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

_

r Se

No. 84-495 | Supreme Court, U.S.

In the Supreme Court of the United $tatdés! lb © ¥

October Term, 1984

AUG 3 1985

H F. SPANIOL, JR.

’ wee BLERK

Richard Thornburgh, H. Arnold Mulle

B. O'Bannon, Michael I. Browne, Will

Davis, LeRoy S. Zimmerman, personally and

in their official capacities, and Joseph A.

Smyth, Jr., personally and in his official

capacity, together with all others

similarly Situated,

Appellants

Vv.

American College of Obstetricians and

Gynecologists, Pennsylvania Section, Henry

H. Fetterman, M.D., Thomas Allen, M.D., and

Francis L. Hutchins, Jr., M.D. on behalf of

themselves and all others similarly

Situated; Allen J. Kline, D. 0., on behalf

of himselt and all others similarly

Situated; Brooks R. Susman, Paul

Washington; Morgan P. Plant, on behalf of

herselt and all others similarly situated;

Elizabeth Blackwell Health Center for

Women, Planned Parenthood of Southeastern

Pennsylvania; Reproductive Health and

Counseling Center; and Women's Health

Services., Inc.,

Appellees

On Appeal from the United States

Court of Appeals for the Third Circuit

Brief for an Ad Hoc Group of Law Professors

as Amici Curiae in Support of Appellees

a

e...

i

ow

—

co

—= a

—

— «

——e

—= «

_-

Cf)

heeded

co

Denise Carty-Bennia Arthur Kinoy

Northeastern University Rutgers, Center for

School of Law Law and Justice

400 Huntington Avenue 15 Washington St.

Boston, MA 02115 Newark, NJ 07102

Counsel tor Amici Curiae

AMICI CURIAE

INDIVIDUAL MEMBERS OF THE AD HOC GROUP

Susan 3andes

DePaul University College of Law

Allan Brotsky

Golden Gate University School of Law

Robert Calhoun

Golden Gate University School of Law

Leonara Cavise

DePaul University College of Law

Debra Evenson

DePaul University College of Law

John G.S. Flym

Northeastern University School of Law

Sylvia Law

New York University School of Law

Stephanie Levin

Northeastern University School of Law

Christine Littleton

University of California at Los Angeles,

School of Law

Isabel Marcus

State University of New York at Buffalo,

School of Law

Eric Neisser

Rutgers, The State University of New Jersey,

S.I. Newhouse Center for Law and Justice

Mary O'Connell

Northeastern Universit School of Law

Barbara Rhine

Golden Gate University School of Law

AMICI CURIAE, cont.

James V. Rowan

Northeastern University School of Law

Annamay Sheppard

Rutgers, The State University of New Jersey,

S.I. Newhouse Center for Law and Justice

Marc Sticxgold

Golden Gate University School of Law

Naaine Taub

Rutgers, The State University of New Jersey,

S.I. Newhouse Center for Law and Justice

Gilaa M. Tuoni

Northeastern University School of Law

Stephanie Wildman

University of San Francisco, School of Law

Mary Joe Frug

New England School of Law

Judith Greenberg

New England School of Law

Isaac Borenstein

New England Schol of Law

Chris Williams

New England School of Law

Elizabeth K. Spann

New England School of Law

Karl Klare

Northeastern University School of Law

ee ND att

AMICI CURIAE, cont.

Ann E, Freedman

Rutgers, The State University of New Jersey

School of Law, Camden

Manuel Rodriguez-Orellana

Northeastern University School of Law

Jonathan M, Hyman

Rutgers, The State University of New Jersey

S.I. Newhouse Center for Law and Justice

David Hall

Northeastern University School of Law

Donald H. Berman

Northeastern University School of Law

TABLE OF CONTENTS

Page

were. GE BP EGIORs o cb ccccccvccosecssccoccce fi

Consent or ue es 66060666660606 0606666dK8 l

SREOEOSE CL Amici Curiae...cccccccccceccece 2

Introduction ana Summary of Argument....... 3

Argument:

i. Tragitional principles of finality

of judgements under 28 U.S.C.

§1254(2) require dismissal of the

appeal of part of an interlocutory

order issuea by the Circuit Court

of Appeals in Thornburgh...........6

Il. The supervening enactment of

Pennsylvania Orphans' Court Rule

16 requires vacating, as moot, the

appeal from that portion of the

Circuit Court of Appeal's Order in

Thornburgh enjoining the enforcement

Of $3206 of the Pennsylvania

Abortion Control Act on Parental

Consent or Judicial Approval for

Ms 66:66 4.66606 666666666666666088

III. The lacx of an Article III §2 live

case or controversy in Diamond

requires this Court to dismiss the

GS Sod oc dotsbicdbsedseiccécccecelt

D> ctnbeeséeceecesceocessescoeseeansall

TABLE OF AUTHORITIES

Cases

Akron v. Akron Center for Reproductive

Health, 462 alte 416 ( ) PPPPrTrrTT. - 6, 23

Allen v. Wright, U.S.__, 104 S.ct. 3315

ES Seg pg i a, |

American College of Obstetricians and

Attwell v. Nichols, 608 F.2d 228 (5th Cir.

1979) cert denied 446 U.S. 955 (1980)...... 20

Beal v. Doe, 432 U.S. 438 (1977)...........3

Bellotti v. Baird, 428 U.S. 132 (1976)......3

Bellotti v. Baird, 443 U.S. 622 (1979)......3

Blum v. Yaretsxy, 457 U.S. 991 (1982)...... 36

Bordenkircher v. Hayes, 434 U.S. 357

( Depmgdebeedeteeseeeeeseeececeees re ff @ ~..28

Brooks v. Plagg Brothers, Inc., 436 U.S.

149 SSP TOD cccgcccccccccccecccocecees ref © © 36

Brown, et al. v. United States, 411 U.S.

