pregnant woman against the in-

terests of the State. When dealing with provisions which

benefit as well as burden the liberty at stake, however,

the court should carefully balance the benefit and the

burden, employing whichever standard of review is ap-

plicable, to ensure that the provision is declared uncon-

stitutional only if the burden is “undue.”

3

TO SELECT THE CORRECT LEVEL OF REVIEW

FOR A LAW WHICH RELATES TO ABORTION, A

COURT MUST DETERMINE WHETHER THE LAW IN

FACT HAS A CONSTITUTIONALLY COGNIZABLE

IMPACT ON THE ROE LIBERTY, WHETHER ANY

IMPACT THAT DOES EXIST PRIMARILY BENEFITS

OR BURDENS ITS EXERCISE, AND WHETHER ANY

BURDEN IS SUBSTANTIAL OR INSUBSTANTIAL.

A. A Law Which Relates To Abortion But Has No Im-

pact On The Roe Liberty Is Constitutional.

As the Seventh Circuit Court of Appeals correctly

recognized, “a law is not considered an interference

with the pregnancy termination decision and subject to

strict scrutiny simply because it concerns abortion.”

Charles, 627 F.2d at 776. [The right in Roe v. Wade

can be understood only by considering both the woman’s

interest and the nature of the State’s interference with

it.” Maher v. Roe, 482 U.S. 464 (1977).

In the first place, the law must have an impact on

some recognized facet of the abortion liberty. What is

that liberty?

“The constitutional right vindicated in Doe [v. Bolton,

410 U.S. 179 (1973) and Roe v. Wade] was the right of a

pregnant woman to decide whether or not to bear a

child without unwarranted state interference.” It is a

“freedom of personal choice.” Harris v. McRae, 448 U.S.

297, 312 (1980). This constitutionally secured right

“protects the woman from unduly burdensome in-

terference with her freedom to decide whether to ter-

minate her pregnancy.” Maher, 482 U.S. at 478-74. The

liberty secured in Roe v. Wade is “not . . . an unqualified

constitutional right to an abortion” but rather “a con-

stitutionally protected interest ‘in making [a] certain

kind of important decision .. free from governmental

a

compulsion.” Jd. at 473 (quoting Whalen, 429 U.S. 589,

599-600 & nn. 24 & 26 [1977]). “A woman has at least an

equal right to choose to carry her fetus to term as to

chouse to abort it.“ Maher, 432 U.S. at 472 n. 7.

As a necessary corollary to freedom to decide, the

right secured in Roe also protects “the effectuation of

[the] decision from unduly burdensome state-created

obstacies.” Planned Parenthood of Central Missouri v.

Danforth, 428 U.S. 52, 70 n. 11 (1976). Thus, access to

both childbirth and abortion is an important aspect of

the Roe liberty. [Sluch access is essential to exercise of

the constitutionally protected right of decision in

matters of childbearing that is the underlying founda-

tion of the holdings in . . . Roe v. Wade.” Carey v. Pop-

ulation Services International, 431 U.S. at 688-89.

In addition to choice and access, safety is the third

recognized aspect of the abortional liberty. Roe v. Wade

recognized “a woman’s right to clinical abortion by

medically competent personnel.” Connecticut v. Menillo,

423 U.S. 9, 10 (1975). “Jane Roe had sought to have an

abortion ‘performed by a competent, licensed physician,

under safe, clinical conditions,’ [Roe, 410 U.S. at 120],

and our opinion recognized only her right to an abor-

tion under those circumstances.” Jd. The Constitution

protects access only to “an abortion ‘performed . . . un-

der safe, clinical conditions,“ [Roe, 410 U.S. at 120)].”

Connecticut v. Menillo, 423 U.S. at 10. Safety is an essen-

tial attribute of the right: “Our opinion recognized only

[the] right to an abortion under those circumstances.” Id.

(emphasis added). The State has no constitutional obliga-

tion to permit unsafe conditions in the performance of

abortions.

The Fourteenth Amendment, then, protects from un-

duly burdensome state interference choice between

3

childbirth and abortion, and access to both under safe

conditions.

When can it be said that a state action impacts on this

constitutionally protected right?

Laws do not impact on the Roe liberty merely because

they influence the woman to carry her child to term.

