Amicus Curiae Brief — Diamond v. Charles

——

Office -Supreme Court, U.S,

FILED

Nos. 84-495 and 84-1379 JUL 15 1985

ALEXANDER L STEVAS,

CLERK

Iu the Supreme Court of the Uuttri- States

OCTOBER TERM, 1985

RICHARD THORNBURGH, ET AL., APPELLANTS

v.

AMERICAN COLLEGE OF OBSTETRICIANS AND

GYNECOLOGISTS, ET AL.

EUGENE F.. DIAMOND, ET AL., APPELLANTS

v.

ALLAN G. CHARLES, 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

Interest of the United States

Summary of argument

Discussion

Conclusion

TABLE OF AUTHORITIES

Cases:

Adamson V. California, 332 U.S. 46

Adkins v. Children’s Hospital, 261 U.S. 525

Akron v. Akron Center for Reproductive Health,

Inc., 462 U.S. 416 passim

Atascadero State Hospital vy. Scanlon, No. 84-351

(June 28, 1985)

Beal vy. Doe, 432 U.S. 438

Bellotti v. Baird, 443 U.S. 622

Black v. Cutter Laboratories, 351 U.S. 292

City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S.

283 iceeiiaes

Colcutti v. Franklin, 439 U.S. 379

Doe Vv. Bolton, 410 U.S. 194

Duncan V. Louisiana, 391 U.S. 145

Eisenstadt v. Baird, 405 U.S. 438

Erie R. Co. v. Tompkins, 304 U.S. 64

Furman V. Georgia, 408 U.S. 238

Garcia Vv. San Antonio Metropolitan Transit

thority, No. 82-1913 (Feb. 19, 1985)

Glidden Co. Vv. Zdanok, 370 U.S. 530

Gregg V. Georgia, 408 U.S. 238

Griswold v. Connecticut, 381 U.S. 479

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

Harris v. McRae, 448 U.S. 297

Kastigar v. United States, 406 U.S. 441

Lochner Vv. New York, 198 U.S. 45

Los Angeles v. Lyons, 461 U.S. 95

Loving V. Virginia, 388 U.S. 1

Lynch Vv. Donnelly, No. 82-1256 (Mar. 5, 1984)

for)

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(1)

IT

Cases—Continued : Page

Maher v. Roe, 432 U.S. 473 3, 7, 17, 18, 19

Marsh v. Chambers, 463 U.S. 783 -.... 26

Meyer v. Nebraska, 262 U.S. 390 ee Fe . 29

Miranda Vv. Arizona, 384 U.S. 436 26

Pierce Vv. Society of Sisters, 268 U.S. 510 —- 29

Planned Parenthood Ass’n Vv. Ashcroft, 462 U.S.

476 : 5, 10

Planned Parenthood of Central Missouri v. Dan-

forth, 428 U.S. 52 ; 3, 9, 14, 17, 19, 20

Poe v. Ullman, 367 U.S. 497 ataenemadine 13, 28

Prince Vv. Massachusetts, 321 U.S. L 58 29

Richmond Newspapers, Inc. v. Virginia, 448 U.S.

555 - 27

Rochin v. California, 342 U.S. 165 . 24, 27

Roe v. Wade, 410 U.S. 113 passim

Shapiro v. Thompson, 394 U.S. 618 27

Simopoulos v. Virginia, 462 U.S. 506 23

Skinner v. Oklahoma, 316 US 535 29

Stanley v. Georgia, 394 U.S 557 29

Williams Vv. Florida, 399 U. S. 78 26

Constitution and statutes:

U.S. Const. :

