Amicus Curiae Brief — Hodgson v. Minnesota

q) | fupreme Court, U.S. |

LED

Nos. 88-790, 88-1309

AUG 30 1889

JOSEPH F. SPAWOL, JR,

In THE nant

Supreme Court of the United states

October Term 1989

No. 88-790

BERNARD J. TURNOCK et al., Appellants,

v.

RicHARD M. RaGsDALE et al., Appellees.

On Appeal from the United States Court of Appeals

for the Seventh Circuit

No. 88-1309

SrateE OF MINNESOTA et al., Cross-Petitioners,

v.

JANE HopaGson et al., Cross-Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF AMICUS CURIAE OF THE

NATIONAL RIGHT TO LIFE COMMITTEE, INC.

IN SUPPORT OF APPELLANTS IN TURNOCK

AND CROSS-PETITIONERS IN HODGSON

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

BRAMES, MeCORMICK, BOPP

& ABEL

191 Harding Avenue

Post Office Box 410

Terre Haute, Indiana 47808-0410

(812) 238-2421

Counsel for Amicus Curiae

August 31, 1989

QUESTION PRESENTED HEREIN

Is the decision of this Court in Roe v. Wade sufficiently

implicated in the cases at bar, Turnock v. Ragsdale and

Minnesota v. Hodgson, for Roe v. Wade to be recon-

sidered?

TABLE OF CONTENTS

cE Re

I. A Logical, Coherent Analysis Governing The Con-

stitutional Necessity For This Court To Decide A

Constitutional Issue Is Discernible From Precedent

A. Four Elements Govern the Consitutional Neces-

sity of Deciding A Constititutional Issue Under

this Court’s Precedents .....................

1. This Court has a duty to interpret the Constitu-

Dt MSeMeUEebEenabebteuss ceenucsnsvees

2. This Court’s duty to interpret the Constitution

is limited by Article III of the Constitution .

3. This Court's duty to interpret the Constitution

is limited by its jurisdictional statutes .......

4. This Court's duty to interpret the Constitution

is limited by prudential considerations ......

B. These Four Elements Form a Logical, Sequential

Analysis to be Employed in Analyzing the Neces-

sity of Deciding a Constitutional Issue ........

C. Consideration of Some Specific Questions Con-

cerning Reconsideration Reveal that Recon-

or

10

sideration of Roe v. Wade Is Appropriate in this

| ES ere eee hee reer

II. The Failure Of This Court To Agree Upon And Follow

III.

Such An Analysis Concerning Reconsideration Has

Introduced Chaos Into The Law And Into This Court

A. That this Court Has Not Agreed Upon an Analy-

sis for Reconsideratilon Is Evident from this Past

B. Roe v. Wade Demonstrates the Overreaching Pos-

sible with an Inadequate Analysis and the Resul-

tant Overruling Required ...................

Webster Demonstrates the Underreaching Possi-

ble with an Inadequate Analysis and the Resul-

tant Chaos Attending Such Action ...........

1. Is the Roe trimester scheme overruled sxb

ee awees

2. Is the abortion right now a liberty interest? .

}O

3. Is Akron overruled sub silentio by rehabilita-

tion of the unduly burdensome test? ........

Employing The Proper Analysis To The Issue Of

Reconsideration Herein Reveals That Roe v. Wade

Should Be Reconsidered In These Cases .........

A. This Court Should Go Through the Full Analysis

to Determine What Issues Should be Decided and

ee ee ween ee

B. The Issue of Reconsideration Itself Is Not One

Which This Court May Avoid if It Chooses to

Decide These Cases and Issue a Written Opinion

ill

1]

15

17

23

24

24

Because Roe and its Right and Analysis are

CI I oid cuctbscuccavascdbecécs

1. Compelling state interests in maternal health

and unborn life, which underlie these statutes,

are asserted throughout pregnancy .........

2. The right to effecutate the abortion decision is

ye ke ake re ee eae

3. The right to consult one’s physician in making

the abortion decision is forbidden

Conclusion

7, ECC eC ST Cre C2 Pee ee ee = © 68 6.8 6 6 Oo 86 6 BR Oo 6 @

iv

TABLE OF AUTHORITIES

Cases Pages

Akron v. Akron Center for Reproductive Health,

GEE Ue. SR GRIER 6c ccc cnccccseces 12, 16, 19, 21-24

Ashwander v. TVA, 297 U.S. 288 (1936) ............4. 6-10

Bender v. Williamsport Area School District, -~

Se ED apn ns hdN oN 64 de deer tecesonns 8-9

Booth v. Maryland, 482 U.S. 496 (1987) .......... 12-13, 17

City of Richmond v. J. A. Croson Co., 109 8.Ct. 706

SEE wien so SkdoNe'ns dead deuabadneedenenseyasdons 13

Cohens v. Virginia, 6 Wheat 264 (1821) ............ 7, 15

Commonwealth Edison Co. v. Montana, 453 U.S.

er ee ee 14

Daniels v. Williams, 474 U.S. 327 (1986) .......... 14

Doe v. Bolton, 410 U.S. 179 (1978) ... 6.6.6.6 ee eee, 2

Illinois v. Gates, 462 U.S. 213 (1983) ...........4.. 14

Mapp v. Ohio, 367 U.S. 643 (1961) .............4.. 14

Marbury v. Madison, 1 Cranch 137 (1803) .......... 5-7, 14

Michelin Tire Corp. v. Wages, 423 U.S. 276 (1976) .. 14

Patterson v. McClean Credit Union, 1098. Ct.