“The Constitution does not compel a State to fine-tune its

statutes so as to encourage or facilitate abortions. To the

contrary, state action ‘encouraging childbirth except in

the most urgent circumstances’ is ‘rationally related to

the legitimate governmental objective of protecting

potential life.“ H. L. v. Matheson, 450 U.S. 398, 413

(1981) (quoting Harris v. McRae, 448 U.S. at 325. Thus,

a law does not have an impact on the liberty to choose

merely because it discourages abortion or makes it less

likely that a woman will choose abortion. Moreover, the

Roe liberty assures only that “government may not

place obstacles in the path of a woman’s exercise of her

freedom of choice.” It does not require the government

to “remove those not of its own creation.” Harris, 448

U.S. at 316. For this reason, neither a governmental

failure to subsidize the effectuation of the constitution-

ally protected choice, nor an unequal subsidization of

the protected alternatives in that choice—childbirth or

abortion—has a constitutionally cognizable impact on

the liberty recognized in Roe.

It is also clear that, because the Roe liberty is personal

to the pregnant woman, third-party providers of services

related to the woman’s protected choice can assert no

rights independent of those of the pregnant woman.

Thus, for example, “statutory restrictions on . . . abor-

tion procedures [may be] invalid because they [encum-

ber] the woman’s exercise of that constitutionally pro-

tected right by placing obstacles in the path of the

doctor upon whom she [is] entitled to rely for advice

10.

in connection with her decision.” If, however, “those

obstacles [do not impact] upon the woman’s freedom to

make a constitutionally protected decision, if they .. .

merely [make] the physician’s work more laborious or

less independent without any impact on the patient,

they [do not violate] the Constitution.” Whalen, 429 U.S.

at 605 n. 33.

At the same time, the liberty exists only within the

context of consultation with a physician. The attend-

ing physician, in consultation with his patient, is free

to determine, without regulation by the State, that, in

his medical judgment, the patient’s pregnancy should be

terminated. Jf that decision is reached, the judgment

may be effectuated by an abortion free of interference

by the State.” Roe, 410 U.S. at 163 (emphasis added).

The Court has upheld, therefore, a criminal ban on all

abortions with regard to which a physician has not

made a determination “based on his best clinical judg-

ment that an abortion is necessary.” Doe v. Bolton, 410

U.S. at 191. The Supreme Court has “stressed repeated-

ly the role of the physician . . . in consulting with the

woman whether or not to have an abortion. .. .” Colautti

v. Franklin, 439 U.S. 379, 387 (1979). See also Connec-

ticut v. Menillo, 423 U.S. at 10. Laws that prevent abor-

tions obtained without appropriate medical consultation,

therefore, do not impact on the protected right.

Finally, the “constitutional right vindicated” is that

“of a pregnant woman to decide whether or not to bear a

child.” Whalen, 429 U.S. at 605 n. 33 (emphasis added).

It does not restrain the State from preventing hostile

activity directed toward the fetus unrelated to the

woman’s interest in choosing whether or not to remain

pregnant. See Wynn v. Scott, 449 F.Supp. 1302, 1321

(1978), affd sub nom. Wynn v. Carey, 559 F.2d 193

(1979) (the right secured in Roe is to expel contents of

8

the uterus, not to ensure the death of the fetus.) State

regulation of abortion is not limited by the Constitution

as a matter of absolute, abstract principle, but only to

the extent that such regulation unduly burdens or

obstructs the exercise of the woman’s choice to ter-

minate pregnancy or carry a child to term. Thus,

regulation of abortion on behalf of maternal health, on

behalf of the fetus, or on behalf of any other state

interest—even in the first trimester—does not auto-

matically trigger strict scrutiny. It does so only if it ob-

structs exercise of the right secured in Roe.

In sum, to have a constitutionally cognizable impact

on the abortion liberty recognized by this Court, statu-

tory provisions must impose a state-created restriction

on the “choice,” “access” or “safety” facets of the abor-

tional liberty. If they do not—if they merely touch or

relate to abortion without “impact[ing] upon the woman’s

freedom to make a constitutionally protected decision”

(Whalen, 429 U.S. at 605)—they are not unconstitutional.