Art. III 13

Amend. I (Establishment Clause) . ; 26

Amend. IV osu 28

Amend. V ee 26

Amend. VI aad neoeiiiee 26

Amend. VIII ; ; ainsi 2

Amend. XIV (Due Process Clause) ..... 2, 25, 26, 28

Act of Nov. 20, 1979, Pub. L. No. 96-123, § 109, 93

Stat. 926 1

42 U.S.C. 300a-6 1

43 U.S.C. 1901 (a) (6) j 20

18 Pa. Cons. Stat. Ann. (Purdon 1983) :

§ 3205 7

§ 3205 (a) (2) (i) 7

§ 3205 (a) (2) (ii) 7

§ 3205 (a) (2) (ili) 8

——————— ee eee eee eee

Til

Constitution and statutes—Continued : Page

§ $206 _.......--.-..-.-....---. 5

§ 3206(c) . 5

§ 3206 (f) ... 5

§ 3206 (h) .. 5

§ 3208 _. SA ESE a a 8

§ 3208 (a) (1) 7

a cccnnmsesetoconnns 7,9

§ 3210(a) .... 6

§ 3210(b) .. 6

§ 3210(c) 5, 6

S $211 ..... 9

§ 3214 ..... 9

§ 3214 (a) 9

§ 3214(a) (8) 9

Miscellaneous:

A. Bickel, The Morality of Consent (1975)......... 24

Burt, The Constitution of the Family, 1979 Sup.

i eased 24

Ely, The Wages of Crying Wolf: A comment on Roe

v. Wade, 82 Yale L.J. 920 (1973) _............. 24, 28

J. Ely, Democracy and Distrust (1980)... ; 24

Epstein, Substantive Due Process by Any Other

Name: The Abortion Cases, 1973 Sup. Ct. Rev.

porate the Bill of Rights? The Original Under-

standing, 2 Stan. L. Rev. 5 (1949) _............ 25

Gunther, Some Reflections on the Judicial Role:

Distinctions, Roots, and Prospects, 1979 Wash.

J. Mohr, Abortion in America (1978) _............. 25, 26

Wellington, Common Law Rules and Constitutional

Double Standards: Some Notes on Adjudication,

Ge Bane tad. Ben (19TS) .......................

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-495

RICHARD THORNBURGH, ET AL., APPELLANTS

v.

AMERICAN COLLEGE OF OBSTETRICIANS AND

GYNECOLOGISTS, ET AL.

No. 84-1379

EUGENE F’, DIAMOND, ET AL., APPELLANTS

v,

ALLAN G. CHARLES, ET AL.

—

ON APPEAL FROM THE UNITED STATES COURTS

OF APPEALS FOR THE THIRD AND SEVENTH CIRCUITS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAT 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—woth 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

eases 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 ana other contexts, that the

right of privacy “is not unqualified amd must be consid-

3

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 abortior ” 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 Vv.

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., concurring) ).

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, precedure, 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-12a) 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 unconstitutional, asserting that “[t]he 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 constructicn

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).

o

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 “d[id] 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 lJ, 443 U.S. at 645 & n.25.

Accord, Planned Parenthood Ass’n v. Ashcroft, 462 U.S.

476, 491 n.16 (1983). The court of appeals’ action in

enjoining enforcement of a state law, without any finding

that it contravenes federal law or tne 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 Ashcrojt, con-

tains no explicit exception for medical emergencies (see

462 U.S. at 485 & n.8). The Court in Ashcroft 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. It 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 (c) are “separated

by [an] intervening provision [viz., subsection (b) |

6

which on its face evinces the Pennsylvania legislature’s

unconstitutionally restrictive view of maternai 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.

ce. 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 “oblig/ ation]

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. 79a). 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 a te

publish easily comprehensible pamphlets descriffing a

sistance available to pregnant women through public and

private agencies. These pamphlets are to include the

following statement: “The Commonwealth of Pennsy!-

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-

vided that such material is “objective, nonjudgmental

and designed to convey only accurate scientific informa-

tion” (§ 3208(a) (2)).

ao.

7

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

ean 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-

of abortion and childbirth. The doctor or his agent

ist also inform the woman of the availability of certain

ancial assistance and social services in the event of

ibirth (§ 3205(a)(2)(i) and (ii)). Finally, the doc-

r his agent must inform the woman that she has a

right to review, but need not review, the printed mate-

ils described above (§ 3205/(a) (2) (ili), cross-referring

> 3208).

