Amicus Curiae Brief — Diamond v. Charles

Supreme Court, U.S.

A \

Nos. 84-495 and 84-1379 FILED

AG $0 1985

sa aye JOSEPH F. SPANIOL, JR

Supreme Court of the United States cee

October Term, 1985

RICHARD THORNBURGH, ef. al.,

Appellants,

a

4]

AMERICAN COLLEGE OF OBSTETRICIANS AND

GYNECOLOGISTS, et a/.,

Appellees.

EUGENE F. DIAMOND, et al.,

Appellants,

ral

.

ALLAN G. CHARLES, et al.,

Appellees.

On Appeal from the United States Courts of Appeals

for the Third and Seventh Circuits

BRIEF OF THE ATTORNEY GENERAL OF THE

STATE OF NEW YORK AS AMICUS CURIAE

IN SUPPORT OF APPELLEES

Rospert ABRAMS

Attorney General of the

State of New York

Amicus Curiae

2 World Trade Center

Ropert HERMANN Suite 45-08

Solicitor General New York. New York 10047

Counsel of Record (212) 488-7511

RosemMarigE RHODES

Assistant Attorney General

in Charee, Civil Rights Bureau

LAWRENCE 8S. Kaun

Sanrorp M., CoHEeN

Martua J. OLson

Assistant Attorneys General

Of Counsel

BEST AVAILABLE COPY

TABLE OF CONTENTS

PAGE

Table of Authorities I

Interest of Amicus Curiae 2

Statement of the Cases 3

Summary of Argument 5

Argument 6

17

Conclusion

II

TABLE OF AUTHORITIES

PAGE

Cases:

Arizona v. Rumsey, —— U.S. ——, 104 S. Ct. 2305

(1984) 7

Beal v. Doe, 432 U.S. 438 (1977) 6

Bellotti v. Baird, 443 U.S. 622 (1979) 6

Bellotti v. Baird, 428 U.S. 132 (1976) 6

Boyd v. United States, 116 U.S. 616 (1886) 13

Byrn v. New York City Health & Hospitals Corp., 31

N.Y. 2d 194 (1972) 2

Carey v. Population Services International, 431 U.S.

678 (1977) 16

City of Akron v. Akron Center For Reproductive

Health, Ine., 462 U.S. 416 (1983) 4,5, 6,7

Cleveland Board of Education v. La Fleur, 414 U.S.

632 (1974) 16

Colautti v. Franklin, 439 U.S. 379 (1979) 6

Connecticut v. Menillo, 423 U.S. 9 (1975) 6

Doe vy. Bolton, 410 U.S. 179 (1973) >

Hisenstadt v. Baird, 405 U.S. 438 (1972) 15

Engel v. Vitale, 370 U.S. 421 (1962) 3, 9, 11

Florida Department of Health v. Florida Nursing

Home Association, 450 U.S. 147 (1981) 1]

Griswold v. Connecticut, 381 U.S. 479 (1965) . 5, 12, 13, 14

Green v. United States, 355 U.S. 184 (1957) 7

H.L. v. Matheson, 450 U.S. 398 (1981) 6

Harris v. MeRae, 448 U.S. 297 (1980) 6

Iil

PAGE

Jacobson v. Massachusetts, 197 U.S. 11 (1905) 15

Katz v. United States, 389 U.S. 347 (1967) 13

Kovaes vy. Cooper, 336 U.S. 77 (1949) 12

Loving v. Virginia, 388 U.S. 1 (1967) 5, 14

Maher v. Roe, 432 U.S. 464 (1977) 6

Meyer v. Nebraska, 262 U.S. 390 (1923) dD, 13

Moragne vy. States Marine Lines, Inc., 398 U.S. 375

(1970) 6

Moore v. City of East Cleveland, 431 U -3. 494 (1977) 16

Olmstead v. United States, 277 U.S. - 1998) 13

Oregon v. Kennedy, 456 U.S. 667 (198.) 7

Palko v. Connecticut, 302 U.S. 319 (1937) 12

Pierce v. Society of Sisters, 268 U.S. 510 (1925) 5, 13

Planned Parenthood Association v. Asheroft, 462 U.S.

