# Amicus Curiae Brief — Thornburgh v. American College of Obstetricians and Gynecologists

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0056%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 747

## Text

_. 2 7 Office Supreme Court, UA

60597 FILED
4 5
Nos. 84-495 and 84-1379 JUL 15 1985

In the Supreme Court of the Th

OCTOBER TERM, 1985

RICHARD THORNBURGH, ET AL., APPELLANTS
.

AMERICAN COLLEGE OF OBSTETRICIANS AND
GYNECOLOGISTS, ET AL.

EUGENE F. DIAMOND, ET AL., APPELLANTS
V.

ALLAN G. CHARLBS, ET AL.

ON APPEAL FROM THE UNITED STATES COURTS
OF APPEALS FOR THE THIRD AND SEVENTH CIRCUITS

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE IN SUPPORT OF APPELLANTS

CHARLES FRIED
Acting Solicitor General

RICHARD K. WILLARD
Acting Assistant Attorney General

CAROLYN B. KUHL
Deputy Assistant Attorney General

JOHN F. CORDES

JOHN M. ROGERS
Attorneys
Department of Justice
Washington, D.C. 20530
(202) 633-2217

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page
Interest of the United Seat 1
TEE 2
RR A -:? 3
EE 7—%ô7çP ½⁰½̃½«—⏑%« ½̃¼i]8' 30
TABLE OF AUTHORITIES
Cases:
Adamson v. California, 332 U.S. 4 25
Adkins v. Children’s Hospital, 261 U.S. 52 25
Akron v. Akron Center for Reproductive Health,
ON A Ü passim
Atascadero State Hospital v. Scanlon, No. 84-351
EEE 21
Beal v. Doe, 432 U.S. 4332 ii 3,17
Bellotti v. Baird, 443 U.S. 62222 4, 5, 18, 19
Black v. Cutter Laboratories, 351 U.S. 222 12
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S.
ESS EET 11
Colautti v. Franklin, 439 U.S. 37019. 6, 8
Z 3
Duncan v. Louisiana, 391 U.S. 14 27
Eisenstadt v. Baird, 405 U.S. 43 29
Erie R. Co. v. Tompkins, 304 U.S. 4 21
Furman v. Georgia, 408 U.S. 23333 26
Garcia v. San Antonio Metropolitan Transit Au-
thority, No. 82-1913 (Feb. 19, 1985) 21
Glidden Co. v. Zdanok, 370 U.S. 530b0o0 21
Gregg v. Georgia, 408 U.S. 238 26
Griswold v. Connecticut, 381 U.S. 479 28
H. L. v. Matheson, 450 U.S. 398 18, 19
Harris v. McRae, 448 U.S. 27 18
Kastigar v. United States, 406 U.S. 44 26
Lochner v. New York, 198 U.S. 4 25, 29, 30
Los Angeles v. Lyons, 461 U.S. 95 13
Loving v. Virginia, 388 U.S. 29
Lynch v. Donnelly, No. 82-1256 (Mar. 5, 1984) 26

(1)

Cases—Continued : Page
Constitution and statutes—Continued : Pa
Maher v. Roe, 432 U.S. 73 3.7, 17, 18, 19 -
Marsh v. Chambers, 463 U.S. 783 —....................... 26 e encteneneenseneeeeneaneeseae 5
Meyer v. Nebraska, 262 U.S. 390 29 e . 5
Miranda v. Arizona, 384 U.S. 43 26 1 —————————7—7v*˖ð—Q1ðvn 5
Pierce v. Society of Sisters, 268 U.S. 510 29 EEE 5
ee advent 5, 10 5 suena Gi) se ;
99. X!eC“f D ticenrseenencemneseneene
Planned Parenthood of Central Missouri v. Dan- N — 7, 9
e 3, 9, 14, 17, 19, 20 r 6
Poe v. Ullman, 367 U.S. 47 13, 28 r 6
Prince v. Massachusetts, 321 U.S. 156 29 e adieeeicieteencerimnenemeovennesese 5, 6
Richmond Newspapers, Inc. v. Virginia, 448 U.S. ; — —
———U—U—A ͤ rr . — T
Rochin v. California, 342 U.S. 1666 24. 27 111 —ů3— 9
Roe v. Wade, 410 U.S. 1112 passim ES 9
Shapiro v. Thompson, 394 U.S. 618 27 Miscella ‘
v. Virgi 4 —— 8 —
— . age + e 29 A. Bickel, The Morality of Consent (1975) 24
Stanley v. Georgia, 394 U.S. 557 29 9 — — of the Family, 1979 Sup. 5
Williams v. Florida, 399 U.S. 7 26 EEE
Ely, The Wages of Crying Wolf: A comment on Roe
Constitution and statutes : v. Wade, 82 Yale L.J. 920 (1973) 24, 28
U.S. const. J. Ely, Democracy and Distrust (198) 24
Oe io 13 Epstein, Substantive Due Process by Any Other
Amend. I (Establishment — . 26 1 The Abortion Cases, 1973 Sup. Ct. Rev. 7
————< Patrman, Bots the Beritt Amendment Taco
Amend — 26 porate the Bill of Rights? The Original Under-
Amend. VIII PLS 26 standing, 2 Stan. L. Rev. 5 (1949) * — 25
ome Gunther, Some Reflections on the Judicial Role:
Amend. XIV (Due Process Clause) — 2. 25, 26, 28 Distinctions, Roots, and cts, 1979 Wash.
Act of Nov. 20, 1979, Pub. L. No. 96-123, § 109, 93 r 1 20
ie : J. Mohr, Abortion in America (1978) 25, 26
2 ‘SC. — ee 20 Wellington, Common Law Rules and Constitutional
— — ~~~ “(Purdon 1983) : a Double Standards: Some Notes on Adjudication,
18 Pa. Cons. nn. ( ): re 24
8 3205 (a) (2) 0 —— — 7
L EEE 7
28 000... * 8

In the Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-495
RICHARD THORNBURGH, ET AL., APPELLANTS
Vv.

AMERICAN COLLEGE OF OBSTETRICIANS AND
GYNECOLOGISTS, ET AL.

No. 84-1379
EUGENE F. DIAMOND, Er AL., APPELLANTS
v.
ALLAN G. CHARLES, Er AL.