EO rT he er ee Tere rT Tre Teee 12, 15

Perez v. Campbell, 402 U.S. 687 (1971) ............ 14

Perry v. Leeke, 109 S.Ct. 609 (1989) ............... 13

Pointer v. Texas, 380 U.S. 400 (1965) .............. 14

Rescue Army v. Municipal Court of Los Angeles,

ee es ED kocavcccnccnvescsdavcavcees®

Vv

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

Runyon v. McCrary, 427 U.S. 160 (1976) ........... 12

South Carolina v. Gathers, 109 S.Ct. 2207 (1989) .... 12, 16

Thornburg v. American College of Obstetrician and

Gynecologists, 106 S.Ct. 2169 (1986). .......... 12, 21-23

Thornburg v. American College of Obstetricians and

Gynecologist, 737 F.2d 283 (1984) ............... 9

Webster v. Reproductive Health Services, 109 S.Ct.

aon rn ee ee passim

Constitution and Statutes

SPN NE Cine ee veveevdessisededunineeeces

Be aes I sec ccnsccca eaWeendpauncaduneuest

IIE hE Wie eek ide wcuwas 8

Ill. Rev. Stat. ch. 111 % para. 205 730 (a) (ec) (b) ..... 27

Ill. Rev. Stat. ch. 111 4%, para. 205.730 (b) (3) ....... 27

oF RE OS 5 re ee

ee I Os I UE ec cnevven.ctsradcessacs 7

Other Authorities

Blum, Resnick & Stark, The Impact of Parental

Notification Law on Adolescent Abortion

Decision-Making, 77 AJPH 619 (1987) ........... 26

Bopp & Coleson, The Right to Abortion: Anomalous,

Absolute, and Ripe for Reversal, 181 B.Y.U. J. Pub.

ie PEE Nantaeebsdbensse s6s0655554500006%05 - 19

G. Gunther, The Subtle Vices of the “Passive Virtues”

— A Comment on Principle and Expediency in

Judicial Review, 64 Colum. L. Rev. 1 (1964) ...... 6

vi

Holmes, The Path of the Law, 10 Harv. L. Rev.

I ie es nt ee eee ep Vanedeass

Jefferson to Justice William Johnson, June 12, 1823,

IS. Car. His. & Gen. Mag. 1 (1900) .............

Van Alstyne, A Critical Guide to Marbury v. Madison,

I I ol te eapeetnees

Wechsler, “Toward Neutral Principles of Constitutional

Law,” in Principles, Politics, and Fundamental

| RR Re er mera eee eee

vil

ii.

In THE

Supreme Court of the United States

October Term 1989

No. 88-790

BERNARD J. TURNOCK et al., Appellants,

v.

RICHARD M. RaGspDALE et al., Appellees.

On Appeal from the United States Court of Appeals

for the Seventh Circuit

No. 88-1309

STATE OF MINNESOTA et al., Cross-Petitioners,

v.

JANE Hopcson et al., Cross-Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF AMICUS CURIAE OF THE

NATIONAL RIGHT TO LIFE COMMITTEE, INC.

IN SUPPORT OF APPELLANTS IN TURNOCK

AND CROSS-PETITIONERS IN HODGSON

INTEREST OF AMICUS!

The National Right to Life Committee, Inc. is a nonprofit

organization whose purpose is to promote respect for the worth

and dignity of all human life, including the life of the unborn

child from the moment of conception. The National Right to

Life Committee, Inc. is comprised of a Board of Directors

representing 51 state affiliate organizations and more than

2,000 local chapters made up of individuals from every race,

denomination, ethnic background, and political belief. It

engages in various political, legislative, legal, and educational

activities to protect and promote the concept of the sanctity of

innocent human life.

The members of the National Right to Life Committee, Inc.

have been the prime supporters of laws restricting abortion on

demand to only those instances in which the mother’s life is in

danger. Since Roe v. Wade, 410 U.S. 113 (1973), and Doe v.

Bolton, 410 U.S. 179 (1973), the members of the National Right

to Life Committee, Inc. have supported legislation to protect

unborn human life within these guidelines. The Illinois and

Minnesota legislation at issue herein is the result of lobbying,

in great part, by the members of the National Right to Life

Committee, Inc. and its Illinois and Minnesota affiliates, Illi-

nois Federation for the Right to Life and Minnesota Citizens

Concerned for Life. By means of this brief, the National Right

to Life Committee, Inc. seeks to advance these interests by

supporting the Minnesota regulations at issue herein.

' This Brief Amicus Curiae is filed with the consent of all parties to this

appeal. A letter from each attorney stating this consent has been filed with

the Clerk of this Court.

SUMMARY OF ARGUMENT

In Webster v. Reproductive Health Services, members of

the majority differed on whether and to what extent Roe v.

Wade should be reconsidered. From the decisions of this Court,

a logical, coherent, and sequential analysis may be constructed

to govern when it is necessary to decide a constitutional issue,

in fulfillment of this Court's constitutional duty to decide a case

properly before it. Failure to follow this analysis has resulted in

anomalous results, evident in the decisions of this Court in the

last term, and confusion in the law, evident in the wake of

Webster.

Applying this analysis, it is clear that reconsideration of

precedent is required whenever a case is brought on the basis of

the right and/or analysis created in that precedent. The right

declared and the analysis to be employed in constitutional

review are but means of applying the Constitution. The ulti-

mate question in constitutional review is what the Constitution

requires. This is always at issue in constitutional review, mak-

ing the case declaring a right and/or analysis always at issue in

such cases. Thus, the Court must always establish the stan-

dard of review, either implicitly or explicitly, in determining

the constitutionality of a statute.