223 Thee cennadunaadkaa ne © ff © reef eee#eeee#ee#ee 34

City of Chicago v. Rapid Transit Co., 284

Dolbe 577 din dé ends iad eseeneeees se.

ead v. Atchison, T. & S.F.R. Co., 357

U.S. eg i ee ee ee ee ee ow

Colautti v. Franklin, 439 U.S. 379

( Seeetooesteod rv, ef ee ee eee eee ee ee ee eee ee 3

Connecticut v. Menillo, 423 U.S. 9

(19 DUiaeeceeneceseseeeseceescoeocooceseseeoeesed

Cort Vv. Ash, 422 U.S. 66 ee

DeFunis v. Odegaard, 416 U.S. 312 (1974)..19

Diffenderfer v. Central Baptist Church,

404 U.S. 412 (19 Beeeeeseeeceseueesceooete 25

Director, Office of Worker's Compensation

Programs v. Perini North River Assocs.,

ee 103 $.ct. 634 ep

Doran v. Salem Inn Inc., 422 U.S. 922

( POPPE EET TTT TTT TTT TTT TTT TTT T TTT

El Paso v. Simmons, 379 U.S. 497 (1964)....9

Firestone Tire and Rubber Co. v. Risjord,

449 449 U.S. 368 (1981) th hanennneeeesee an

Planagan v. United States, U.S. _,

04 eGee 1051 (1984).. “ere ~rrTTTiTiTiTT 18

Flast v. Cohen, 392 U.S. 83 (1968).........31

Pusari v. Steinberg, 419 U.S. 379 (1975)...20

Gonzales v. Au tic Employees Credit Union,

419 U.s. 8U ( 94006000606066000006

Hall v. Beals, 396 U.S. 45 (1969)..........20

Harris v. McRae, 448 U.S. 297 (1980)........3

Hill v. Printing Industries of Gulf Coast,

422 U.S.

866606660660660006000000088

H.L. v. Matheson, 450 U.S. 398 (1981).......3

ii

Holcombe v.McKusick, 61 U.S. 552 (1857)...10

Jackson v. Metroplitan Edison, 419 U.S.

345 (

0650666060600 C60 cescesoceecene

Joint Anti-Fascist Refugee Comm. v. McGrath,

TPTTTT TT TT TTT TT eee si.

Keith v. Daley and Illinois Pro-Life

Coalition, No. - ’ p op. at ll

(7th Circuit Court of Appeals, June 18,

1985) Pr TTTTTTTTrTreTrTiTrrrrerTeeTeTTrrieTttTite

Kremens v. Bartley, 431 U.S. 119 (1977)....20

Linda R.S. v. Richard D. et al., 4'° U.S.

614 etl

Liner v. Jafeo, Inc., 375 U.S. 301

Poe eeeseeeseesoecoseoesceeeeoocoeseeeoeees

Lugar v. Edmonson Oil Co., Inc., 457

U.S. 922 ( 3 PPPS PCT TTT TTT Trees als 36

Maher v. Roe, 432 U.S. 464 (1977).....2666223

McLish v. Roff, 14. U.S. 661 (1891)........13

Metcalfe's

(K.

se, «7 Eng. Rep. 1193

PPT Tree eee eee eee eee ee eee ee eee 6

New ae v. Dukes, 426 U.S. 297

( A Re ee

Parratt v. Taylor, 451 U.S. 527 (1981).....27

Perry Education Association v. Perry Local

Educator's soci tion, 460 U.S.

PEEVE TTT LETT CT TTTTTTTTTTTTT TT

Planned Parenthood Association v. Ashcroft,

eevee eee eneneneneneneee ’ ’ 23

iii

ft mtral Missouri v.

rsity v. Schmid, 455 U.S.

Peesescoeeeceoooeeeosoeooonte 29, 30

Rakas v. Illiois, 439 U.S. 128 (1978)......33

Rawlings v. Kentucky, 448 U.S. 98 (1980)...33

ifornia v.

KfKe, FPP PTTTTTITTT TTT |

Roe v. Wade, 410 U.S. 113 (1973)............3

Simon v. basturs Meta mesiaty

Organization, -S. ( coccsesescesdd

oR v. Virginia, 462 U.S. 506

(

TPP TTTTTTTTITTTirerrs+eerrrrrerrirrr. 6

~2dRer v. O'Conner, 278 U.S. 188

1

rolina Electric and

(per

nstruction v. Council

8. . -Ct. 1020

EPL KT CTT TTT TTT TTT Te

rs of America v. United

States, TTT TTT eT i.

ae States v. Alabama, 396 U.S. 602

oe 7 Siege arr

ests a v. Batchelder, 442 U.S.

PPPOE PPO FP PEEPS TT TTT TTTTTTTTT CC

iv

Umitea States v. Girault, 52 U.S. 22

(1850).. s*enerieeeeeneeeseeneeeeee#ee#ee#e#kee#kee#e#eenfee#e##Heee#ee##e#e#e#e#e#e#e#* « 10

Unitea States v. Munsingwear, 340 U.S.

(19 Dit. abe bee © 666 ee eee eeee ete eee @ 24

United States v. Payner, 447 U.S. 727

3 One eonkene ee oee e se ffteeweneeneeeetee# * #¢© *# @ « 33

an Parole Commission, et al. v. Geraghty,

44 U.S. 3 ( 9 se eneenerees eeee ee wf fe eee 8 19

Vailey Forge Christian College v. Americans

Unitea tor Separation of Church and State,

+ U. _ 464 ( se w@ee#eeee#srenee ete eee eees#e# * 31, 33

Village of Arlington Heights v. Metropolitan

— Development Corp., 429 U.S. 252

Di ieee he ean ee ee eee te

Warth v. Seldin, 422 U.S. 490 (1975)....... 31

ite v. Regester, 422 U.S. 935

i EE *eeneneeeeeeeee 25

~ Sper v. Stanford Daily, 436 U.S.

