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

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WZ 2,

Nos. 84-495 and 84-1379

Supreme Court, U.S.

FILED

AUG $0 1985

IN THE

JOSEPH F. SPANIOL, JR.

Supreme Court of the United States crx

October Term, 1985

RICHARD THORNBURGH, et. al.,

Appellants,

9!

v.

AMERICAN COLLEGE OF OBSTETRICIANS AND

xsYNECOLOGISTS, et al.,

Appellees.

EUGENE F. DIAMOND, et al.,

Appellants,

Vv.

ALLAN G. CHARLES, et al.,

Appellees.

On Appeal from the United States Courts of Appeals

for the Third and Seventh Circuits

BRIEF OF THE ATTORNEY GENERAL OF THE

STATE OF NEW YORK AS AMICUS CURIAE

IN SUPPORT OF APPELLEES

Rosert ABRAMS

Attorney General of the

State of New York

Amicus Curiae

2 World Trade Center

Rospert HerMANN Suite 45-08

Solicitor General New York, New York 10047

Counsel of Record (212) 488-7511

RoseMArRIE RHODES

Assistant Attorney General

in Charge, Civil Rights Bureau

LawRENCE 8S. Kann

Sanrorp M. CoHEeNn

Martua J. OLson

Assistant Attorneys General

Of Counsel

BEST AVAILABLE COPY

TABLE OF CONTENTS

PAGE

Table of Authorities II

Interest of Amicus Curiae 2

Statement of the Cases 3

Summary of Argument 5

Argument ...... ) aoe 6

Conclusion 17

II

TABLE OF AUTHORITIES

PAGE

Cases:

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

(1984)

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

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

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

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

Byrn v. New York City Health & ren Corp. . 31

ams 1) mn 2

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

678 (1977) ... swsicesicis sce aaciss cunanelaae aie

City of Akron v. Akron Center For Reproductive

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

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

i EE MRS! 16

Colautti v. Franklin, 439 U.S. 379 (1979) ...—é«‘’

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

Doe v. Bolton, 410 U.S. 179 (1973) ae a 8

Kisenstadt v. Baird, 405 U.S. 438 (1972) poe Fe

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

Florida Department of Health v. Florida Nursing

Home Association, 450 U.S. 147 (1981) ss s—itisadYD

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

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

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

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

Iit

PAGE

Jacobson v. Massachnsetts, 197 U.S. 11 (1905) . b

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

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

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

Maher v. Roe, 482 U.S. 464 (1977) . 6

Meyer v. Nebraska, 262 U.S. 390 (1923) .. . 5,13

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

TS SE 6

Moore v. City of East Clev eland, 431 U S. 494 (1977) 16

Olmstead v. United States, 277 U.S. 488 (1928) 13

Oregon v. Kennedy, 456 U.S. 667 (1982) 7

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

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

Planned Parenthood Association v. Ashe: 't, 462 U.S.

476 (1983) 6

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

52 (1976) 6

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

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

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

Rochin v. California, 342 U.S. 165 (1952) 12

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

Roman Catholic Diocese v. New York State Depart-

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

636 (1985) 3 on 9

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

38 N.Y. 2d 234 (1975) 4

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

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

Solem v. Helm, 463 U.S. 277 (1983) ..0.0002~2O 7

Stanley v. Georgia, 394 U.S. 557 (1969) 13, 15

IV

PAGE

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

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

(1891) | me 13

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

(1985) , nr Laie:

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

West Virginia State Board of Education v. Barnette,

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

Westchester Women’s Health Organization, Ine. v.

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

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

Statutes and Rules:

Supreme Court Rule 36.4

N.Y. Penal Law § 125.05(3) sacnaalbiseliaans 2,9

Other Sources:

N.Y.S. Legis. Annual-1972 eae x an

Guttmacher, The Genesis of Liberalized Abortion in

New York, 23 Case W. Res. L. Rev. 756 (1972) . 9,10

Nos. 84-495 and 84-1379

IN THE

Supreme Court of the United States

October Term, 1985

Ricuarp TuornsvureH, et al.,

Appellants,

v.

AMERICAN COLLEGE OF OBSTETRICIANS AND

Gynecouosists, et al.,

Appellees.

