Amicus Curiae Brief — Diamond v. Charles

Nos. 84-495 and 84-1379

IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1985

RICHARD THORNBURGH, ET AL., APPELLANTS

Vv.

AMERICAN COLLEGE OF OBSTETRICIANS AND

GYNECOLOGISTS, ET AL.

EUGENE F. DIAMOND, ET AL., APPELLANTS

Vv.

ALLAN G. CHARLES, ET AL.

ON APPEAL FROM

THE UNITED STATES COURTS OF APPEALS

FOR THE THIRD AND SEVENTH CIRCUITS

MOTION FOR LEAVE TO FILE BRIEF OF

AMICUS CURIAE -- WOMEN LAWYERS'

ASSOCIATION OF LOS ANGELES, CALIFORNIA;

CALIFORNIA WOMEN LAWYERS; THE WOMEN'S

BAR ASSOCIATION OF ILLINOIS; THE

FLORIDA ASSOCIATION OF WOMEN LAWYERS;

FLORIDA ASSOCIATION OF WOMEN LAWYERS,

DADE COUNTY CHAPTER; AND CALIFORNIA

LAWYERS FOR INDIVIDUAL FREEDOM IN

SUPPORT OF RESPONDENTS AND AMICUS BRIEF

SUSAN R. SCHWARTZ

333 SOUTH HOPE STREET

38TH FLOOR

LOS ANGELES, CA 90071

(213) 626-8484

Counsel of Record

For Applicants

BEST AVAILABLE COPY

on

Counsel For Applicants

Carol Boyk Cristeta Paguirigan

Judith Gordon Darien Pope

Ann Kough Stephanie Rasines

Lorraine Loder Peggy Ruffra

Nanci Murdock Susan Schwartz

Olympia Pachares Phyllis Truby

Nos. 84-495 and 84-1379

IN THE SUPREME COURT OF THE

UNITED STATES ,

October Term, 1985

RICHARD THORNBURGH, ET AL., APPELLANTS

Vv.

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

MOTION FOR LEAVE TO FILE BRIEF OF

AMICUS CURIAE -- WOMEN LAWYERS'

ASSOCIATION OF LOS ANGELES, CALIFORNIA;

CALIFORNIA WOMEN LAWYERS; THE WOMEN'S

BAR ASSOCIATION OF ILLINOIS; THE

FLORIDA ASSOCIATION OF WOMEN LAWYERS;

FLORIDA ASSOCIATION OF WOMEN LAWYERS,

DADE COUNTY CHAPTER; AND CALIFORNIA

LAWYERS FOR INDIVIDUAL FREEDOM IN

SUPPORT OF RESPONDENTS AND AMICUS BRIEF

SUSAN R. SCHWARTZ

333 SOUTH HOPE STREET

38TH FLOOR

LOS ANGELES, CA 90071

(213) 626-8484

Counsel of Record

For Applicants

Counsel For Applicants

Carol Boyk Cristeta Paguirigan

Judith Gordon Darien Pope

Ann Kough Stephanie Rasines

Lorraine Loder Peggy Ruffra

Nanci Murdock Susan Schwartz

Olympia Pachares Phyllis Truby

Women Lawyers' Association

of Los Angeles, California; California

Women Lawyers; the Women's Bar Associ-

ation of Illinois; the Florida Associ-

ation of Women Lawyers; The Florida

Association of Women Lawyers, Dade

County Chapter; and California Lawyers

for Individual Freedom respectfully

move this Court for leave to file the

accompanying brief in this casé as

amicus curiae. The consent of the

attorneys for respondents and one of

the appellants herein has been ob-

tained, but the attorneys for the

remaining appellant herein refused to

consent to the filing of this brief.

Applicants have an interest

in this case because they are organ-

izations that have professional women

as members, that have women as clients,

and that are concerned with protect-

ing the constitutional rights of

women in society. Applicants and

their members are personally and

professionally concerned with the

importance of preserving a woman's

right to decide whether to terminate

a pregnancy because pregnancy may

adversely affect a woman's health,

her life plans, the welfare of her

family, and the welfare of unwanted

children.

The attached brief responds

to the arguments made by the Solicitor

General of the United States in his

amicus brief filed in support of

respondents. Applicants believe

that the Solicitor General's arguments

will not be adequately addressed by

the respondents. 1f applicants’

argument is approved by this Court,

the decisions of the Appellate Courts

below must be affirmed.

| CO

o.ntwn en ee

SUS R. SCHWARTZ

Counsel of Record

for Applicants

333 S. Hope Street

38th Floor

Los Angeles, CA 90071

(213) 626-8484

Nos. 84-495 and 84-1379

IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1985

RICHARD THORNBURGH, ET AL., APPELLANTS

Vv.

AMERICAN COLLEGE OF OBSTETRICIANS AND

GYNECOLOGISTS, ET AL.

EUGENE F. DIAMOND, ET AL., APPELLANTS

Vv.

ALLAN G. CHARLES, ET AL.

ON APPEAL FROM

THE UNITED STATES COURTS OF APPEALS

FOR TEE THIRD AND SEVENTH CIRCUITS

BRIEF OF AMICUS CURIAE WOMEN

LAWYERS’ ASSOCIATION OF LOS ANGELES,

CALIFORNIA; CALIFORNIA WOMEN LAWYERS;

THE WOMEN'S BAR ASSOCIATION OF

ILLINOIS; THE FLORIDA ASSOCIATION OF

WOMEN LAWYERS; FLORIDA ASSOCIATION OF

WOMEN LAWYERS, DADE COUNTY CHAPTER;

AND CALIFORNIA LAWYERS FOR INDIVIDUAL

FREEDOM IN SUPPORT OF RESPONDENTS

SUSAN R. SCHWARTZ

333 SOUTH HOPE STREET

38TH FLOOR

LOS ANGELES, CA 90071

(213) 626-8484

Counsel of Record

For Applicants

Counsel For Applicants

Carol Boyk Cristeta Paguirigan

Judith Gordon Darien Pope

Ann Kough Stephanie Rasines

Lorraine Loder Peggy Ruffra

Nanci Murdock Susan Schwartz

Olympia Pachares Phyllis Truby

Page

Table of Authorities ............ vi

Interest of Amici Curiae ........ l

Summary of Argument ............. 2

ARGUMENT

I. INTRODUCTION ............... 4

II. STARE DECISIS REQUIRES

THAT ROE V. WADE BE

MBAREIRMED ....ccccccccecess 7

IIl.