Furthermore, a court is required to give a reasoned, legal

justification for its decision. This must resolve those constitu-

tional issues embraced by an analysis of the case. This requires

resolution of the issues associated with the standard of review.

Thus, a precedent which establishes a constitutional right or

sets forth the analysis to be employed in determining the

constitutionality of a statute under that right must be recon-

sidered whenever the constitutionality of a statute is chal-

lenged on the basis of that right or employing that analysis.

Therefore, reconsideration of Roe v. Wade may not be avoided

in the cases at bar.

Moreover, although sufficient implication of Roe for recon-

sideration of that case is inherent in its seminal status, the

cases at bar implicate Roe’s core analysis more fully than did

Webster. Additionally, the confusion created by Webster itself

implicates the heart of Roe’s analysis, making reconsideration

based upon the effect of that decision alone a constitutional

necessity. Therefore, Roe v. Wade should be reconsidered in the

cases at bar.

ARGUMENT

INTRODUCTION

The decision of this Court in Webster v. Reproductive Health

Services, 109 S.Ct. 3040 (1989), settled the small portion of

abortion jurisprudence encompassed by the Missouri statutes

at issue in that case. But Webster settled these matters in a way

which unsettled the remainder of abortion law.

Issues now unresolved go to the very core of this Court's

opinion in Roe v. Wade, 410 U.S. 113 (1973). Were Roe and/or its

later progeny overruled sub silentio in Webster? Is a woman's

interest in obtaining an abortion a fundamental right, a limited

fundamental right, or a liberty interest? Will abortion legisla-

tion now be reviewed under the traditional compelling interest

standard or is an unduly burdensome analysis the de facto

standard? What is an undue burden? Is the trimester scheme

overruled or yet viable? Must abortion regulations be narrowly

tailored to effectuate the underlying state interest or only

reasonably related to the interest? -

This confusion arose from the inability of the members of this

Court to agree on the analysis to be employed in determining

when constitutional necessity requires the reconsideration of

precedent. The majority which decided Webster disagreed

over whether and to what extent Roe v. Wade should be recon-

sidered. A particular focus of the debate was the “necessity”

principle employed by this Court to “avoid [] passing upon a

large part of all the constitutional questions pressed upon it for

decision . . . , notwithstanding conceded jurisdiction, until

necessity compels it in the performance of constitutional duty.”

Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549,

569 (1947)(emphasis added).

This Court has never set forth, in one place, the full analysis

by which to determine when the necessity exists which com-

pels this Court to fulfill its constitutional duty to decide a

constitutional issue. By reviewing the duties and limitations

imposed upon this Court by the Constitution, its jurisdictional

statutes, and prudence, one may discern a clear pattern. This

brief sets out this pattern, logically organizing the duties and

limitations of this Court into a coherent analysis. This analysis

is then applied to determine whether reconsideration of Roe v.

Wade is constitutionally necessary in the cases at bar.

I. A LOGICAL, COHERENT ANALYSIS GOVERN-

ING THE CONSTITUTIONAL NECESSITY FOR

THIS COURT TO DECIDE A CONSTITUTIONAL

ISSUE IS DISCERNIBLE FROM PRECEDENT.

A. FOUR ELEMENTS GOVERN THE CONSTITU-

TIONAL NECESSITY OF DECIDING A CONSTITU-

TIONAL ISSUE UNDER THIS COURT'S PRECE-

DENTS.

Four elements govern whether, in a particular case, the

decision of a constitutional issue is necessary in the perfor-

mance of constitutional duty: (1) a constitutional duty to say

what the law is, (2) a constitutional limitation of decision oppor-

tunities to cases and controversies, (3) a statutory limitation on

subject matter jurisdiction, and (4) prudential principles

imposed by this Court upon itself for sound jurisprudential

reasons.

1. THIS COURT HAS A DUTY TO INTERPRET THE

CONSTITUTION.

“It is emphatically the province and duty of the judicial

department to say what the law is.” Marbury v. Madison, 1

Cranch 137, 177 (1803)(emphasis added). So declared this Court

in the famous case of Marbury v. Madison, in which it deter-

mined the Constitution to be the supreme law of the land,

governing even enactments of Congress. Jd. at 177-79. This

Court also decided in Marbury that it had authority to review

actions of other elements of government to determine whether

they comported with this Court's declaration of “what the law

is” with respect to the Constitution. /d.

This Court could most comprehensively fulfill its duty to

declare what the law is by publishing its own commentary on

the law, in the manner of William Blackstone or Lord Coke. Of

course, such a project would be of immense and prohibitive

proportions, and no commentary could cover every conceivable

issue.

More significantly, however, this Court is prohibited from

roaming about the constitutional field in such @ manner by its

constitutional charter. There are limits placed upon its power

and duty to say what the law is, which are set forth in detail

below.

However, these limitations must not be employed to avoid

deciding matters which this Court has a duty to decide. Pro-

fessor Gunther has styled as a neo-Brandeisian fallacy the

misuse of the “necessity” principles set forth by Justice Bran-

deis in his concurrence to Ashwander v. TVA; 297 U.S. 288,

346-48 (1936)(Brandeis, J., concurring), to support a view that

this Court has a general discretion not to adjudicate. See

generally G. Gunther, The Subtle Vices of the “Passive Virtues”

— A Comment on Principle and Expediency in Judicial

Review, 64 Colum. L. Rev. 1 (1964)(commenting on the content

and uses of the Ashwander rules). Cf, Wechsler, “Toward Neu-

tral Principles of Constitutional Law,” in Principles, Politics,

and Fundamental Law (1961).