Evucenxe F. Diamonp, et al.,

Appellants,

Uv.

Autuan G. CuHarues, et al.,

Appellees.

On Appeal from the United States Courts of Appeals

for the Third and Seventh Circuits

rrr > ——_—_—_—

BRIEF OF THE ATTORNEY GENERAL OF THE

STATE OF NEW YORK AS AMICUS CURIAE

IN SUPPORT OF APPELLEES

Interest of Amicus Curiae

Robert Abrams, as Attorney General of the State of New

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

preme Court Rule 36.4.

Since 1970, the State of New York has recognized that

the right of privacy incorporates the right of a woman to

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

ity, subject to reasonable restrictions caleulated to protect

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

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

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

that ‘‘[{t}his right of privacy, whether i+ be founded in the

Fourteenth Amendment’s concept of personal liberty and

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

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

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

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

(1973).

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

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

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

an abortion, New York and other states choosing to uphold

such a right would be faced with meeting an enormous de-

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

nitude of this demand would be extraordinary, given the

wide acceptance of and reliance upon abortion since Roe rv.

Wade was decided.

* The brief submitted by the Solicitor General as amicus curiae

will be cited as “S.G. at ——.”

9

ow

In explicitly recognizing that the right to choose to have

an abortion is implicit in the right of privacy protected by

our Constitution, this Court guaranteed that its exercise,

as with the exercise of other constitutionally protected

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

litical econ roversy. Sec Engel v. Vitale, 370 U.S. 421, 429-

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

barnette, 319 U.S. 624, 638 (1943). The decision whether

to obtain an abortion, as with other deeply personal choices

regarding privacy and rc productive decisions intertwined

with religious and moral beliefs, is precisely the type of

right most in need of such explicit constitutional protection.

New York has aggressively protected its citizens from at-

tacks upon these rights in the past, and therefore submits

this brief amicus curiae in response to that submitted by

the Solicitor General urging this Court to overrule Roe v.

Wade.

Statement of the Cases

In Thornburgh v. American College of Obstetricians and

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

Third Cireuit held unconstitutional sections of a Pennsyl-

vania law requiring that the method of abortion used be one

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

cause greater (though not significantly greater) risk to the

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

ity abortions even if a medical emergency dictates an imme-

diate abortion; that certain information be provided to a

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

the court found, of dissuading the woman from having an

abortion, regardless of whether the woman’s physician

deems the information relevant to her decision; and that fa-

4

cilities providing abortion services file detailed reports sub-

ject to public disclosure. The court also enjoined operation

of a provision that required a minor seeking an abortion to

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

no safeguards had been adopted to ensure that the judicial

alternative would be expeditious and would protect the

minor’s confidentiality.

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

peals for the Seventh Circuit held unconstitutional a section

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

specified standard of care in performing an abortion, and

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

provision failed to afford due deference to the viability de-

termination of the attending physician and was imper-

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

fetuses was held unconstitutional because it ran afoul of Roe

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

interest in protecting fetuses unless they are actually viable.

The Seventh Circuit also struck down a requirement that

physicians inform women that certain birth control methods

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

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

include a fertilized cell, thus making an intrauterine device,

and other common means of birth control, abortifacients.

The lower court held that the statute impermissibly imposed

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

and the patient.

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

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

ently briefed and argued within the framework established

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

4)

v. Akron Center for Reproductive Health, Inc., 462 US. 416

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

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

traordinary step of using these two cases to urge the Court

to perform an unprecedented volte-facc. The Government

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

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

right of abortion is based, be eliminated from the freedoms

protected by our Constitution.

Summary of Argument

The Solicitor General’s arguments are without merit.

They ignore a firmly established line of precedent protecting

our rights to be left alone b_* government, to choose how to

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

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

ing Vv. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut,

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

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

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

disregard the important principle of sfare decisis, a prin-

ciple recognized by this Court in this very context just two

years ago. City of Akron v. Akron Center for Reproductive

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

ignore the very real likelihood of social and political chaos

should this Court overrule Roc v. Wade.