Reaffirmance of Roe v.

Wade Will Promote P

Stability, Judicial

Efficiency and Public

Faith in the Judicial

The Solicitor General

Fails to Meet the Heavy

Burden Necessary to

Overrule Roe v. Wade : 13

A WOMAN'S RIGHT TO CHOOSE

WHETHER TO TERMINATE HER

PREGNANCY IS A FUNDAMENTAL

CONSTITUTIONAL RIGHT ....... 19

il

The Right to Repro-

ductive Choice is

Grounded in the Right

to Privacy in Family

Ee 19

The Right to Repro-

ductive Choice is

Grounded in the Four-

teenth Amendment ...... 26

The Right to Repro-

ductive Choice Is

Also Protected By

the Establishment

Clause of the First

I wo cee ee ccc « 32

iii

IV.

The Right to Repro-

ductive Choice is

Consistent With the

Historical Context

of Anti-Abortion

0 36

STATE REGULATION OF THE

FUNDAMENTAL RIGHT OF REPRO-

DUCTIVE CHOICE MUST BE

STRICTLY SCRUTINIZED ....... 40

State Regulation of

Any Fundamental

Right Demands

BEract SEEUTAMY .. csc. 40

lv

B. Regulations That

Impinge On the Funda-

mental Right to

Reproductive Choice

Cannot Withstand

SCESct SCEUCARY .. cece.

Cc. The Strict Scrutiny

Standard Was Properly

Applied in Akron ......

V. PUBLIC OPINION SUPPORTS

REAFFIRMANCE OF ROE V. WADE

PEPE UEE cv cceeecceeeceseeesnes

+4

53

57

60

TABLE OF AUTHORITIES

Arizona v. Rumsey,

Ss :

81 L.Ed.2d 164, ,

Bee B.Ce Beem CAGOO) cccccccces 15

Beal v. Doe,

£ & Ser 2) seg errr. 20

Bellotti v. Baird,

Se atte Bee BPD 660 ceeccces 20

Bellotti v. Baird,

443 U.S. 622 (1979) .....-.-. 20, 47

Bigelow v. Virginia,

= = ee 86. See 20

Carey v. Population

Services International,

es anes GP BOUT D cacccecceeas 20

City of Akron v. Be Cs ae. ae

Akron Center for 18-21, 27,

Reproductive Health, 29, 46-48,

462 U.S. 416 (1983) .... 52-56, 60

vil

Colautti v. Franklin

SSP U.B. STH CAOITP) coccccee: 20

Connecticut v. Menillo,

- * a Ww) |. ) re 20, 48

Doe v. Bolton, 20

410 U.S. 179 (1973) ........ 45, 3a

Dunn v. Blumstein,

Ge U.B. Baw CA97S) .ccccce:s 42

Eisenstadt v. Baird,

SUS U.B. GSS CAGIS) coccccccecs 25

Garcia v. San Antonio Metro-

politan Transit Authority,

a U.S. _—_s,:s«B3:~ L.Ed.2d

1016, 105 s.ct (1985) ..... 15

Griswold v. Connecticut, 24-25

381 U.S. 479 (1965) ........... 27

Harris v. McRae,

448 U.S. 297 (1980) ........... 21

H.L. v. Matheson,

450 U. S. 398 (1981) .......... 21

Vidi

Katz v. United States,

Bae Galle Gee GED cocsccecceser 27

Kramer v. Union Free

School District,

SUP UeB-e GES CEPOP) wc ccccboecs 41

Lochner v. New York,

SOS UB. SGD [EPGS) ccccccccecs 30

Loving v. Virginia,

DU Wete BS cvccereccesececes 25, 31

Maher v. Roe, 20,

432 U.S. 464 (1977) ........ 43-44

Meyer v. Nebraska, 22-23,

SOS U.S. DSU CAFSS) ccccccccces 2

Moragne v. States Marine

Lines, 398 US. 375 (1970) .... 9

Olmstead v. United States,

SVU Gee GOW CEOOOP cesvccccees 27

Oregon v. Kennedy,

56 U.S. GO (29GSZ) «nc ccccvecs 15

villi

Pierce v. Society of

Sisters of the Holy

Names of Jesus and Mary,

268 U.S. 510 (1925) ........ 22223

be

Planned Parenthood Associ-

ation of Kansas City,

Missouri v. Ashcroft,

SO2 U.S. G7G CAGSS) weecersee 23, SA

Planned Parenthood of

Central Missouri v

Danforth, 428 U.S. 52 20, 43

See SeeeGeeusceeacs ...- 47, 50-5]

Poelker v. Doe,

432 U.S. 519 (1977) 20

Prince v. Massachusetts

321 U.S. 158 (1944) . 22

Roe v. Wade, ;

410 U.S. 113 (1973) ....... . passim

San Antonio School Dis-

trict 7s. Rodriguez

411 U.S. 1 (1973) 40, 44

ix

Shapiro v. Thompson,

es TE RUUD cc ccccccces 31

Simopoulos v. Virginia,

ee eee BE BAUR) cocccccceccs 21

Singleton v. Wulff,

ee Me CMUPUD cossccccces 20

Skinner v. Oklahoma,

SS |” S 3 23

Stanley v. Georgia,

SS SO ) ee 27

Terry v. Ohio,

Pe SM UMMM D cccccceccvces 27

Thomas v. Washington Gas

Light Co., 448 U.S. 261

Dia is ke eeciescccecece 13

Whalen v. Roe,

ES ) ee 29

Williams v. Zbaraz,

Ss EO) yy ) 20

Zablocki v. Redhail,

ee es BPD CAWIO) cc ccccces 41-42

Miscellaneous

Mehren, A Refutation of

"Silent Scream,’ Los Angeles

Times, Aug. 17, 1985

. ,_ SS ££ SS lUMM SSS

Shepard's United States

Citations (1984, January

Suew © GEA BOOED cove ccccocess

Tribe, The Supreme Court 1972

Term -- Foreword: Toward a

Model of Roles in the Due

Process of Life and Law, 87

eV citcees & CEOTED ¢ectececoe.

x1

33

33

r r

de a ae “s% . - a

Amici curlae are state or

ct

; ee .

t0Cali Dar organi ions nNaving as

N

members temaie an male iawyers and

Juages wn are concerned witn tne

Freedom is an organization of attor-

neys in the San Francisco area con-

cerned with the preservation of

personal liberties under the Con-

stitution.