ON APPEAL FROM THE UNITED STATES COURTS
OF APPEALS FOR THE THIRD AND SEVENTH CIRCUITS

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE IN SUPPORT OF APPELLANTS

INTEREST OF THE UNITED STATES

These cases involve the efforts of two state legislatures
to balance the competing interests at stake in the abor-
tion decision. Congress has in the past enacted legislation
affecting that decision (see 42 U.S.C. 300a-6; Act of Nov.
20, 1979, Pub. L. No. 96-123, § 109, 93 Stat. 926), and
may do so again. This Court’s continuing effort to define
the perimeters of permissible abortion regulation has a
direct impact upon the ability of the country’s elected
representatives—both state and federal—to deal with this
important question of great public import and heated
political debate.

(1)

2

SUMMARY OF ARGUMENT

The opinions of the courts below are multiply flawed.
In their manifest eagerness to strike down the state
statutes in question they transgress numerous canons of
constitutional adjudication: provisions are construed so
as to impugn rather than save their constitutionality;
facts stipulated solely for purposes of a preliminary in-
junction are taken as dispositive for an ultimate judg-
ment on the statute; and provisions repealed and sub-
stantially recast to meet constitutional objections are
struck down in their earlier versions. More substantively,
the courts below reach their conclusions as if this
Court in Roe v. Wade had posited only one value, a
woman’s unfettered right to an abortion, rather than a
balance of values which include the state’s interest in
maternal health and in unborn and future life. The
harsh and one-sided nature of the decisions below may
in part be a response to a change in emphasis in this
Court’s opinion in Akron v. Akron Center for Repro-
ductive Health, which itself expressed considerable im-
patience with legislative attempts to balance the interests
recognized in Roe v. Wade. To the extent this is so, these
cases and Akron itself are not just wrong turns on a
generally propitious journey but indications of an errone-
ous point of departure. Indeed, the textual, doctrinal and
historical basis for Roe v. Wade is so far flawed and, as
these cases illustrate, is a source of such instability in
the law that this Court should reconsider that decision
and on reconsideration abandon it.

DISCUSSION

A. In Roe v. Wade, 410 U.S. 113, 153 (1973), this
Court held that the “right of privacy” emanating from
the Due Process Clause “is broad enough to encompass a
woman’s decision whether or not to terminate her preg-
nancy.” But the Court has consistently rejected the no-
tion that “the Constitution requires abortions on de-
mand” (id. at 208 (Burger, C.J., concurring) ). Rather,
the Court has held, in this and other contexts, that the
right of privacy “is not unqualified and must be consid-

ered against important state interests in regulation“
(id. at 154).

Perhaps the dominant governmental interest recognized
in the Court’s opinions is the state’s “unquestionably
strong and legitimate interest in encouraging normal
childbirth,” an interest that “exist[s] throughout the
course of the woman’s pregnancy” (Beal v. Doe, 432
U.S. 438, 446 (1977)). And the Court has consistently
recognized that the state has “an important and legiti-
mate interest,” which likewise exists throughout preg-
nancy, in safeguarding the health of the mother and in
maintaining medical standards. E. g., Roe v. Wade, 410
U.S. at 154; Doe v. Bolton, 410 U.S. 179, 194-195 (1973);
Planned Parenthood of Central Missouri v. Danforth, 428
U.S. 52, 80-81 (1976).

In evaluating state efforts to further these legitimate
interests, this Court and its individual Justices have said
that a regulation “is not unconstitutional unless it un-
duly burdens the right to seek an abortion.” E. g., Maher
v. Roe, 432 U.S. 464, 473 (1977) (original quotation
marks omitted). Indeed, the Chief Justice has stated his
understanding that “(t]he Court’s holdings in Roe v.
Wade * * * and Doe v. Bolton * * * simply require that
a State not create an absolute barrier to a woman’s de-
cision to have an abortion” (Maher v. Roe, 432 U.S. at
481 (Burger, C.J., concurving) ).

The decisions below are inconsistent with these princi-
ples and should be reversed. The courts of appeals be-
trayed unabashed hostility to state regulation of abortion
and ill-disguised suspicion of state legislators’ motives.
The courts repeatedly failed “to give proper weight to the
legislative decision, as expressed in the statute, to pro-
tect the life and health of the woman and the child
subject to abortion” (84-495 J.S. App. 170a (Weis, J.))
A persistent theme of the decisions below is “the notion
that normal rules of law, procedure, and constitutional
adjudication suddenly become irrelevant solely because a
case touches on the subject of abortion” (Danforth, 428
U.S. at 98 (White, J., concurring and dissenting) ). The
decisions below thus not only “have far-reaching effects”

4

on the abortion issue, but also “implicate the proper role
of the states and the federal courts” under our Constitu-
tion (84-495 J.S. App. 172a-173a (Weis, J.))

1. No. 84-495. The Third Circuit signaled its antipathy
in the opening section of its opinion, in which it imputed
to the Pennsylvania legislature “a pervasive invalid in-

tent” to “restrict a pregnant woman’s fundamental right

to choose an abortion” (84-495 J.S. App. 3la, 32a). The
court suggested that the legislature was somehow culpa-
ble for enacting “a complex and extensive regulatory
scheme * * * containing numerous provisions which it
had been advised skirted constitutional limits” (id. at
86a). The court faulted the legislature for passing the
abortion bill “after scant debate” (id. at 13a) and for
attaching it to another bill the court did not view as
“germane” (id. at 12a & n.3). The court relied heavily
(id. at 12a-13a) on newspaper accounts about a co-
sponsor’s alleged opposition to Roe v. Wade. And even
though the case was on appeal from the district court’s
denial of a preliminary injunction,’ the court of appeals
reached out to render a final judgment holding most of
the statute unconstituuonal, asserting that [the cus-
tomary discretion accorded to a district court’s ruling on
a preliminary injunction yields to our plenary scope of
review” (84-495 J.S. App. 21a)

The court’s zeal to place the worst possible construction
upon the Pennsylvania statute is evident from its treat-
ment of the specific provisions challenged. That treat-
ment is seriously at odds with this Court’s abortion opin-
ions and with basic principles of judicial review.

a. Section 3206(c) provides that a pregnant minor,
without seeking parental consent, may petition the ap-
propriate court to authorize an abortion upon a finding
that she “is mature and capable of giving informed con-
sent * * * and has, in fact, given such consent” (18 Pa.
Cons. Stat. Ann. (Purdon 1983)). This provision codi-
fies the holding in Bellotti v. Baird (Bellotti II), 443

1 The district court had granted a preliminary injunction as to
one section of the statute, but the State conceded the invalidity of
that section on appeal (84-495 J.S. App. 18a, 33a-34a).

