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

ee —_——_—

In the

Supreme Court of the United States,

Ocrorer Term, 1985

No. 84-495

RICHARD THORNBURGH, eT at

APPELLANTS

y

AMERICAN COLLEGE OF OBSTETRICIANS AND

GYNECOLOGISTS, te? at

APPELLEES

No. 84.1379

EUGENE F. DIAMOND. eT at

APPELLANTS

'

ALLAN G CHARLES, eT at

APPELLEES

ON APPEAL FROM THE UNITED STATES COURTS OF

APPEALS POR THE THIRD AND SEVENTH CIRCUITS

Brief Amicus Curiae of Senator Bob Packwood (R-COre.),

Representative Don Edwards (D-C alif.) and Certain Other

Members of the Congress of the United States in

Support of Appellees.

LAURENCE H. Trimet

C ounsel of Record

SUSAN ESTRICH

MartHna Minow

KATHLEEN M. SULLIVAN

{ counsel for Amici

IS25 Massachusetts Avenuc

(Cambridge, Massachusetts 0)! 4s

i6l 7) 495.4621

Interest of Amici !

Summary of Argument 3

Argument 4

Conclusion 18

Table of Authorities Cited.

CASES.

Akron v. Akron Center for Reproductive Health, 462

U.S. 416 (1985) 4,7

Brown v. Bd. of Educ. , (Brown I), 347 U.S. 483 (1954)

1S, 16n

Brown v. Board of Education (Brown II), 349 U.S.

294 (1955) 4

Carey v. Population Services International, 43! US.

678 (1977) 13

Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632

(1974) I4n

City of Cleburne Tex. v. Cleburne Living Center, 105

S.Ct. 3249 (1985) 1Sa

Cooper v. Aaron, 358 U.S. 1 (1958) 7

Eisenstadt v. Baird, 405 U.S. 438 (1972) 12, 13, I4a

Garcia v. San Antomo Metropolitan Transit Authority,

105 $. Ct. 1005 (1985) 5,89

Griswold v. Connecticut, 381 U.S. 479 (1965) 11, 12,

14, 150

Katz v. United States, 389 U.S. 397 (1967) 10, 11

Lochner v. New York, 198 U.S. 45 (1905) 18

u TABLE OF AUTHORITIES CITED.

Loving v. Virginia, 388 U.S. | (1967) 10, 15

Meyer v. Nebraska, 262 U.S. 390 (1923) 10, 13m, 140

Moore v. City of East Cleveland, 431 U.S. 494 (1977) 14n

National League of Cities v. Usery, 426 U.S. 833

(1976) 5,9

New York Times v. United States, 403 U.S. 713 (1971) 7

Pierce v. Society of Sisters, 268 U.S. 510(1925) = 10, 13m, 14n

Poe v. Uliman, 367 U.S. 497 (1961) 14n

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

Runyon v. McCrary, 427 U.S. 160 (1976) 10

Skinner v. Oklahoma, 316 U.S. 535 (1942) tt, 14n

United States v. Nixon, 418 U.S. 683 (1974) 7

West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624

(1943) 6n

CONSTITUTIONAL PROVISIONS.

Unnted States Constitution

First Amendmert 13n

Fourth Amendment 11

Ninth Amendment 14

Fourteenth Amendmeni 14, 15, 16, 18

MISCELLANEOUS

1.H. Bly, Democracy and Distrust (1980) 13n

Fried, “Is Liberty Possible?” /// The Tanner Lectures on

Human Values (1982) 17n

i et s—“‘—OS

TABLE OF AUTHORITIES CITED.

Gunther, Foreword: In Search of Evolving Doctrine

on a Changing Court: A Model for a Newer Equal

Protection, 86 Harv. L. Rev. | (1972)

J. Madison. “Memorial and Remonstrance Against

Religious Assessments,” in Everson v. Bd. of Educa-

tion, 330 U.S. 1 (1947) (Appendix, Rutledge, J.,

dissenting)

P. Norton, The Constitution In Flux (1982)

Transcript of Oral Argument in Akron v. Akron Center

For Reproductive Health, 462 U.S. 416 (1983)

Tribe, “Structural Due Process,” 10 Harv. Civ. Rights-

Civ. Lib. L. Rev. 269 (1975)

Wellington, Common Law Rules and Constitutional

Double Standards: Some Notes on Adjudication,

83 Yale L. J. 221 (1973)

13n

13n

In the

Supreme Court of the United States.

OcToBer TERM, 1985.

No. 84-495

RICHARD THORNBURGH, b€T AL.

APPELLANTS

Vv

AMERICAN COLLEGE OF OBSTETRICIANS AND

GYNECOLOGISTS, eT AL.

APPELLEES

No. 84-1379

EUGENE F. DIAMOND, eT AL.

APPELLANTS

Vv.

ALLAN G. CHARLES, ET AL.