eee eee eee ee seeseeeeeeoeococe se 33

Umited States Constitution and United States

Statutes

United States Constitution,

Article III ——— senerteeneeneteeeeee © @ 25

ll United States Constitution,

Amendment EE *entenseneteeeese eeeete#ee#s#s# * 33

Be Botete BESPOtS? CA9GE). ccccccccccces 10, 13

Vv

28 Bulb eGe §1257(a) NO ae |

28 U.S.C. $2281 (repealed 1976)....... seceunl

28 U.S.C. $2282 (repealed 1976)............15

28 i Fs §24U3 CO EE

Act of February 13, 1925, Ch. 229, 43

Stat. Per errTTT TTT TTT TTTTTTTTTTrTT 13

Amended Judicial Code of 1925,

43 Stat. 936 $240(b)......9, 10, 13, 15

Amended Judicial Code of 1925,

43 Stat. 937, CS Ee eee

Act of September 6, 1916 Ch. 448,

39 Stat. 3 69866666680666666666 *-e 2#-e er!

Act of August 12, 1976, 90 Stat. 1120......15

42 U.S.C. CO EE ee es ee ee

The Evarts Act of March 3, 1891, 26

26 Stat. OTT Te TTT TT TTT TT TTTTr °° 15

First Judiciary Act of 1789, 1 Stat.

73, Se 2U Tit tictidnadend dete Penenhes 6ooeeene

Feaeral Rule of Civil Procedure 25(a)......35

State Statutes

Pennsylvania Abortion Control Act of 1982,

18 Pa. Cons. Stat. Am §§ 3201-3220

(Purdon Beep pocoececeoeeeceecoeseewte 7, passim

New Pennsylvania Orphans' Court

Rule Dia sttistnadnnebnbonnsdeneeeseeseeeessonl

S.H.A. Ill. Ch. 38 §81-31 (Smith-Hurd Supp.

re ree er.

vi

S.H.A. Ill. Ch. 38 §$81-26 (Smith-Hurd Supp.

MNS ©0666 06 0606660066860006606666006006 06666008

S.H.A. Ill. Ch. 38 §81-11 to §81-34

(Smith-Hurd Supp. 1982)........ceceeeeee eee 26

Books

Crick, Carleton M., The Final Judgement as

a Basis for al, 41 Yale L.J. 539

(i 9665666 006600600 060660000 06066000600000R8

F.Frankfurter ana J. Landis, The Business of

the Supreme Court, 273-278 (Johnson Reprint

Corp, N.Y. Jee ene © ff © © *enrneneeenet eeee ee @ 13, 14

Articles

Blumstein, James F, The Supreme Court's

Jurisaiction - Reform Proposals, Discretion-

ary Review, and Writ Bteeteseto 26 Vand. L.

Rev. 895, PervereTrrTTTr oe eee

Simpson, John, Turning Over the Reins: The

Abolition of The Mandatory Apoeliate

Jurisdiction of the Supreme Court,

6 Hastings Const. L.Q. 297, 299 n.7

(Fall, 1976)... .eeeees “ee ee yrrTTTT 16, 17

vii

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., 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 for an Ad Hoc Group of Law Professors

As Amici Curiae in Support of Appellees

CONSENT OF PARTIES

Amici curiae file this brief with the

consent of all the parties in support of the

position advanced by the appellees.

INTEREST OF AMICI CURIAE

Amici Curiae are the individuals listed

who compose an ad hoc group of professors

teaching at various American law schools.

The group represents a cross section of views

ana diverse interests. Amici all recognize

the importance and emotional timbre of the

issues raised in this case. They, however,

believe that these issues should not be

resolved at the expense of impugning the

integrity of the federal judicial process

Simply because of the zealousness and fervor

surrounding their public debate. Amici

recognize ana support the logical and orderly

procedural flow of litigation, as well as

adherence to eonst i tutional requirements for

the exercise of appellate jurisdiction.

Amici, therefore, urge this Court to dismiss

these cases for lack of jurisdiction.

=

INTRODUCTION AND SUMMARY OF ARGUMENT

More than a decade has passed since this

Court's land-mark decision in Roe v. Wade,

410 U.S. 113 (1973) (hereafter Roe)

articulated the fundamental constitutional

protection of a woman's right to obtain an

abortion. In the intervening years, this

Court consistently has reaffirmed its posi-

tion in a succession of cases challenging the

practical application of the tenets of

Roe.+ These two cases once more appear to

question this Court's strength of conviction

in its interpretation of Roe in several

1/ see onnecticut v. Menillo, 423 U.S. 9

(1975); Plannea- Parent ot Central

Missouri “9 nftort 4 76);

otti v. Baird, 428 U.S. "132 (1976); Beal

Vv. 432 U.S. 438 (1977); Maher v. ,

432 “7 464 (1977); autti v. reankite,

439 U.S. 379 (1979); peilotei v. Baird, 3

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

297 (1980); H.L. v. Matheson, 450 U.S. 398

(1981).

recent similar decisions.? This appear-

ance, however, is deceptive and illusionary.

Both of these cases are improperly before

this Court. Appellants have failed to satis-

fy fundamental requirements necessary for the

exercise of appellate jurisdiction by this

Court.

In Thornburgh, appellants, in their zeal,

seek to disrupt the logical and orderly

procedural flow of litigation by having this

Court abandon the century long practice of

restricting review on appeal from a Circuit

Court of Appeals decision to only those cases

involving final judgements. In addition,

because of intervening circumstances, that

specific part of the appeal seeking review of

the Parental Consent/Judicial Approval provi-

2/ arenthooa sociation v.

r , 4 3. 4 ( 3

nter r r tive th, u.s. 416

( ; s Vv. rginia, 462 U.S. 506

4

(1983).

sions, $3206 of the Pennsylvania Abortion

Control Act of 1982, 18 Pa. Cons. Stat. Am.

$§3201-3220 (Purdon 1983) (hereafter the

“Pennsylvania Act") presently is moot as a

matter of appellate review and ripe for

review by the District Court.

Similarly, in Diamond, there is no live

case or controversy tor the exercise of

federal judicial power. Appellants, District

Court intervenors, lack the requisite

standing necessary to bring the case to this

Court. The DiStrict Court order granting

appellants the right to intervene in the

first place is not dispositive of whether

they now have standing. None of the origi-

nally named party-defendants, governmental

officials representing the State of Illinois,

have filed an appeal or adopted appellants'

brief in this case. In fact, all of the

state representatives have been realigned as

appellees in the case before this Court.