Amici and their members

are personally and professionally

concerned with the importance of

preserving a woman's right to decide

whether to terminate a pregnancy

because, as this Court found in

Roe v. Wade, 410 U.S. 113, 153

(1973), pregnancy may adversely

affect a woman's health, her life

plans, the welfare of her family,

and the welfare of an unwanted child.

Amici therefore submit this brief in

response to the amicus curiae brief

submitted by the Solicitor General

of the United States.

SUMMARY OF ARGUMENT

The Solicitor General's

argument that there is no fundamen-

tal constitutional right to choose

whether to terminate a pregnancy is

bo

untenable and unfounded. The doc-

trine of stare decisis requires re-

affirmance of the holding in Roe vy.

Wade, which recognized that right.

The right to choose to terminate a

pregnancy is a fundamental right

concerning a private decision about

family matters that is clearly pro-

tected by the Due Process Clause

of the Fourteenth Amendment. It is

a well-established principle of

constitutional law that any state

regulation of such a fundamental

right is subject to strict scrutiny

and must be justified by a compel-

ling state interest where the regu-

lation impinges on the individual's

right. In applying this test, the

state interest must be defined in a

way that does not violate the Estab-

lishment Clause of the First Amendment.

Finally, public policy and opinion

support the Court's continued recog-

nition of the constitutional right

to reproductive choice.

ARGUMENT

I. | INTRODUCTION.

In an amicus curiae brief

in this action, the Solicitor General

has urged this Court to overturn its

decision in Roe v. Wade, 410 U.S.

113 (1973), holding that a woman has

a fundamental right to decide whether

to terminate a pregnancy, and, by

implication, the score of its deci-

sions which have accepted and applied

Only two years ago the

Court reviewed and explicitly reaf-

firmed Roe v. Wade in City of Akron

v. Akron Center for Reproductive

Health, Inc., 462 U.S. 416 (1983).

In fact, in Akron the Court not only

approved Roe v. Wade, but also

clearly reaffirmed that a woman's

right to choose whether to terminate

a pregnancy is a fundamental consti-

tutional right and, therefore, any

state regulation of it is subject

to strict scrutiny.

The Solicitor General

would take away a woman's right to

choose whether to terminate her

pregnancy and instead interject

governmental tontrol into our most

personal and private decisions.

Adoption of the Solicitor General's

position would result in a return to

the days of unsafe, illegal abortions

for women unable to endure a harmful

or unwanted pregnancy.

Amici curiae believe that

every person has a constitutional

right to be free from the intrusion

of the government into his or her

most intimate personal decisions,

and that this right clearly encom-

passes a woman's right to choose

what will happen to her own body

and, indeed, her own life. In this

brief, amici curiae will demonstrate

that the decisions in Roe v. Wade

and Akron should be reaffirmed not

only on the basis of stare decisis,

but also on the ground that they

were correctly decided in the first

instance. Amici urge the Court to

once again reaffirm what has become

a long line of decisions recognizing

and protecting a woman's right to

reproductive choice.

II. STARE DECISIS REQUIRES THAT

ROE V. WADE BE REAFFIRMED.

The Solicitor General

urges the Court to ignore the doc-

trine of stare decisis as applied to

a woman's well-recognized constitu-

tional right to decide whether to

terminate her pregnancy. This posi-

tion underrates the strength and

Significance of the doctrine of stare

decisis, particularly as applied to

this Court's decision in Roe v. Wade.

A. Reaffirmance of Roe v. Wade

Will Promote Stability,

Judicial Efficiency and

Public Faith in the

Judicial System.

This Court has explained

the purpose and importance of the

doctrine of stare decisis by saying:

"Very weighty considerations

underlie the principle that

Courts should not lightly

overrule past decisions.

Among these are the desir-

ability that the law furn-

ish a clear guide for the

conduct of individuals, to

enable them to plan their

affairs with assurance

against untoward surprise;

the importance of further-

ing fair and expeditious

adjudication by eliminat-

ing the need to relitigate

every relevant proposition

in every case; and the

necessity of maintaining

public faith in the judi-

Ciary as a source of im-

personal and reasoned

judgments. The reasons

for rejecting any estab-

lished rule must always

be weighed against these

factors."

Moragne v. States Marine Lines,

398 U.S. 375, 403 (1970).

In light of these gquide-

lines, this Court's determination to

respect stare decisis by reaffirming

Roe v. Wade barely two years ago in

Akron has special significance for

the present case. In Akron, as

here, this Court was asked to over-

rule its decision in Roe v. Wade on

the asserted ground that the Court

had erred in interpreting the Con-

stitution. 462 U.S. at 419. In

rejecting that request and reaffirm-

ing Roe v. Wade, this Court recog-

nized "especially compelling reasons

for adhering to stare decisis in

applying the principles of Roe vy.

Wade."

10

First, Roe v. Wade was

carefully considered and was decided

only after twice being argued and

extensively briefed. Second, Roe v.