U.S. 622, 648-651 (1979). The statute provides that
such court proceedings “shall be confidential and shall be
given such precedence * * * as will ensure that the court
may reach a decision promptly and without delay” (§ 3206
(f)). The judge must rule “within three business days
of the date of application” (ibid.). The statute mandates
an “expedited confidential appeal” if authorization is de-
nied and directs the Pennsylvania Supreme Court to is-
sue “such rules as may be necessary to * * * ensure con-
fidentiality and * * * promptness of disposition“ 3206
(h)).

The court of appeals did] not invalidate section 3206”
(84-495 J.S. App. 56a). The court nevertheless proceeded
to enjoin the statute’s enforcement “until the state prom-
ulgates [the] regulations“ referred to above ibid. . This
Court has made it clear, however, that a state is not
constitutionally required to have regulations on this sub-
ject, expressing confidence that state courts will expedite
cases involving minors’ consent consistently with this
Court’s decisions. Bellotti II, 443 U.S. at 645 K n.25.
Accord, Planned Parenthood Ass'n . Asheroft, 462 U.S.
476, 491 n.16 (1983). The court of appeals’ action in
enjoining enforcement of a state law. withoujggny finding
that it contravenes federal law or the federal Constitu-
tion, is unprecedented and remarkable.

b. Section 3210(c) requires the attendance of a second
physician at abortions performed after viability. This
provision, like the provision at issue in Ashcroft, con-
tains no explicit exception for medical emergencies (see
462 U.S. at 485 & n.8). The Court in Asheroft inferred
such an exception under the latter statute and held it
valid (ibid.). The court of appeals refused to infer a
comparable exception under Section 3210(‘c) here. lt did
so even though Section 3210(a) provides a “complete de-
fense to any charge brought against a physician for vio-
lating the requirements of this section * * * that the
abortion was necessary to preserve maternal life or
health” (emphasis added). The court justified its holding
by asserting that subsections (a) and e are “separated
by [an] intervening provision [viz., subsection (b)

which on its face evinces the Pennsylvania legislature’s
unconstitutionally restrictive view of maternal health”
(84-495 J.S. App. 73a). The court’s insistence that the
statute be construed so as to create rather than to re-
move constitutional problems inverts well-established can-
ons of judicial review.

e. Section 3210(b) provides that the method of abor-
tion used when the fetus is viable must be the one most
likely to produce a live birth, unless that method would
cause a “significantly greater” risk to the mother. The
district court, in an effort to discharge its obligation]
to give the statute [a] reasonable interpretation which
avoids the danger of constitutional invalidity” (84-495
J.S. App. 247a-248a), interpreted “significantly greater”
to mean “medically cognizable,” and held the statute as
thus interpreted valid under Colautti v. Franklin, 439
U.S. 379, 400 (1979). The court of appeals refused to
adopt this construction, finding it “inconsistent with
* * * the legislative intent,” and accordingly declared
the statute unconstitutional (84-495 J.S. App. 70a). It
did so even though the district court had shown that its
saving construction was supported by a dictionary defini-
tion of the relevant words (id. at 248a). And it did so
without even considering the possibility of abstaining to
ascertain whether the Pennsylvania courts might adopt
the same construction that the district court did.

d. Section 3208, entitled “Printed Information,” di-
rects the Pennsylvania Department of Public Health to
publish easily comprehensible pamphlets describing as-
sistance available to pregnant women through public and
private agencies. These pamphlets are to include the
following statement: “The Commonwealth of Pennsyl-
vania strongly urges you to contact these agencies} be-
fore making a final decision about abortion” (§ 3208 (a
(1)). The statute also directs the Department to pub-
lish literature discussing the unborn child’s probable
anatomical characteristics and possibility of survival, pro-
videc chat such material is “objective, nonjudgmental
and designed to convey only accurate gcientific informa-
tion” (§ 3208 (a) (2)).

7

The court of appeals declared this statute unconstitu-
tional (84-495 J.S. App. 58a-59a). It did not base this
holding on a determination that the section, standing
alone, was invalid. Indeed, such a determination would
contravene this Court’s ruling that a state may “make
a value judgment favoring childbirth over abortion, and
* * * implement that judgment by the allocation of pub-
lie funds” (Maher v. Roe, 432 U.S. at 474). The court
of appeals based its holding, rather, on a determination
that Section 3208 was “inextricably intertwined” (84-
495 J.S. App. 58a) with another section which the court
thought unconstitutional. The sole link between the two
sections is a statutory cross-reference (see id. at 137a
(Seitz, C.J., dissenting) . The court invalidated Section
3208 based on this supposed “inextricable” connection
even though the law contains an explicit severability
clause (ibid.). The court’s approach is unjustifiable and
can only be explained as an attempt to censor printed
matter the majority did not like.

e. Section 3205, entitled “Informed Consent,” provides
that a woman’s consent to abortion will be deemed “vol-
untary and informed” only if the referring or the at-
tending physician provides her with information about
the relative medical risks, both physical and psychologi-
cal, of abortion and childbirth. The doctor or his agent
must also inform the woman of the availability of certain
financial assistance and social services in the event of
childbirth (§ 3205(a) (2) (i) and (ii)). Finally, the doc-
tor or his agent must inform the woman that she has a
right to review, but need not review, the printed mate-
rials described above ( 3205 (a (2) (iii), cross-referring
to § 3208).

The court of appeals held this statute unconstitutional,
citing Akron v. Akron Center for Reproductive Health,
Inc., 462 U.S. 416 (1983). The court of appeals inferred
that “ ‘much of the information required * * * is designed
not to inform the woman's consent but rather to persuade
her to withhold it altogether’ ” (84-495 JS. App. 48a
(quoting 462 U.S. at 444)). And the court viewed the
statute as mandating “a litany of information” that in-

trudes upon the attending physician’s discretion (84-495
J.S. App. 48a-49a (quoting 462 U.S. at 444-445

The court of appeals plainly erred. Most of the in-
formation Pennsylvania requires is identical to that
which the Court in Akron deemed “certainly * * * not
objectionable,” “probably * * * routinely made available
to the patient,” and “clearly * * * related to maternal
health and to the State’s legitimate purpose in requiring
informed consent” (462 U.S. at 445-446 & n.37). It is
true that Pennsylvania requires the doctor himself to
provide the relevant medical information, permitting him
to delegate to an assistant the provision of information
about social services, financial assistance, and the like.
Cf. Akron, 462 U.S. at 448-449 (holding that the phy-
sician generally must be allowed to delegate]] the coun-
selling task to another qualified individual”). But the di-
vision of labor Pennsylvania has adopted is surely a ra-
tional one, particularly in light of this Court’s repeated
stress on “the central role of the physician * * * in con-
sulting with the woman about whether or not to have an
abortion” (Colautti, 439 U.S. at 387).

