MOTION TO DISMISS — Kerrey v. Women's Services, P. C.

Supreme Court of the United) Statepye + srv»s,

OCTOBER TERM, 1982

>

ROBERT KERREY, Governor of Nebraska, et al.,

Appellants,

—Vvs.—

WOMEN’S SERVICES, P.C., et al.,

Appellees.

ROBERT KERREY, Governor of Nebraska, et al.,

Appellants,

—Vso—

LADIES CENTER, NEBRASKA, INC., et al.,

Appellees.

ROBERT KERREY, Governor of Nebraska, et al.,

Appellants,

—vs.—

WOMEN'S SERVICES, P.C., et al.,

Appellees.

MOTION TO DISMISS OR AFFIRM

SUZANNE M, LYNN

JANET BENSHOOF

NAN D. HUNTER

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

Attorneys for Appellee, Elizabeth F.

QUESTION PRESENTED

1. Whether this Court's decision

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

governs the appropriate standard of re-

view for abortion-specific statutes

which apply to adult women.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .....eeeeeeeeees i

TABLE OF AUTHORITIES ....cceeeeeees iii

OPINIONS BELOW ..cccccccccccsccccces 1

JURISDICTION ..cccccccccccccccvcccs 1

STATUTORY PROVISIONS ....eeeeeevecs 1

STATEMENT OF THE CASE ..ceecesssees 2

ARGUMENT :

1. The judgment of the Court of

Appeals for the Eighth Circuit

should be affirmed because the

question presented is so unsub-

stantial as not to need further

ATGUMONAE ccoccccccoscccesecccccces 3

2. The lower courts were correct

in holding unconstitutional

the informed consent, waiting

period and reporting require-

ments, under a standard of

strict judicial scrutiny ....... 8

CONCLUSION eoeeeeveeeeeeeeeeeeneeeeeeee 14

iii

TABLE OF AUTHORITIES

CASES: PAGE

Bellotti v. Baird, 443

Use 662 (1979) “enrneenrtreene ee ee © 6, 13

Carey v. Population Services

International, 431 U.S.

eoeenwerieeweeeweneeeneteeeeeeeee 12

Colautti v. Franklin, 439 U.S.

379 (1979) oeeeveveveeweneeewneeneeneee 12

Connecticut v. Menillo, 423 U.S.

9 (1975) oeeeeeveeeeeeeeeeeneeee 9

Doe v. Bolton, 410 U.S. 179

[TEE Seeseecsseocesvetsscese De bd

Harris v. McRae, 448 U.S. 297

(1980) eeeeeeneenereeneeneeneeeeneeeeee 7 |

H.L. v. Matheson, 450 U.S. 398

MEERE bebcb6eecdeccccocccccesee PASSIN

Planned Parenthood of Central

Missouri v. Danforth, 428

U.S. 52 (1976) eoeoeeeeeeeeeeeee 11-13

Planned Parenthood of Kansas

City v. Ashcroft, 655 F.2d 848

Cath Cir. 1981) (supplemental

opinion), cert. granted, 50

U.S.L.W. 3934 (U.S. May 24,

1982) (Nos. 81-1255, 81-1623)... 6, 7

iv

PAGE

Roe v. Wade, 410 U.S. 113

bio) rao ere ee ee ee 9-11, 14

STATUTES:

Supreme Court Rule 16-l(c) ...

Neb. Rev. Stat. §28-326(8) (a). 2;

Neb. Rev. Stat. §28-327 ...... 2,

Neb. Rev. Stat. §28-333 eevee

Neb. Rev. Stat. §28-334 ......

> — => > > e

Neb. Rev. Stat. §28-343 ...... as

INTRODUCTION

The Appellee above named respect-

fully moves, pursuant to Supreme Court

Rule 16.1(c), that the Court affirm the

judgment below because the question pre-

sented is so unsubstantial as not to

need further argument. The judgment of

the Court of Appeals for the Eighth Cir-

cuit is also subject to affirmance be-

cause it is manifestly correct under con-

trolling principles of law.

OPINIONS BELOW

(See Jurisdictional Statement of

Appellant, Robert Kerrey)

JURISDICTION

(See Jurisdictional Statement of

Appellant, Robert Kerrey)

STATUTORY PROVISIONS

Neb. Rev. Stat. §§28-326(8) (a);

28-327; and 28-343.

The pertinent text of the above

cited statutes are reprinted in the Ap-

pendix to the Jurisdictional Statement

(App. 64-7427),

STATEMENT OF THE CASE

The relevant facts are set out in

the opinions below, which are reprinted

in the Appendix to the Jurisdictional

Statement and in Appellant's Procedural

3-62/).