»@«

I. TRADITIONAL PRINCIPLES OF FINALITY OF

JUDGMENTS REQUIRE DISMISSAL OF THE APPEAL

UNDER 28 U.S.C. §1254(2) OF PART OF AN

INTERLOCUTORY ORDER ISSUED BY THE CIRCUIT

COURT OF APPEALS IN THORNBURGH

This case was brought to the Circuit

Court of Appeals on cross-appeals from a

District Court orager, entered on a hastily

stipulated record, denying a substantial, but

not total, part of plaintiff's request for a

preliminary injunction of the Pennsylvania

Act. The case was twice briefed, as well as

orally argued. In between, this Court

announced its decisions in three factually

Similar cases, Planned Parenthood Association

v. Ashcroft, 462 U.S. 476 (1983), Akron v.

Axron Center for Reproductive Health, 462

U.S. 416 (1983)and Simopoulos v. Virginia,

462 U.S. 506 (1983). Arter thoughtful and

methodical consideration, the Circuit Court

of Appeals finally concluded that certain

e 6 «

sections of the Pennsylania Act were uncon-

stitutional as a matter of law as written.

The original denial of the preliminary

injunction was reversed in part and the case

was remanded to the District Court “for

turther proceedings in accordance with [its]

opinion.” American College of Obstetricians

ana Gynecologists v. Thornburgh, 737 F.2d

283, 304 (3rd Cir. 1984). Judgement was not

enterea for the plaintiffs. Significant

parts of the Pennsylvania Act still require

District Court review during which both

plaintiffs ana defendants may engage actively

in trial litigation by offering additional

evidence and legal arguments. The Common-

wealth of Pennsylvania has not appealed

certain issues but reserved them for further

litigation before the Distict Court. (E.g.

$3205(a)(2) of the Pennsylvania Act.) Since

the Circuit Court of Appeal's order, plain-

» De

tiffs have renewed their motion before the

District Court for a preliminary injunction

of aaditional provisions of the Pennsylvania

Act. A full evidentiary hearing has been

hela and a final hearing on the merits should

pe scheduiea shortly. The District Court

decision on these and other matters undoubt-

edly will be appealed to the Circuit Court of

Appeals and, probably, to this Court, as

well.

The complicated and fragmented proced-

ural posture of the case, argues in persua-

Sive decibels, that the interlocutory order

of the Circ.it Court of Appeals clearly lacks

the degree or finality required for the

exercise by this Court of mandatory eppellate

jurisdiction under 28 U.S.C. §1254(2) (here-

atter $1254(2)).

This Court consistently has required

that appeals can be taxen only from final

judgments of the Circuit Court of Appeals to

the United States Supreme Court.

Under the Act of February 13,

1925 (the Amended Judicial Code of

1925), $240(b) (che predecessor to

$1254(2)] appeals to this Court

from Circuit Court of Appeals lie

only from final judgments or

Gecrees in cases where the validity

ot a state statute is drawn in

question on the ground of repug-

mance to the Constitution, trea-

ties, or laws of the United States,

ana the decision is against its

validity. (citations omitted)

Slaxer v. O'Conner, 278 U.S. 188, 189-190

(1929). Thas finality requirement was read

directly into §1254(2) in South Carolina

Electric and Gas Co. v. Flemming, 351 U.S.

901 (1956) (per curiam). Neither case has

been overruled and clearly are controlling

precedent here.°

3/weither New Orleans v. Dukes, 427 U.S.

297 (1976), Doran v. Salem Inn, Inc., 422

U.S. 922 (1975), El Paso v. Simmons, 379 U.S.

497 (1964) (per curiam) nor Chicago v.

Acchison, o— S.F.R. Co., 35? U.S. 77

(1958), reached the merits of the issue pres-

ently before the ccurt. In any event, all

four cases are factually distinguishable.

It is neither surprising nor confusing

that §240(b) of the amended Judicial Code of

1925 and 28 U.S.C. $1254(2) contain no

explicit finality language. The final judge-

ment requirement within the federal court

system finds its historical roots in the

practice of the common law in the courts of

England‘ and in the first Judiciary Act of

1789, 1 Stat. 73, ¢c. 20 $22. Finality has

been ceemed a longstanding rule of procedural

practice implicit in all prior acts of

Congress, equally silent in their terms on

this matter, related to United States Supreme

Court appellate jurisdiction. See generally,

Crick, The Pinal Judgement as a Basis for

Appeal, 41 Yale L.J. 539 (1932). When the

4/e.¢. Metcalfe's Case, 77 Eng. Rep. 1193

(K.B. 1615); U.S. v. Girault, 52 U.S. 22

(1650); Holcombe v. McKusick, 61 U.S. 552

(1857).

Circuit Courts of Appeal were created by the

Evarts Act of March 3, 1891, 26 Stat. 826,

this Court reaffirmed in clear and unmistak-

able terms the applicability of the final

judgement requirement for access to the

United States Supreme Court by appeal.

From the very toundation of our

judicial system the object and

policy of the acts of Congress in

relation to appeals and writs of

error,... have been to save the

expense and delays of repeated

appeals in the same suit, and to

have the whole case and every

matter in controversy in it decided

in a single appeal. rgay Vv.

mrad, 6 How. 201, . >

nstruction [of non-finality]

contended for would render the act

under consideration inconsistent

with this long established object

and policy. More than this, it

would defeat the very object for

which that act was essed. ...

. « «(T)he distribution of the

entire appellate jurisdiction of

our national judicial system,

between the Supreme Court of the

United States and the Circuit Court

of Appeals, .. . by designating

the classes of cases in respect of

which each of those two courts

» £8 «

shall respectively have final

jurisdiction. ... [(T)here is, we

think, mo provision in the act

which can be construed into so

radical a change in all the exist-

ing statutes and settled rules of

practice and procedure of Federal

courts as to extena the jurisdic-

tion of the Supreme Court to the

review of jurisdictional cases in

advance of the final judgments upon

them.