The duty to decide, when constitutionally required, is illus-

trated by Justice Marshall in Marbury, where he felt com-

pelled, in giving a legal justification for his decision, to com-

ment on matters not necessary to the decision of the case but

necessary to a legal justification of the case. He wrote:

The peculiar delicacy of this case, the novelty of some of its

circumstances, and the real difficulty attending the points

which occur in it, require a complete exposition of the princi-

ples on which the opinion to be given by the court is founded.

Marbury, 1 Cranch at 154. To this comment must be added

another of Justice Marshall’s remarks in the case of Cohens v.

Virginia, 6 Wheat 264, 404 (1821):

Questions may occur which we would gladly avoid; but we

cannot avoid them. All we can do is to exercise our best

judgment and conscientiously to perform our duty.”

2. THIS COURT’S DUTY TO INTERPRET THE CON-

STITUTION IS LIMITED BY ARTICLE III OF THE

CONSTITUTION.

The Constitution-of the United States allows this Court to

interpret the Constitution only in relation to “Cases . . . arising

under this Constitution.” U.S. Const. art. III, § 2.

From this limitation arise certain rules, which Justice Bran-

deis set forth in his concurring opinion to Ashwander v. TVA,

297 U.S. at 346-48 (1936)(Brandeis, J., concurring). These rules

apply even where jurisdiction is conceded under the controlling

jurisdictional statutes, id. at 346, for they are constitutionally

mandated by Article III.

Justice Brandeis set forth these rules as follows:

First, “(t]he Court will not pass upon the constitutionality of

legislation in a friendly, non-adversary, proceeding. /d. at 346.

2 This brief does not enter into the debate over this Court's discretion to

decline the exercise of jurisdiction. It merely addresses the necessity of

deciding all elements of a case which are required in giving a legal justifica-

tion for this Court's decision in a case which is decided by this Court. Your

amicus does not believe that the standard of review is an issue which may

properly be avoided. It is different in kind from construing a statute to avoid

constitutional difficulty or deciding a case on procedural grounds to avoid a

constitutional issue.

Second, “(t]he Court will not ‘anticipate a question of con-

stitutional law in advance of the necessity of deciding it,” nor

will it “decide questions of a constitutional nature unless abso-

lutely necessary to a decision of the case.” Jd. at 346-47 (cita-

tions omitted).*

Third, “(the Court will not pass upon the validity of a statute

upon complaint of one who fails to show that he is injured by its

operation.” Id. at 347.

Fourth, “(t]he Court will not pass upon the constitutionality

of a statute at the instance of one who has availed himself of its

benefits.” Id. at 348.

3. THIS COURT’S DUTY TO INTERPRET THE CON-

STITUTION IS LIMITED BY ITS JURISDICTIONAL

STATUTES.

Pursuant to its authority to “ordain and establish” federal

courts, U.S. Const. art. III, § 1, Congress has enacted jurisdic-

tional statutes which require a “deprivation, under color of any

State law, statute, ordinance, regulation, custom or usage, of

any right, privilege or immunity secured by the Constitution of

the United States” or a claim “arising under the Constitution,

laws, or treaties of the United States” for federal district court

jurisdiction. 28 U.S.C. §§ 343(3) and 1331. Without satisfaction

of these prerequisites, the cases at bar should not have come

before this Court by way of the lower federal courts.‘ Similarly,

* As noted infra, the question of establishing the appropriate standard of

review is a necessary decision to this Court's constitutional review of a case

and not a discretionary matter which may be avoided if convenient.

‘ In addition to establishing the proper standard of review, this Court must

also examine its jurisdiction. As noted in text, this Court only has jurisdiction

over these cases if there is yet a constitutional right to abortion.

In Bender v. Williamsport Area School District, 475 U.S. 534 (1986), this

Court declared that “every federal appellate court has a special obligation to

‘satisfy itself not only of its own jurisdiction, but also that of the lower courts

(footnote continued)

gf

— ———

had these cases come up through state courts, this Court could

only have heard them if the statutes at issue were “repugnant

to the Constitution” or if a constitutional right were claimed. 28

U.S.C. § 1257.

4. THIS COURT’S DUTY TO INTERPRET THE

CONSTITUTION IS LIMITED BY PRUDEN-

TIAL CONSIDERATIONS.

Self-imposed, prudential principles have been developed by

this court, based upon policy considerations. These rules were

summarized in Justice Brandeis Ashwander concurrence as

follows:

First, “(t]he Court will not ‘formulate a rule of constitutional

law broader than is required by the precise facts to which it is

applied.” Ashwander, 297 U.S. at 347 (Brandeis, J., concur-

ring)(citations omitted).

Second, “[t]he Court will not pass upon a constitutional

question although properly presented by the record, if there is

also present some other ground upon which the case may be

disposed of.” /d.

Third, “[wJhen the validity of an act of the Congress” is

drawn in question, and even if a serious doubt of constitu-

tionality is raised, it is a cardinal principle that this Court will

first ascertain whether a construction of the statute is fairly

possible by which the question may be avoided.” /d. at 348

(citation omitted).

Footnote 4 continued

in a cause under review,’ even though the parties are prepared to concede it.”