Wade was decided by seven justices,

including the Chief Justice. Third,

Since Roe v. Wade was decided, the

Court has repeatedly and consistently

accepted and applied its basic prin-

ciple that a woman has a fundamental

right to make the highly personal

c. oice whether to terminate her

pregnancy. 462 U.S. at 420 n.1.2

] Roe v. Wade has been exten-

sively relied upon not only by this

Court but also by the lower federal

(Cont inued )

11

As a result of this Court's

consistent action and as a matter of

personal conviction, most Americans

believe that a woman should have a

right to make that decision.“ Were

the Court to withdraw its long stand-

ing recognition of that constitutional

right, the ability of all citizens

to rely on this Court's decisions as

a guide to their conduct would be

seriously undermined. That uncer-

(Continued from previous page)

courts and by the courts of the vari-

ous states. For example, Shepard's

United States Citations through July

of 1985 contains more than five pages

of judicial citations to the decision.

See infra at V.

PO

tainty will be avoided and the

interests of stability, judicial

efficiency, and public faith in the

judicial system will be served if

the Court adheres to stare decisis

and once again reaffirms Roe v. Wade.

B. The Solicitor General Fails

to Meet The Heavy Burden

Necessary To Overrule

Roe v. Wade.

Because of the important

policies behind the doctrine of

stare decisis, a litigant who asks

this Court to cisavow one of its

precedents bears a heavy burden.

As the Court stated in Thomas v.

13

Washington Gas Light Co.,

261,

272, (1980):

"That doctrine [of stare

decisis] not only plays an

important role in orderly

adjudication; it also

serves the broader societal

interests in evenhanded,

consistent and predictable

application of legal rules.

When rights have been

created or modified in

reliance on established

rules of law, the arguments

against their change have

special force." (footnotes

omitted).

Acknowledging the continued

viability of this holding, this

Court recently repeated warnings

that even in constitutional cases,

14

448 U.S.

"any departure from the doctrine of

stare decisis demands special justi-

fication." Garcia v. San Antonio

Metropolitan Transit Authority,

U.S. , 83 L.Ed.2d 1016,

1039, 105 S.Ct. 1005 (1985) (Powell,

J., dissenting); Arizona v. Rumsey,

U.S. , 81 L.Ed.2d 164,

172, 104 S.Ct. 2305 (1984); Oregon

v. Kennedy, 456 U.S. 667, 691-692 n.

34 (1982) (Stevens, J., concurring).

In view of the strength of

the stare decisis doctrine and the

importance of the policies the doc-

trine promotes, the Solicitor General

has a heavy burden indeed to justify

reversal of 12 years of judicial,

medical and social adherence to Roe

15

v. Wade. The Solicitor General's

task is all the more difficult be-

cause only two years ago in Akron

this Court considered and rejected

this position.

In an attempt to avoid

this burden, the Solicitor General

argues that continued attacks on

Roe v. Wade and Akron indicate that

the analytical framework of the

cases is arbitrary and unworkable.

Solicitor General's Brief at 16-30.

Such arguments have no place in

constitutional law. A vocal or

influential minority should not be

able to determine the extent or

quality of fundamental rights merely

by continued efforts to restrict the

16

rights of individuals at the instance

of the legislative or executive

branches of government.

In fact, the framework set

forth in Roe v. Wade is neither

arbitrary nor unworkable. Legisla-

tive bodies can easily deal with

changing medical capabilities by

framing legislation in terms of, for

example, viability of the fetus, and

by restricting the right after that

point but not before. Similarly,

regulations concerned with maternal

health can be made more restrictive

at the stage of a woman's pregnancy

when, in the opinion of her physi-

Cian, the risk of undergoing an

abortion is increased. The diffi-

17

culty in this area lies not with the

standards adopted in Roe yv. Wade,

but with the desire of many legisla-

tive bodies to regulate the medical

decision to terminate a pregnancy to

a much greater degree than other

medical decisions.

As is demonstrated by the

following review of the constitutional

precedents on which Roe v. Wade is

based, the Solicitor General's argu-

ment that a woman's right to termi-

nate her pregnancy has no basis in

the Constitution is equally ill-

founded. Thus, the Solicitor Gen-

eral's arguments do not support the

burden of proving that Roe v. Wade

and Akron were incorrectly decided.

18

This Court is therefore urged to

follow the principles of stare

decisis and reaffirm its decisions

in Roe v. Wade and Akron.

III. A WOMAN'S RIGHT TO CHOOSE

WHETHER TO TERMINATE HER

PREGNANCY IS A FUNDAMENTAL

CONSTITUTIONAL RIGHT.

A. The Right to Reproductive

Choice Is Grounded in the

Right to Privacy In Family

Matters.

In Roe v. Wade this Court

held that the constitutional right

of privacy encompasses a woman's

right to decide whether to terminate

19

her pregnancy. The recognition of

this right has been repeatedly reaf-

firmed in a long line of cases

decided by this Court since Roe v.

Wade, most recently Akron.> None-

Doe v. Bolton, 410 U.S. 179

(1973); Bigelow v. Virginia, 421 U.S.

809 (1975); Connecticut v. Menillo, 423

U.S. 9 (1975); Planned Parenthood of

Central Missouri v. Danforth, 428 U.S.

52 (1976); Singleton v. Wulff, 428 U.S.

106 (1976); Bellotti v. Baird, 428 U.S.

132 (1976); Whalen v. Roe, 429 U.S. 589

(1977); Carey v. Population Services

International, 431 U.S. 678 (1977);

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

v. Roe, 432 U.S. 464 (1977); Poelker v.

Doe, 432 U.S. 519 (1977); Colautti v.

Franklin, 439 U.S. 379 (1979); Bellotti

v. Baird, 443 U.S. 622 (1979); Williams

(Continued)

20

theless, the Solicitor General now

chooses to challenge the historical

and constitutional basis of that

decision. Solicitor General's Brief

at 24-29.

The constitutional founda-

tion of Roe v. Wade evolved over the

last half century from this Court's

(Continued from previous page)

v. Zbaraz, 442 U.S. 1309 (1979); Harris

v. McRae, 448 U.S. 297 (1980); H.L. v.

Matheson, 450 U.S. 398 (1981); Akron v.