Laws do not impact on the liberty recognized in Roe

merely because they discourage abortion or make it less

likely that the woman will procure abortion, deny gov-

ernmental assistance for abortion, merely make the

physician’s work more laborious or difficult, foreclose

performance of abortion without appropriate medical

assistance or consultation, or regulate aspects of abor-

tion that do not relate to the woman’s right to be free of

a pregnant condition. Such laws do not even implicate

the liberty acknowledged in Roe and are therefore con-

stitutional.

a

B. A Law Which Impacts On The Roe Liberty By

Benefiting Its Exercise Invokes Not Strict Scrutiny

But Rational Basis Review.

Once it has been determined that a challenged statu-

tory provision does have a constitutionally cognizable

impact on a recognized facet of the abortion liberty, the

next question is whether that impact is primarily posi-

tive or negative. A law which serves primarily to enhance

the exercise of the liberty should not be subject to strict

scrutiny. This is the case even if there are restrictions

on the liberty’s exercise incident to the primarily bene-

ficial effect, so long as such incidental restrictions do

not amount to a substantial burden on its exercise.'

The notion behind strict scrutiny is that a heightened

level of judicial vigilance is necessary when a legisla-

ture embarks on a course of action which threatens fun-

damental rights protected by the Constitution, because

such a course of action is prima facie suspicious. But

when a legislature acts in a manner that genuinely facil-

itates the exercise of a right, the rationale for heightened

scrutiny disappears, and its application can be counter-

productive.”

1 See Section II C, infra. There are few benefits without

burdens. Even the simple and beneficially protective traffic

signal causes a delay in travel. So it is with abortion. Any

restriction in some sense burdens access: consider the physi-

cian requirement discussed above. Only when the burdens in-

evitably incident to any benefit are substantial should they

trigger strict scrutiny. Of course, whatever the level of

review, burdens of any nature, substantial or not, must be

weighed inst the benefits to determine if the burdens are

“undue.” Section III for a discussion of the analysis a

propriate to such a weighing, which is not pertinent to the

threshold determination of what should be the level of review.

2 Consider, for example, what would happen if the physician

requirement were to be subjected to strict scrutiny. —

that it passed the ends“ test of being justified by a compell-

(Footnote continued on following page)

3

In San Antonio Independent Sch. District v. Rodriguez,

411 U.S. 1, 17 (1973) the Court declined to apply strict

scrutiny to a public education financing system which

allegedly discriminated in the provision of education on

the basis of wealth. The Court said,

We find this a particularly inappropriate case in

which to subject state action to strict judicial scru-

tiny. The present case, in [a] basic sense, is signifi-

cantly different from any of the cases in which the

Court has applied strict scrutiny . . . . Each of our

prior cases involved legislation which “deprived,”

“infringed,” or “interfered” with the free exercise

of some . fundamental personal right or liberty.

A critical distinction between those cases and the

one now before us lies in what Texas is endeavoring

to do with respect to education... Every step lead-

ing to the establishment of the system Texas utilizes

today . . . was implemented in an effort to extend

public education and to improve its quality. .. .

[W]e think it plain that, in substance, the thrust of

the Texas system is affirmative and reformatory

and, therefore, should be scrutinized under judicial

2 continued

ing state interest, it would still have to be analyzed under the

“means” requirement that it be narrowly drawn. It could

well be argued that the physician uirement was both

unconstitutionally overinclusive and underinclusive: overin-

clusive because it banned abortion performed, for exam-

ple, by experienced midwives who could provide safe abor-

tions; underinclusive because it permitted abortion by, for

example, ophthamologists without the experience or expertise

necessary to make an abortion safe. Were a strict scrutiny

level of review imposed, it might lead to the conclusion that

the only constitutional approach to the matter would be the

administration of some kind of abortion proficiency test to as-

piring laymen and physicians alike in order to select qualified

abortion practitioners. Clearly, the Court has deemed so strict

an approach inappropriate to pene upon States seeking to

ensure the woman’s safety, and thus benefit the Roe liberty,

by legislating that only physicians may perform abortions.

8

prineiples sensitive to the nature of the State's ef-

forts and to the rights reserved to the States under

the Constitution.

Id. at 37-39 (eitations omitted) (emphasis in original).

Although some courts have read Roe to prohibit all

regulation during the first trimester except when the

State has a “compelling interest” which justifies its regu-

lation, uniform application of strict scrutiny to first tri-

mester regulations is unwarranted.