Id. at 541 (citation omitted). The question of jurisdiction is a “fundamental”

one, which “the Court is bound to ask and answer for itself, even when not

otherwise suggested, and without respect to the relation of the parties to it.”

Bender, 475 U.S. at 547. Thus, in determining whether subjec* matter

jurisdiction lies in the present case, this Court must carefully consider Roe,

the case upon which federal jurisdiction rests.

5 This principle has been extended to acts of state legislatures, as well. See,

e.g., Thornburgh v. American College of Obstetricians and Gynecologists,

737 F.2d 283, 294 (1984).

10

B. THESE FOUR ELEMENTS FORM A LOGICAL,

SEQUENTIAL ANALYSIS TO BE EMPLOYED IN

ANALYZING THE NECESSITY OF DECIDING A

CONSTITUTIONAL ISSUE.

These duties and rules may be arranged in logical, sequential

order. The result is conceptually similar to a series of

increasingly fine filters; the analysis filters cases, then issues,

and then grounds of decision at subsequent levels until only

those which are properly to be decided remain. The phases of

the analysis are as follows:

1. Is there a case or controversy? Logic compels that initial

consideration be given to the requirements of the Constitution,

which authorized creation of this Court and granted it powers

within the jurisdiction to be prescribed by Congress. Justice

Brandeis four rules dealing with Article III, set forth above,

are properly asked at this point. These questions determine

whether a concrete, adversarial context exists for the resolu-

tion of constitutional issues. They prevent abstract decisions on

hypothetical points.

2. Is there jurisdiction? Logic likewise compels that the

jurisdictional statutes be next examined. Congress further

defined the jurisdiction of this Court and created the lower

courts and limited their jurisdiction by these statutes. These

statutes require, in part relevant herein, that a suit must be

initiated based upon the violation of a constitutional right.

Ifthere is an Article III case and jurisdiction exists, then the

case itself is properly before this Court, whether it arrives by

grant of a writ of certiorari or by appeal.

3. Are there prudential reasons for avoiding certain aspects

of the case? At this point, the three prudential rules of Justice

Brandeis’ Ashwander principles must be considered. Is there

some statutory or procedural basis for decision by which a

constitutional decision may be avoided? May a statute be con-

strued in a manner favoring constitutionality? If a constitu-

1]

tional decision must be made, what are the narrowest possible

grounds upon which it may be properly made?

This last question must be asked in light of this Court’s duty

both to say what the law is by interpreting the Constitution

when required and by its judicial duty to give the legal basis for

its decision in a reasoned manner. Reasoned exposition of all

elements of the analysis which are logically required in order to

give an explanation of that legal basis of the decision must be

deemed necessary to the decision.

The proper filtering analysis decides first which cases must

be heard, then — employing prudential considerations — what

issues must be heard, and finally what grounds must logically

be given to support the decision. Prudence requires that the

fewest possible issues be resolved on the lowest level of grounds

required. The required grounds are all those necessary to

logically justify the decision. This analytically includes the

standard — the constitutional analysis — to be employed.

Without such a determination, the decision has not been legally

and logically justified.

C. CONSIDERATION OF SOME SPECIFIC QUES-

TIONS CONCERNING RECONSIDERATION

REVEAL THAT RECONSIDERATION OF ROE vy.

WADE IS APPROPRIATE IN THIS CASE.

Finally, some specific questions with regard to reconsidera-

tion have arisen in the opinions of this Court. These questions

have already been settled and require brief exposition at this

point.

First, must the parties ask for reconsideration? No. Neces-

sity of reconsideration of a constitutional issue is not deter-

mined by whether the parties have requested reconsidera-

12

tion.® Just last term, in Patterson v. McClean Credit Union,

109 S.Ct. 2363 (1989), this Court reconsidered Runyon v.

McCrary, 427 U.S. 160 (1976), without any request from the

parties. Patterson, 109 S.Ct. at 2380 (Brennan, J., dissent-

ing)(“I find it disturbing that the Court has in this case chosen

to reconsider, without any request from the parties. . . .”).

Second, is it sufficient for reconsideration if the right created

by a prior case is the basis of the claim ina later case? Yes. This

is the basis upon which the Court reconsidered the Patterson

case. In Patterson, the plaintiff brought an action based upon

the statutory right created by an interpretation of 42 U.S.C. §

1981 in Runyon, 427 U.S. 169, i.e., that § 1981 encompasses a

private contract between an employer and employee. It is a

more difficult task where a prior case is not as directly impli-

cated as to provide the right upon which the suit is founded.

This is evident in South Carolina v. Gathers, 109 S.Ct. 2207

(1989), decided by this Court last term. In Gathers, Justices

O’Connor and Kennedy and Chief Justice Rehnquist, in dis-

sent, decided that the holding of the prior case of Booth v.

Maryland, 482 U.S. 496 (1987), was not sufficiently implicated

for reconsideration of that case. /d. at 2212 (O’Connor, J.,

dissenting, joined by Rehnquist, C.J., and Kennedy, J.). This

was so because Gathers involved prosecutorial comments about

a criminal victim’s character in closing argument, not in the

submission of evidence which Booth forbade. Thus, Booth was

not sufficiently implicated for Justices O’Connor and Kennedy

and Chief Justice Rehnquist to reconsider that case. /d. at 2211.