The court of appeals likewise erred in holding that
Pennsylvania cannot require that a woman be informed
that she has the right to review” certain printed ma-
terials (discussed above) published by the state health
department. This information, unlike that deemed a
“parade of horribles” in Akron (462 U.S. at 445), is
required to be “objective, nonjudgmental and * * * ac-
curate scientific information” (§ 3208(a)(2)). More-
over, the woman is free to decide for herself whether or
not she wants to read these pamphlets, and “nothing in
the statute prevents the physician from advising that
[she] not view [them] or disputing or supplementing
them with his own information” (84-495 J.S. App. 140a
(Seitz, C.J., dissenting) . This Court has repeatedly held
that the state may promote maternal health by ensuring
that a woman’s abortion decision is truly knowing, volun-
tary, and informed. It cannot seriously be contended that
a state, by offering a person the right to read objective,

nonjudgmental materials before making a decision, would
be held unconstitutionally to compel or coerce that per-
son’s decision in any other legal context.

f. Section 3214(a) requires that [a] report of each
abortion performed * * * be made to the department on
forms prescribed by it.” The physician must report rou-
tine statistical information about each abortion, such as
the patient’s age and marital status (but not her iden-
tity), the type of abortion procedure used, and any med-
ical complications resulting therefrom. He must also re-
port the basis for his determination “that a child is not
viable,” and, if he determines that the fetus is viable, to
report “the basis for his determination that the abortion
is necessary to preserve maternal life or health” (§ 3214
(a) (8), ecross-referring to § 3211).

The court of appeals held this statute unconstitutional.
While acknowledging that this Court has approved rec-
ordkeeping and reporting requirements for abortions, it
asserted that the nature and complexity of [Pennsyl-
vania’s} requirements have crossed the permissible
threshold” (84-495 J.S. App. 80a). It reasoned that
P. .sylvania’s law would “have a significant impact on
the woman’s abortion decision” by inereas ing] the costs
of * * * abortions” by an unspecified amount (id. at 80a-
8la).

The court of appeals’ reasoning is seriously flawed.
The statistical information Pennsylvania requires to be
reported is information that “most physicians would ob-
tain as a matter of course, or which is easily obtained
through simpl{e| questions or observation” (84-495 J.S.
App. 148a (Seitz, C.J., dissenting)). The court of ap-
peals had no basis for distinguishing Pennsylvania’s rec-
ordkeeping requirements from those approved in Dan-
forth. Compare 428 U.S. at 79-81. The parties’ stipula-
tion that Pennsylvania’s requirements would increase

requirements always increase costs, a fact that obviously
was equally true in Danforth—is irrelevant absent evi-
dence about the magnitude of those expenses. Indeed, a
host of state laws (be they tax laws or regulatory re-

725
iil
i
9
25
i
eit

—
in
>
3
2
8 2
F *
EQ
=
i
5
Q
F

281

for their determinations about fetal viability and danger
to maternal health. It is far-fetched to suggest, as did

(84-495 J. S. App. 8la), that such
reporting violates this Court’s “directive that a physician

stitutionally “chills” physicians’ willingness to perform

is hard to see how Pennsylvania can en-

force its legitimate interest in protecting fetal life if it
is foreclosed from seeking such information.

2. No. 84-1379. The Seventh Circuit, ruling unani-

mously, struck down four sections of the Illinois Abor-

performing an abortion when there existed “a

known to him” of fetal viability (84-1379 J.S. App. 8).
On November 16, 1979, four days before Section 6(4)’s
effective date, the district court issued a preliminary in-

11

junction against its enforcement, finding that it incor-
porated an unconstitutional definition of “viability” (id.
at 3). In October 1983, the district court converted the
preliminary injunction into a permanent injunction
(579 F. Supp. 464, 470-471 (N.D. III. 1983)). On June
30, 1984, while the instant appeal was pending in the
Seventh Circuit, the Illinois legislature amended Section
6(4) (see 84-1379 J.S. App. 9, 58-59). The court of
appeals recognized that this amendment “substantially
altered” Section 6(4) and the court specifically de-
cline[d] to evaluate [the] constitutionality” of the cur-
rent version of the statute (84-1379 J.S. App. 9).

The court of appeals, however, proceeded to declare
the repealed version of Section 6(4) unconstitutional.
Rejecting the State’s suggestion of mootness, the court
likened the legislature’s 1984 revision of the statute to
“a defendant’s voluntary abandonment” of prior uncon-
stitutional conduct (84-1379 J.S. App. 18). The court
theorized that the Illinois legislature “could reenact” the
repealed version of Section 6(4), and was persuaded that
“such a result would not be unlikely” inasmuch as the
legislature had amended Section 6(4) twice during the
previous five years (84-1379 J.S. App. 19-20). The court
concluded that the State had failed to prove that it would
not “return to its old ways” if plaintiffs’ challenge were
dismissed (id. at 20). The court also suggested that the
1983 version of the statute might have residual “chill-
ing effects” despite its repeal (ibid.

The court’s reasoning is remarkable. The old version
of Section 6(4) had been under continuous injunction
from the day it was enacted until the day it was re
pealed. The statute thus could never have been applied to
anyone, and the controversy concerning its validity was
accordingly moot. Although this Court has recognized a
narrow exception to the mootness doctrine where defend-
ants “voluntarily abandon” challenged conduct for the
purpose of evading judicial review City of Mesquite v.
Aladdin's Castle, Inc., 455 U.S. 283 (1982)), we know of
no instance, and the court of appeals cited none, where
this exception has been held to cover a statutory amend-

1979, four days before the statute became effective, the

attending physician based on the particular facts

case before him, there is a reasonable likelihood of sus-
tained survival of the fetus outside the womb, with or
without artificial support” (id. at 7, 58). On October 14,
1983, the district court sustained the amended definition

13

of viability, held that Section 6(1) was thus constitu-
tional, and lifted the preliminary injunction (579 F.
Supp. at 466, 469). On June 30, 1984, while the instant
appeal was pending in the Seventh Circuit, the Illinois
legislature amended Section 6(1) (see 84-1379 J.S. App.
7, 57-58). The court of appeals recognized that this
amendment “substantially transformed section 6(1)”
and the court “accordingly decline d] to discuss the con-
stitutionality” of the current version (id. at 7).