476 (1983) 6

Planned Parenthood Association v. Danforth, 428 U.S.

52 (1976) 6

Plyler v. Doe, 457 U.S. 202 (1982) 14

Poe v. Ullman, 367 U.S. 497 (1961) 11, 12, 14, 16

Prince v. Massachusetts, 321 U.S. 158 (1944) 13, 14

Rochin v. California, 342 U.S. 165 (1992) 12

Roe v. Wade, 410 U.S. 118 (1973) passim

Roman Catholie Diocese v. New York State Depart-

ment of Health, —— A.D. 3d ——, 490 N.Y.S. 2d

636 (1985) 9

Schulman v. New York City Health & Hospitals Corp.,

38 N.Y. 2d 234 (1975) i)

Simopoulous v. Virginia, 462 U.S. 506 (1983) 6

Skinner v. Oklahoma, 316 U.S. 535 (1942) 5, 14, 15

Solem v. Helm, 463 U.S. 277 (1983) 7

Stanley v. Georgia, 394 U.S. 507 (1969) 13, 15

PAGE

Terry v. Ohio, 392 U.S. 1 (1968) 13

Union Pacific Railroad Co. v. Botsford, 141 U.S. 250

(1891) 13

Wallace v. Jaffree, ——- U.S. ——, 105 S. Ct. 2479

(1985) &.9

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) 12

West Virginia State Board of Education v. Barnette,

319 U.S. 624 (1943) 3,11

Westchester Women’s Health Organization, Ine. v.

Whalen, 475 F. Supp. 734 (S.D.N.Y. 1979) 9

Zablocki v. Redhail, 434 U.S. 374 (1978) 14, 16

Statutes and Rules:

Supreme Court Rule 36.4 2

N.Y. Penal Law § 125.05(3) 2,9

Other Sources:

N.Y.S. Legis. Annual-1972 1]

Guttmacher, The Genesis of Liberalized Abortion in

New York, 23 Case W. Res. L. Rev. 756 (1972) 9.10

Nos. 84-495 and 84-1379

IN THE

Supreme Court of the United States

October Term, 1985

RicuHarp THornpurGH, et al.,

Appellants,

v.

AMERICAN COLLEGE OF OBSTETRICIANS AND

GyNeEcoLoaisirs, ef al..

Appellees.

KuGENE F, Dtamonp, ef 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 OF THE ATTORNEY GENERAL OF THE

STATE OF NEW YORK AS AMICUS CURIAE

IN SUPPORT OF APPELLEES

Interest of Amicus Curiae

Robert Abrams, as Attorney General of the State of New

York, submits this brief as amicus curiae pursuant to Su-

preme Court Rule 36.4.

Since 1970, the State of New York has recognized that

the right of privacy incorporates the right of a woman to

choose to terminate her pregnaney up to the point of viabil-

ity, subject to reasonable restrictions calculated to protect

the health and safety of tie woman. Byrn v. New York City

Health & Hospitals Corp., 31 N.Y. 2d 194 (1972) ; N.Y. Penal

Law § 123.05(3). This Court likewise recognized, in 1973,

that ‘‘[t|his right of privacy, whether it be founded in the

Fourteenth Amendment’s concept of personal liberty and

restrictions upon state action... or...in the Ninth Amend-

ment’s reservation of rights to the people, is broad enough

to encompass a woman’s decision whether or not to ter-

minate her pregnaney.’’ Roe v. Wade, 410 U.S. 113, 153

(1973).

If Roe v. Wade were to be overruled, as urged by the

Solicitor General,” and New York were to adhere to its tra-

dition of recognizing the right of a woman to choose to have

an abortion, New York and other states choosing to uphold

such a right would be faced with meeting an enormous de

mand for the serviee from out-of-state residents. The mag-

nitude of this demand would be extraordinary, given the

wide acceptance of and reliance upon abortion since Roe v.

Wade was decided.

* The brief submitted by the Solicitor General as amicus curiae

will be cited as "S.G. at =

In explicitly recognizing that the right to choose to have

an abortion is implicit in the right of privacy protected by

our Constitution, this Court guaranteed that its exercise,

as with the exercise of other constitutionally protected

rights, would not be dependent upon the vicissitudes of po-

liticat controversy. Sec Engel v. Vitale, 370 U.S. 421, 429-

30 (1962); West Virginia State Board of Education vy.