“In Thornburgh v. American College of Obstetricians and Gynecologists,

Justice O'Connor implied that she would not reach the issue of reconsidera-

tion of Roe v. Wade because the parties had not asked the Court to do so. 106

S.Ct. at 2213. However, in Akron v. Akron Center for Reproductive Health,

she personally reached the issue of Rove's constitutional correctness and

declared much of it unconstitutional, despite the fact that the parties had not

asked the Court to reconsider Roe, a point which she expressly noted. 462

U.S. at 458, 452. Further, in Webster, she declared her willingness to recon-

sider Roe in a proper case.

13

Justice Scalia would have overruled Booth, id. at 2217-18, as,

apparently, would have Justice White. Jd. at 2211.

Third, may this Court decide a case on broader principles

than reasonably required by the precise facts of the case before

it in appropriate circumstances? No, but it must resolve a

sufficient number of constitutional issues to give a reasoned,

legal justification for its decision. This properly includes a

decision concerning the standard of review, i.e., in this case,

whether or not the analysis of Roe v. Wade is still good law. It

may also include resolution of other matters not required by a

simple judgment of affirmation or reversal which are, however,

necessary to give a legal justification for the decision rendered.

This question is often erroneously framed as whether a deci-

sion may be made on a broader than necessary basis. When

“necessary” is properly understood to encompass those mat-

ters necessary to giving the required legal justification for a

decision, the confusion is resolved. The rule, then, is that no

Court should declare a rule of constitutional law broader than

required by the precise facts of the case, but that this concept

includes matters, such as resolving the appropriate standard of

review (even if that requires reconsideration of precedent),

necessary to giving a reasoned, legal justification for the deci-

sion.?

7 Many examples exist where this Court has decided issues it felt necessary

to giving a legal justification for its decision but has been criticized for

reaching issues not necessary under the facts of the case. Because all matters

necessary to a legal justification of an opinion are required but decision of

other matters is not permitted, the question of what matters ought to be

addressed in an individual case is one subject to differing judgment. In City of

Richmond, 109 S.Ct. 706 (1989), Justice O’Connor, writing for the Court,

authored an opinion which went beyond the facts to state a set of governing

principles — presumably to give legislative bodies guidance in developing the

law. Id. at 735. This was observed by Justice Marshall, writing for the

dissent. /d. at 752 (Marshall, J., dissenting)(“the majority has gone beyond

the facts of this case to announce a set of principles”). In another case from

last term, Perry v. Leeke, 109 S.Ct. 609 (1989), this Court reached an issue

which Justice Kennedy did not feel was necessary to the decision. /d. at 602

(footnote continued)

14

This principle explains Justice Marshall’s decision in Mar-

bury to comment on matters required for giving a legal justi-

fication for the Court’s decision. He expressed both his sen-

sitivity to avoiding overbroad decisions and the need to resolve

those constitutional issues required for a legal justification of

his opinion. In discussing the issue of whether a mandamus

could go to the Secretary of State, he wrote, “It may not be

proper to mention this position; but I am compelled to do it.”

Marbury, 1 Cranch at 149. He was compelled to do it because of

this Court’s duty to provide a reasoned, legal justification for

its ruling. He commented, “These observations are premised

solely for the purpose of rendering more intelligible those

which apply more directly to the particular case under consid-

eration.” Jd. at 156.°

Footnote 7 continued

(“In view of our ruling, it is quite unnecessary to discuss whether prejudice

must be shown when the right to counsel is denied. I would not address that

issue... .”). Other cases where the Court has been accused of deciding more

broadly than the precise facts required are Daniels v. Williams, 474 U.S. 327

(1986); [//inois v. Gates, 462 U.S. 213 (1983); Michelin Tire Corp. v. Wages, 423

U.S. 276 (1976); Pointer v. Texas, 380 U.S. 400 (1965); and Mapp v. Ohio, 367

U.S. 643 (1961). The Court has even expressly acknowledged its broader than

strictly required holding in some cases, such as Commonwealth Edison Co.

v. Montana, 453 U.S. 609 (1981), and Perez v. Campbell, 402 U.S. 637 (1971).

Acknowledging that resolution of all issues necessary to a reasoned legal!

justification of this Court's decision is required but that going beyond that is

forbidden resolves the tension between the practice of this Court in the cases

above and its rule against overly broad decisions.

* Much debate has raged over Justice Marshall's decision, see e.g., Van

Alstyne, A Critical Guide to Marbury v. Madison, 1969 Duke L.J. 1, includ-

ing the criticism that, given its conclusion, the Court should have said only

that it lacked jurisdiction. Much of what was said in the early part of the

opinion, regarding the propriety of issuing mandamus against an executive's

illegal acts, might be characterized as obiter dictum. Indeed, Thomas Jeffer-

son, the contemporary President and a key player in the Marbury drama,

insisted throughout his life that most of Marbury was “merely an obiter

dissertation of the Chief Justice.” Jefferson to Justice William Johnson, June

(footnote continued)

15

I. THE FAILURE OF THIS COURT TO AGREE UPON

AND FOLLOW SUCH AN ANALYSIS CONCERNING

RECONSIDERATION HAS INTRODUCED CHAOS

INTO THE LAW AND INTO THIS COURT.

The disagreement on this Court over the analysis to be

applied with regard to reconsideration of precedent is evident

in three cases from last term where reconsideration was con-

sidered and treated in three different ways. The chaotic results

which flow from this failure to agree on an analysis are illus-

trated by two abortion cases, Roe v. Wade and Webster v.

Reproductive Health Services. The former overreached, caus-

ing this Court in Akron to over . ale part of that decision. The

latter underreached, creating chaos in abortion law. Either

approach is wrong, both for sound jurisprudential reasons and

because of the illicit results.