In Danforth, this Court upheld state abortion regula-

tions which applied to the first trimester without apply-

ing strict scrutiny. In their concurring opinion, Justices

Powell and Stewart emphasized the basic difference be-

tween regulations intended to enhance the woman’s exer-

cise of her fundamental right and those intended to bur-

den it.

While [the informed consent provision] obviously

regulates the abortion decision during all stages of

pregnancy, including the first trimester, I do not

believe that it conflicts with [Roe, where the Court

stated that during the first trimester the woman, in

consultation with her physician, is free to deter-

mine to abort without state interference, 410 U.S. at

163, because] [t]hat statement was made in the con-

text of a law aimed at thwarting a woman’s deci-

sion to have an abortion. It was not intended to pre-

clude the State from enacting a provision aimed at

ensuring that the abortion decision is made in a

knowing, intelligent, and voluntary fashion.

428 U.S. at 89-90 (Stewart, J. concurring).

The Court also upheld recordkeeping requirements

applicable to the first trimester. Noting that “mainten-

ance of records . . . may be helpful in developing infor-

mation pertinent to the preservation of maternal health”,

the Court said, “Recordkeeping of this kind, if not abused

—

or overdone, can be useful to the State's interest in pro-

tecting the health of its female eitizens, and may be a

resource that is relevant to decisions involving medical

experience and judgment.” Id. at 80, 81. Thus, a law that

actually enhanced the pregnant woman’s health interest

was examined under the rational basis test, even though

it regulated abortion in the first trimester.

In so doing, this Court has recognized that abortion

regulations may be motivated by one of two very differ-

ent types of concerns. One is on behalf of the fetus,“ an

interest adverse to the constitutionally protected interest

of the pregnant woman. Regulation on behalf of the fetus

is by no means inherently unconstitutional, or even in-

herently subject to strict scrutiny. Such regulation does

necessarily require, however, that the weight of the state

interest be balanced against that of the pregnant woman’s

constitutionally protected interests.

On the other hand, the effect of a State action may

genuinely weigh in favor of the woman’s interests—a

regulation may foster and enhance the exercise of her

liberty. In such a case, unless the regulation also entails

a substantial burden on the Roe liberty, there is no logi-

cal reason to employ strict scrutiny merely because the

impact of the regulation on the liberty is substantial.

8’ Theoretically, the State could seek to further other in-

terests adverse to those of the pregnant woman through abor-

tion regulation. Roe bri mentioned, for example, the

possibility of a “concern to discourage illicit sexual conduct.”

410 U.S. at 148. (As Roe pointed out, however, no one, in-

cluding any defi of state statutes, “has taken the —

ment seriously.” Id.) Maher v. Roe, 432 U.S. at 478 n. 11,

the possibility of demographic interests in a State’s “rate of

population growth.

*

This Court's decision in Danforth, therefore, demon-

strates that a threshold determination concerning

whether the primary impact of the challenged statutory

provision enhances or encumbers the Roe liberty is

crucial in selecting the proper level of review. This

principle has implications for some of the kinds of state

laws relating to abortion now before this Court for

review.

For example, laws that ensure that a woman contem-

plating the choice between abortion and childbirth be

given information material to her decision tend to en-

hance the “choice” aspect of the Roe liberty. It is inap-

propriate to apply strict scrutiny to such laws merely

because they have an impact on the Roe liberty if they

in fact serve the very interest the liberty protects: the

interest of the woman in making a voluntary, compe-

tent, and autonomous choice whether or not to carry a

child to term. Of course, to achieve this result the legis-

lation must in fact genuinely enhance the possibility of

free and reflected choice. To the extent such laws pur-

vey what is false, misleading, confusing or inflamma-

tory (as opposed to informative) they do not enhance

but burden the choice.“ But a law that merely re-

quires that women be provided with certain objective

4 Such circumstances, which vitiate the potentially beneficial

aspects of informed consent, are to be distinguished from cir-

cumstances which may create burdens incidental to still

present beneficial aspects. For example, the sheer volume of

data that must be provided to the woman might create a

burden. This volume would not remove the benefit, but might

outweigh it. The proper analysis is to weigh such a burden

against the benefit to determine if the burden is “undue” and

thus if the legislation is unconstitutional as discussed in Sec-

tion III. By contrast, the threshold question, discussed here, is

whether the 412 rovision in fact benefits the liberty

—even if it also has burdensome aspects—or only purports to

do so, in order to establish the correct standard of review.

an |

information that may materially affect the outcome of

their decisions between childbirth and abortion should

not for that reason be subjected to strict scrutiny, be-

cause such a law fosters, rather than inhibits, the con-

stitutionally protected liberty.