Once again, however, the court of appeals proceeded to
declare the repealed version of the statute unconstitu-
tional. Rejecting the State’s suggestion of mootness, the
court noted that old Section 6(1) had operative effect for
the eight-month period between October 14, 1983, and
June 30, 1984. The court observed that the statute of
limitations had not expired with respect to events occur-
ring during that period, and hence suggested that the
State “could prosecute plaintiffs * * if [they] violated
[the repealed] section while it remained in effect” (84-
1379 J.S. App. 15). The court found “this possibility in-
sufficiently speculative to render [their] challenge * * *
moot” (id. at 16). ;

The court’s reasoning is flawed. The State explicitly
advised the court of appeals that it would not initiate
prosecutions of the type appellees assertedly feared (see
84-1379 J.S. 42, 48). Moreover, appellees brought a
facial challenge to Section 6(1) and did not allege that
they performed any late-term abortions during the eight-
month period in question (see id. at 43). The possibility
that appellees might be prosecuted under the old statute
is thus too conjectural to satisfy Article III requirements.
See, e.g., Los Angeles v. Lyons, 461 U.S. 95, 101-110
(1983); Poe v. Ullman, 367 U.S. 497, 507 (1961).

On the merits, the court of appeals held the old version
of Section 6 (1) unconstitutionally vague. That statute
made it illegal, in the case of a pregnancy termination
“after the fetus is known to be viable,” for [al ny phy-
sician or person assisting in such a pregnancy termina-
tion” intentionally to fail to manifest a specified stan-
dard of care. The court found the statute vague because

14

it “does not specify * * * which party, physician or as-
sistant, must make this viability determination” (84-
1379 J. S. App. 26).

As noted above, the Illinois legislature in September
1983 had amended the statute’s definition of “viability”
so as to make the determination of viability depend on
“the medical judgment of the attending physician.” It
would have required no great leap of logie for the court
of appeals thence to infer that the legislature meant the
determination of the attending physician, not of his as-
sistant, to govern under old Section 6(1). Indeed, the
1984 amendment to Section 6(1) makes this explicit. See
84-1379 J.S. App. 57-58. We think that a fair reading
of the statute compelled this construction of the 1983
version. In any event, this construction was plainly per-
mitted, and the court of appeals was obliged to adopt
that permissible construction under the well-settled prin-
ciple that federal courts should construe state statutes in
a manner favoring their constitutionality.

ce. Section 2(10) of the Illinois Abortion Law defines
an abortifacient“ as any substance or device “known to
cause fetal death.” Section 11(d) requires any person
who prescribes or administers a substance or device
“which he knows to be an abortifacient” to tell the re-
cipient “that it is an abortifacient.” Intentional or reck-
less failure to provide this information is a misdemeanor.

The court of appeals held these two provisions uncon-
stitutional (84-1379 J.S. App. 43). The court did not
suggest that Section 2(10)’s definition of “abortifacient”
is inaccurate. Nor did it suggest that it is unconstitu-
tional for a state to require a doctor who performs an
abortion, or who prescribes an abortifacient, to tell his
patient what he is doing. Indeed, 2 state in regulating
abortions indisputably may require “the giving of in-
formation to the patient as to just what [will] be done
and as to its consequences” (Danjurih, 428 U.S. at 67
n.8). Rather, the court invalidated these two provisions
because Section 2(10), in defining “abortifacient,” re-
fers to “fetal death,” and because another section of the
statute—Section 2(9), which was repealed in September

15

1983—formerly defined “fetus” as “a human being from
fertilization until birth” (see 84-1379 J.S. App. 39-40,
60). Reading these three sections together, the court con-
cluded that Section 11(d) unconstitutionally “foist[s]
upon the pregnant woman [the State's] view that life
begins at conception“ (84-1379 J.S. App. 39 (citing
Akron, 462 U.S. at 444) ).

This line of reasoning is strained indeed. Section 11(d)
simply requires that a doctor, when administering some-
thing that is likely to destroy the fetus, tell his patient
that he is administering something that is likely to de-
stroy the fetus. Destruction of the fetus in such cir-
cumstances is obviously a “consequence” of which the
pregnant woman may be informed (Danforth, 428 U.S.
at 67 n. 8). Section 11(d) does not say that the doctor
must use the words “abortifacient” or “fetal death”; he
is free to get the message across in any way he chooses.
Moreover, the doctor is not required to refer to, or to
say anything about, the definition of “fetus” formerly
contained in Section 2(9). The pregnant woman pre-
sumably knows what a “fetus” is; if not, the doctor is
free to explain it in his own words. All Section 11(d)
requires is that the doctor tell her that she is about to
have an abortion if that is what she is about to have.“

Section 11(d) is an entirely reasonable provision de-
signed to ensure that women seeking birth control as-
sistance understand the difference between “abortifa-
cients” and “contraceptives.” The difference is signifi-
cant for many women, whether for physical, moral, or
religious reasons, and the state plainly has a legitimate
interest in ensuring that this difference is explained to
them so that they may make an informed choice. In
adopting a strained and illogical construction of Sectior

In any event, the court of appeals wholly ignored the fact that
the statute’s allegedly improper definition of fetus“ was repealed in
September 1983. Since then, the statute has defined “fetus” as “an
individual organism of tke species homo sapiens from fertilization
until live birth” (84-1379 J.S. App. 60). It cannot seriously be
contended that this definition impermissibly adopts any particular
“theory of life“ (Roe v. Wade, 410 U.S. at 162).

16

110d), the court of appeals ignored both the State’s le-
gitimate interests and proper principles of judicial review.

B. The approach of the courts below betrays in our
view an extreme and unseemly hostility to legitimate
state regulation of abortion. By subjecting innocuous,
even repealed, statutes to strained interpretations, ap-
parently for no other reason than to invalidate them, the
courts seemed determined to make regulations so difficult
to sustain that abortions before the third trimester will
become available virtually “on demand” (Roe v. Wade,
410 U.S. at 208 (Burger, C.J., concurring)). In so do-
ing, the courts relied heavily on this Court’s decision in
Akron. See, e.g., 84-495 J.S. App. 20a-21a, 24a-25a, 46a-
47a, 48a-49a, 79a; 84-1379 J.S. App. 30, 35-36, 38-39.
It is perhaps not fanciful to suggest that the courts be-
low may have thought they detected in Akron an under-
current of impatience with state efforts to regulate abor-
tion, and to have taken their cue from that insight.