APPELLEES

ON APPEAL FROM THE UNITED STATES COURTS OF

APPEALS FOR THE THIRD AND SEVENTH CIRCUITS.

Brief Amicus Curiae of Senator Bob Packwood (R-Ore.),

Representative Don Edwards (D-Calif.) and Certain Other

Members of the Congress of the United States in

Support of Appellees.

Interest of Amici.

Amici are 81 members of the Congress of the United States,

as follows:

Rep. Gary L. Ackerman (D-N.Y.), Rep. Glenn M. Ander-

son (D-Calif.), Rep. Chester G. Atkins (D-Mass.), Rep. Les

2

AuCoin (D-Ore.), Rep. Howard L. Berman (D-Calif.), Rep.

Anthony C. Beilenson (D-Calif.), Rep. Barbara Boxer (D-Calif.),

Sen. Bill Bradley (D-N.J.), Rep. George E. Brown, Jr. (D-

Calif.), Rep. Sala Burton (D-Calif.), Sen. John H. Chafee (R-

R.1.), Rep. Cardiss Collins (D-Ill.), Rep. John Conyers, Jr.

(D-Mich.), Rep. George W. Crockett, Jr. (D-Mich.), Rep.

Ronald V. Dellums (D-Calif.), Rep. Julian C. Dixon (D-Calif),

Sen. Christopher J. Dodd (D-Conn.), Rep. Thomas J. Downey

(D-N.Y.), Rep. Mervyn M. Dymally (D-Calif.), Rep. Bob Edgar

(D-Pa.), Rep. Don Edwards (D-Calif.), Sen. Daniel J. Evans

(R-Wash.), Rep. Lane Evans (D-Ill.), Rep. Dante B. Fascell

(D-Fla.), Rep. Vic Fazio (D-Calif.), Rep. Barney Frank (D-

Mass.), Sen. Barry Goldwater (R-Ariz.), Rep. William H. Gray,

Ill (D-Pa.), Rep. Bill Green (R-N.Y.), Rep. Augustus F. Haw-

kins (D-Calif.), Rep. Charles A. Hayes (D-Ill.), Sen. Daniel K.

Inouye (D-Hawaii), Sen. Nancy Landon Kassebaum (R-Kan.),

Rep. Robert W. Kastenmeier (D-Wis.), Sen. Edward M. Ken-

nedy (D-Mass.), Sen. John F. Kerry (D-Mass.), Sen. Frank R.

Lautenberg (D-N.J.), Rep. Richard H. Lehman (D-Calif.), Rep.

William Lehman (D-Fla.), Rep. Mickey Leland (D-Tex.), Rep.

Sander M. Levin (D-Mich.), Rep. Mel Levine (D-Calif.), Rep.

Mike Lowry (D-Wash.), Rep. Stan Lundine (D-N.Y.), Rep.

Edward J. Markey (D-Mass.), Rep. Robert T. Matsui (D-Calif.),

Rep. John R. McKernan, Jr. (R-Maine), Rep. Stewart B. McKin-

ney (R-Conn.), Sen. Howard M. Metzenbaum (D-Ohio), Rep.

George Miller (D-Calit.), Rep. Norman Y. Mineta (D-Calif.),

Rep. Parren J. Mitchell (D-Md.), Rep. Jim Moody (D-Wis.),

Rep. Bruce A. Morrison (D-Conn.), Rep. Robert J. Mrazek

(D-N.Y.), Rep. Major R. Owens (D-N.Y.), Sen. Bob Packwood

(R-Ore.), Rep. Claude Pepper (D-Fla.), Rep. Charles B. Rangel

(D-N.Y.), Rep. Gus Savage (D-Ill.), Rep. James H. Scheuer

(D-N.Y.), Rep. Claudine Schneider (R-R.1.), Rep. Patricia

Schroeder (D-Colo.), Rep. Charles E. Schumer (D-N.Y.), Rep.

John F. Seiberling (D-Ohio), Rep. Olympia J. Snowe (R-Maine),

3

Rep. Stephen J. Solarz (D-N.Y.), Rep. Fortney H. Stark (D-

Calif.), Rep. Louis Stokes (D-Ohio), Rep. Gerry E. Studds (D-

Mass.), Rep. Edolphus Towns (D-N.Y.), Rep. Robert G. Torn-

celli (D-N.J.), Rep. James A. Traficant, Jr. (D-Ohio), Rep.

Morris K. Udall (D-Ariz.), Rep. Henry A. Waxman (D-Calif.),

Rep. James Weaver (D-Ore.), Sen. Lowell T. Weicker, Jr. (R-

Conn.), Rep. Ted Weiss (D-N.Y.), Rep. Alan Wheat (D-Mo.),

Rep. Howard Wolpe (D-Mich.), Rep. Sidney R. Yates (D-I1.).