In sum, a court considering a challenge to a legisla-

tive provision that impacts on the Roe liberty should

determine whether the provision has the primary effect

of enhancing some aspects of that liberty’s exercise. If it

does, then unless the provision carries a concomitant

burden on the liberty which is substantial (see the next

section of this brief), the Court should employ the ra-

tional basis standard in deciding the constitutionality of

the provision.®

5 If a statutory provision literally has no constitutionally

cognizable impact on the liberty recognized in Roe (see Sec-

tion IIA of this brief), constitutional analysis ends with this

conclusion. There is no need to apply the rational basis test

because that which has no adverse burden at all on con-

stitutionally protected rights need not even be justified by a

state interest. (This changes if, in addition to or instead of a

substantive due process violation, an equal protection violation

is alleged. In such a case, a determination that no fundamental

right is infringed—or suspect class discriminated against—

means only that strict scrutiny need not be employed; the

rational basis test must still be met. Cf. the treatment in

Harris of a substantive due process challenge, 448 U.S. at

312-18 with the treatment in the same case of an equal pro-

tection challenge, id. at 321-26.) In the abstract, a statutory

provision whose sole impact on the protected liberty was held

to be to benefit its exercise would also require no further con-

stitutional scrutiny. In fact, however, any provision with a

constitutionally izable but beneficial impact on the lib-

erty will also burden it, no matter how minimally, by limit-

ing access or at least slightly A the cost of effectuating

a choice. Although an insubstantial burden does not invoke

strict scrutiny (see Section II C), the fact that it is a burden

means that the provision imposing it must undergo rational

basis review. This is so because even an insubstantial burden

might be “undue” if it was not rationally related to a legiti-

mate state interest.

31

C. A Law Which Substantially Burdens The Roe Liberty

Invokes Strict Scrutiny But A Law Which Insubstan-

tially Burdens That Liberty Invokes Only Rational

Basis Review.

This Court’s clearest description of the degree of bur-

den requisite to trigger strict scrutiny of abortion-

related legislative provisions came in Carey v. Popula-

tion Services, 431 U.S. at 688 (emphasis added):

The same test must be a 8 to state regulations

that burden an individu right to decide to .

terminate pregnancy by substantially limiting ac-

cess to the means of effectuating that decision as is

applied to state statutes that prohibit the decision

entirely. Both types of regulation “may be justified

only by a ‘compelling state interest’ . and

must be narrowiw drawn to express only the legiti-

1 * interests at stake.” Roe v. Wade, 410 U.S.

at .

Justice Powell, concurring in part and concurring in

the judgment, voiced his objection to what he saw as an

unwarranted imposition of the strict scrutiny standard

of review. “In my view, [Griswold v. Connecticut, 381

U.S. 479 (1965) and Roe] make clear that that stand-

ard has been invoked only when the state regulation en-

tirely frustrates or heavily burdens the exercise of con-

stitutional rights in this area. See Bellotti v. Baird I,

428 U.S. at 147.” Carey, 431 U.S. at 705.

The Court specifically responded to Justice Powell’s

criticism by emphasizing that “state regulation must

meet this standard . . . only when it ‘burden{s] an indi-

viduai’s right to decide to prevent conception or termi-

nate pregnancy by substantially limiting access to the

means of effectuating that decision.“ Jd. at 688 n. 5

(emphasis added).

The Sixth Circuit held below that any “‘direct state

interference with a protected activity’ [quoting Maher,

210.

432 U.S. at 475], here the right of a pregnant woman to

have an abortion, . . . is subject to strict scrutiny” and

that, Islince the state has no compelling interest dur-

ing the first trimester . . . [iJf a regulation results in

a legally significant impact or consequence on a first tri-

mester abortion decision, it is invalid.” Akron, 651 F.2d

at 12-4. These holdings contradict this Court’s ruling in

Carey and badly misconstrue its holdings in Danforth.