But there is an additional reason

why the omission of the word final

- « Should not be held to imply

that the purpose of the act is to

extend the right of appeal to any

question of jurisdiction, in

aavance of the tinal judgment, at

any time it may arise in the

progress of the cause in the court

below. Such implication, if

tenable, cannot be restricted to

questions of jurisdiction alone.

It applies equally to cases that

involve the construction or appli-

cation or the Constitution of the

United States; and to cases in

which the constitutionality of any

law of the United States, or the

validity or construction of any

treaty made under its authority, is

drawn in guestion; and to those in

which the constitution or law of a

State is claimed to be in contra-

vention of the Constitution of the

United States. Under such a con-

struction all these most important

classes of cases could be directly

taken py writ of error or appeal,

--- to this court, independently of

any final judgment upon them. The

- 12 «

effect of such a construction,

if sanctioned, woula subject this

court to the needless delays and

labor of several successive appeals

in the same case, which, ... by

awaiting the final judgment, could

be promptly decided in one appeal.

McLish v. Rotf, 141 U.S.661,665-667 (1891).

$1254(2), as originally enacted as

§$240(b), was an amendment to the Judge's Bill

or 1925 drafted by Justices deeply concerned

abouc the U.S. Supreme Court's caseload.

John Simpson, Turning Over the Reins: The

Abolition of the Mandatory Appellate Juris-

diction of the Supreme Court, 6 Hastings

Const. L.Q. 297, 299 n.7 (Pall, 1978), James

FP, Blumstein, The Supreme Court's Jurisdic-

tion - Reform Proposals, Discretionary

Review, and Writ Dismissals, 26 Vand. lL.

Rev. 895, 898-899 (1973); F. Prankfurter

anad J. Landis, The Business of the Supreme

Court, 273-278 (Johnson Reprint Corp., N.Y.

1972). $240(b) was a Senate compromise

measure designed to place circuit courts of

e £9 «

appeal and state courts, pursuant to §237(a),

43 Stat. 937 (mow 28 U.S.C. §1257(a)), in

“perrect parity, allowing a writ error from

the circuit court of appeals under conditions

exactly the same, except reversed, and allow-

ing a writ of certiorari in the one case as

in the other case, so that the two would be

entirely harmonious.” Frankfurter and

Landis, supra. at 278 (citing Sen. Walsh,

66 Cong. Rec. 2923); see also Simpson,

supra. at 313. While §237(a), directed to

state courts.with varying appellate

practices, explicitly required finality,

§240(b) merely reflected codification of

historical federal court practice.>

5/ This comparison is not intended to imply

any other similarity of requirements under

these statutes.

+ Bs

The finality requirement, for some time,

has served as one of a number of measures

aimed at relieving the burden of the Supreme

Court caseload by reducing the number of

cases requiring mandatory appellate review.

Congressional policy has been to restrict the

mandatory appellate jurisdiction of the U.S.

Supreme Court.© ‘nis Court has recognized

6/the Evarts Act, Act of March 3, 1891, 26

Stat. 826, established the federal Circuit

Courts of Appeal and U.S. Supreme Court

certiorari authority over certain cases. The

Act ot September 6, 1916 Ch. 448, 39 Stat.

726, provided a right of appeal to the U.S.

Supreme Court from state urt only where a

teaeral statute, treaty, thority or right

was struck down or a state \statute upheld

against federal challenge. \The Act of

Peoruary 13, 1925, Ch. 229, 43 Stat. 936,

the Judge's Bill of 1925, widely substituted

certiorari review for a significant part of

U.S. Supreme Court mandatory appellate

jurisdiction. The Act of August 12, 1976, 930

Stat. 1120, by repealing 28 U.S.C. §§ 2281,

2282 and 2403, abolished direct appeals to

the United States Supremes Court from most

three-judge district courts.

=

the Congressional policy. Gonzales v.

Automatic Employees Credit Union, 419 U.S.

$U, 98 (1974), Flanagan v. United States, __

U.S. , 104 S.Ct. 1051, 1054 (1984) and

has followed it strictly when interpreting

statutes authorizing appeal, Perry Education

Association v. Perry Local Educator's Assoc-

iation, 460 U.S. 37, 43 (1983). In fact,

Congress, this Court, and numerous legal

commentators have all pressed for yet further

restrictions in the mandatory appellate jur-

isdiction of the Supreme Court. ?

To ignore the lack of finality of the

Circuit Court of Appeals order before the

Court is likely to produce negative conse-

quences beyond the scope of this case. The

recent repeal of the three-judge district

court statutes was designed to eliminate

direct appellate access to the United States

/see, Simpson, supra. at 298-300, fns. 7-

13, for a detailed listing of authorities.

=

Supreme Court in cases challenging the

Constitutionality of state statutes (Simpson,

supra., at 299 fn. 7). Amy diminution in the

finality requirement under §1254(2), much

less a wholesale abandonment of the require-

ment in this case, certainly would defeat the

purpose of the Congressional repeal. Most

cases previously heard by three-judge panels

woulda wind up before the U.S. Supreme Court

on mandatory appeal. Since m*=ny of these

cases often involve the grant or denial of

interlocutory relief pending the outcome of

final litigation, it is not inconceiveable

that many of these cases probably would come

before this Court more than once.

The appeal in this case also underscores

‘the fact that broader systemic process inter-

ests are served by the final judgement rule.

By preventing piecemeal U.S. Supreme Court

review or discretionary interlocutory orders,

disruption and delay of trial court func-

Oe

tions, as well as strain on the judicial

system and the parties is minimized.

Flanagan v. U.S., U.S. ~~ 2 a =

1051, 1054 (1984); Firestone Tire and Rubber

Co. v. Risjord, 449 U.S. 368 (1981). This

case is a textbook example of piecemeal

litigation and all its attendant problems.

Aspects of this case can be round at every

level of the tederal judicial system, virtu-

ally insuring that additional issues in this

case will be appealed at some future date to

this Court. The integrity of the federal

judicial system, as weil as Congressional

intent to restrict mandatory appeals to the

U.S. Supreme Court are best served by appli-

cation of the final judgement rule to dismiss

this appeal.