As members of a co-ordinate branch of government, sworn

to uphold the Constitution in the face of the most intense

political controversy, Amici submit this brief' in the conviction

that the vision of the judicial function and of individual liberty

espoused by the Government in these cases is radically at odds

with the written Constitution, with the position urged hereto-

fore by the United States in this Court, and with the judiciary’s

traditional role as a principled and independent guardian of

constitutional liberties.

Summary of Argument.

The Government, in urging that Roe v. Wade be overturned,

has taken an extraordinary and unprecedented step. For the

first time in the history of the Solicitor General's office, in a

case in which the United States is not even a party, and a case

in which the issue was not presented by the parties, the Depart-

ment of Justice has urged the repudiation of a liberty long

since declared fundamental by this Court.

The Government would have the Supreme Court toss into

the political arena the right to choose between childbirth and

abortion. For little reason beyond the indisputable difficulty

of the issues posed and the intense controversy invited, the

Government would relegate this delicate constitutiona! matter

to shifting political majorities in the 5O state legislatures, yield-

indicating consent have been filed with the Clerk

4

rights women might have in this matter would be disregarded

in some states; whatever nghts the unborn are thought to possess

would be ignored in others. On a previous occasion when the

nation was deeply divided over a different issue of fundamental

liberty, Abraham Lincoln warned that the Union could not

long endure “half slave and half free.’

The Government's ill-conceived resolution of the abortion

controversy would not only fragment our constitutional order

but turn it on its head. For it is precisely the task of this Court

to insulate conflicting claims of individual mght from the chang-

ing winds of politics. As in the case of school desegregation,

it is often when public sentiment is most sharply divided that

the independent judiciary plays its most vital national role in

expounding and protecting constitutional nghts. As the Chief

Justice wrote in Brown v. Board of Education (Brown I1), 349

US. 294, 300 (1955), “[t}he vitality of . . . constitutional

principles cannot be allowed to yield simply because of dis-

agreement with them.”

Argument.

1. Only recently, in Akron v. Akron Center for Reproductive

Health, 462 U.S. 416, 420 n.1 (1983), this Court enumerated

the “especially compelling reasons for adhe cing to stare decisis

in applying the principles of Roe v. Wade:

That case was considered with special care. It was

first argued during the 1971 Term, and reargued —

with extensive briefing — the following Term. The

decision was joined by the Chief Justice and six

other Justices. Since Roe was decided in January

1973, the Court repeatedly and consistently has ac-

cepted and apphed the basic principle that a woman

has a fundamental night to make the highly personal

‘Speech in Springfield, Wlinois June 16,1858) —t«*s

5

choice whether or not to terminate her pregnancy.

See Connecticut v. Menille, 423 U.S. 9 (1975),

Planned Parenthood of Central Missouri v. Dan-

forth, 428 U.S. 52 (1976), Belloni v. Baird, 428

U.S. 132 (1976); Beal v. Doe, 432 U.S. 438 (1977),

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

Franklin, 439 U.S. 379 (1979), Bellotti v. Baird,

443 U.S. 622 (1979), Harris v. McRae, 448 US.

297 (1980); HL. v. Matheson, 450 U.S. 398 (1981).

In the name of “democratic se!f-governance.”* and in sup-

posed analogy to this Court's decision in Garcia v. San Antonio

Metropolitan Transit Authority, 10S S.Ct. 1005 (1985), over-

ruling National League of Cities v. Usery, 426 U.S. 833

(1976), the Govei ament —- which had urged stare decisis in

Garcia — now invites this Court to overrule Roe v. Wade,

410 U.S. 113(1973). In so moving, the Government describes

that decision as merely another “formulation affecting the al-

location of constitutional powers” that has supposedly “proven

‘unsound in principle and unworkable in practice.” GB 21.

But the Government adduces no relevant consideration that

was not available in 1973* and points to no relevant develop-

ment subsequent to Adron in 1983. More importantly, the

Government's decision to treat the holding in Roe v. Wade as

effecting only an “allocation of constitutional powers” utterly

tails to distinguish between determining the proper distribution

of power within government and defining the boundary that

Government Brnef (GB) at |!

‘The protracted controversy to which the Government poets hardly dirstin-

gurshes the current situation from that whach the Court confronted as early as

1973 Nor daes the Goverrment explam why a judgment made by apphcation

ot fundamental constittutonal pmacuples should yield im the face of a measure

of public dispute. or suggest how overruling Ree » Wade could be expected

to replace controversy with consensus

6

separates the sphere of governmental power from the sphere

of individual autonomy.