In Danforth, the Court upheld informed consent (428

U.S. at 65-67) and recordkeeping requirements (id. at

79-81) that applied throughout pregnancy, including

the first trimester. The Sixth Circuit sought to dis-

tinguish these holdings by describing them as “based

upon a finding that neither provision involved an intru-

sion into the decision-making process sufficient to re-

quire constitutional analysis[,]... not... on a holding

that the constitutionality of the statute could rest on

something less than a compelling state interest.” Akron,

651 F.2d at 1203. This plainly mischaracterizes the Dan-

forth opinion. Rather than treating the informed con-

sent and recordkeeping requirements as though neither

“raise[d} a constitutional issue” nor needed to be exam-

ined “to determine whether or not the regulatory pro-

vision serves a legitimate and [sic] compelling state in-

terest” (id. at 1204), the Court related each to a state

interest. The informed consent provision was related to

the interest in assuring that the “decision to abort

be made with full knowledge of its nature and con-

sequences.” Danforth, 428 U.S. at 67. The recordkeeping

provision was related to “the State’s interest in pro-

tecting the health of its female citizens” and in develop-

ing a statistical “resource that is relevant to decisions

involving medical experience and judgment.” Id. at 81.

—20—

The section of Danforth dealing with the record-

keeping requirement, in particular, contains a nuanced

discussion of the “important and perhaps conflicting

interests affected.” Jd. at 80. The Court did not deem

“constitutional analysis” unnecessary. On the contrary, it

carefully weighed and balanced these interests before

holding the provision constitutional. What it did was to

apply constitutional analysis in accord with a lower

standard of review than strict scrutiny.

This Court has explicitly applied strict scrutiny to in-

validate state abortion statutes in only three types of

situations, summarized in Maher, 428 U.S. at 472-473.

First, strict scrutiny has been applied where a law

prohibits abortion altogether. Roe, 410 U.S. at 153; Doe

v. Bolton, 410 U.S. at 200-201 (out-of-state residents).

(See also Danforth, 428 U.S. at 81-84, in which the Court

struck a standard of care provision which “effectively

preclude[d] abortion.”)

Second, it has been applied where a State seeks to give

the decision whether or not to abort to a person other

than the pregnant woman herself through some form of

“third party veto.” Danforth, 428 U.S. at 67-75 (spousal

consent and parental consent provisions invalidated);

Bellotti v. Baird II, 443 U.S. 622, 642-644 (1979) (pa-

rental and judicial consent invalidated). The “third-

party veto” rulings may be viewed simply as delegated

powers of prohibition (cf. Danforth, 428 U.S. at 69). Doe

v. Boiton’s strict scrutiny of the hospital committee and

two doctor concurrence requirements (410 U.S. at 198),

fit within the same framework.

Third, strict scrutiny has been applied where state

regulation has so substantially limited access to abortion

that a pregnant woman is almost precluded from ef-

fectuating her decision to abort. For example, in

a

Danforth, 428 U.S. at 75-79, the Court invalidated a

statute which prohibited saline amniocentesis as a

method of abortion. In striking the statute, the Court

relied on the fact that “there were severe limitations on

the availability of the prostaglandin technique,” the

alternative to the saline procedure. Jd. at 77 n. 12. In

their concurring opinions, Justices Powell, Stevens and

Stewart felt that the statute could be invalidated only

because “a prohibition of the saline amniocentesis pro-

cedure was almost tantamount to a prohibition of any

abortion in the State after the first 12 weeks of preg-

nancy.” Id. at 92, 102 (emphasis added). Similarly, the

Court in Doe v. Bolton strictly scrutinized the Georgia

requirement that abortions be performed only in hospi-

tals accredited by the Joint Commission on Accredita-

tion of Hospitals because it subsiantially burdened ac-

cess to abortion. Id. at 193-195.

Thus, this Court, in accord with the Carey criteria,

has never applied strict scrutiny to an abortion law ex-

cept when it has found that the law imposed a complete

prohibition or substantial burden. It follows that the

constitutionality of state regulations that impose only

insubstantial burdens should be evaluated under the

rational basis level of review.

III.

A LAW WHICH RELATES TO ABORTION IS CON-

STITUTIONAL UNLESS, WHEN THE IMPACT OF

THE LAW ON THE ROE LIBERTY IS CONSIDERED

TOGETHER WITH THE STATE INTERESTS THE

LAW SERVES, AND THESE ARE WEIGHED IN AC-

CORDANCE WITH THE APPLICABLE LEVEL OF RE-

VIEW, THE LAW UNDULY BURDENS THAT LIBERTY.