Barnette, 319 U.S. 624, 6388 (1948). The decision whether

to obtain an abortion, as with other deeply personal choices

regarding privacy and reproductive decisions intertwined

with religious and moral beliefs, is precisely the type of

right most in need of such explicit constitutional protection.

New York has aggressively protected its citizens from at-

tacks upon these rights in the past, and therefore submits

this brief amicus curiae in response to that submitted by

the Solicitor General urging this Court to overrule Roe vy.

Wade.

Statement of the Cases

In Thornburgh v. American College of Obstetricians and

Gynecologists, No, 84-495, the Court of Appeals for the

Third Cireuit held unconstitutional sections of a Pennsyl-

vania law requiring that the method of abortion used be one

that would most likely result in a live birth, even if it would

cause greater (though not significantly greater) risk to the

mother; that a second doctor be present for all post-viabil-

ity abortions even if a medical emergency dictates an imme

diate abortion; that certain information be provided to a

patient before an abortion is performed, for the purpose, as

the court found, of dissuading the woman from having an

abortion, regardless of whether the woman’s physician

deems the information relevant to her decision; and that fa

4

cilities providing abortion services file detailed reports sub-

ject to public disclosure. The court also enjoined operation

of a provision that required a minor seeking an abortion to

obtain parental consent or a court order, on the ground that

no safeguards had been adopted to ensure that the judicial

alternative would be expeditious and would protect the

minor’s confidentiality.

In Diamond v. Charles, No. 84-1379, the Court of Ap-

peals for the Seventh Circuit held unconstitutional a section

of Iilinois law that made it a felony to fail to conform to a

specified standard of care in performing an abortion, and

thereby to cause the death of a viable fetus, finding that the

provision failed to afford due deference to the viability de-

termination of the attending physician and was imper-

missibly vague. <A similar provision as to ‘‘ possibly viable’’

fetuses was held unconstitutional because it ran afoul of Roe

v. Wade’s holding that the State does not have a compelling

interest in protecting fetuses unless they are actually viable.

The Seventh Circuit also struck down a requirement that

physicians inform women that certain birth contro] methods

are ‘‘abortifacients,’’ defined as any substance or device

known to cause fetal death. A fetus is in turn defined to

include a fertilized cell, thus making an intrauterine device,

and other common means of birth control, abortifacients.

The lower court held that the statute impermissibly imposed

the State’s theory of when life begins upon the physician

and the patient.

None of the parties in these two cases urged that Roe v.

Wade be overruled. Indeed, both cases have been consist-

ently briefed and argued within the framework established

by Roe v. Wade and subsequent cases. E.g., City of Akron

5)

v. Akron Center for Ri produc tive Health, Inc., 462 U.S. 416

(1983). The Department of Justice is not a party to either

case. Nonetheless, the Solicitor General has taken the ex-

traordinary step of using these two cases to urge the Court

to perform an unprecedented volie-facc. The Government

asks that the right to choose to have an abortion be repudi-

ated and that an independent right of privacy, on which the

right of abortion is based, be eliminated from the freedoms

protected by our Constitution.

Summary of Argument

The Solicitor General’s arguments are without merit.

They ignore a firmly established line of precedent protecting

our rights to be left alone by government, to choose how to

conduct our own lives, and to decide for ourselves when and

whether to marry or te conceive or bear children. E.¢., Lov-

lng V. Virginia, 388 U.S. 1 (1967): Griswold v. Connecticut,

381 U.S. 479 (1965): Skinner v. Oklahoma, 316 U.S. 535

(1942): Pierce vy. Society of Sisters, 268 U.S. 510 (1925);

Meyer v. Nebraska, 262 U.S. 390 (1923). Moreover, they

disregard the important principle of stare decisis, a prin-

ciple recognized by this Court in this very context just two

vears ago. City of Akron vy. Akron Center for Reproductive

Health, Inc., 462 U.S. 416, 420 n.1 (1983). Finally, they

ignore the very real likelihood of social and political chaos

should this Court overrule Roc v. Wade.