2. Stripped to its essentials, the Government's contention

is that state legislatures should be accorded judicially unre-

stricted latitude in defining — and, if they choose, infringing

— fundamental rights in this area. The “efforts of . . . state

legislatures to balance the competing interests at stake in the

abortion decision,” GB |, are described as though fundamental

rights could properly be reduced to political interests. That

may well be the case under a parliamentary government where

the legislative will is supreme,* but it ignores the choice of a

fundamentally different form of government that was made

for us nearly two centuries ago:

The very purpose of a Bill of Rights was to withdraw

certain subjects from the vicissitudes of political con-

troversy, to place them beyond the reach of majorities

and officials and to establish them as legal principles

to be applied by the courts. One's right to life, liberty

and property, to free speech, a free press, freedom

of worship and assembly, and other fundamental

rights may not be submitted to vote; they depend on

the outcome of no elections. . . .

Nor does our duty to apply the Bill of Rights to

assertions of official authority depend upon our pos-

session of marked competence in the field where the

invasion of rights occurs. . . . [W]e act in these mat-

ters not by authority of our competence but by force

of our commissions. We cannot, because of modest

estimates of our competence . . . withhold the judg-

‘“The primary argument against a Bill of Rights [for Great Britain] is that

it would . . . remove from Parliament a decision-making capacity which rightly

belongs to Parliament. Disputes as to encroachments on fundamental rights

are essentially political disputes and must be resolved politically , not judicially.”

P. Norton, The Constitution In Flux 253 (1982).

7

ment that history authenticates as the function of this

Court when liberty is infringed.°

Our entire history has made clear that, where controversy is

greatest, so also are the dangers of majoritarian excess and

the need for protection under the Constitution by an independ-

ent and principled judiciary. See, e.g., United States v. Nixon,

418 U.S. 683 (1974); New York Times v. United States, 403

U.S. 713 (1971); Cooper v. Aaron, 358 U.S. 1 (1958).

3. There is no claim that the deference to state legislatures

for which the Government here clamors should be limited to

abortion cases; nor could any such argument be made. The

force of the Government’s current analysis would be fully

applicable whenever this Court is called upon to enforce con-

Stitutional rights on a case-by-case basis, and to draw the

ever-finer lines that are necessitated by recurring instances of

State or local resistance. In effect, the Government’s position

applies to constitutional rights to attend an integrated public

school; to express unpopular political views; to decide whether

to use contraception or, in consultation with a doctor, terminate

a pregnancy. In each of these — and other — instances of

constitutional liberties, the Government would evidently vest

state and locai legislatures with substantial power to define,

or to ignore, the meaning of the United States Constitution.

The Government adduces no principled distinction between

any of these fundamental rights and the fundamental right of

privacy, for which the Government here urges a new federalism.

Indeed, the more controversial the particular exercise of rights,

the more willing the Justice Department seems to relegate the

meaning of the Constitution to the state legislatures. This cannot

be what the constitutional framework mandates.

4. In this case, like Akron, the litigants initially called upon

this Court only to construe, not reexamine, Roe v. Wade itself.

* West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 639-640 (1943).

8

But here, in contrast to its position in Akron,’ the Government

nonetheless urges such reexamination. It is perhaps unsurpris-

ing that a controversial precedent would be selected to carry

this gratuitous plea for radical surgery on our form of govern-

ment. But the results of such surgery would be felt throughout

the body politic. For it is axiomatic that the undoing of one

aspect of fundamental liberty threatens the protection of indi-

vidual rights in every phase of American life. However desir-

able it might be for the states to experiment with traffic laws

or liquor regulations or other quotidian matters, any “experi-

ment” with our most basic liberties, as James Madison coun-

seled two centuries ago, is cause only for immediate “alarm.”*

5. The Government's current position invites just such an

experiment--— on the supposed authority of Garcia, even

though the issue here is one readily distinguishable from any-

thing at issue in Garcia. For that decision dealt only with “the

allocation of constitutional powers” within government — not

with the underlying distribution of power between government

and the individual. Thus, in Garcia, this Court engaged in

lively debate over the question of whether and to what degree

the rights of states, as distinct from those of individuals, could

properly be left to the national legislature for protection, relying

on “the built-in restraints that our system provides through

State participation in federal governmental action [to ensure]

that laws that unduly burden the States will not be promulgated”

"In argument before this Court in Akron, the Solicitor Gereral expressly

refrained from asking the Court to overrule Roe v. Wade:

Question: Mr. Solicitor General, are you asking that Roe v. Wade be overruled?

Mr. Lee: | am not, Mr. Justice Blackmun.

Question: Why not?

Mr. Lee: That is not one of the issues presented imthis case, and as amicus

appearing before the Court, that would not be a proper function for us. Tr.

Oral Arg. p. 21.

"J. Madison, “Memorial and Remonstrance Against Religious Assessments,”

in Everson v. Bd. of Education, 330 U.S. 1, 65 (1947) (Appendix, Rutledge, J.,

dissenting).