This Court has “held that a requirement for a lawful

abortion ‘is not unconstitutional unless it unduly bur-

—22—

dens the right to seek an abortion.“ Maher, 432 U.S. at

473 (quoting Bellotti v. Baird I, 428 U.S. at 147). Once

the threshold evaluation has been made and the proper

level of review has been selected, it remains to deter-

mine whether any “burden” that has been found—“sub-

stantial” burden if the strict scrutiny test has been in-

voked or “insubstantial” burden if the rational basis

test is to be employed—is “undue” by weighing that bur-

den against the legitimate or compelling state interests

that the burdensome provision advances. This requires

testing the sufficiency of the State’s “ends” and the ap-

propriateness of the State’s “means”. The standards for

each prong depend on which level of review has been

invoked.

Roe explicitly acknowledged two state interests which

are “legitimate” throughout pregnancy and which be-

came “compelling” at different stages: the interest in

maternal health and the interest in the fetus. 410 U.S.

at 162-64.

Subsequent to Roe, the Court has acknowledged other

interests at stake in an exercise of the Roe liberty: in

assuring the mutuality of the marital relation and in the

paternal interest in the fetus, Danforth, 428 U.S. at 67;

in assuring the integrity of the woman’s decision, Dan-

forth, 428 U.S. at 67; in protection of the immature minor

and of the interests of her parents, Bellotti v. Baird II,

443 U.S. at 635, 637; in development of public health

data, Danforth, 428 U.S. at 80-81; and in population con-

trol, Maher, 432 U.S. at 478 n. 11.

Whatever other legitimate or compelling interests a

State may have, one which protects the fundamental

rights of its citizens must certainly be called compel-

ling. Yet, it is compelling only to the extent that the

~~ eS

provision does foster a fundamental right; and it fosters

it only wher, on balance, the beneficial effects of the

provision outweigh the burdensome effects. It is neces-

sary, therefore, whatever level of scrutiny is used, to

weigh the burden against the benefit to see if, in light

of the comparative substantiality of the benefit and the

burden, the burden is “undue.”

For example, consider the constitutionality of a wait-

ing period. A brief waiting period may substantially

enhance the prospect of reflected and thereby autono-

mous rather than coerced or unduly pressured decisions—

thus benefiting the “choice” aspect of the Roe liberty. In

an abstract sense, it might be argued that the greater

the time for reflection, the more free and autonomous

the choice is likely to be. It seems clear, however, that

the benefit is most substantial in association with the

first hours or days of a waiting period. It is then that

the need is greatest to calm the panic that may accom-

pany discovery of pregnancy, or to withdraw from the

perhaps huckstering pressures of an abortion clinic. See

generally Zekman & Warrick, The Abortion Profiteers

(1978) (special reprint of Chicago Sun-Times series on

undercover investigation of abortion clinics). As the

waiting period lengthens, the substantiality of the mar-

ginal benefit decreases. At the same time, a waiting

period of any length burdens the “access” aspect of the

same liberty by restricting immediate effectuation of a

decision to abort. The substantiality of the burden on

access—and perhaps, as the pregnancy progresses, on

safety—increases steadily as the waiting period grows

longer. Thus, a one day waiting period might greatly

enhance the quality of choice while only minimally di-

minishing access. On the other hand, a one week wait-

ing period would much more substantially diminish ac-

8

cess, while the marginal benefit to choice of such a

length might well be insubstantial.

Similarly, a properly drawn informed consent provi-

sion could benefit the liberty recognized in Roe by en-

hancing the autonomy of the woman’s choice. Incidental-

ly, it would also burden that liberty by causing a

minimal delay, thus affecting access—a burden that in

most cases would be so slight as to be de minimis. If,

however, an otherwise beneficial informed consent regu-

lation were so unreasonable as to require an entire

course on fetal development, the substantial delay would

overcome the benefit.

Once the nature and weight of the state interests at

stake have been identified, and even if they are held suf-

ficient to justify the statutory provision, a “means”

analysis testing the relationship of the law to the state

interests is still necessary. Under strict scrutiny, the

“legislative enactments must be narrowly drawn” (Roe,

410 U.S. at 155) in order to further the state interests in

a manner which burdens the liberty to the minimum ex-

tent necessary to serve those interests. Under the

rational basis standard, the enactment need only ra-

tionally further the purpose identified by the State.”