ARGUMENT

Only twelve vears ago, this Co eld that the right of

personal privac Which finds its a inal sources in deci

sions dating back to the nineteenth century—‘‘is broad

enough to encompass a woman's decision whether or not to

terminate her pre@nancy.’’ Roe v. Wade, 410 U.S. 118, 153

(1973). The Court has adhered to this principle in no Ttewer

than twelve cases in the ensuing vears Because this Court

has consistentls nid repeated] followed its deeision, the

right recognized in Roe has become not only a part of ou

constitutional land Cape, but an element wick l\ pereeived to

be part of the nation’s social tabrie.

Che reasons Tor adhering to slare de Sis, generally and

in this context, are manifold. Amone them are

the desirability that the law furnish a clear guide for

the conduct of individuals, to enable them to plan their

affairs with assurance against untoward surprise; the

importance of furthering fair and expeditious adjudi

cation by eliminating the need to relitigate every rel

evant proposition in every case; and the necessity of

maintaining publie faith in the judiciary as a source of

impersonal and reasoned judgments.

\/ ine Vv. States AMlarine Limes. lne.. BOS US. 375. 408

(1970). Even as to constitutional questions, ‘‘any depar

Sec, City of Akron v. Akron Center for Reproductive Health

ne., 4602 U.S. 416 (1983); Planned Parenthood Ass'n v. Ashcroft

12 U.S. 4/6 (1983) ; Simopoulos v. Virginia, 462 U.S. 506 (1983) :

Hf iatheson, 450 U.S. 398 (1981); Harris v. McRae, 448 U.S

297 (1980); Bellotti v. Baird, 443 U.S. 622

; ; |

f‘ranriin, 4349

1979); Colautti \

2 U.S. 464 (1977)

1, 428 U.S. 132

52 (1976): Cov

(

U.S. 3/9 (1979): Maher v. Roe. 43

7 Doe, 432 U.S. 438 (1977): Bellotti v. Bais

(19/6): Planned Parenthood v. Danforth 428 US

Wenillo, 423 U.S. 9 (1975)

ture from the doctrine of sfare decisis demands special jus

tification.’’ Aricona v. Rumsey, U.S. , 104

S.¢'t. VB05, 29311 (1984). For*tina society voverned by the

rule of law,’’ the doctrine of stare decisis **demands re

spect.’’ Solem v. Helm, 463 U.S, 277, 311 (1983) (Burger,

('..J., dissenting), quoting City of Akron vy. Akron Center

for Reproductive Health, Ine,, 462 US, at 419-20.

Undoubtediv, th par sions, both moral and political,

which surround the abortion debate have motivated some to

counsel the Court to depart from recent decisions. Passion

ate debate, however, attends many issues which implica

constitutional concerns, and its tenacity surely cannot bi

an acceptable basis for abjuring reasoned adherence to an

nounced principles. Only by ‘‘cireumspect observance’’ of

the principle of stare decisis *‘can the wisdom of this Court

as an institution transcending the moment... be brought

to bear on the diffieult pot yhlen ; that confront fil hy Grrec

v. United States, 855 UWS. 184, 215 (1957) (Frankfurter, .J..

dissenting). See Oreg “ Aeonneduyu, 456 UWS. 667, 691-02

?

1 54 (1982) (Stevens, .).. ‘urring),

Indeed, this Court only two vears ago found ‘especially

COTLpt lling reasons tor adhe ing to star decisis in applying

the principles of Roe v. Wade.’ Akron, 462 U.S, at 419-20

nl. Among them were the special consideration afforded

the issues in Roe, and the repeated adherence in subsequent

eases to the basic principle there announeed, Jd. No doe

trinal development has appeared since Poe v. Wade, mueh

less Akron, that in any sense diminishes the Court’s eonelu

sion that the right to privacy encompasses the right of a

woman to choos ' whi thie r to terminate il pregnaney,

Each of the so-ealled ‘‘textual, historical, and doctrinal’’

flaws of Roe v. Wade decried by the Solicitor General, 5.G

at 2, was identified by the dissenters in Roe and rejected by

the Court. Thus, it was argued that the historical coinei

dence of the passage of laws criminalizing abortion with the

passage of the Fourteenth Amendment supports the conten

tion that the Amendment was not intended to restrict such

legislative action, 410 U.S. at 174-77 (Rehnquist, J., dis

senting); that the right of privacy, 1s previously identified

hy the Court, had no application in the abortion area, i/.