II. THE SUPERVENING ENACTMENT OF PENNSYL-

VANIA ORPHANS' COURT RULE 16 REQUIRES

VACATING, AS MOOT, THE APPEAL FROM THAT

PORTION OF THE CIRCUIT COURT OF APPEAL'S

ORDER IN THORNBURGH ENJOINING THE

ENFORCEMENT OF §3206 OF THE PENNSYLVANIA

ABORTION CONTROL ACT ON PARENTAL CONSENT

OR JUDICIAL APPROVAL FOR MINORS

The judicial power of the federal

courts is limited by the case or controversy

requirements of the United States Constitu-

tion, Article III §2 (hereafter Article III)

and related doctrines of justiciability, such

as mootness.

DeFunis v. Odegaard, 416 U.S. 312, 316 (1974)

(citing Liner v. Jateo,-Inc., 375 U.S. 301,

306 fn. 3 (1964); United States Parole

Commission, et al. v. Geraghty, 445 U.S.

388, 395-96 (1980). The mootness doctrine

addresses circumstances destroying the justi-

Ciability of a case otherwise previously

appropriate for determination by a Court.

A case or controversy must remain alive

throughout every-stage of appellate review.

Kremens v. Bartley, 431 U.S. 119, 128

(1977); Preiser v. Newkirk, 422 U.S. 395,

401-404 (1975). Such determinations of jus-

ticiabillity require this Court to review

lower court orders on appeal in light of

presently existing law not chat in effect

when judgement was entered. Fusari v.

Steinberg, 419 U.S. 379, 388 (1975); Cort v.

Ash, 422 U.S. 66, 74-76 (1975); Diffenderfer

v. Central Baptist Church, 404 U.S. 412, 414

(1972); Hall v. Beais, 396 U.S. 45, 48

(1969); United States v. Alabama, 396 U.S.

602, 604 (1960). A finding of mootness is

appropriate when supervening legislation

specifically eliminates the original basis

tor lower court action. Attwell v. Nichols,

608 F.2d 228, 230-231 (5th Cir. 1979), cert.

denied 446 U.S. 955 (1980).

The Third Circuit Court of Appeals

enjoinea the enforcement of §3206 of the

— nw

Pennsylvania Act, providing for parental

consent or judicial approval for unemanci-

pated minors to obtain an abortion, only

until regulations were promulgated containing

detailed provisions assuring confidentiality

and gispatch. American College of Obstetri-

cians and Gynecologists, et al., v.

Thornburgh, et al., 737 F.id 283, 296-297

(3rd Cir. 1984). On November 26, 1984, the

Pennsylvania Supreme Court adopted new rules.

Effective immediately, New Pennsylvania

Orphans' Court Rule 16 (hereafter Rule 16)

provided, inter alia, for confidentiality and

dispatch of proceedings under §3206. By its

own terms, the Circuit Court of Appeals —

injunction §3206 then expired. As a conse-

quence, the basis for appellate review also

disappeared.

The constitutionality of Rule 16 should

not be considered by this Court at this time.

The Circuit Court of Appeals clearly stated:

a 28 «

ee ea ak, Raed sielineh meee ee

JF arg yt

Although we do not invalidate

$3206, its operation should be

enjoined until the state promul-

gates regulations, without preju-

agice to the right of these or other

plaintiffs to attempt to demon-

Strate in this action if still

pending, or in some future action,

that the regulations are unconsti-

tutional.

American College of Obstetricians and

Gynecologists et al., v. MThornburgh et al.,

737 F.2d 283, 297 (1984).

No lower court has passed on the

question of the constitutionality of Rule 16.

The Federal District Court is the aporopriate

forum for initial review of and judgement on

this Rule. Significant portions of this case

alreaay currently are pending before that

court on remand trom the Circuit Court of

Appeals. District Court review, therefore,

will not unfairly or unreasonably delay final

judgement in this case. There pcosentiy is

no factual record aadressing the provisions

or the Rule. Nor has eicher side had a full

opportunity to develop legal arguments. This

- 22 -

LOOP LO ERGO ONE -

wr owe

tr

case is before the Court on the parties'

District Court stipulation of uncontested

facts submitted on November 30, 1982. Even

the Circuit Court of Appeals was not able to

review the substantive constitutionality of

the Rule by the time its May 31, 1984 order

was entered, or when it denied rehearing June

28, 1984.

Rule 16 was not even promulgated until

November 26, 1984.

In addition, this Court recently has

provided authoritative guidance to District

Courts on the very issue of the constitution-

ality of parental consent provisions. City

of Axron v. Akron Center for Reproductive

Health, 462 U.S. 476 (1983, Planned Parent-

hood Association v. Asncroft, 462 U.S. 467

(1983). Application of these and other

Supreme Court precedent is not merely a

matter of law.

{t]he Missouri statute upheld in

Ashcrort establishing alternative

court proceedings tor minor consent

contained detailed provisions

assuring contidentiality and

aispatch, establishing a clear and

Simple procedure for the minor to

follow in setting forth her peti-

tion, and directing court personnel”

to assist the minor in preparing

the petition. Comparable provis-

ions are absent in the Pennsylvania

Statute. This difference is

critical. To pass constitutional

muster, the alternative judicial

procedure must be an established

and practical avenue and may not

rely solely on generally stated

principles of availability, confi-

dentiality, and form.

American College of Obstetricians and

Gynecologists et al. v. Thornburgh, et al.,

737 F.2d at 297.

The standard disposition in a federal ~

civil case that has beccme moot pending

appeal “is to reverse or vacate the judgement

below and remand with a direction to

aismiss." United States v. Munsingwear, 340

serrata >:

U.S. 38, 39 and fn. 2 (1950). While that

part of the Circuit Court of Appeals order

enjoining §3206 should be found moot and

» 26 «

yee , ~ PE Pe Pet

ST

vacated, circumstances clearly warrant

further evidentiary consideration of the

constitutionality of Rule 16 upon remand to

the District Court. See, in accord: United

Building and Construction v. Council of

Camden, U.S. , 104 §.Ct. 1020, 1030

(1984); Hill v. Printing Industries of Gulf

Coast, 422 U.S. 937, 938 (1975°> (per curiam);

White v. Regester, 422 U.S. 935, 936 (1975)

(per curiam); Diffenderfer v. Central Baptist

Church, 404 U.S. 412, 415 (1972).