ARGUMENT

Only twelve years ago, this Court held that the right of

personal privacy—which finds its doctrinal sources in deci-

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

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

terminate her pregnancy.’’ Roe v. Wade, 410 U.S. 113, 153

(1973). The Court has adhered to this princinle in no fewer

than twelve cases in the ensuing years.* Because this Court

has consistently and repeatedly followed its decision, the

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

constitutional landscape, but an element widely perceived to

be part of the nation’s social fabric.

The reasons for adhering to s/are decisis, generally and

in this context, are manifold. Among them are

the desirability that the law furnish a clear guide for

the conduct of individuals, to enable them to plan their

affairs with assurance against untoward surprise; the

importance of furthering fair and expeditious adjudi-

cation by eliminating the need to relitigate every rel-

evant proposition in every case; and the necessity of

maintaining public faith in the judiciary as a source of

impersonal and reasoned judgments.

Moragque v. States Marine Lines, Inc., 398 U.S. 375, 403

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

* See, City of Akron » Akron Center for Reproductive Health,

/nc., 462 U.S. 416 (1983); Planned Parenthood Ass'n v. Ashcroft,

462 U.S. 476 (1983) ; Simopoulos v. Virginia, 462 U.S. 506 (1983) ;

H.L. v. Matheson, 450 U.S. 398 (1981) ; Harris v. AfcRae, 448 U.S.

297 (1980); Bellotti v. Baird, 443 U.S. 622 (1979); Colautti v.

Franklin, 439 U.S. 379 (1979) ; Maher v. Roe, 432 U.S. 464 (1977) :

Beal v. Doe, 432 U.S. 438 (1977) ; Bellotti v. Baird, 428 U.S. 132

(1976) ; Planned Parenthood v. Danforth, 428 U.S. 52 (1976) ; Con-

necticut V. Menillo, 423 U.S. 9 (1975).

=

‘

ture from the doctrine of stare decisis demands special jus-

tifieation.’’ Arizona v. Rumsey, —— US. . , 104

S.Ct. 2305, 2311 (1984). For ‘tin a society governed by the

rule of law,’’ the doctrine of stare decisis ‘‘demands re-

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

C.J., dissenting), quoting City of Akron v. Akron Center

for Reproductive Health, Inc., 462 U.S. at 419-20.

Undoubtedly, the passions, both moral and_ political,

which surround the abortion debate have motivated some to

counsel the Court to depart from recent decisions. Passion-

ate debate, however, attends many issues which implicate

constitutional concerns, and its tenacity surely cannot be

an acceptable basis for abjuring reasoned adherence to an-

nounced prineiples. Only by ‘‘cireumspect observance”’ of

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

as an institution transcending the moment ... be brought

to bear on the difficult problems that confront [it].’’ Green

v. United States, 355 U.S. 184, 215 (1957) (Frankfurter, J.,

syrepes See Oregon v. Kennedy, 456 U.S. 667, 691-92

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

99

Indeed, this Court only two years ago found ‘‘especially

compelling reasons for adhering to stare decisis in applying

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

n.l. Among them were the special consideration afforded

the issues in Roe, and the repeated adherence in subsequent

eases to the basic principle there announced. Id. No doe-

trinal development has appeared since Roe v. Wade, much

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

sion that the right to privacy encompasses the right of a

woman to choose whether to terminate a pregnancy.

8

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

flaws of Roe v. Wade decried by the Solicitor General, 8.G.

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

the Court. Thus, it was argued that the historical coinci-

dence of the passage of laws criminalizing abortion with the

passage of the Fourteenth Amendment supports the conten-

tion that the Amendment was not intended to restrict such

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

senting) ; that the right of privacy, as previously identified

by the Court, had no application in the abortion area, id.

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

constitutional law, from entering into the area of procrea-

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

judicial legislation and usurpation of majoritarian preroga-

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

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

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

since Re in support of them.

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

more fully the fundamental right to choose an abortion. In

varying factual circumstances, it has had to weigh the

states’ competing interests in protecting maternal health

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

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

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

stitutional adjudication of rights secured by the Bill of

Rights often involves difficult tasks of redefinition and line

drawing. Obviously, individual rights cannot be jettisoned

merely because their application in varrying contexts may

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

eration this Court has wrestled with the question of reli-

gious observances in the public schools, see Wallace v.