172-73; and that barring state legisiatures, as a matter of

constitutional law, from entering into the area of procrea

tive choice, in the absence of textual support, amounted to

judicial legislation and usurpation of majoritarian preroga

tives, id.: Doe vy. Bolton, 410 U.S. 179, 221-23 (1973)

(White, J., dissenting). The Solicitor General brings noth

ing new to the arguments, and cites not one case decided

since Roe in support of them.

Since Roe v. Wade, the Court has been called to delineate

more fully the fundamental right to choose an abortion. In

varying factual circumstances, it has had to weigh the

states’ competing interests in protecting maternal health

and in the future health of the fetus. The continuing need

for the Court to furnish guidance in this area does not, how

ever, argue for a doctrinal retraction of Roe v. Wade. Con

stitutional adjudication of rights secured by the Bill of

Rights often involves difficult tasks of redefinition and line

drawing. Obviously, individual rights cannot be jettisoned

merely because their application in varrying contexts may

he difficult. To cite but one example, for more than a gen

eration this Court has wrestled with the question of reli

gious observances in the public schools, see Wallace v.

Jaffree, U.S. 105 S.Ct. 2479 (1985), without re

treating from the principles announced in Lugel v, Vitale,

370 U.S. 421 (1962).

Both the states and countless individuals have rehed

upon the rights secured by Roe v. Wade and its progeny in

ordering their affairs and lives. Based on these decisions,

states have attempted to establish a uniform framework

within which health planning and regulatory decisions can

he made, See e.qg., Westchester Women’s Health Organiza

tron, Inc. v. Whalen, 475 F.. Supp. 734 (S.D.N.Y. 1979) (state

licensing regulations for ambulatory care clinies providing

abortion servi ire within the guidelines enunciated by

this Court ) . Row i Catholic Diocese v. New York State De

partment of Health, A.D.2d , 4990 N.Y.S.2d 636

(3d Dept. 1985) (New York relied on Akron in deciding to

approve the addition of abortion services to two femily

planning out-patient clinies); Schulman v. New York City

Health & Hospitals Corp., 38 N.Y .2d 234 (1975) (reporting

requirements of the New York City Health Code within the

strictures of Roe v. Wade).

The overruling of Roe v. Wade would impose an extraor

dinary burden upon those states which would continue to

allow women to choose to terminate their pregnancies in

the face of decisions by other states not to do so. For ex

ample, when New York amended its penal law in 1970 to

permit licensed physicians to provide abortion services for

any consenting woman less than twenty-four weeks preg-

nant, N.Y. Penal Law § 125.05(3), the State was flooded with

women seeking this service.” The magnitude of the burden

* During the first fifteen months after this liberalized bill became

effective, 64.5 percent of the abortions performed in New York City

were performed on non-residents. Guttmacher, The Genesis of Lib-

(footnote continued on next page)

10)

that would be imposed upon New York should Roe v. Wade

he rejected would be all the greater than it was in 1970,

viven the increased acceptance of abortion in our society

and the inereased demand for it sinee Por lade wa

cla ided

Individuals have relied upon the right of privacy, which

encompasses the right to choose to have an abortion, in

planning their families and controlling their destinies. If

Roe v. Wade is overruled, as the Solicitor General urges,

and the fundamental right of privaey called into question,

an individual’s ability to plan when to have children, and to

insure that each child is a wanted child, will be left largely

to chanee, depending upon the state in which one reside

the latest election or whether one | rich o7 poor.