III. THE LACK OF AN ARTICLE III §2

LIVE CASE OR CONTROVERSY IN DIAMOND

REQUIRES THIS COURT TO DISMISS THE

APPEAL

Article III §2 requires a live case or

controversy for the exercise of federal

judicial power.

a court will not decide a ques-

tion unless the nature of the

action challenged, the kind of

injury inflicted, and the relation-

ship between the parties are such

» 8 a

that judicial determination is

consonant with what was, generaliy

Speaking, the business of the...

Courts... when the Conscitution

was framed.

Joint Anti-Fascist Refugee Comm. v. McGrath,

341 U.S. 123, 150 (concurring opinion)

(1951); see also, United Steelworkers of

America v. U.S., 361 U.S. 39, 60 (1959)

(Prankfurter, J., concurring).

Plaintiffs could never have sued

appellants, District Court intervenors, in

this case. Plaintiffs brought this case

under 42 U.S.C. §1983 (hereafter 1983)

challenging the constitutionality of the

provisions of the Illinois Abortion Law of

1975 as amended, October 30, 1979, S.H.A.

Ill. Ch. 38 §81-11 to §81-34 (Smith-Hurd

Supp. 1982) (hereafter the Illinois Act).

Some form of state action is a prerequisite

to asserting and maintaining jurisdiction

under §1983. Official actions of representa-

—

tives of a state, actions in concert with

a

such representatives or actions under color

of state law are required. Lugar v. Edmonson

Oil Co., Inc., 457 U.S. 922, 928-930 (1982);

Parratt v. Taylor, 451 U.S. 527, 535 (1981).

Review of the appellants' motion in support

ot their petition to intervene reconfirms

that they sought to protect personal and

private “professional interest(s] in statu-

tory restrictions on abortion." (Motion to

Intervene and Petition for Appointment of

Guardian Ad Litem) (hereafter Motion to

Intervene). Appellants are not state

otficials nor have they acted in concert with

the state or under color of state law. In

fact, appellants have admitted this. They

have denied any liability for the amount of

attorney's fees awarded to plaintiffs by the

District Court (Motion to Amend the Judgement

Pursuant to Fed.R.Civ.P. 59(E) at §10)

(hereafter Motion to Amend).

> ae

The Illinois Act in this case is a

criminal statute. It provides for criminal

prosecution and/or fines for violation of its

terms. S.H.A. Ill ch. 38 §81-26 and §81-31.

Criminal statutes can not be enforced by

private citizens. Only the state, through

its official representatives, may enforce,

and by implication, defend a criminal

Statute. Bordenkircher v. Hayes 434 U.S.

357, 365 (1978); U.S. v. Batchelder, 442

U.S. 113, 125 (1979) The State of Illinois

has not appealed the Circuit Court of Appeals

judgement to this Court. Nor has the State

of Illinois adopted the appellants' brief or

jurisdictional statement in this appeal .®

Tnis Court's decision in Princeton Univer-

8/Ssee letter dated July 15, 1985 from

Michael J. Hayes, Director of Advocacy, State

or Illinois Attorney General to Mr. Alexander

Stevas, United States Supreme Court Clerk of

the Court. The State of Illinois has failed

to comply with Supreme Court Rules 10.1-10.4,

10.6 and 34.1 or otherwise conduct itself

like a party.

— 2

sity v. Schmid, 455 U.S. 100 (1982) is

dispositive of the present case. The Court

dismissed an appeal by Princeton University

of a New Jersey Supreme Court reversal of a

criminal trespass conviction. Schmid, a non-

student defendant, was convicted of trespass

for violating Princeton University regula-

tions on University property. The University

was asked to intervene before the New Jersey

Supreme Court which then overruled the

conviction on First Amendment grounds. The

University filed a notice of appeal anda

jurisdictional statement. The State of New

Jersey joined in the University statement but

did not file separately. It filed a brief

asking this Court to decide the case but

aeclined to take a position on the merits.

The Court concluded that:

Had the University not been a

party to this case in the New

Jersey Supreme Court and had the

State filed a jurisdictional state-

ment urging reversal, the existence

of a case or controversy--and the

s

jurisdiction in this Court--

could not be doubted. However, if

the State were the sole appellant

and its jurisdictional statement

Simply asked for review and

declined to take a position on the

merits, we would have dismissed the

appeal for want of a case or

controversy. We do not sit to

decide hypothetical issues or to

give advisory opinions about issues

as to which there are not adverse

parties before us. See e.g.,

Sierra Club v. Morton, 405 U.S.

727, 1731-732, 92 S.Ct. 1361, 1364-

1365, 31 L.Ed.2d 636 (1972); Flast

v. Cohen, 392 U.S. 83, 99, 88 S.Ct.

1942, 1952, 20 L.Ed.2d 947 (1968).

Thus the presence of the State of

New Jersey in this case does not

provide a sound jurisdictional

Dasis for undertaking to decide

difficult constitutional issues.

Princeton University v. Schmid, 455 U.S. 100,

102 (1982)

See, in accord, City of Chicago v. Rapid

Transit Cco., 284 U.S. 577, 578 (1931).

In this case the State of Illinois has

not even engaged in the minimal level of

appellate participation previously frund

insurficient to invoke this Court's

appellate jurisdiction.

- 30 -

Appellants, as private parties, lack the

standing necessary to naintain this case.

The District Court determination that inter-

vention was appropriate is not conclusive.

Standing requirements control whether a

litigant is the appropriate party for advanc-

ing a particular legal claim. Warth v.

Seldin, 422 U.S. 490, 500 (1975); Valley

Forge Christian College v. Americans United

for Separation of Church and State, 454 U.S.

464, 484 (1982); Flast v. Cohen, 392 U.S.