The court of appeals held this statute unconstitutional,

iting Akron v. Akron Center for Reproductive Health,

Ine., 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 J.S. App. 48a

quoting 462 U.S. at 444)). And the court viewed the

statute as mandating “a litany of information” that in-

8

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 cr not to have an

abortion” (Colautti, 489 U.S. at 387).

The court of appeals likewise erred in holding that

Pennsylvania cannot require that a woman be informed

“(t]hat 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,

9

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 mec-

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), eross-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 “(t]he nature and complexity of [Pennsyl-

vania’s|] requirements * * * have crossed the permissible

threshold” (84-495 J.S. App. 80a). It reasoned that

Pennsylvania’s law would “have a significant impact on

the woman’s abortion decision” by “increas[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 JS.

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

abortion costs by an unspecified amount—recordkeeping

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-

10

quirements) impose increased costs on providers of medi-

eal services, and it could scarcely be contended that such

laws are therefore unconstitutional. In any event, the

record in this case contains no evidence about the actual

costs imposed by Pennsylvania’s reporting requirements,

and the court of appeals thus had “no way of knowing

what cost increase is attributable to [them]” (84-495

J.S. App. 149a (Seitz, C.J., dissenting)). Cf. Ashcroft,

462 U.S. at 489-490 (noting district court’s findings as to

cost of pathology reports and holding that those costs

imposed “a relatively insignificant burden’’).

The court of appeals likewise erred in holding that

Pennsylvania cannot require doctors to report the basis

for their determinations about fetal viability and danger

to maternal health. It is far-fetched to suggest, as did

the court of appeals (84-495 J.S. App. 8la), that such

reporting violates this Court’s “directive that a physician

be accorded broad discretion” in making these determina-

tions. Obviously, a doctor does not have “discretion” to

make unjustifiable and unsupportable judgments about

life and death, and it is neither an affront nor an un-

reasonable burden to require that he rationally explain

the basis for such decisions. Nor can it seriously be con-

tended that the need to furnish such explanations uncon-

stitutionally “chills” physicians’ willingness to perform

abortions. It 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-

tion Law. The court’s decision ignores elementary prin-

ciples of jurisdiction, comity and federalism in its re-

lentless determination to invalidate the challenged pro-

visions at all costs.

a. Section 6(4) of the Illinois Abortion Law, as en-

acted in 1979, prescribed a standard of care for a doctor

performing an abortion when there existed “a possibility

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. Ill. 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-

12

a

ment by a state legislature, which, of course, is not even

a “defendant” here.

The court of appeals, moreover, had absolutely no

basis for concluding that reenactment of the defunct,

allegedly unconstitutional statute was likely. The legis-

lature’s previous amendments to the law surely provided

no basis for that conclusion, since those amendments, as

the court itself recognized, represented faithful and re-

peated attempts “to alter the contours of [the] statute

to reflect the latest judicial pronouncements in the area

of abortion and privacy” (84-1379 J.S. App. 20). More

generally, principles of federalism and comity make it

wholly inappropriate for a federal court to presume that

a state legislature and governor will act in bad faith by

repealing and then reenacting a statute for the purpose

of evading judicial review.”

b. Section 6(1) of the Illinois Abortion Law, as

amended in 1979. prescribed a standard of care for a

doctor performing an abortion “after the fetus is known

co be viable” (84-1379 J.S. App. 6). On November 16,

1979, four days before the statute became effective, the

district court preliminarily enjoined its enforcement, find-

ing that it incorporated an unconstitutional definition of

viability (id. at 3). In September 1983, the Illinois legis-

lature amended the definition of viability, providing that

a fetus is viable “when, in the medical judgment of the

attending physician based on the particular facts of the

ease 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

2 Appellants suggest (84-1379 J.S. 43) that, while the controversy

as to the old version of Section 6(4) is moot, the controversy as to

its current version remains alive, since the court of appeals’

rationale for invalidating the former would also apply to the latter.

Although we sympathize with appellants’ desire to obtain guidance

from this Court, we cannot agree with this submission. The court

of appeals expressly “decline([d| to evaluate [the] constitutionality”

of the current provision (84-1379 J.S. App. 9), and this Court

“reviews judgments, not statements in opinions” (Black v. Cutter

Laboratories, 351 U.S. 292, 297 (1956) ).