Akron Center for Reproductive Health,

462 U.S. 416 (1983); Planned Parenthood

Association of Kansas City, Missouri v.

Ashcroft, 462 U.S. 476 (1983);

Simopoulos v. Virginia, 462 U.S. 506

(1983).

21

recognition of the fundamental nature

of human interests relating to mar-

riage, procreation and family. As

early as the 1920's, this Court ac-

knowledged that an individual's

right of privacy embraced a general

interest in avoiding disclosure of

personal matters. In Meyer v.

Nebraska, 262 U.S. 390 (1923), and

Pierce v. Society of Sisters of the

Holy Names of Jesus and Mary, 268 U.

510 (1925), the Court upheld the

rights of parents to direct the up-

bringing and education of their

children free from unreasonable re-

S.

straints. In Prince v. Massachusetts,

321 U.S. 158 (1944), the Court recog-

nized that the principles embodied

22

1 Meyer and Pierce concern "the

be

=

private realm of family life, which

the state cannot enter." Id. at 166.

The Court soon recognized

that a necessary corollary to the

constitutionally protected right to

control the upbringing and education

of one's children is the right to

determine when and whether to bear

children. Thus, in Skinner v.

Oklahoma, 316 U.S. 535 (1942), the

Court invalidated a state's compul-

sory sterilization law. The Court's

recognition of the basic liberty

interest in reproductive autonomy

was based in part upon a distrust of

the arbitrary manner in which gov-

ernment control over reproductive

23

matters might be exercised if the

choice of begetting a child were

transferred from the individual to

the state. Id. at 541.

Recognition of the consti-

tutional right to reproductive

autonomy was further broadened in

Griswold v. Connecticut, 381 U.S.

479 (1965), where a state statute

prohibiting the use of contraceptives

was declared an unconstitutionai in-

fringement of the rights surrounding

the marital relationship. The Court

recognized a right of marital privacy

"older than the Bill of Rights --

older than our political parties,

older than our school system." Id.

at as6.*

Acknowledging its funda-

mental nature, this Court extended

Griswold's protection of a married

person's right to practice contracep-

tion to include unmarried persons in

Eisenstadt v. Baird, 405 U.S. 438

(1972). The Court concluded that "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 affect-

4 See also Loving v. Virginia, 388 U.S.

1, 12 (1967).

ing a person as the decision whether

to bear or beget a child." Id. at

453 (emphasis in original).

Thus the right to reproduc-

tive choice, including the right to

terminate a pregnancy, has long been

recognized as a fundamental constitu-

tional right, and is firmly grounded

on a sound constitutional basis.

B. The Right to Reproductive

Choice is Grounded In The

Fourteenth Amendment.

Contrary to the Solicitor

General's assertion that the decision

in Roe v. Wade constitutes an "abrupt

departure from the Court's prior deci-

’

sions," Solicitor General's Brief at

'

|

|

|

28, Roe v. Wade was "based firmly

on this long recognized and essential

element of personal liberty." Akron

v. Akron Center for Reproductive

Health, 462 U.S. at 427. Prior to

Roe v. Wade, the Court had long

recognized the constitutional foun-

dation of the righ? f privacy,

finding its locus in -ne 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, 116 .S. 616 (1886),

see Olmstead v. U ad States, 277

U.S. 438, 478 (1928) (Brandeis, J.,

dissenting); in the penumbras of the

Bill of Rights, Griswold v. Connec-

27

ticut, 381 U.S., at 484-485; in the

Ninth Amendment, id., at 486-87

(Goldberg, J., concurring); and in

the concept of liberty guaranteed by

the first section of the Fourteenth

Amendment, see Meyer v. Nebraska,

262 U.S. 390, 399 (1923).

Thus, rather than abruptly

departing from prior decisions,

Roe v. Wade merely settled the locus

of the long-recognized right by

determining that, at least insofar

as it encompasses reproductive choice,

the right of privacy is "founded in

the Fourteenth Amendment's conception

of personal liberty and restrictions

upon state action, [which] is broad

enough to encompass a woman's deci-

28

sion whether or not to terminate her

pregnancy." Roe v. Wade, 410 U.S.

at 153. The Court's recognition of

the right of privacy as an element

of due process liberty rather than

as an independent source of consti-

tutional protection in the shadows

Or penumbras of the Bill of Rights

is not a departure from prior cases,

but merely a natural resolution of

historical precedents. See Akron,

462 U.S. at 426; Whalen v. Roe, 429

U.S. 589, 598-599 n. 23 (1977).

The variety of the sources

previously cited by the Court to

Support the existence of a fundamen-

tal right of privacy does not sup-

port a claim that it does not exist

.

at all, but shows the pervasive con-

stitutional basis of the right. In

the final analysis, the importance

of the Court's recognition of such

an essential right as that of an in-

Shadows the Court's struggle in

previous cases to pinpoint its locus.

The Solicitor General also

denigrates the substantive due pro-

cess foundation of Roe v. Wade,

contending that it resurrects the

era of Lochner v. New York, 198 U.S.

45 (1905). But the Lochner-era

cases, which dealt primarily witl

state regulation of economic inter-

ests, are demonstrably different

WwW

O

autonomy in the exercise of repro-

ductive rights. The fundamental

nature of the right to privacy with

respect to procreation in general,

and the right to choose abortion in

particular, demands that a greater

degree of protection be afforded

under modern substantive due process

analysis and readily distinguishes

these cases from those concerned

with economic interests. see, e€.g.,

Loving v. Virginia, 388 U.S. l, and

Shapire ». Thompson, 394 U.S. 618

(1969).

C. The Right To Reproductive

Choice Is Also Protected

By The Establishment Clause

Of The First Amendment.

The Solicitor General

suggests that the Court in Roe yv.

Wade did not give sufficient consid-

eration to the fetus as a human

life Solicitor General's Brief at

22-23. But this very question has

philosophical, religious and redical

elements for which there has been no

substantial consensus in this country

-- now or at the time Roe v. Wade

5

was decided.