9

in the first instance. 105 S.Ct. at 1020 (majority opinion). Cf.

id. at 1025-26 & n.9 (dissenting opinion). But it was common

ground for this Court in Garcia that no such question could even

arise with respect to the rights of individuals: “One can hardly

imagine this Court saying that because Congress [or a state legis-

lature] is composed of [or represents] individuals, individual

rights guaranteed by the Bill of Rights are amply protected by

the political process.” /d. at 1025 n.8 (Powell, J., joined by

Burger, C.J., and Rehnquist and O’Connor, JJ., dissenting).

The repudiation of National League of Cities in Garcia

represented only a determination that, with respect to the

sovereign rights of states, this Court should return to its pre-

1976 tradition of depending — within certain still-to-be elabo-

rated “affirmative limits,” id. at 1020 — on “the structure of

the Federal Government itself” to defend the Constitution’s

boundaries on national legislative authority. /d. at 1018.

Whether that determination was right or wrong, it bears no

resemblance to the truly extraordinary suggestion that, with

respect to the rights of individual persons, this Court should

inaugurate the practice of depending on “ordinary politics . . .

to settle disputes of value and vision” going to the very content

of what those individual rights are. GB 30. Far from restoring

to Congress this Court’s long-standing allocation of responsi-

bility for the claims of states qua states, the proposed overruling

of Roe v. Wade would rest on a wholly novel investiture in

state legislatures of an essentially unreviewable power to dis-

pose of the competing claims of right advanced by individuals

under the fundamental right of privacy — an investitute utterly

alien to our Constitution.

6. To be sure, this suggestion is couched in the form of an

ostensibly modest recommendation that this Court “return the

law to the condition in which it was before Roe v. Wade was

decided.” GB 24. But that simply begs the question. For,

unless the “condition” of the law, prior to the 1973 abortion

10

decision, indeed entrusted state legislatures with judicially un-

reviewable and constitutionally unfettered control over per-

sonal matters of family composition and reproductive choice,

what the Government proposes would not be merely a restoration

of the status quo ante but a revocation of the very principles

from which Roe v. Wade sprang. For the Court now to overrule

Roe v. Wade would then be not just “a significant step back-

wards,” cf. Runyon v. McCrary, 427 U.S. 160, 191 (1976)

(Stevens, J., concurring), but a repudiation of the 50-year path

along which this Court located its 1973 abortion ruling.

7. The central question to be addressed, then, is whether

an overruling of Roe v. Wade would, as the Government as-

serts, merely turn the clock back to 1973 by erasing what it

calls “an erroneous point of departure,” GB 2, from the “gen-

erally propitious journey,” id., along which constitutional law

had traveled up to 1973 — or whether Roe v. Wade was instead

a natural step along that journey,’ so that its overruling would

entail a far more substantial retreat, propelling the Court and

the country onto a legal landscape from which not only Roe

but many of its important antecedents, and the protections they

provide for us all, would tragically be absent.

8. That .,oe was indeed a natural outgrowth of a gradual

process of legal evolution can hardly be doubted. Its origins,

as the Court made clear in the Roe opinion, included a series

of landmark Supreme Court rulings affirming for a’l of us the

liberty to decide for ourselves when and whether to mar.y,

see Loving v. Virginia, 388 U.S. | (1967), how to raise and

educate our children, see Meyer v. Nebraska, 262 U.S. 390

* The carefully selected citations of academic commentators on Roe v. Wade,

see GB 24 n.4, certainly do not show the contrary. The “broad spectrurn of

constitutional scholars” said by the Government to share its “judgment” that Roe

v. Wade rested on a “basis . . . so far flawed that this Court should overrule it,”

id. (footnote omitted), is particularly misleading in its calculated exclusion of all

the scholars who have written in support of the basic holding in Roe.

1]

(1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925), and

how much of our most personal lives to disclose to the world,

see Katz v. United States, 389 U.S. 397 (1967), as well as

the right to decide whether to conceive or bear children, see

Skinner v. Oklahoma, 316 U.S. 535 (1942); Griswold v. Con-

necticut, 381 U.S. 479 (1965). These decisions comprehen-

sively protect our rights both to be left alone by government

and to choose how to conduct our own lives. To overturn Roe

v. Wade as the Government urges thus would turn the clock

back not just to 1973 but to a point prior to 1923; it would

not only deprive women of their fundamental 'iberty, but would

also cast into grave doubt the continuing validity of every one

of the Court's half-century of privacy decisions, which protect

us all.

9. To resist this conclusion, the Government suggests that

Roe v. Wade represented an unwarranted leap beyond the many

“*privacy’ cases that the Court cited” in that decision. GB 28.