Overview (J.S. Appellant's

1/citations in this form refer to the

Appendix to the Jurisdictional State-

ment filed herein.

2/citations in this form refer to the

Jurisdictional Statement.

3

Statement of the Facts (J.S. 6-8), how-

ever, is irrelevant, since the issue

presented by this appeal is not the

manner in which the District Court

weighed evidence presented by Appellants

at the trial on the nature of the

state's interest in enacting the chal-

lenged legislation, but whether H.L. v.

Matheson, 450 U.S. 398 (1981), is con-

trolling on the issue of the appropriate

standard of review for abortion-specific

legislation applicable to adult women.

ARGUMENT

1. The judgment of the Court of Appeals

for the Eighth Circuit should be affirm-

ed because the question presented is so

unsubstantial as not to need further ar-

gument.

This Court's remand to the Eighth

Circuit "for further consideration in

light of H.L. v. Matheson" (App. 74)

4

clearly refers to the striking down of

the Nebraska parental consultation re-

quirement, Neb. Rev. Stat. §§28-333 and

334. (App. 68-69) .2/ The remand had no

bearing on the lower courts' decisions

regarding the informed consent, waiting

period and reporting provisions, all of

which apply to adult women. Neb. Rev.

Stat. §§28-326(8) (a); 327 and 343.

(App. 66-67, 71-73). In H.L. v. Mathe-

son, 450 U.S. 398 (1981), this Court

upheld as constitutional a Utah statute

requiring prior parental notification

for minors seeking abortions, but only

as applied to immature, dependent minors.

Id. at 409. H.L. left unanswered whether

/ prior to trial, the district court had

granted plaintiffs' motion for partial

summary judgment, finding unconstitu-

tional the parental consultation require-

ment. (App. 59-60).

such a requirement would be constitution-

al if applied to a broader class of

minors, since no other kinds of minors

had challenged the statute. Id. at 496-

07. Indeed, this Court implied that a

notification requirement applicable to

mature minors, minors with emergency

health care needs, or minors with hos-

tile home situations, would present

serious constitutional questions. Id.

at 406-07, n. 14.

The original plaintiffs in the in-

stant case did not explicitly include

minors, the named women plaintiffs having

been certified to represent a class of

all women in Nebraska seeking abortions.

(App. 6). Thus, under H.L., they did

not have standing to challenge the par-

ental consultation requirement on the

ground that it violated the constitu-

tional rights of mature or "best inter-

ests" minors. The district court re-

sponded to this concern on remand by

allowing the intervention of two minor

plaintiffs, Jane Roe I and Jane Roe II,

to represent the interests of mature and

"best interests" minors. 4/ The district

court then held that insofar as the par-

ental consultation requirement on its

face applied to all minors, and that no

provision had been made for alternative

court procedures, it was unconstitution-

al, citing Bellotti v. Baird, 443 U.S.

662 (1979) and Planned Parenthood Asso-

ciation of Kansas City v. Ashcroft, 655

F.2d 848 (8th Cir. 1981),

4/vhe district court also allowed the

doctor-plaintiffs to amend their com-

plaints to add allegations that their

patients included mature and "best in-

terests" minors. (App. 77).

664 F.2d 687 (8th Cir. 1982) (supplemen-

tal opinion), cert. granted, 50 U.S.L.W.

3934 (U.S. May 24, 1982) (Nos. 81-1255,

81-1623). (App. 79-80).

Contrary to Appellants' assertion,

the Eighth Circuit did not disagree with

the district court's implicit holding

that H.L. had no effect on the standard

of review to be applied to the informed

consent, waiting period and reporting

provisions. Indeed, the Eighth Cir-

cuit's citation of Ashcroft, 655 F.2d

848 (1981), in support of its affirmance

confirms this conclusion. Ashcroft,

which struck down a similar parental

notice provision, nowhere intimates

that H.L. controls the standard by which

courts must review abortion legislation

applicable to adult women. 655 F.2d at

857-60.

It is clear that this Court's

vacatur and remand "in light of H.L. v.

Matheson" constituted a direction to the

lower court to reexamine the standing of

the women plaintiffs to raise certain

challenges to the parental consultation

requirement. Only if the women plain-

tiffs were found to have such standing,

would the district court then be free

to rule on the constitutionality of the

parental consultation section, in light

of the principles enunciated in H.L. and

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

The lower courts' response to this

Court's direction was entirely appropri-

ate.

2. The lower courts were correct in

holding unconstitutional the informed

consent, waiting period and reporting

requirements, under a standard of strict

judicial scrutiny.

This Court has consistently applied

the compelling state interest test

established in Roe v. Wade, 410 U.S.