83, 99 (1968). Even if intervention once was

appropriate, the constitutional inquiry into

the propriety of a party's standing is a

jurisdictional issue that may be raised at

any time, even on appeal, or by this Court

Sua sponte. Regents of University of

California v. Bakke, 438 U.S. 265, 281 fn.

14 (1978); Village of Arlington Heights v.

Metropolitan Housing Development Corp., 429

U.S. 252, 260 (1977).

- 31 -

The constitutional dimension of

standing theory, requires, at the

very least, that there be an actual

injury redressable by the Court.

Director, Office of Worker's Compensation

Programs v. Perini North River Assocs.,

U.S. __, 103 S.Ct. 634, 640 (1983).

Appellants have no legally cognizable

interest in the Illinois Act that should

permit them to maintain this appeal. They

have not demonstrated any concrete or direct

injury from the continued enforcement of the

Circuit Court of Appeals injunction of the

Illinois Act. At best, appellants' personal

and professionwal convictions may be offended.

Similarly, enforcement of the Illinois Act

can give appellants only personal gratifica-

tion. Appellants simply do not have inter-

ests in this case significantly distinct from

those they share in common with other

citizens in the State of Illinois who may

want to see the Illinois Act enforced.

Appellants could not have sued the State

-—

or Il.iinois to compel enforcement of the Act.

Private citizens who have no more than an

aoOstract or intellectual interest in the

enforcement or nonenfotcement of state

statutes consistently have been denied

Standing to sue. Valley Forge Christian

College v. Americans United for Separation

of Church and State, 454 U.S. 464, 484(1982);

Simon v. Eastern Kentucky Welfare Organiza-

tion, 426 U.S. 26, 40 (1976); Linda R.S. v.

Richard D. et al., 410 U.S. 614, 617 (1976);

Allen v. Wright, U.S. _, 104 S.Ct.

3315, 3325 (1984).

Similarly, criminal defendants regularly

have been denied standing to invoke the

United States Constitution Fourth Amendment

rights of a third party. United States v.

Payner, 447 U.S. 727, 731 (1980); Rawlings

v. Kentucky, 448 U.S. 98, 104 (1980); Rakas

v. Illinois, 439 U.S. 128, 141 (1978);

Zurcher v. Stanford Daily, 436 U.S. 547, 553

oe $8 «

(1978); Brown, et al. v. United States, 411

U.S. 223, 227 (1973).

Recent events merely underscore the

inadequacy of appellants' legal interest in

maintaining this case before the Court. On

April 22, 1985, the District Court held

appellants jointly and severally liable to

plaintiffs for over $100,000.00 in attorney's

tees. Appellants responded by filing a

Motion to Amend the Judgement to dismiss the

present appellants and name Americans United

for Life, Inc. (hereafter AUL) as the sole

intervening defendant. In the alternative,

they want the court to clarify the original

intervention order by stating “that AUL is an

intervening defendant for all purposes,

including the assessment of attorney's fees."

(Motion to Amend at §7). This motion to

amend or clarify was based on the discrepency

between the original Petition to Intervene in

which appellants were named and the District

—

Court Order to Intervene in which AUL alone

was named as intervenor. The Motion acknow-

ledges that the present appellants were

solicited by AUL to intervene in this case,

but "AUL is the real party in interest."

(Motion to Amend at §9). In addition, on

June 28, 1985, counsel moved, pursuant to

FRCP 25(a) to substitute AUL for appellant,

Dr. Jasper Williams, who died in a recent

plane crash. This motion presently is under

consideration by the District Court. There

is little lixelihood that the Court will

grant either of these motions. In a case

challenging the recent additional amendments

to the Illinois Act, the Seventh Circuit

Court of Appeals affirmed a denial of both

mandatory and permissive intervention to an

organization similar to the AUL.

In summary, then, IPC has pre-

sented no direct and substantial

interest that can be secured by its

participation in this lawsuit.

Neither its interests as lobbyist,

guardian of fetal rights, nor

- 35 -

potential adoptive parents of

adoptea fetus “born alive," either

Separately or together, support its

right to intervene in this lawsuit.

The district court's finding that

Ipc failed to establish a signifi-

cant, tegally protectable interest,

is, therefore, atfirmed.

Keith v. Daley and Illinois Pro-Life

Coalition, No. 84-2860, slip op. at 1l (7th

Circuit Court of Appeals, June 18, 1985).

The consequences of recognizing the

appellants in this case extend beyond the

obvious di -rtion of several doctrines of

justiciability. This Court recently has

attempted to clarify the parameters of the

state action doctrine. Blum v. Yaretsky,

457 U.S. 991 (1982); Lugar v. Edmonson Oil

Co., Inc., 457 U.S. 922 (1982); Brooks v.

Flagg Brothers., Inc., 436 U.S. 149 (1978);

Jackson v. Metropolitan Edison, 419 U.S. 345

(1974). These events would be stymied by a

decision to review this case on appeal.

» Me

CONCLUSION

The Court must not let the urgent and

pressing nature of the issues presented in

these cases compromise the appellate process.

Access to appellate review by this Court is a

venerable and precious, but all too fragile,

right. We urge the Court to recognize that

there is an approprite time and place for

every case to be heard. In the present

cases, however, it is neither the time, nor,

this Court, the place for decision. We urge

the Court to dismiss the appeals in both

cases tor lack of jurisdiction.

Respectfully submitted,

Denise Carty-Bennia*

Northeastern University

School of Law

400 Huntington Avenue

Boston, MA 02115

Arthur Kinoy

Rutgers, The State University

of New Jersey, S.I. Newhouse

Center for Law & Justice

15 Washington Street

Newark, NJ 07102

Counsel for Amici Curae

—

*Counsel wish to express their appreciation

tor the invaluable assistance of the

following in the preparation of this brief:

Laura Gallant, Wanda Moore, LaVerne Miller

. and Vesper Gibbs, students at Northeastern

University School of Law; Jeffrey Beard, a

1985 graduate of Northeastern University

School of Law; and Robert Boozer, founder and

President, Axis, Inc.

» Mi «