Legislation regulating

abortion necessarily requires a

legislative determination of the

philosophical and religious question

of when human life begins. To ana-

lyze this question as if the fetus

has “life" from the moment of con-

ception would be to permit the

legislatures or courts to make a

5 Tribe, The Supreme Court 1972 Term --

Foreword: Toward a Model of Roles in

the Due Process of Life and Law, 87

Harv.L.Rev. 1, 13 (1972); Mehren,

A Refutation of ‘Silent Scream,'

Los Angeles Times, Aug. 17, 1985,

(Continued)

.

.

philosophical and religious decision

which is reserved to the conscience

of each individual under the First.

Amendment. The Establishment

Clause's proscription against state

entanglement in religion would be

violated if the legislature were

able to define the beginning of life

in order to regulate a woman's right

to terminate a pregnancy. For this

reason, it was not only appropriate

but constitutionally mandatory for

the Court in Roe v. Wade to give

little credence to a so-called state

(Continued from previous page)

Part V, at 1, col. & (hereinafter

"Mehren").

interest in the potential life of

the fetus, until the time when the

fetus cam in fact exist apart from

the pregnant woman. °

D. The Right to Reproductive

Choice Is Consistent With

The Historical Context of

Early Anti-Abortion Statutes.

The Solicitor General's

historical argument collapses into a

Single attack against the existence

of a privacy right encompassing a

6 Even now the scientific debate on that

issue continues, with new evidence that

fetal viability may not exist until as

(Continued)

:

,

;

:

:

|

woman's right to choose whether to

terminate her pregnancy. Sclicitor

General's Brief at 25-29. The

Solicitor General asserts that the

right to choose had not been recog-

nized when the Fourteenth Amendment

was drafted and adopted in 1868,

citing then-existing statutes crimi-

nalizing abortion. Roe v. Wade's

exhaustive analysis of historical

data, however, clearly shows that

those statutes differentiated

between early and late abortions.

(Continued from previous page)

late as the 28th week after conception.

Mehren, supra note 5, at 7, col. 2.

36

Late Nineteenth Century

abortion statutes evidently sought

to protect the mother from the high

abort.i.on mortality rates caused by

the hazardous medical techniques

then in use, techniques which become

more dangerous later in pregnancy.

Thus, those abortion statutes penal-

ized later abortions more severely.

Roe v. Wade, 410 U.S. at 148-9, i51l.

Roe v. Wade and subsequent cases

have recognized that with the

improvement of medical technology,

an abortion during the initial stages

of pregnancy is now safer than normal

childbirth. Id. at 149. Thus, the

rationale for restricting a woman's

7

:

.

¥

privacy rights which might have been

a eee

relied upon in the Nineteenth Century,

and on which the Solicitor General.

premises his argument, no longer

exists.

In fact, the harm imposed

on women today through the denial of

the right to choose to terminate a

pregnancy exceeds che physical risk

associated with early abortions. As

the Court observed in Roe v. Wade:

"The detriment that the

State would impose upon

the pregnant woman by

denying this choice alto-

gether is apparent. Spe-

cific and direct harm

medically diagnosable even

in early pregnancy may be

involved. Maternity, or

additional offspring, may

force upon the woman a

distressful life and future.

Psychological harm may be

imminent. Mental and physi-

cal health may be taxed by

child care. There is also

the distress, for all

concerned, associated with

the unwanted child, and

there is the problem of

bringing a child into a

family already unable,

psychologically and other-

wise, to care for it. In

other cases, as in this

one, the additional diffi-

culties and continuing

stigma of unwed motherhood

may be involved."

te

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

ee

This recognition of the

medical benefits of abortion is en-

tirely consistent with the historical

bee ee eg he 5 MI

treatment of the right to abortion

and lends historical credibility to

the rule of Roe v. Wade.

IV. STATE REGULATION OF THE FUNDA-

MENTAL RIGHT OF REPRODUCTIVE

CHOICE MUST BE STRICTLY

SCRUTINIZED.

A. State Regulation of Any

Fundamental Right Demands

Strict Scrutiny.

The standard for evaluating

the constitutionality of state regu-

lation of constitutional rights was

set forth in San Antonio School

District v. Rodriguez, 411 U.S. l,

17 (1973):

"We must decide, first,

whether [state regulation]

: impinges upon a fun-

damental right explicitly

or implicitly protected by

the Constitution, thereby

requiring strict judicial

scrutiny. .. If not, the

[legislative] scheme must

still be examined to deter-

mine whetner it rationally

furthers some legitimate,

articulated state pur-

pose. 7

This Court has consistently

applied this strict scrutiny standard

| of judicial review to cases in which

the state action touches upon funda-

mental rights. See Zablocki v.

Redhail, 434 U.S. 374, 383 (1978);

Kramer v. Union Free School District,

— ee eal

395 U.S. 621 (1969). In these cases

the Court has repeatedly ruled not

only that a fundamental right cannot

be restricted without a compelling

state interest, but that the state-

imposed requirements must be closely

tailored to effectuate only the com-

pelling state interest. Zablocki,

434 U.S. at 388. If there are reason-

able ways to achieve the state's

legitimate and compelling interest

with a lesser burden on constitution-

ally protected activity, a state may

not choose the way of greater inter-

ference. If it does act, it must

choose the least drastic means. Dunn

v. Blumstein, 405 U.S. 330, 343 (1972).

The Court established in

Roe v. Wade that a woman's funda-

Dette? to mre.

mental right to choose whether to

terminate a pregnancy must be judged

by the same strict standard of judi-

cial scrutiny as other fundamental

rights. Roe v. Wade, 410 U.S. at

427. Since Roe v. Wade, the Court

has consistently applied the strict

scrutiny analysis to state attempts

to regulate a woman's right to choose

to terminate a pregnancy. For exam-

ple, in Planned Parenthood of Central

Missouri v. Danforth, 428 U.S. 52

(1976), the Court found that in the

absence of a compelling state inter-

est, the state cannot regulate or

proscribe abortion. Similarly, in

Maher v. Roe, 432 U.S. 464, 470,

(1977), the Court specifically

applied the San Antonio School

District standards quoted above to a

state's attempt to regulate the

right to reproductive choice.