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 ¢cecline[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 Sectivn 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 “{a]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 attendiny physician.” It

would have required no great leap of logic 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.

e. Section 2(10) of the Iliinois 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, a 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” (Danforth, 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 Section

%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 the 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

11(d), 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,

419 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-21la, 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;

Beal v. Doe, 432 U.S. at 445; Maher v. Roe, 482 U.S.

at 473.

The Akron decision seems to signal a departure from

this analytical framework. Certain passages in 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|]” (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

“ * * that there is as vital a state need for insisting”

that the information be conveyed by the one rather than

by the other (462 U.S. at 448).

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” (Maher 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)). To the

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 Vv. 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 (tbid.).

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 inciined 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 1], 443 U.S. at 641 (original quo-

tation marks omitted). Indeed, as a doctor at one of

the clinics involved in Akron testiffed, 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 tly

informed, 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 eifort 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 U.S. at 64; Bellotti IJ, 443 U.S. at 645 & n.25:

H.L. Vv. 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

20

preclude the mindless dumping of aborted fetuses onto

garbage piles” (ibid. (original quotation marks omit-

ted)). The Court nevertheless held the regulation un-

constitutionally vague, speculating that ‘{t]he phrase

‘humane and sanitary’ does, as the Court of Appeals

noted, suggest a possible intent to mandate some sort of

decent burial of [the] embryo” (ibid. (original quotation

marks omitted) ). '

This approach is difficult to reconcile with the Court’s

previous opinions. Akron’s ordinance was surely suscepti-

ble of a constitutional construction. The phrase “humane

and sanitary” appears in countless iaws regulating health

and safety. Congress has even mandated the “humane

* * * disposal of excess wild free-roaming horses and

burros” (43 U.S.C. 1901(a)(6)). As a familiar regula-

tory formula, the phrase “humane and sanitary” resem-

bles the phrase “informed consent,” which the Court in

Danforth held not to be vague (see 428 U.S. at 67 n.8).

In striking down the Akron formula based on speculation

that the draftsmen of the ordinance might have intended

to mandate “some sort of decent burial” (462 U.S. at

451). the Court in Akron may have invited the kind of

unsympathetic statutory construction, the temptation to

impugn legislative motives, that the courts of appeals

engaged in here.

C. Having said this, candor compels us to state our

conviction that Akron is a symptom, not the source, of

the problem. As the decisions below demonstrate, the

constitutional inquiry mandated by Roe v. Wade is not

easy for courts to conduct in a principled fashion. The

key factors in the equation—viability, trimesters, the

right to terminate one’s pregnancy—have no moorings in

the text of our Constitution or in familiar constitutional

doctrine. Because the parameters of the inquiry are

indeterminate, courts are disposed to indulge in a free-

ranging, esseniially legislative, process of devising regu-

latory schemes that reflect their notions of morality and

social justice. The result has been a set of judicially-

crafted rules that has become increasingly more intricate

21

and complex, taking courts further away from what they

do best and into the realm of what legislatures do best.

We recognize that the principle of stare decisis, fur-

thering as it does the policies of continuity and consist-

ency of adjudication, weighs against reconsidering re-

sent precedents. See Atascadero State Hospital v. Scan-

lon, No. 84-351 (June 28, 1985), slip op. 9-10 n.3; Akron,

462 U.S. at 420 & n.1. This principle, however, does not

count so strongly in constitutional litigation, where, short

of a constitutional amendment, this Court is the only

body capable of effecting a needed change. See Akron,

462 U.S. at 420; Glidden Co. v. Zdanok, 379 U.S. 530,

043 (1962). Moreover, this Court must respond to obli-

gations that transcend the institutional concerns under-

lying the doctrine of stare decisis. See Erie R. Co. v.