We believe that Akron does represent something of a
departure from the Court’s previous abortion decisions,
both in the standard of review it applies and in the di-
minished weight it seems to attach to a state s legitimate
interests in this area. In reviewing the instant cases,
therefore, the Court may find it appropriate to consider
whether Akron sent an erroneous message to the lower
federal courts. There are several respects in which we
think that might have happened.

1. This Court in Roe v. Wade held that the states
have legitimate interests in protecting fetal life and pre-
serving maternal health, and that these interests become
sufficiently “compelling” at some point during pregnancy
to justify restrictions on, or outright proscription of,
abortion. Until Akron, however, the Court had not sug-
gested that a state’s choice among various alternative
means of achieving a given “compelling” objective had
itself to be supported by a compelling state interest.
Rather, provided that the state was pursuing a “com-
pelling” objective (e. g., health), a particular regulation
was deemed valid if it was “reasonably related” to that
objective (e. g., was a rational health regulation) and did

17

not “unduly burden” the woman’s freedom of choice re-
specting abortion. See, e.g., Danforth, 428 U.S. at 80;
— Doe, 432 U.S. at 445; Maher v. Roe, 432 U.S.
a .

The Akron decision seems to signal a departure from
this analytical framework. Certain — that opin-
ion suggest, for example, that a state, in crafting a regu-
lation designed to protect maternal health, must demon-
strate a “compelling interest” in selecting one of several
options, each of which represents a rational means of
achieving the state’s goal. This is most evident in the
Court’s treatment of Akron’s “informed consent” pro-
visions. The ordinance required “the attending physi-
cian” to inform his patient of the relative risks and con-
sequences of pregnancy and abortion (462 U.S. at 446).
The Court acknowledged that this information was
“clearly related to maternal health and to the State’s
legitimate purpose in requiring informed consent” (ibid.)
The Court acknowledged the importance of having this
information conveyed by a “well-trained and competent
counselor I]“ (id. at 449 n. 41). The Court acknowl-
edged that its earlier decisions had “stressed repeatedly
the central role of the physician * * * in consulting with
the woman about whether or not to have an abortion”
(id. at 447 (original quotation marks omitted)). And
the Court found nothing in the record to “suggest that
ethical physicians will charge more for adhering to this
typical element of the physician-patient relationship”
(ibid.). Yet the Court nevertheless held the ordinance
unconstitutional because it required the attending physi-
cian to make the communication, rather than permitting
his assistant to do so. The Court was “not convinced
pi 1 eed there is as vital a state need for insisting”

information be conveyed by the one ra
by the other (462 U.S. at 448). a are

This holding, in our view, cannot be squared with the
Court's previous opinions. A requirement that the
physician convey the medical information was surely
“reasonably related” to Akron’s compelling health objec-
tive, and that requirement was not shown to have in-

18

creased the cost of abortions by a magnitude sufficient
to impose an “undue burden” on pregnant women’s free-
dom of choice. The regulation should accordingly have
been sustained.

2. Prior to Akron, this Court had consistently recog-
nized that a State may legitimately “make a value judg-
ment favoring childbirth over abortion” (Maker v. Roe,
432 U.S. at 474). “The Constitution,” the Court had
said, “does not compel a state to fine-tune its statutes so
as to encourage or facilitate abortions,” and hence the
fact that a regulation “may inhibit some [women] from
seeking abortions is not a valid basis to void the statute”
(H. L. v. Matheson, 450 U.S. 398, 413 (1981)). Tu be
contrary, the Court had held that “state action ‘encour-
aging childbirth except in the most urgent circumstances’
is ‘rationally related to the legitimate governmental ob-
jective of protecting potential life’” (ibid., quoting Har-
ris v. McRae, 448 U.S. 297, 325 (1980) ).

Certain passages in Akron again seem to signal a de-
parture from these principles. The Court in Akron sug-
gested, for example, that a state regulation is invalid
if it is “designed to influence the woman’s informed
choice between abortion or childbirth” (462 U.S. at 444
(footnote omitted). On that premise, the Court struck
down provisions requiring that certain information be
furnished to a woman contemplating an abortion, reason-
ing that the information was designed to persuade
her to withhold” her consent to that procedure ibid.)

Once a woman steps into an abortion clinic, however,
there is no way a state can promote its legitimate policy
of “encouraging childbirth” without at the same time
“discquraging abortion”. A woman who enters “an
abortion clinic, where abortions for pregnant minors fre-
quently take place,” is presumably inclined to terminate
her pregnancy, and it is “unlikely that she will obtain
adequate counsel from the attending physician at an
abortion clinic,” much less be dissuaded from her pro-
posed course. Bellotti II, 443 U.S. at 641 (original quo-
tation marks omitted). Indeed, as.a doctor at one of
the clinics involved in Akron testified, when a teenager

— ——

19

showed up at the clinic he assumed the decision was
made: “When you go to a bar, you go there to drink”

(81-746 Resp. Br. 20). Obviously, no state can promote
a policy of “encouraging normal childbirth” in such cir-
cumstances unless it is allowed to place a counterweight
in the other side of the scales.

The Akron majority thus had little basis in precedent
for suggesting that state action is unconstitutional per
se if it is “designed to influence the woman’s informed
choice between abortion or childbirth.” If the state’s
interest in encouraging childbirth is to mean anything,
and if the woman’s consent to abortion is to be truly
intormed, the state must be allowed, in a reasoned and
objective way, to tell its side of the story, and a story
favoring childbirth is a permissible story for it to tell.
Of course, should the state convey that message in an
inaccurate or overbearing fashion, or otherwise attempt
to compel or coerce the woman’s decision, her decision
would not be “knowing, intelligent, and voluntary” (Dan-
forth, 428 U.S. at 90 (Stewart, J., concurring)), and
the state’s action would constitute “an unduly burden-
some interference with her freedom to decide whether to
terminate her pregnancy” (Maher v. Roe, 432 U.S. at
474). But an effort by the state to influence a pregnant
woman to choose childbirth instead of abortion, in a
manner that does not impair her freedom of choice, can
hardly be thought to erect an unconstitutional obstacle.