The inference is that the Court could simply jump back to the

point from which Roe had supposedly “leapt.” But the “story”

the Government would have the privacy cases tell, id. at 27

— in contrast to the message this Court read in them — is

strange indeed. As the Government would have it, for example,

this Court’s 1965 decision striking down a state ban on con-

traception, Griswold v. Connecticut, 381 U.S. 479, rep-

resented little beyond judicial protection of the “‘privacy of

the home.’” GB 28 n.6. The Government has evidently mis-

taken Justice Douglas’ evocative language in Griswold —

“Would we allow the police to search the sacred precincts of

marital bedrooms for telltale signs of the use of contracep-

tives?”'® — for the actual holding in that case. It has long

been understood that even the Fourth Amendment, into whose

Procrustean bed the Government seeks to shove Griswold, “pro-

tects people, not places,” Katz v. United States, 389 U.S. 347,

381 U.S. at 485.

12

351 (1967). And even before Katz was decided, this Court

recognized in Griswold itself that what was being protected

was not the sanctity of the suburban bedroom, but the “in-

timacies of the marriage relationship.” 381 U.S. at 502-03

(White, J., concurring); see id. at 482, 486 (opinion of the

Court); id. at 486, 495 (Goldberg, J., concurring).

Even if we accept arguendo the Government's misreading

of Griswold, the Government still cannot simultaneously de-

fend that case and urge that this Court cede to state legislatures

a judicially uncontrollable power to prohibit all abortion, from

the “moment” of conception, whether performed surgically or

through the use of “a substance or device” that operates as an

“abortifacient.” GB 14. Any such power, notwithstanding the

Government's bald a.s_rtion to the contrary, would necessarily

entail an even greater risk of the “repulsive searches,” GB 28

n.6, that the Government adduces in support of this Court's

holding in Griswold. Roe relied heavily on Griswold in no

small part because of the “problems .. . posed... . by new

embryological data that purport to indicate that conception is

a ‘process’ over time, rather than an event, and by new medical

techniques such as menstrual extraction, the ‘morning-after’

pill, implantation of embryos, artificial insemination, and even

artificial wombs.” 410 U.S. at 161 (footnote omitted). In the

biological context of human conception, state efforts to ferret

out prohibited abortions — as defined by the Government —

would require not only searches of bedrooms for telltale “morn-

ing-after” pills, but also searches of women’s bodies for intra-

uterine devices or other birth control technologies that operate

during or after fertilization.

10. In any event, the Government’s absurdly narrow con-

ception of privacy ts flatly at odds with this Court’s unbroken

line of precedent. No risk of overbearing searches ‘vas entailed

in Griswold’s other direct progeny, Eisenstadt v. Baird, 405

U.S. 438 (1972), which the Government oddly describes as

merely applying “accepted principles . . . of equal protection,”

13

GB 29 (footnote omitted),'' and Carey v. Population Services

International, 431 U.S. 678 (1977), or in the other antecedents

of Roe v. Wade — the decades of decisions, beginning as

early as 1923 and continuing through the 1960s, establishing

a sphere of individual freedom over intimate matters of repro-

duction, parenting, and family structure. The Government’s

efforts to sweep these long-standing precedents under the rugs

of equal protection and freedom of expression, GB 29, must,

with all respect, be described as ill-informed or worse. For

nothing in the demand that government rule impartially, or in

the requirement that it tolerate dissent, could remotely explain

this Court’s unbroken line of holdings, both before Roe v. Wade"’

'' Baird struck down a state statute m king it illegal for single persans, but

not for married persons, to obtrain contr ceptives in order to prevent pregnancy.

Virtually every commentetor on the case, including the very authors the Gov-

ernment cites in its brief, see GB 24 n.4, has recognized that Baird cannot be

defended in standard “equal protection” terms but rests unavoidably on the

premise that there exists a special freedom to obtain and use contraceptives

— a freedom that goes beyond both the marital relotionship and the privacy

of the home. See, e.g., J.H. Ely, Democracy and Distrust 126 n. (1980);

Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A

Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 34-36 (1972);

Wellington, Common Law Rules and Constitutional Double Standards: Some

Notes on Adjudication, 83 Yale L. J. 221, 296-97 (1973). To describe this

case as a standard application of settled equal protection principles is to ignore

this analysis — and to ignore the Court’s own words in Baird: “!f the right of

privacy means anything, it is the right of the individual, married or single, to

be free from unwarranted governmental intrusion into matters so fundamentally

affecting a person as the decision whether to bear or beget a child.” 405 U.S.

at 453 (emphasis in original).

"To dismiss such decisions as Meyer v. Nebraska, 262 U.S. 390 (1923),

and Pierce v. Society of Sisters, 268 U.S. 510 (1925), for example, as simple

First Amendment cases, see GB 29 n.8, is little short of astonishing. The First

Amendment had not yet been applied to the states when those opinions were

written; their explicit invocation of parental and family autonomy, rather than

freedom of expression, to explain the Court’s invalidation of state laws inter-

fering with the edu. ation and upbringing of children was properly stressed as

decisive by Justice Harlan in his landmark analysis of Meyer and Pierce. See

14

and after,'’ unless one were to posit judicially enforceable

rights of individuals and families to shape their future, to

determine their composition, and to decide whether to bring

children into the world — even when local or statewide political

majorities would decree different choices.