Tompkins, 304 U.S. 64, 77-78 (1938) (“If only a ques-

tion of statutory construction were involved, we should

not be prepared to abandon a doctrine so widely applied

throughout nearly a century. But the unconstitutionality

of the course pursued has now been made clear and com-

pels us to do so.”) (Brandeis, J.)). Where a judicial

formulation affecting the allocation of constitutional pow-

ers has proven “unsound in principle and unworkable in

practice,” where it “leads to inconsistent results at the

same time that it disserves principles of democratic self-

governance,” this Court has not hesitated to reconsider

a prior decision. Garcia vy. San Antonio Metropolitan

Transit Authority, No. 82-1913 (Feb. 19. 1985), slip

op. 18.

1. To provide a regime for delimiting the permissible

scope of abortion regulation, Roe v. Wade divided preg-

nancy into three trimesters, with radically different con-

sequences for state regulatory power in each. This ana-

lytical framework has proved inherently unworkable.

Subsequent developments, both technological and medical,

have demonstrated the arbitrariness of these lines: the

Court “simply concluded that a line must be drawn, * * *

and proceeded to draw that line” (Garcia, slip op. 14

(original quotation marks omitted) ). Arbitrary line-

22

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

quality of this interest should undergo a radical change

at the end of the first trimester. The Court made a de-

termination—basically one of legislative fact—that “un-

til the end of the first trimester mortality in abortion

may be less than mortality in normal childbirth” (410

U.S. at 149, 163). The legislative nature of this finding

is 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 Vv.

Wade to determine that the state’s legitimate interest

“in protecting prenatal life’ (410 U.S. at 150, 153-154)

undergoes a constitutionally significant change at the

point of fetal viability. There is no obvious constitutional

connection between the ability of a fetus to survive out-

side the womb, and the magnitude of a state’s lawful

concern to protect future life. As Justice O’Connor said

in her Akron dissent, “[P]otential 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-

phasis in original) ).

The “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,

has its movements dictated by advances in engineering

rather than by forces more familiar to traditional judicial

analysis.

The arbitrary 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 (Stmopoulos

Vv. 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

crafted, still more unanswered questions were posed.

During the decade since Roe v. Wade the adversaries in

the abortion debate have come back again and again,

asking this Court to spin an ever-finer web of regula-

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

impose on any court, or on any Constitution.

2. The second, compelling ground for our urging re-

consideration of Roe v. Wade is our belief that the tex-

24

tual, historical and doctrinal basis of that decision is so

far flawed‘ that this Court should overrule it and re-

turn the law to the condition in which it was before

that case was decided.

There is no explicit textual warrant in the Constitu-

tion for a right to an abortion. It is true, of course, that

words, and certainly the words of general constitutional

provisions, do not interpret themselves. That being said,

the further afield interpretation travels from its point

of departure in the text, the greater the danger that

constitutional adjudication will be like a picnic to which

the framers bring the words and the judges the meaning.

Constitutional interpretation retains the fullest measure

of legitimacy when it is disciplined by fidelity to the

framers’ intention as revealed by history, or, failing suf-

ficient help from history, by the interpretive tradition of

the legal community. That tradition is illuminated not

only by court decisions, but by the practice of lawyers

and legislatures “in the compelling traditions of the legal

profession.” Rochin V. California, 342 U.S. 165, 171

(1952) (Frankfurter, J.).

We respectfully submit that by these criteria Roe Vv.

Wade is extraordinarily vulnerable. It stands as a source

of trouble in the law not only on its own terms, but also

because it invites confusion about the sources of judicial

authority and the direction of this Court’s own future

course. Stare decisis is a principle of stability. A decision

as flawed as we believe Roe v. Wade to be becomes a

focus of instability, and thus is less aptly sheltered by

that doctrine from criticism and abandonment.

4 This judgment is shared by a broad spectrum of constitutional

scholars. See, e.g., J. H. Ely, Democracy and Distrust 2-3, 248 n.52

(1980) ; Gunther, Some Reflections on the Judicial Role: Distine-

tions, Roots, and Prospects, 1979 Wash. U.L.Q. 817, 819; Burt, The

Constitution of the Family, 1979 Sup. Ct. Rev. 329, 371-373; A.