3. Prior to Akron, this Court’s abortion opinions gen-
erally reflected the well-settled rule that federal courts
should accord state statutes a sympathetic construction
that favors their constitutionality. See, e. g., Danforth.
428 US. at 64; Bellotti II, 443 US. at 645 & n.25:
H. L. v. Matheson, 450 U.S. at 406, 407 & n.14, 412. Once
again, however, the Akron opinion seems to suggest a
more hostile approach. This is perhaps most evident in
the majority’s treatment of Akron’s regulation requiring
that physicians performing abortions “insure that the
remains of the unborn child are disposed of in a humane
and sanitary manner” (462 U.S. at 451). The city

averred that this regulation was designed simply “to

tH 01 4 f BEALL HAL
1. : 752 i 111 28732 175
THE 5 Hi Hing! iil fi
e 11 E 131
iit 1 i ne E
e if ie
dale ile aut
1 1 e ih
14711 3322 24227 Hit nin
5 2 8 228 7 1 33 "ER: :
a i ie 10
vig ee alaauthy
Hall! 11471114 fail 1177
are te i Hit r
224717 Hing Gece y BE Boa, ii
“BR 170 piss qT 1 3 5 i 125
e ö 21001 if
12717 Bia, 2161311415
Wee

drawing may occasionally be necessary to make explicit
constitutional rights efficacious, but such arbitrariness
gains the appearance of legislation pure and simple
where the subject is one upon which the Constitution is
silent. |

The Court in Roe v. Wade properly recognized that the
states have a strong interest in safeguarding maternal
health, but it is difficult to grasp why the compelling
this interest should undergo a radical change

termination basically one of legislative fact—that un-
end of the first trimester mortality in abortion
may be less than mortality in normal childbirth“ (410
at 149, 163). The legislative nature of this finding
shown by evidence that developments in the past
decade, particularly the development of a much safer
method for performing second-trimester abortions, * * *
have extended the period in which abortions are safer
than childbirth” (Akron, 462 U.S. at 429 n.11). The
fact that Akron, despite this evidence, retained the end
of the first trimester as the sharply determinative point
demonstrates that point’s essential arbitrariness. As
Justice O’Connor wrote in dissent, “The fallacy inherent
in the Roe framework is apparent: just because the
State has a compelling interest in ensuring maternal
safety once an abortion may be more dangerous than
childbirth, it simply does not follow that the State has
no interest before that point that justifies state regula-
tion to ensure that first-trimester abortions are per-
formed as safely as possible” (id. at 460 (emphasis in
original)
It was similarly arbitrary for the Court in Roe v.
Wade to determine that the state’s legitimate interest

side the womb, and the magnitude of a state’s lawful
concern to protect future life. As Justice ©’Connor said
in her Akron dissent, “(Potential life is no less poten-

23
tial in the first weeks of pregnancy than it is at viability
or afterward. * * The choice of viability as the point

at which the state interest in potential life becomes com-
pelling is no less arbitrary than choosing any point before
viability or any point afterward” (462 U.S. at 461 (em-
1 py
“viability” standard is particularly unworkable as
a constitutional reference point because it changes with
advances in technology. The “increasingly earlier fetal
viability” demonstrated in recent scientific studies (462
U.S. at 457 (O'Connor, J., dissenting) ) obviously owes
to improvements in medical techniques, and not to any
change in our perceptions about how fully developed or
worthy of life a fetus is at any point in time. It is dis-
turbing to attribute constitutional significance to a point
which, besides being in motion rather than being fixed,
— ts dictated by advances in engineering
orces more familiar to traditional
ays judicial
trary nature of Roe v. Wade's analytical
framework is reflected in the increasingly complex line-
drawing of its progeny. A state may require that certain
information be furnished to a woman by a doctor or his
assistant (Akron, 462 U.S. at 448), but may not require
that such information be furnished to her by the doctor
himself (id. at 449). A state may require that second-
trimester abortions be performed in clinics (Simopoulos
. Virginia, 462 U.S. 506 (1983)), but may not require
that they be performed in hospitals (Akron, 462 U.S. at
437-439). As each set of these subtle distinctions was

the abortion debate have come back n and
asking this Gash to eats ot ante ah a —
tions. The adversaries are back again today. They are
sure to return. Each time, the set of rules will get longer
and more intricate. This is an inappropriate burden to
22 5
second, compelling ground for our urging re-
consideration of Roe v. Wade is our belief that the tex.

1771111115;
+ inl 1 e tnd 10 f
i i i 11 e 473 15 f
1 i 4 111125 . 122 hes 111115 1
111% f 74175535 . ta Hal i
0 i . il 1 0 0
A 3 rite ;
sf: 15 HG 4 F 1 Hi 1 i
18411145
22 1111 3221118
fs hil Ce
i ie ie t antl
1 1 iE (i) fad el
3, 21145 Heat “ii bits 178
Hai 4 inet . Ht +f il
i: Fat HT iH ie

state has always had a significant stake. It is fair
conclude that those who drafted and voted for the Four-
teenth Amendment would have been surprised indeed to
learn that they had put any part of such subjects beyond
the pale of state legislative regulation.

Surely this historical context of the Due Process Clause
is relevant to its interpretation. The most usual and
straightforward use of history is to illuminate the inten-
tion of controversial constitutional texts. The debate
about the practices contemporaneous with the adoption
of the Establishment Clause was waged precisely because
it has been thought to bear on that Clauses meaning
either to show acceptance of considerable state involve-
ment in religion see Lynch v. Donnelly, No. 82-1256
(Mar. 5, 1984), slip op. 4-8; Marsh v. Chambers, 463
U.S. 783, 787-791 (1983)), or to demonstrate that
such involvement had fostered a controversy the Clause
was meant to resolve. History similarly has been in-
voked as dispositive in regard to the acceptability of
the death penalty under the Eighth Amendment: How
could framers who before, during and after that Amend-
ment’s adoption regularly acquiesced in the application

U.S. 153, 176-177 (1976) (plurality opinion); Furman
v. Georgia, 408 U.S. 238, 380 (1972) (Burger, CJ. dis-
senting); id. at 408 n.6 (Blackmun, J. dissenting). His-

nation (see Kastiger v. United States, 406 U.S. 441, 443-
447 (1972): Miranda v. Arizona, 384 U.S. 436, 458-460

by jury. See Williams v. Florida, 399 US. 78, 86-103

27

(1970); Duncan v. Louisiana, 391 U.S. 145, 151-154
(1968). In all these instances the use of history was
straightforward. The purpose for which history is in-
voked in Roe v. Wade, by contrast, is far from evident.
The Court’s opinion appears to acknowledge the rele-
vance of history, yet it reaches a conclusion in direct
variance with the historical facts recited.

b. History is invoked in another way to take account
of developments in society and the law. Such an approach
has seemed particularly plausible in determining the ap-
plication of the Fourth Amendment’s protections to such
undreamt-of developments as wire-tapping, electronic sur-
veillance, the searches of automobiles and airplanes. His-
tory in this sense appears as a vector, in which the
original understanding is seen as the point of departure
for developing values implied and inchoate at the point
of origin. But whether the vector is held to lead to a
right to attend criminal trials (Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555, 557-580 (1980)) or a
right to travel (Shapiro v. Thompson, 394 U.S. 618, 630
(1969)), the Court has always taken pains to trace its
point of origin back to specific constitutional provisions
by a route either inferential or historical.