A. THAT THIS COURT HAS NOT AGREED UPON AN

ANALYSIS FOR RECONSIDERATION IS EVI-

DENT FROM THIS PAST TERM.

In this past term, this Court considered three key cases in

which reconsideration was proposed. The inconsistent manner

in which these were handled reveals the lack of an agreed

analysis for reconsideration.

In the first case, Patterson v. McClean Credit Union, 109

S.Ct. 2363, this Court plenarily reconsidered Runyon v. McCr-

ary, 427 U.S. 160. There was no disagreement among the

majority over whether reconsideration should occur, although,

as noted supra, neither party asked for reconsideration and the

sole implication of the prior decision was that it created the

right under which the action was brought.

Footnote 8 continued

2, 1823, 1S. Car. His. & Gen. Mag. 1, 9-10 (1900). Justice Marshall himself

later called some of his statements about Article II] in Marbury unduly broad

and partially rejected them in Cohens v. Virginia, 6 Wheat 264 (1821). None-

theless, the fact that he may have erred by going somewhat beyond what was

required to give a legal justification for his decision does not vitiate the

principle. His error, if any, was of degree and not of principle.

16

In the second case, Webster v. Reproductive Health Services,

109 S.Ct. 3040, the members of the majority could not agree

that reconsideration was proper even though Roe v. Wade cre-

ated the right under which the action was brought. And such

reconsideration as was called for was not plenary, with the

exception of that proposed by Justice Scalia. The plurality

declared that only the trimester scheme was implicated and

Justice O’Connor thought that nothing of Roe was implicated.°*

As argued in this brief, however, distinguishing the degrees

of implication of a seminal case — one which creates the right or

analysis under which the cause of action arose — is unneces-

sary. Such a case is always fully implicated in a cause which

invokes that right or analysis. Such distinguishing of degrees of

implication was not engaged in in Patterson, nor is it appropri-

ate under the principle that the decision of all matters neces-

sary to a reasoned justification of the Court’s decision — includ-

ing establishment of the standard of review — is

constitutionally necessary. The result of the failure of this

Court to employ a consistent analysis with regard to recon-

sideration resulted in turmoil and confusion in abortion juris-

prudence, as more fully set forth infra. It further resulted in

the failure of a majority of this Court to address a decision, Roe,

which five Justices have declared to be constitutionally flawed.

In the third case, South Carolina v. Gathers, 109 S.Ct. 2207

(1989), the very decision-making process of the potential work-

ing majority in that case was disrupted by its inability to agree

on an analysis regarding reconsideration. It is apparent from

the opinions in Gathers that five Justices of this Court believe

that Booth v. Maryland, 482 U.S. 496 (1987) — the case which

created the right of criminals not to have evidence of their

2 It must be noted that Justice O’Connor viewed the Missouri statute as not

inconsistent with Roe or its progeny because it did not “unduly burden” the

abortion right. However, this unduly burdensome or “absolute obstacle” test,

championed in Akron by Justice O’Connor, and under which she would have

upheld the ordinances at issue in Akron, was expressly rejected by this Court

as violative of Roe v. Wade. Akron, 462 U.S. at 420 n.1.

17

victim’s character introduced at trial — was wrongly decided.

The result, however, was the extension of the reach of Booth v.

Maryland to prosecutorial statements about the victim's char-

acter.

While judicial restraint is admirable and required by sound,

constitutional jurisprudence, it is improperly applied to avoid

considering the precedent which creates the foundational right

upon which a cause is brought. Consideration of that founda-

tional right, and the case creating it, is essential in giving a

reasoned, legal justification for this Court's decision in any case

based upon that right. The havoc wrought by this Court's

failure to consistently apply the sort of analysis proposed

herein is further illustrated in two cases, Roe and Webster.

B. ROE v. WADE DEMONSTRATES THE OVER-

REACHING POSSIBLE WITH AN INADEQUATE

ANALYSIS AND THE RESULTANT OVERRULING

REQUIRED.

Roe demonstrates both the matters necessary to deciding a

constitutional issue and the perils in deciding those that are not

necessary. '° The Roe majority correctly began by establishing

the proper standard of review, to which it devoted the majority

of the opinion. Given its judgment that the Texas criminal

abortion statute — excepting only cases of risk to maternal life

— was unconstitutional, the Court needed to decide the issues

necessary to give a reasoned, legal justification of its decision.

To merely strike down the Texas statute, without explanation,

would not have fulfilled this Court's constitutional duty to

declare what the Constitution means when deciding the case."

This, of course, in no way concedes any correctness as to the substantive

holdings of the Roe Court.

18

would not have fulfilled this Court's constitutional duty to

declare what the Constitution means when deciding the case."

Necessary to a reasoned, legal justification of this Court's

decision in Roe was its holding that there is a fundamental right

to abortion. Likewise, a holding that no compelling interests

extended throughout pregnancy was vital to the analysis. Roe

also demonstrated proper restraint in not deciding the issues of

paternal rights and parental rights (of parents with minors

seeking abortion). Roe, 410 U.S. at 165 n.67. Deciding these

issues, which were not presented by the facts, would have

decided constitutional questions in advance of the necessity of

doing so. In Article III terms, no case existed with respect to

these matters, and, therefore, this Court was without constitu-

tional authority to decide them.