\s “with the school prayer issue, the continuing contro

versy over the right to an abortion makes it clear that such

an important right cannot he left to shifting political ma

jorities,

The very purpose of a Bill of Rights was to withdraw

ertain subjects from the vicissitudes of political con

troversy, to place them bevond the reach of majorities

and officials and to establish them as legal principles to

he applied by the courts. One’s right to life, liberty,

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

of worship and assembly, and other fundamental rights

may not be submitted to vote; they depend on the out

Cone of no ¢ lections,

eraliced Abortion in New York, 23 Case W. Res. L. Rev. 756, 766

(1972). During the first twelve months alone, approximately 55,000

women from eight states alone—New Jersey, Ohio, Michigan, Illinois,

Pennsvivania. Florida, Massachusetts and Connecticut—traveled t

New York City to obtain legal abortion la

1]

West Virginia State Board of Education v. Barnette, 319

U.S. at 638: see Engel v. Vitale. 370 U.S. at 429-30." Any

decision undereutting Roe v. Wade aud its underlying

principles would make it impossible for ‘‘citizens [to] have

confidenee that the rules on which they rely in ordering

their affairs ..., are rules of law and not merely the opin

ions of a small group of men who temporarily oeeupy high

office.”’ Florida Department of Health v. Florida Nursing

Home Association, 450 U.S. 147, 154 (1981) (Stevens, J..

coneurring) (footnote omitt d),

In deciding Roe v. Wade, the Court confronted the need

lo give meaning to the concept of due process, a coneept that

‘has not beea reduced to any formula; its content eannot

be determined by reference to any code.’’ Poe vy. Ullman,

O67 US. 497, 542 (1961) (Harlan, J., dissenting). Aware

that ‘‘liberty’’ is not merely ‘‘a series of isolated points

pricked out’’ in terms of guarantees of the Bill of Rights.

* The New York Legislature, for example, repealed New York's

abortion statute in 1972, but then Governor Rockefeller vetoed the

repeal, reminding the Legislature «{ the Report of the Governor's

Commission Appointed to Review New York State's Abortion Law

(March 1968), which found that “the then-existing, 19th century,

near-total prohibition against abortion was fostering hundreds of

thousands of illegal and dangerous abortions. . discriminating

against women of modest means , promoting hypocrisy and, ul

timately, human tragedy | can see no justification now for re-

pealing this reform and thus condemning hundreds of thousands of

women to the dark age once again.” Governor's Veto Messages, 1972,

reprinted in N.Y.S. Legis. Annual-1972, at 423. Significantly, Gov-

ernor Rockefelles noted,

the extremes of personal vilification and political coercion brought

to bear on members of the Legislature raise serious doubts that

the votes to repeal the reforms represented the will of the ma

jority of the people of New York State. The very intensity of

this debate has generated an emotional climate in which the very

truth about abortions and about the present State abortion law

have become distorted almost beyond recognition

ld.

d., at 043, the Court proceeded to fill out the Vague con

fours of the Due Proces {( jiau eR chin Calitornia, 342

US. 165. 170 (1952).” mindful that its judgment could not

he rooted in ‘‘personal and private notions,’’ and that 11

must exercise its judgment ‘‘upon interests of society push

ing in opposite directions.”’ /¢., at 171.°"

The constitutional terrain described in fi Wade is

an area in which the Court. in a series of decisions, long ago

marked out a ‘‘zone of privaey created by everal funda

;

mental constitutional wuarant 'iriswold v. Connecticut

381 US. at 485. in matters relating to child rearing, ma?

* Though confessing that the words of the Due Process Clause “do

terpret themselve S.G. at 24, and that the provision does not

nerely prohibit the government fro actually taking hold of a pe

on, as to confine him, without fair procedures, G. at 25, the So

icitor General would | it the nv ing of! libertv to those protection

expressly guaranteed by the Bill of Right This view of the Due

Proce Clause, fully accepted by only one member of the Court, sé

friswold v. Connecticut, 381 U.S. at 507-27 (Black, |., dissenting )

is rejected even by the Justices dissenting in A v. Wade Sei

Griswold v. Connecticut, 381 U.S. at 502-07 (White, |., concurring

R Wade, 410 U.S. at 172-73 (Rehnquist, |., dissenting )

** It is neither illogical nor “demoralizing,” S.G. at 25, that the

Court, at the same time it has refrained from mvalidating legislatio:

aimed at curing social evils arising out of industrial life, ¢.g. West

Coast Hotel Co. v. Parrish. 300 U.S. 379 (1937), has shown spec ial

olicitude for personal freedom “implicit in the concept of ordered 1!

erty Palko v. Connecticut, 302 U.S. 319, 325 (1937). This re

sponds to an observable distinction between state intrusions upon six hy

economic freedoms’ as the ability to pay substandard wages and stat«

ntrusions into time-honored, intimate relationships and decisions

Thus, it has long been recognized that “in considering what interests

ire so fundamental as to be enshrined in the Due Process Clause, those

iherties of the individual which history has attested as the indis

pensable conditions of an open as against a closed society come to this

Court with a momentum for respect lacking when appeal is made to

liberties which derive merely from shifting economic arrangements.’