9

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

treating from the principles announced in Engel v. Vitale,

370 U.S. 421 (1962).

Both the states and countless individuals have relied

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

ordering their affairs and lives. Based on these decisions,

states have attempted to establish a uniform framework

within which health planning and regulatory decisions can

be made. See e.g., Westchester Women’s Health Organiza-

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

licensing regulations for ambulatory care clinies providing

abortion services are within the guidelines enunciated by

this Court) ; Roman Catholic Diocese v. New York State De-

partment of Health, A.D.2d ——, 490 N.Y.S.2d 636

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

approve the addition of abortion services to two family

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

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

requirements of the New York City Health Code within the

strictures of Roe v. Wade).

The overruling of Roe v. Wade would impose an extraor-

dinary burden upon those states which would continue to

allow women to choose to terminate their pregnancies in

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

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

permit licensed physicians to provide abortion services for

any consenting woman less than twenty-four weeks preg-

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

women seeking this service.* The magnitude of the burden

* During the first fifteen months after this liberalized bill became

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

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

(footnote continued on next page)

10

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

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

given the increased acceptance of abortion in our society

and the increased demand for it since Roe v. Wade was

decided.

Individuals have relied upon the right of privacy, which

encompasses the right to choose to have an abortion, in

planning their families and controlling their destinies. If

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

and the fundamental right of privacy called into question,

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

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

to chance, depending upon the state in which one resides,

the latest election or whether one is rich or poor.

As with the school prayer issue, the continuing contro-

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

an important right cannot be left to shifting political ma-

jorities.

The very purpose of a Bill of Rights was to withdraw

certain subjects from the vicissitudes of political con-

troversy, to place them beyond the reach of majorities

and officials and to establish them as legal principles to

be applied by the courts. One’s right to life, uberty,

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

of worship and assembly, and other fundamental rights

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

come of no elections.

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

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

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

Pennsylvania, Florida, Massachusetts and Connecticut—traveled to

New York City to obtain legal abortions. /d.

11

West Virginia State Board of Education v. Barnette, 319

U.S. at 638; see Engel v. Vitale, 370 U.S. at 429-30.* Any

decision undereutting Roe v. Wade and its underlying

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

confidence that the rules on which they rely in ordering

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

ions of a small group of men who temporarily oceupy high

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

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

concurring) (footnote omitted).

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

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

‘*has not been reduced to any formula; its content cannot

be determined by reference to any zode.’’ Poe v. Ullman,

5467 U.S. 497, 542 (1961) (Harlan, J., dissenting). Aware

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

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

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

abortion statute in 1972, but then Governor Rockefeller vetoed the

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

Conmission Appointed to Review New York State’s Abortion Law

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

near-total prohibition against abortion was fostering hundreds of

thousands of illegal and dangerous abortions. . . . discriminating

against women of modest means. . . . , promoting hypocrisy and, ul-

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

pealing this reform and thus condemning hundreds of thousands of

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

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

ernor Rockefeller noted,

the extremes of personal vilification and political coercion brought

to bear on members of the Legislature raise serious doubts that

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

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

this debate has generated an emotional climate in which the very

truth about abortions and about the present State abortion law

have become distorted almost beyond recognition.

Id.

12

id., at 543, the Court preceeded to fill out the ‘‘vague con-

tours of the Due Process Clause,’’ Rochin v. California, 342

U.S. 165, 170 (1952),* mindful that its judgment could not

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

must exercise its judgment ‘‘upon interests of society push-

ing in opposite directions.”’ J¢., at 171.**

The constitutional terrain described ir Roe v. Wade is

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

marked out a ‘‘zone of privacy created by several funda-

mental constitutional guarantees,’’ Griswold v. Connecticut,

381 U.S. at 485, in matters relating to child rearing, mar-

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

not interpret themselves,” S.G. at 24, and that the provision does not

merely prohibit the government from “actually taking hold of a per-

son, as to confine him, without fair procedures,” S.G. at 25, the So-

licitor General would limit the meaning of liberty to those protections

expressly guaranteed by the Bill of Rights. This view of the Due

Process Clause, fully accepted by only one member of the Court, see

Griswold v. Connecticut, 381 U.S. at 507-27 (Black, J., dissenting),

was rejected even by the Justices dissenting in Roe v. Wade. Sce

Griswold v. Connecticut, 381 U.S. at 502-07 ( White, J., concurring) ;

Roe v. Wade, 410 U.S. at 172-73 (Rehnquist, J., dissenting).