B. Regulations That Impinge

.

On The Fundamental Right

To Reproductive Choice

Cannot Withstand Strict

Scrutiny.

In evaluating the consti-

tutionality of state regulation of

fundamental rights, a court must

begin by determining whether the

regulation impinges on the right.

If it does, the statute is subject

to strict scrutiny. Maher v. Roe,

32 U.S. at 470.

+4

SN tit at a CITE LT A

<0) eee ©

During the 12 years since

Roe v. Wade was decided, the Court

has evaluated numerous state attempts

to regulate abortion. An analysis

of these decisions reveals that

state regulations impinge on the

right to reproductive choice when

they increase the costs of an abor-

tion, require third party participa-

tion in the decision, or treat abor-

tion differently from other medical

procedures.

Thus, in Doe v. Bolton,

410 U.S. 179 (1973), the Court

struck down a Georgia statute re-

quiring abortions to be performed in

hospitals because it impinged on a

woman's right to reproductive choice

eet

by increasing the cost of the proce-

dure. Similarly, regulations have

oo oe

been held to illegally impinge on

) this right when they require a

lengthy and inflexible recitation of

information by the woman's physician,

| rather than by a trained counselor

who could provide the same informa-

. tion at a lower cost. Akron, 462

U.S. at 445. This Court also con-

cluded in Akron that regulations re-

quiring a waiting period between a

woman's submission of a signed consent

form and the performance of the abor-

tion impinged on the right to repro-

ductive choice by the unwarranted

additional cost of a second trip to

the woman's physician. Id., at 450-51.

at St” sa a tk Ge A SE OR

ment of spousal consent to a woman's

decision to terminate her pregnancy

was found to illegally impinge on

her right to reproduct

fettering that right with the influ-

ence of third parties. For the same

reason, in Bellotti v. Baird, 443

U.S. 622 (1979)

statute requiring the consent of a

pregnant minor's parents before an

abortion could be performed was

found to impinge on the right of

mature minors. Similarly, in Akron

the Court found a presumption that

all minors under the age of 15 were

too immature to make that decision

without parental consent impinged on

a mature minor's right to choose.

By comparison, the Court

has approved regulations requiring

that abortions be performed by a

licensed, competent physician because

those requirements are no more than

would be required for any other

operation. Roe v. Wade, 410 U.S. at

165; Connecticut v. Menillo, 423 U.S.

at 10-11. As in other medical pro-

cedures, "informed consent" may be

requires, but information that "is

designed not to inform the woman's

consent but rather to persuade her

to withhold it altogether" is pro-

hibited. Akron, 462 U.S. at 444.

These decisions provide a

clearly defined framework for scru-

tinizing state attempts to regulate

a woman's exercise of her right to

reproductive choice. They demon-

strate that any statute which im-

pDinges on that fundamental right

is constitutionally invalid unless

there is a compelling state interest

to justify it.

The Court has identified

two legitimate state interests that

underlie regulation of abortions:

(1) preserving and protecting the

health of the pregnant woman, which

only becomes "compelling" when there

is a greater risk of maternal mor-

tality in abortion than in normal

childbirth; and (2) protecting the

potentiality of life, which only

becomes "compelling" when the fetus

is capable of "meaningful life out-

Side the mother's womb." Roe v.

Wade, 410 U.S. at 154, 163. Neither

interest is compelling in the first

stage of pregnancy. Before state

interests become compelling, the

abortion decision and its effectuation

must be left to the medicai judgment

of the pregnant woman's attending

physician without interference from

the state. Planned Parenthood of

Central Missouri v. Danforth, 28

U.S. 52, 61, citing Roe v. Wade,

410 U.S. at 164.

If a regulation does not

impinge on the fundamental right,

rather than needing to show a com-

pelling interest, the state must at

least show a rational relationship

between the regulation and its le-

gitimate purpose. See, Planned

Parenthood Association of Kansas

City v. Ashcroft, 462 U.S. 476 (1982)

(pathology exam required for each

abortion performed upheld as useful

in protecting woman's health and

standard in all medical procedures);

Planned Parenthood of Central

Missouri v. Danforth, 428 U.S. 62.

While some regulations have no sig-

nificant impact on a woman's exercise

of her right to reproductive choice,

EE ee ee! Bl WS

and may be permissible where justi-

fied by an important state health

objective, if the regulation is not

reasonably designed to further those

objectives the statute will fail the

test. See Akron, 462 U.S. at 431,

434. To the extent that a challenged

regulation establishes requirements

which do not serve a legitimate

interest of the state, it is uncon-

stitutional and no further scrutiny

is required. Doe v. Bolton, 410 U.S.

179 (1973) (statute's requirement

that two physicians concur in the

abortion decision is without "ra-

tional" connection to any legitimate

interest of the patient's needs).

52

Thus, the parameters of

permissible regulation are narrow,

and broad regulations unrelated to

compelling and legitimate state

objectives cannot survive strict

scrutiny.

C. The Strict Scrutiny Stan-

dard Was Properly Applied

in Akron.

In Akron, the Court ap-

plied strict scrutiny to the City of

Akron's sweeping abortion ordinance

and struck down all of its provisions

except those which were found to have

no significant impact on a woman's

fundamental right to decide to ter-

minate a pregnancy. Akron, 462 U.S.

53

416. Using the strict scrutiny stan-

dard of review, the Court invalidated

a hospitalization requirement for

second trimester abortions because

it "placed a significant obstacle in

the path of women seeking. an abortion”

and was not justified as a reasonable

health regulation. Akron, 462 U.S.

at 434. The Court employed the same

reasoning to strike down Akron's

informed consent requirement, holding

that it was not narrowly related to a

legitimate purpose and that its real

purpose was to withhold the woman's

consent altogether. Akron, 462 U.S.

at 444. In addition, the Court struck

down requirements that the attending

physician recite a detailed list of

54

"facts" about fetal development and

the risks of abortion. Akron, 462

U.S. at 448.