- ¢ per. 336 U.S. 77, 95 (1949) (Frankfurter, |.. con

13

riage and procreation.* A repudiation of the principles

announced in Roe v. Wade would therefore also remove the

constitutional girders of some of this Court’s most im-

portant decisions in this century.

In Meyer v. Nebraska, 262 U.S. 390 (1923), for example,

the Court struck down under the Due Process Clause a stat-

ute that prohibited the teaching of foreign languages to

children. It found that the state had intruded into a pro-

tected liberty interest because the legislation ‘‘materially

...Interfere[d] ... with the power of parents to control the

education of their own.’’ Jd. at 401. In Pierce v. Society of

Sisters, 268 U.S. 510 (1925), the Court invalidated a state

law requiring parents to send children to public, rather than

parochial, school because the legislation ‘‘unreasonably in

terferes with the liberty of parents ... to direct the upbring-

ing and education of children under their control.’’ J7. at

534-35. These decisions recognized that the Due Process

Clause protects a ‘‘private realm of family life which the

state cannot enter.’’ Prince v. Massachusetts, 321 U.S. 158,

* As this Court stated in Roe v. Wade, 410 U.S. at 152:

In a line of decisions . . . going back perhaps as far a Union Pa-

cific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has

recognized that a right of privacy, or a guarantee of certain areas

or zones of privacy, does exist under the Constitution. In vary-

ing contexts, the Court or individual Justices have, indeed, found

at least the roots of that right in the First Amendment, Stanley

v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth

Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968); Katz v.

United States, 389 U.S. 347, 350 (1967) ; Boyd v. United States,

116 U.S. 616 (1886) ; see Olmstead v. United States, 277 U.S.

438, 478 (1928) (Brandeis, J., dissenting ) ; in the penumbras of

the Bill of Rights, Griswold v. Connecticut, 381 U.S. at 484-485;

in the Ninth Amendment ; td., at 486 (Goldberg, J., concurring) ;

or in the concept of liberty guaranteed by the first section of the

Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390,

399 (1923).

14

166 (1944) :* Poe v. Ullman, 367 U.S. 497, 552 (1961) (Har-

lan, J., dissenting).

So, too, has the Court serutinized and invalidated state

legislation encroaching on the ability of citizens to marry.

Lovina v. Virginia, 388 U.S. 1 (1967). In Loving, the Court

reversed convictions under a statute that made inter-racia!

marriage a criminal offense. While the Court held that the

statute was invalid beeause it violated the ‘‘central meaning

of the Equal Protection Clause,’’ id. at 12, the Court relied

equally on the Due Process Clause when it held the statute

invalid, finding that it deprived persons of the freedom to

marry, ‘fone of the vital personal rights essential to the

orderly pursuit of happiness by free men.’’ Jd. See Za-

blocki v. Redhail, 484 U.S. 374, 384 (1978).

In Skinner v. Oklahoma, 316 U.S. 5385 (1942), the Court

struck down a state statute authorizing the sterilization of

repeated felons, characterizing the ability to procreate as

‘‘one of the basic civil rigiits of man.’’ /d., 316 U.S. at 541.**

In Griswold, the Court recognized that, just as the state

cannot terminate the right to bear children, it cannot invade

marital relationships to require couples to bear children by

* Contrary to the view of the Solicitor General, S.G. at 29, the

state regulation under review in Prince involved not only restriction

on freedom of religion, but, as the Court observed, encroachment on

the separate and distinct “rights of parenthood.” 321 U.S. at 166.