11. That these rights may be no more than “implied and

inchoate” in the Constitution’s text, structure, and history, GB

27, and may not be as “directly rooted in textually specified

constitutional values” as are some other rights, id. at 28, is

beside the point in a Constitution whose very text specifies

that “[t]he enumeration in the Constitution, of certain rights,

shall not be construed to deny or disparage others retained by

the people.”” Amendment IX. Indeed, the position the Govern-

ment invites this Court to take would directly violate the rule

of construction mandated by the Ninth Amendment.

12. That the Constitution’s text provides, in its “liberty”

clause, the essential starting point for the judicial development

of the series of rights this Court has protected from 1923

through Roe and beyond is not open to dispute. Thus, as the

Government recognizes, “(t]he ultimate textual source for Roe

v. Wade . . . is the Fourteenth Amendment’s guarantee: ‘nor

shall any State deprive any person of . . . liberty . . . without

Poe vy. Ullman, 367 U.S. 497, 550-52 (1961) (dissenting opinien). And to

dismiss Skinner v. Oklahoma, 316 U.S. 535 (1942), as just another equal

protection case, see GB 29 n.7, is hardly less remarkable, given the Skinner

Court's explicit reliance upon reproductive freedom as “one of the basic civil

rights of man,” 316 U.S. at 541, in justifying its unusually strict scrutiny of

the Oklahoma criminal sterilization law's distinction between larcenists and

embezzlers.

‘See, e.g., Moore v. City of East Cleveland, 431 U.S. 494 (1977) (relying

on Mever, Pierce, Skinner, Griswold, and Roe to invalidate a zoning law that

interfered with a grandmother's choice to live with her grandson); Cleveland

Bd. of Educ. v. LaFleur, 414 u.S. 632, 639-40 (1974 (relying on Meyer,

Pierce, Skinner, Griswold, Baird, and Roe to invalidate an employment restric-

tion operating against pregnant women and thus burdening the woman's deci-

sion to bear a child).

15

due process of law.’” GB 25. In this majestic command the

Government sees no “apparent textual meaning” beyond a

prohibition against “government’s actually taking hold of a

person, as to confine him, without fair procedures.” /d. That

criminai prohibitions upon abortion “actually take hold of” a

woman’s person — her body, her life — and, in the most

literal sense, confine her “liberty,” cannot be doubted. And

that “due process of law” requires more than “fair procedures”

whenever the state acts to confine a person’s basic liberty was

accepted even by the Justices who dissented in Roe v. Wade'*

— and indeed has been accepted by the entire Court ever since

the late 19th century.

13. So too, the fact that “state laws condemning or limiting

abortion were very general at the time the Fourteenth Amend-

ment was adopted,” GB 25, ever excusing the exaggeration,’

would no more immunize such laws from Fourteenth Amend-

ment scrutiny than the general acceptance of state laws seg-

regating the races in public schools or in marital relations at

the time of the Fourteenth Amendment’s adoption immunized

those laws from such scrutiny. See Brown v. Bd. of Educ.,

(Brown 1), 347 U.S. 483 (1954); Loving v. Virginia, 388

U.S. 1 (1967).'*

,99

See, e.g., Roe, 410 U.S. at 173 (Rehnquist, J., dissenting but agreeing

that the “due process clause . . . undoubtedly does place” substantive limits

on “legislative power” to ban abortions); Griswold v. Connecticut, 381 U.S.

479, 502 (1965) (White, J., concurring in the judgment).

'* See Roe, 410 U.S. at 138-39.

'*See also City of Cleburne, Tex. v. Cleburne Living Center, 105 S.Ct.

3249, 3268-69 (1985) (Marshali, Brennan and Blackmun, JJ., concurring in

part and dissenting in part): “Courts . . . do not sit or act in a social vacuum.

Moral philosophers may debate whether certain inequities are absolute wrongs,

but history makes clear that constitutional principles of equality, like constitu-

tional principles of liberty, property, and due process, evolve over time; what

once was a ‘natural’ and ‘self-evident’ ordering later comes to be seen as an

artificial and invidious constraint or human potential and freedom. Compare

16

14. N-. is there any substance to the Government’s argu-

ment that .1.. very lines this Court has drawn in the course of

elaborati: : ‘ie basic right upheld in Roe v. Wade somehow

demonstrate that the issues posed are unfit for judicial determi-

nation. See GB 20-23. Once it is agreed, foi exampie, that a

law prohibiting “abortion even where the mother’s life is in

jeopardy” would violate the Fourteenth Amendment, see Roe

v. Wade, 410 U.S. at 173 (Rehnquist, J., dissenting), this

Court can find no escape from drawing complex lines between

permissible and impermissible abortion prohibitions. Differ-

ences will remain over where this Court should draw those

lines, but the only way to extricate the Court from the- entire

line-drawing enterprise is to hold that federal courts must accept

as conclusive any legislature’s determination that any given

restriction of abortions serves legitimate purposes that warrant

the resulting intrusion upon liberty. Whether or not, as the

Government asserts, those who wrote and ratified the Four-

teenth Amendment “would have been surprised . . . to learn

that they had put any part of such subjects beyond the pale of

state legislative regulation,” GB 26 — a position nev «rt taken

by this Court —- surely the Amendment’s authors would have

been shocked to learn that they had put any major sphere of

human liberty beyond the pale of federal judicial! proteciion.