Most significantly, this

Court explicitly rejected suggestions

that it adopt a new standard that

would drastically curtail the right

to reproductive choice, and rejected

one such suggestion repeated here by

the Solicitor General: that the

Court apply an "undue burden" stan-

dard of review regardless of tri-

mester. Solicitor General's Brief

in Support of Petitioners at 8, 18,

Akron, 462 U.S. 416.

Thus, by a vote of 6-3 the

Court confirmed its continuing com-

mitment to the constitutional prin-

ciples articulated in Roe v. Wade,

55

including the application of strict

scrutiny to the evaluation of sta-

tutes affecting fundamental rights.

Contrary to the Solicitor General's

arguments, the Akron decision was

not an "abrupt departure," but a

continuing application of the strict

scrutiny analysis of fundamental

rights long utilized by this Court.

—

The clear message of Akron,

a message that can be derived inde-

pendently of but consistently with

a = ge alli aay anne iii ace Pee

Roe v. Wade, is that a woman has the

right to choose to terminate a preg-

nancy and any attempt to abridge

that right must be strictly circum-

scribed.

56

i annie —_s

V. PUBLIC OPINION SUPPORTS REAF-

FIRMANCE OF ROE V. WADE.

The Solicitor General

argues that because there has been

loud controversy among some segments

of the population regarding the

Roe v. Wade decision, legislatures

should be permitted to arbitrarily

regulate a woman's right to choose

whether to terminate her pregnancy.

This argument mischaracterizes both

the "controversy" and the Court's

role in it. Public opinion supports

the Roe v. Wade decision. ’ Even if

7 The November 1981 issue of LIFE magazine

reported the results of a survey on the

(Continued)

57

‘0 lie

it did not, however, the Court's

function is not to abdicate its role

(Continued from previous page)

attitude of American women toward abor-

tion and related issues. That study

found that 67% of all women believed

that any woman who chose to have an

abortion should be permitted to obtain

one legally. That proportion increased

in specific situations: 72% favored

legal abortion if the woman were a preg-

. nant unmarried teenager; 86% if the

woman were an incest victim; 87% if the

woman were carrying a genetically de-

fective fetus; 88% if the woman had been

raped; and 91% if the woman's health

were at risk. In a February 1984

Washington Post-ABC News poll, 61% of

: those polled indicated that a woman

should be able to obtain an abortion

should she desire one. ("What Americans

Think,” The Washington Post National

(Cont inued)

in the protection of individual

rights because one segment of the

population may wish to deprive the

entire population of those rights.

(Continued from previous page)

Weekly Edition, Mar. 12, 1984.) A 1984

Woman's Day survey found that 79% of its

readers supported a woman's right to

choose an abortion. ("What Women Voters

Really Want," Woman's Day, Oct. 2, 1984.)

A January 1985 ABC News Poll found that

more than 50% of the American public now

believe a woman has a right to abortion

on demand. A majority thought the

Roe v. Wade decision was "the right thing

to do’ and opposed a constitutional

amendment to overrule it. Only 11%

opposed abortion under all circumstances.

|

|

A at a cr at a ee i

CONCLUSION

The foregoing discussion

clearly demonstrates that both Roe v.

Wade and Akron are firmly grounded

on historical precedents and this

Court's longstanding recognition of

the fundamental right of privacy and

the need to protect that right by

strict scrutiny. Their reaffirmation

is thus mandated not only by the

doctrine of stare decisis, but also

by sound constitutional principles.

Amici therefore urge this Court to

60

reaffirm Roe v. Wade and its long

line of progeny.

Respectfully submitted,

Carol Boyk Cristeta Paguirigan

Judith Gordon Darien Pope

Ann Kough Stephanie Rasines

Lorraine Loder Peggy Ruffra

Nanci Murdock Susan Schwartz*

Olympia Pachares Phyllis Truby

*Counsel of Record

€

Susan R. Deen

Attorney for Amici

333 S. Hope Street

38th Floor

Los Angeles, CA 90071

(213) 626-8484

PROOF OF SERVICE BY MAIL

STATE OF CALIFORNIA,

COUNTY OF LOS ANGELES

I am a resident of the county

aforesaid; I am over the age of

eighteen years and not a party to

the within above entitled action;

my business address is 333 South

Hope Street, 38th Floor, Los Angeles,

California 90071.

On August 30, 1985, I served

the within AMICUS BRIEF IN SUPPORT

OF RESPONDENTS on interested parties

in said action by placing three true

and correct copies thereof to each

of the parties, and one true and

correct copy thereof to each of the

amici, enclosed in a sealed envelope

with air mail postage thereon fully

prepaid, in the United States mail

at Los Angeles, California, addressed

as follows:

Maura K. Quinlan

Americans United for Life

Legal Defense Fund

343 S. Dearborn Street

No. 1804

lca

Andrew S. Gordon

Senior Deputy Attorney General

Office of Attorney General

15th Floor

Strawberry Square

Harrisburg, PA 17120

Cathryn Kolbert

Women's Law Project

112 S. 16th Street

Philadelphia, PA 19102

Colleen Cor

Roger Bald

American Civ

5797 ¢

44V 30.

No. 816

Chicago,

Prof. Kathleen Sullivan

Harvard Law School

Cambridge, Mass 02138

Laurie Malson

Ennis, Friedman, Benzoff &

Ewing

1200 17th Street, N.W.

Suite 400

Washington, D. C. 20036

Counsel for Amicus APA

Janet Benshoof

ACLU

132 West 43rd Street

New York, N.Y. 10036

Lynn Pattrow

NARAL

1424 "K" Street, N.W.

Washington, C. 20005

Ann Simon

Center for Const

Rights

853 Broadway 14th

New York, N.Y. 10

ont

ct

L.

ct

b a

o

3

fw

-

Lois Waldman

American Jewis!

15 East 84th St

New York, N.Y.

)

cr >

()

(’)

* oS

wo

Madeline Kochen

NYCLU

132 West 43rd Stree

New York, N.Y. 1003