** Skinner cannot be characterized as only an equal protection case.

It is an axiom ef equal protection analysis that a statutory classifica-

tion will not be subjected to the searching scrutiny applied in Skinner

unless the classification is “invidious” or impinges on a fundamental

right. Plyer v. Doe, 457 U.S. 202 (1982). The Court recognized

that the classification of different crimes! selected Ly the state in

Skinner raised “no substantial federal question.” 316 U.S. at 540.

Rather, it was because the statute derive: certain felons, not rationally

distinguishable from others, of a “basic liberty” that it was held

invalid

15

denying them the use of contraceptives. 381 U.S. at 479-80.

Eisenstadt v. Baird, 405 U.S. 438 (1972), recognized that the

right of privacy guaranteeing the freedom to use contracep-

tives as a means to control if and when to bear children in-

heres not only in the marital relationship:

If the right of privacy means anything, it is the right

of the individual, married or single, to be free from

unwarranted governmental intrusion into matters so

fundamentally affecting a person as the decision

whether to bear a child or beget a child. See Stanley

v. Georgia, 394 U.S. 557 (1969). See also Skinner v.

Oklahoma, 316 U.S. 535 (1942); Jacobson v. Massachu-

setts, 197 U.S. 11, 29 (1905).

405 U.S. at 453-54 (footnote omitted).

Thus, prior to Roe v. Wade, the Court had determined

that unwarranted intrusions by the state into personal deci-

sions about whom to marry, how to raise and educate chil

dren, and when or whether to bear children were proscribed

by the guarantee of the Fourteenth Amendment: ‘‘nor

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

due process of law.’’

Viewed in this context, it is plain that the Court did not

‘leap to its coneclusion,’’ S.C. at 27, that the right of a

woman to choose whether to terminate her pregnancy was

encompassed within the right of privacy guaranteed by the

Due Process Clause. Rather, the Court carefully eonsid-

ered the rational involved ‘n the cases preceding Roe and

other factors before it reached its conelusion that the l’our-

teenth Amendment restricts state action that forbids abor-

tion. Roe v. Wade, 410 U.S. at 153.

16

This Court has shown unwavering adherence to its his-

torical reading of the right of privacy in the cases involving

abortion since Roe v. Wade, as well as in matters bearing on

conception and family relationships. F.g., Zablocki v. Red-

hail, 434 U.S. 374 (1978) (invalidating state laws burdening

the right to marry); Carey v. Population Services Interna-

tional, 431 U.S. 678 (1977) (invalidating prohibitions on

distribution and advertisement of contraceptives); Moore

v. City of East Cleveland, 431 U.S. 494 (1977) (invalidating

a zoning law that interfered with decisions as to family coni-

position) ; Cleveland Board of Education v. La Fleur, 414

U.S. 632 (1974) (invalidating an employment rule burden-

ing the woman’s decision to bear a child). Beeause Roe v.

Wade falls squarely within the historical and rational tra-

ditions of this Court in elaborating the meaning of the Due

Process Clause under which liberty is a ‘‘continuum which

. includes a freedom from all substantial arbitrary impo-

sitions and purposeless restraints,’’ Poe v. Ullman, 367

U.S. at 543 (Harlan, J., dissenting), stare decisis and the

fundamental principles of adjudication of constitutional

rights require its reafiirmance in the cases now before this

Court.”

* For the reasons set forth in the opinions of the Third and Sev-

enth Circuits, this Court should affirm the Thornburgh and Diamond

judgments.

Conclusion

For the foregoing reasons, the arguments of the Depart-

ment of Justice should be rejected, the principles of Roe v.

Wade reaffirmed, and the judgments of the courts below

affirmed.

Dated: New York, New York

August 30, 1985

Respectfully submitted,

Rospert ABRAMS

Attorney General of the

State of New York

Amicus Curiae

2 World Trade Center

Suite 45-08

New York, New York 10047

(212) 488-7511

Ropert HerMANN

Solicitor General

Counsel of Record

RoseEMARIE RHopDEs

Assistant Attorney General

in Charge, Civil Rights Bureau

LAWRENCE S. Kaun

SANForRD M. CoHEN

Martnwa J. Ovson

Assistant Attorneys Genera!

Of Counsel