Murgia, 427 U.S. at 314. The significance of the princi-

ple that laws which benefit the exercise of the Roe liberty

are subject to the rational basis test is greatest when

the “means” prong is reached. (It makes little difference

to the constitutionality of such laws whether the “ends”

prong of strict scrutiny or of rational basis review is

applied, since, as we have seen, state action which bene-

fits the exercise of a fundamental right by definition

serves a compelling state interest.)

Danforth’s analysis of the Missouri recordkeeping re-

quirements provides a paradigm for this sort of analy-

—25—

sis. The manner in which the Court effectively employed

a rational basis rather than a strict scrutiny test has

already been discussed. See brief at 14-15. The Court

carefully weighed the “important and perhaps conflict-

ing interests affected by recordkeeping requirements”:

the benefit of “the preservation of maternal health”

against the burden of “restrictions or regulations gov-

erning the medical judgment of the pregnant woman’s

attending physician with respect to the termination of

her pregnancy.” 428 U.S. at 80. It concluded that the

benefits were important and useful, while the burdens,

given a strict protection of confidentiality and a rea-

sonable limit of 7 years for the records’ required retention,

were not of “significant impact or consequence.” Id. at

81. The Court warned, however, that were there to be a

“sheer burden of recordkeeping detail,” the burden

could become substantial enough to alter this balance

and render a recordkeeping requirement unconstitu-

tional. As for the “means” prong of the test, the Court

regarded the requirements to be “reasonably directed to

the preservation of maternal health.” Jd. at 80.

Thus, conscientious constitutional analysis requires,

not a mechanistic striking of any law that impacts on

abortion in the first trimester, but a careful weighing of

the benefits and burdens it creates for the Roe liberty,

as well as of the state interests at stake. Unless, all things

considered, “it unduly burdens the right to seek an

abortion,” Bellotti I, 428 U.S. at 147, such a law should

be upheld.

CONCLUSION

Proper evaluation of constitutional challenges to statu-

tory provisions that relate to abortion requires a two-

step process.

Initially, a court must make a threshold examination

to determine what level of review, if any, is appropriate.

To do so, the court should first consider whether a statu-

tory provision has a constitutionally cognizable impact

on the Roe liberty as that liberty is properly under-

stood. If it does not, the law should be upheld if the

challenge is based on a due process claim and subjected

to a rational basis review if the challenge is based on an

equal protection claim.

Second, if there is an impact, the Court should con-

sider whether the impact primarily benefits or burdens

the exercise of the Roe liberty. If the impact is primar-

ily beneficial, and if any attendant burden is insubstan-

tial, the provision should be subjected to rational basis

scrutiny.

Third, if the challenged provision carries a burden on

the Roe liberty, the Court must determine whether that

burden is substantial or insubstantial. If the burden is

substantial, the strict scrutiny test is appropriate, but if

the burden is insubstantial, the rational basis test should

be applied.

Once the threshold is crossed and the level of review

is selected, the procedure for evaluation is well settled.

Under the strict scrutiny test the Court should deter-

mine whether the provision is supported by any com-

pelling state interests, and if so, whether the provision

is narrowly drawn to serve only those interests. Under

the rational basis test, the Court should determine if the

—27—

provision is supported by any legitimate state interests

and, if so, whether the provision is rationally related to

those interests. When the provision benefits as well as

burdens the exercise of the Roe liberty, however, the

Court must balance the nature and degree of the burden

against the nature and degree of the benefit. Unless,

given the benefit and any other interests at stake, the

burden is “undue,” the provision should be upheld as

constitutional.

Respectfully submitted,

Dennis J. Horan

Victor G. RosensLum

Patrick A. TrueMAN

Tuomas J. Marzen*

Mauna K.

Americans United for Life

Legal Defense Fund

230 N. Michigan, Suite 915

Chicago, Illinois 60601

(312) 263-5029

Counsel for Amicus

July 29, 1982

Counsel of Record

Law Students Who Assisted in the Preparation of this Brief:

Daniel Avila, Thomas J. Balch, Elizabeth Bower, Michael R.

Carey, Richard Cohen, Walter M. Weber.