Bickel, The Morality of Consent 27-29 (1975) ; Epstein, Substantive

Due Process by Any Other Name: The Abortion Cases, 1973 Sup. Ct.

Rev. 159; Wellington, Common Law Rules and Constitutional Double

Standards: Some Notes on Adjudication, 83 Yale L.J. 221, 297-311

(1973); Ely, The Wages of Crying Wolf: A Comment on Roe V.

Wade, 82 Yale L.J. 920 (1973).

25

a. The ultimate textual source for Roe v. Wade (410

U.S. at 129) is the Fourteenth Amendment’s guarantee:

“nor shall any State deprive any person of * * * liberty

“ * * without due process of law.” It is late in the day

to argue that this provision should be limited to its ap-

parent textual meaning: government’s actually taking

hold of a person, as to confine him, without fair proce-

dures. The expansive possibilities of “due process,” how-

ever, early offered temptations which by all accounts led

to one of the most troubled and demoralizing episodes

in our constitutional history, during which the Court

repeatedly frustrated the workings of the ordinary dem-

ocratic process by imposing its own debatable and paro-

chial view of appropriate social policy. E.g., Adkins v.

Children’s Hospital, 261 U.S. 525 (1923): Lochner v.

New York, 198 U.S. 45 (1905). The now prevailing

doctrine that the Due Process Clause incorporates par-

ticular protections of the Bill of Rights, however con-

troversial on historical grounds,’ was plainly intended

te nave the function of reining in such judicial extrava-

gance and reanchoring the interpretation of that Clause

in the constitutional text—though somewhat downstream

of its historical starting point. See Adamson v. Califor-

nia, 332 U.S. 46, 69-72 (1947) (Black, J., dissenting) .

Viewed in this context, Roe v. Wade seems particu-

larly ill-founded. Due process analysis, while it must

recognize the need to go beyond scrutiny of the few

relevant words of the Claus», must nevertheless seek a

connection with the intentions of those who framed and

ratified the constitutional text. As this Court acknow]l-

edged in Roe v. Wade (410 USS. at 138-139), however,

and as Justice Rehnquist emphasized in dissent (id. at

174-176 & n.1), state laws condemning or limiting abor-

tion were very general at the time the Fourteenth Amend-

ment was adopted. Indeed, the period between 1860 and

1880 witnessed “the most important burst of anti-abortion

legislation in the nation’s history” (J. Mohr, Abortion in

® See, e.g., Fairman, Does the Fourteenth Amendment Incorporate

the Bill of Rights? The Original Understanding, 2 Stan. L. Rev. 5

(1949).

26

America 200 (1978) ). Nor does the tenor and contempo-

raneous understanding of those laws leave much doubt

that they were directed, not only at protecting maternal

health. but also at what was widely viewed as a moral

evil comprehending the destruction of actual or potential

human life (see Mohr at 35-36) and the undermining of

family values in whose definition and reenforcement the

state has always had a significant stake. It is fair to

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 Clause’s 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

of capital punishment be taken to have condemned this

practice as cruel and unusual? See Gregg Vv. Georgia, 428

U.S. 153, 176-177 (1976) (plurality opinion); Furman

v. Georgia, 408 U.S. 238, 380 (1972) (Burger, C.J., dis-

senting) ; id. at 408 n.6 (Blackmun, J., dissenting). His-

tory has regularly been invoked to elucidate the meaning

of the Fifth Amendment’s guarantee against self-incrimi-

nation (see Kastiger v. United States, 406 U.S. 441, 443-

447 (1972); Miranda v. Arizona, 384 U.S. 436, 458-460

(1966) ), and the Sixth Amendment’s guarantee of trial

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

27

(1970); Dunean 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. Vv. 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

28

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.

ce. 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

6 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 (emphasis 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.

29

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 Helmes

(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).

8 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).

30

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

De puty Assistant Attorne y General

JOHN F. CORDES

JOHN M. ROGERS

A ttrorne us

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JULY 19380O

@ ©. 6. GOVERNMENT PeiwTinge orice, 1965 461531 10257