# Amicus Curiae Brief — Diamond v. Charles > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0196%3A18 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1986 - **Citation:** 476 U.S. 54 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0196%3A18. Public record. Not legal advice.