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

Court, at the same time it has refrained from invalidating legislation

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

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

solicitude for personal freedom “implicit in the concept of ordered lib-

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

sponds to an observable distinction between state intrusions upon such

“economic freedoms” as the ability to pay substandard wages and state

intrusions into time-honored, intimate relationships and decisions.

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

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

liberties of the individual which history has attested as the indis-

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

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

liberties which derive merely from shifting economic arrangements.”

Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J., con-

curring ). ;

13

riage and procreation.* A repudiation of the principles

announced in Roe v. Wade would therefore also remove the

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

portant decisions in this century.

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

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

ute that prohibited the teaching of foreign languages to

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

tected liberty interest because the legislation ‘‘materially

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

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

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

law requiring parents to send children to public, rather than

parochial, school because the legislation ‘‘unreasonably in-

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

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

534-35. These decisions recognized that the Due Process

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

in the Ninth ndment ; id., at 486 (Goldberg, J., concurring) ;

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

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

399 (1923).

14

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

lan, .J., dissenting).

So, too, has the Court serutinized and invalidated state

legislation encroaching on the ability of citizens to marry.

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

reversed convictions under a statute that made inter-racial

arriage a criminal offense. While the Court held that the

statute was invalid because it violated the ‘‘central meaning

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

equally on the Due Process Clause when it held the statute

invalid, finding that it deprived persons of the freedom to

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

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

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

In Skinner v. Oklahoma, 316 U.S. 585 (1942), the Court

struck down a state statute authorizing the sterilization of

repeated felons, characterizing the ability to procreate as

‘‘one of the basic civil rights of man.’’ Jd., 316 U.S. at 541.**

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

cannot terminate the right to bear children, it cannot invade

marital relationships to require couples to bear children by

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

state regulation under review in Prince involved not only restriction

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

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

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

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

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

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

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

that the classification of different crimes selected by the state in

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

Rather, it was because the statute derived certain felons, not rationally

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

invalid.

15

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

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

right of privacy guaranteeing the freedom to use contracep-

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

heres not only in the marital relationship:

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

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

unwarranted governmental intrusion into matters so

fundamentally affecting a person as the decision

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

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

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

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

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

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

that unwarranted intrusions by the state into personal deei-

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

dren, and when or whether to bear children were proscribed

by the guarantee of the Fourteenth Amendment: ‘‘nor

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

due process of law.’’

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

‘‘leap to its conclusion,’’ S.G. at 27, that the right of a

woman to choose whether to terminate her pregnancy was

encompassed within the right of privacy guaranteed by the

Due Process Clause. Rather, the Court carefully consid-

ered the rational involved in the cases preceding Roe and

other factors before it reached its conclusion that the Four-

teenth Amendment restricts state action that forbids abor-

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

16

This Court has shown unwavering adherence to its his-

torical reading of the right of privacy in the cases involving

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

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

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

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

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

distribution and advertisement of contraceptives); Moore

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

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

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

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

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

Wade falls squarely within the historical and rational tra-

ditions of this Court in elaborating the meaning of the Due

Process Clause under which liberty is a ‘‘continuum which

... includes a freedom from all substantial arbitrary impo-

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

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

fundamental principles of adjudication of constitutional

rights require its reaffirmance in the cases now before this

Court.” .

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

enth Circuits, this Court should affirm the Thornburgh and Diamond

judgments.

17

Conclusion

For the foregoing reasons, the arguments of the Depart-

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

Wade reaffirmed, and the judgments of the courts below

affirmed.

Dated: New York, New York

August 30, 1985

Respectfully submitted,

Rosert ABRAMS

Attorney General of the

State of New York

Amicus Curiae

2 World Trade Center

Suite 45-08

New York, New York 10047

(212) 488-7511

Ropert HERMANN

Solicitor General

Counsel of Record

RosEMARIE RHODES

Assistant Attorney General

in Charge, Civil Rights Bureau

Lawrence S. Kaun

Sanrorp M. CoHEen

MartHa J. OLSON

Assistant Attorneys General

Of Counsel