In Roe v. Wade, by contrast, the connections by either
route were wholly missing and the Court was forced to
leap to its conclusion. Certainly the course of legal atti-
tudes and practice, “the compelling traditions of the legal
profession” (Rochin v. California, 342 U.S. at 171), per-
mit no extrapolation from the past to the Court’s con-
clusion in Roe v. Wade. The story traced by the Court
does not show a steady and growing acceptance of a
point of view until the practice in a few jurisdictions can
be characterized as anomalous. At most, the historical
account in Roe v. Wade shows an ebb and flow of con-
demnation and concern about the practice of abortion.
More accurately, it would seem that the passage of the
Fourteenth Amendment roughly coincided with the rise
of particular stringency in abortion laws, and that, be-
tween 1868 and 1973, such stringent laws appeared as a

general feature of the legal landscape, representing by
the Court’s own count the policy “in a majority of the
States.” 410 U.S. at 118. This historical trajectory does
not support the conclusion for which it was adduced.
c. There remains the inferential route, by which a
specific constitutional text is seen to harbor the germ
of a theory that establishes a general and fundamental
right. The classic statement of this line of reasoning is
found in Justice Harlan’s dissent in Poe v. Ulman, 367
U.S. at 541-543. He wrote that “the liberty guaranteed
by the Due Process Clause * * * is not a series of iso-
lated points pricked out in terms of” the particular rights
enumerated in the first eight Amendments. Rather, he
said, liberty “is a rational continuum which, broadly
speaking, includes a freedom from all substantial arbi-
trary impositions and purposeless restraints” (ibid.).
As Justice Harlan was at pains to insist, however, even
this process of inferential extrapolation is directly rooted
in textually specified constitutional values. The same con-
nection “to what went before” is insisted upon in Gris-
wold v. Connecticut, 381 U.S. 479, 484-485 (1965). The
invocation in Roe v. Wade of both the particular con-
cept of privacy and of this general mode of constitutional
analysis, far from being anchored in text, history, or
precedent, is an abrupt departure from the Court’s prior
decisions.“ Indeed, all of the “privacy” cases that the
Court cited in Roe v. Wade were applications of accepted

® As Dean Ely explained, this Court’s invalidation in Griswold of
a statute regulating the use of contraceptives, as opposed to their
manufacture or sale, indicated an underlying concern that enforce-
ment of the statute “would have been virtually impossible without
the most outrageous sort of governmental prying into the privacy
of the home.” 82 Yale L.J. at 929-930 (e phasis in original).
A statute limiting a medical procedure performed by a doctor
in a clinic or hospital is simply not analogous; abortion statutes
could obviously be enforced without the necessity of repulsive
searches. Fourth Amendment policies accordingly provide no sup-
port for the holding in Roe v. Wade.

principles, whether of equal protection’ or of freedom
of expression at the core of the First Amendment.’ Nei-
ther equal protection, nor intrusion upon the home, nor
freedom to think or promulgate ideas is involved in laws
regulating abortion.

d. There can be no doubt of the strength of the con-
viction held by some that free access to abortion is a
fundamental expression of individual freedom, and that
such freedom is the first principle of a just society. A
conviction of self-evidence may well accompany a view
so strongly held. Yet this conviction does not constitute
constitutional argument. It is at best an intuition based
in controversial moral and social theories of the good
life and of an individual’s situation in society, theories
“which a large part of the country does not entertain.”
Lochner v. New York, 198 U.S. at 75 (Holmes, J., dis-
senting). And when controversial but seemingly self-
evident convictions are translated directly into constitu-
tional doctrine, we risk repeating the whole lamentable
story surrounding Lochner for which Justice Holmes
(id. at 76) composed the epitaph at its birth: [The
Constitution] is made for people of fundamentally differ-

Skinner v. Oklahoma, 316 U.S. 535, 538 (1942) (criminal
sterilization act violated equal protection by distinguishing without
an adequate basis between persons convicted of larceny and em-
bezzlement) ; Loving v. Virginia, 388 U.S. 1, 12 (1967) (statute
prohibiting interracial marriages involved “invidious racial discrimi-
nations“); Eisenstadt v. Baird, 405 U.S. 438, 446-455 (1972) (stat-
ute prohibiting distribution of contraceptives violated equal pro-
tection by treating married and unmarried women differently with-
out a rational basis).

Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (invalidating law
prohibiting the teaching of foreign languages in private elementary
schools because “[m]ere knowledge of the German language cannot
reasonably be regarded as harmful’); Pierce v. Society of Sisters,
268 U.S. 510 (1925) (invalidating statute requiring all children to
attend public schools); Prince v. Massachusetts, 321 U.S. 158, 164
(1944) (prosecution of Jehovah’s Witness under statute prohibiting
sale by minors of periodicals implicates but does not violate freedom
of religion); Stanley v. Georgia, 394 U.S. 557 (1969) (reversing
criminal conviction for mere possession of films in defendant's
home).

ing views, and the accident of our finding certain opin-
ions natural and familiar or novel and even shocking
ought not to conclude our judgment upon the question
whether statutes embodying them conflict with the Con-
stitution of the United States.”

As in logic contradictory premises can be used to prove
anything, so in constitutional law principles that are ill-
founded can be used to justify any conclusion, and thus
rob the law of its intrinsically compelling force. And
when constitutional law, which is above ordinary politics,
seeks to settle disputes of value and vision which are the
stuff of politics, both law and politics are more not
less subject to the kind of intense pressures which have
characterized the abortion debate since Roe v. Wade.

CONCLUSION

The portions of the court of appeals’ judgments that
invalidate appellants’ abortion regulations should be re-
versed.

Respectfully submitted.

CHARLES FRIED
Acting Solicitor General

RICHARD K. WILLARD
Acting Assistant Attorney General

CAROLYN B. KUHL
Deputy Assistant Attorney General

JOHN F. CORDES
JOHN M. ROGERS

Attorneys
JULY 1985

® ©. 6. soveenment reimrine orrice, 1905 461531 10257

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0056%3A16. Public record. Not legal advice.