15. The Gcvernment’s most telling point with regaru to

the line-drawing Roe has required seems to be that such notions

as fetal “viability” reflec: c#nsiderations of a medical or tech-

nical sort more suitably addressed by legislatures than by

courts, particularly since “[t]here is no obvious constitutional

conneciion between the ability of a fetus to survive outside the

Plessy v. Ferguson, 163 U.S. 537 (1896), and Bradwell v. Illinois, 16 Wall.

130, 141 (1873) (Bradley, J., concurring) with Brown v. Bd. of Educ., 347

U.S. 483 (1954) and Reed v. Reed, 404 U.S. 71 (1971). Shifting cultural,

political, and social patterns at times coine to make past practices appear

inconsistent with fundamental principles upon which American society rests. . . .”

17

womb, and the magnitude of a state’s lawful concern to protect

future life.” GB 22. But that misses the entire point of what

this Court held in Roe v. Wade: there is an obvious constitu-

tional connection between the ability of a fetus to survive

outside the womb and the nature of a woman’s right to decide

whether to bear a child. For it is only with respect to a fetus

that is not yet viable that a ban on abortion compels a woman

to dedicate her body and future to the survivai of the unborn.

And the fact that “viability” is a moveabie point that “changes

with advancing technology,” GB 23, far from making the

Court’s standard “unworkable” or “disturbing,” id., has long

helped to justify Roe v. Wade’s trimesterization against the

charge that it represented an arbitrary exercise in judicial line

drawing. Thus, it has been clear since the time Roe was decided

that, to the extent society as a whole becomes willing to invest

sufficient resources in the protection of the unborn and newly

born — a willingness likely to be reflected by the advancing

line of viability — Roe might permit greater state protection

of the fetus to follow. Seen in this light, Roe has from the

outset reflected not so much an absolute rejection of the sanctity

of “life” from the moment of conception as a structuring of

how a value choice on that subject may be made consistent

with constitutional principles. Society’s claim of a constitution-

ally dominant interest in fetal life is made commensurate with

society’s genuine and general exertion to further that interest

— not with its willingness to give the interest token recognition

by legislatively condemning women to bear unwanted children

or to abort under hazardous and illegal conditions."’

" See Tribe, “Structural Due Process,” 10 Harv. Civ. Rights-Civ. Lib. L.

Rev. 269, 297 (1975). More generally, in defining “limits [that] leave the

individual a significant private sphere to live his life,” the standards one evolves,

rather than being “fixed and neutral,” might have to draw on “the changing

political and economic arrangements of the subject society. . .” Fried, “Is

Liberty Possible?” /// The Tanner Lectures on Human Values 100, 109 (1982).

As Professor Fried correctly noted in 1982, “it is a serious mistake to be

disturbed by this.” /d. at 109.

18

Conclusion.

In dramatizing its plea that Roe v. Wade be buried by this

Court, the Government exhumes the ghost of Lochner v. New

York, 198 U.S. 45 (1905), see GB 29, but nowhere explains

why it deems the right to decide whether to bear and beget a

child to be indistinguishable from the right to hire another for

a substandard wage. In citing Justice Holmes’ aphorism in

Lochner that the Constitution is “made for people of fundamen-

tally differing views,” and that “the word liberty in the Four-

teenth Amendment is perverted when it is held to prevent the

natural outcome of a dominant opinion,” 198 U.S. at 76 (dis-

senting opinion), the Government conveniently omits Justice

Holmes’ closing caveat: “unless ... the statute proposed.

would infringe fundamental principles as they have been under-

stood by the traditions of our people and our law.” /d. Statutes

unduly restricting a woman’s ability to decide whether or not

to bear a child do infringe precisely such “fundamental princi-

ples.” Accordingly, Roe v. Wade —a decision entirely faithful

to that tradition — should be followed in the cases currently

pending before this Court.

Respectfully submitted,

LAURENCE H. TRIBE

Counsel of Record

SUSAN ESTRICH

MARTHA MINOW

KATHLEEN M. SULLIVAN

Counsel for Amici

1525 Massachusetts Avenue

Cambridge, Massachusetts 02138

(617) 495-4621

August 30, 1985