113 (1973). That case held that the

"right to privacy . . . founded in the

Fourteenth Amendment's concept of per-

sonal liberty and restrictions upon

state action . . . is broad enough to

encompass a woman's decision whether or

not to terminate her pregnancy." Id.

at 153. State interference with funda-

mental rights can be justified only by

a “compelling state interest," and a

showing that the regulations are narrow-

ly drawn to serve those interests. Id.

at 155.2/ Those state interests are (1)

protecting the health of the pregnant

5/Regulations applicable to first tri-

mester abortions are almost always in-

valid, since no compelling state interest

exists at that stage. Doe v. Bolton,

410 U.S. 179, 195 (1973). Connecticut

v. Menillo, 423 U.S. 9, 11 T1975) under-

10

woman, which does not become "compell-

ing" until the second trimester of preg-

nancy and (2) protecting potential life,

which does not become "compelling" un-

til the fetus is considered by the physi-

cian to be viable. Id. at 162-163.

Therefore,

for the period of preg-

nancy prior to this

‘compelling’ point, the

attending physician in

consultation with his

patient, is free to de-

termine, without regula-

tion by the State, that,

in his medical judgment

the patient's pregnancy

should be terminated.

If that decision is

reached, the judgment

may be effectuated by an

abortion free of inter-

ference by the State.

Id. at 163.

scored that first trimester regulations

which "restrict" abortion are permissible

only if they insure the existence of

medical standards which underlie the

finding in Roe of the safety of first

trimester abortions.

1l

This Court has reaffirmed the Roe

formulation in subsequent decisions;

legislation which interferes directly

with the abortion right is subject to

strict scrutiny. Such laws are uncon-

stitutional if they are not narrowly

drawn to serve one of the compelling

6/

state interests set forth in Roe.— For

instance, Planned Parenthood of Central

Missouri v. Danforth, 428 U.S. 52 (1976)

struck down a statutory prohibition a-

gainst the use of saline amniocentesis

as an abortion technique after the first

§/aws impinging on fundamental rights

are "presumptively unconstitutional"

Harris v. McRae, 448 U.S. 297, 312

(1980). Once plaintiffs show the re-

quisite degree of interference, defen-

dants bear the burden of proving the

law is narrowly tailored to further a

compelling state interest. See Planned

Parenthood of Central Missouri v. Dan-

orth, U.S. ’ = ; Doe

v. Bolton, 410 U.S. at 195.

12

12 weeks of pregnancy. This Court found

that it did not promote the state's in-

terest in maternal health because abor-

tion by that method was still safer than

childbirth, and alternative abortion

methods were not yet widely available.

This Court further found that the re-

quirement was not narrowly drawn, since

other, more dangerous methods were not

prohibited. Id. at 76-77. See also

Colautti v. Franklin, 439 U.S. 379

(1979); Carey v. Population Services

International, 431 U.S. 678-686 (1977).2/

V strict scrutiny analysis need not be

employed when a regulation causes no

significant burden. The Danforth Court

upheld a recordkeeping requirement be-

cause it had "no legally significant im-

pact or consequence on the abortion de-

cision." 428 U.S. at 80-81. Similarly,

an informed consent requirement, which

did not specify the content of the physi-

cians' speech, was found not to interfere

with the abortion decision, Id. at 77.

The recordkeeping, informed consent and

13

This Court's rulings on the privacy

rights of minors do not undermine the

strict scrutiny standard. Bellotti v.

Baird, 443 U.S. 622, 633 (1979) recog-

nized that "the status of minors under

the law is unique in many respects."

Thus, “the State has somewhat broader

authority to regulate the activities

of children than of adults," Planned

Parenthood of Central Missouri v. Dan-

forth, 428 U.S. at 74-75, because there

are state interests at stake which are

not present in the case of adults.

H.L. v. Matheson illustrates this

Court's recognition that there are legi-

timate state interests with regard to

waiting period requirements in the in-

stant case are not of the Danforth ilk.

The district court found that all three

imposed very real burdens on women seek-

ing abortions. (App. 39-54).

14

minors which do not exist in relation

to adults. The Utah statute, this Court

noted, served the "important considera-

tions of family integrity and protecting

adolescents . . ." id. at 411, and it

was on this basis that the statute was

upheld. Id. at 413. Nothing in H.L. v.

Matheson, or indeed in any of the Court's

decisions with regard to minors' pri-

vacy rights, undermines the basic prin-

ciple of strict judicial review for

abortion-specific legislation establish-

ed in Roe v. Wade.

CONCLUS ION

For the foregoing reasons, the judg-

ment below should be affirmed.

15

Respectfully submitted,

Suzanne M, Lynn*

Janet Benshoof

Nan D. Hunter

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

Counsel for Appellee Elizabeth F.

* Counsel of Record