Unnecessary to a reasoned, legal justification of the decision

in Roe was creation of the trimester scheme. Also unnecessary

were the inherently legislative declarations, such as the state-

ment that a hospitalization requirement for post-first-tri-

mester abortions was constitutionally permissible. The Court

reached these issues in advance of the necessity of deciding

them, violating Article III, and it decided matters more

broadly than required by the facts, violating prudence. The

Roe majority ought to have awaited another case involving a

viability line to reach a discussion of viability. It should have

decided the maternal health line in a case properly presenting

that issue, such as a case requiring hospitalization for abortions

after a certain point.

1! Of course, this Court has the power to summarily affirm or reverse

decisions in appropriate circumstances. However, constant reliance on such a

practice would not comport with this Court's duty to decide. Practically, such

a practice would also unduly prolong the trial and error, see-saw interaction

between this Court and the legislatures in their attempt to pass constitu-

tional legislation. Such considerations, however, do not justify overreaching

beyond what is necessary to give a reasoned, legal justification of a decision.

19

The imprudence of such premature decision-making was

demonstrated in the progeny of Roe, especially in the case of

Akron v. Akron Center for Reproductive Health. 462 U.S. 416

(1983). In Akron, the majority found it necessary both to alter

the trimester scheme, precipitously created in Roe, and to

reject a post-first trimester hospitalization requirement, pre-

maturely approved in Roe. Akron, 462 U.S. at 435-47. !2

Thus, Roe well illustrates how a court may begin correctly

and then go astray by overreaching. A proper analysis would

preclude such overreaching.

C. WEBSTER DEMONSTRATES THE UNDER-

REACHING POSSIBLE WITH AN INADEQUATE

ANALYSIS AND THE RESULTANT CHAOS

ATTENDING SUCH ACTION.

By contrast with Roe, the Webster amalgam of opinions did

not even begin correctly. Neglected was the essential first step

in constitutional analysis, the determination of the standard of

review — the constitutional analysis — to be employed in

reviewing the statutes at issue. The core issue in any constitu-

tional challenge to a statute is whether the statute comports

with the Constitution — not whether it complies with a prior

decision of this Court. Deciding whether a statute conforms to

the requirements of some precedent is but a shorthand way of

asking whether constitutional requirements are met. There-

fore, it is essential to the analysis to determine what the

Constitution requires. In a matter already decided, this ques-

tion is answered by citation to precedent, the principles of

which are applied to the new fact situation. But in each subse-

quent case, the question of what the Constitution requires

must be asked. It may be simply answered by reaffirmation of

the precedent, either express or implicit, but it must be

° See Bopp & Coleson, The Right to Abortion: Anomalous, Absolute, and

Ripe for Reversal, 181 B.Y.U. J. Pub. L. 181, 202-07 (1989)(discussing this

disregard of stare decisis at length).

20

answered. The Constitution is at issue in constitutional

adjudication.

Therefore, in Webster, the constitutionality of Roe v. Wade,

was before this Court. It could not properly be avoided. The

standard of review, by which the Constitution is applied to

determine the constitutionality of a statute, must be decided.

It is not of a nature permitting avoidance until some more

convenient time or some greater implication. If a case is

brought to declare a statute unconstitutional on the basis of the

decision establishing the right and setting forth the analysis,

then that case is implicated. Once implicated, it must be

applied, modified, or overruled; its reconsideration is then

proper. A state need not reenact the Texas statute struck down

in Roe betore this Court may properly reconsider Roe.

Deciding the standard of review as a necessary first step in

constitutional analysis is something one may not avoid by pru-

dential principles. It is inherent in constitutional review. It is

the very essence of constitutional review, serving as the link

between the statutes reviewed and the Constitution. It is not of

the same nature as a constitutional challenge to a statute which

may be avoided by a permissible construction of the statute.

Nor is it of the same nature as a constitutional challenge to a

statute which may be avoided by deciding a matter on a stat-

utory, procedural, or independent state law basis. The issue of

the correct standard of review arises precisely when the Court

has been unable to avoid a constitutional question and must

determine whether a statute is constitutional. It is inherently

necessary to decide in the discharge of this Court’s constitu-

tional duty and may not properly be avoided.

Therefore, Webster underreached — the Court did not fulfill

its duty to say what the law is in justifying its decision. The

resulting chaos demonstrates clearly why strict adherence to a

sound analysis with regard to deciding constitutional matters,

and especially the standard of review, is essential to sound

constitutional adjudication. Indeed, the chaos created by Web-

on eee 8

21

ster alone is sufficient to call this Court to say what the law is in

the cases at bar.

The confusion resulting from Webster may be seen in the

varying interpretations given to the opinion, which run along a

spectrum from a sub silentio reversal of Roe, to a sub silentio

reversal of the trimester scheme and this Court’s most recent

pronouncements in Akron and Thornburgh, to a mere funding

case with few other implications. In light of such diversity of

possibilities, how may the legislatures act? What is permitted?

One may of course say that nothing was overruled in Webster,

for the Court used no such language. However, the notion of

sub silentio reversal is a commonplace in the law. And is the

meaning of a case circumscribed by its proper holding? The

legitimate holding of Roe — if legitimacy be limited to that

permitted by the narrowest holding based upon the specific

facts — was but the tip of the iceberg which comprised the full

meaning of Roe for abortion jurisprudence.

Justice Oliver Wendell Holmes declared that the state of the

law is nothing more than a prediction of what a court will do at a

given time with a given set of facts. Holmes, The Path of the

Law, 10 Harv. L. Rev. 457 (1897). Employing this analysis of

legal realism, the meaning of Webster may be determined by

examining the statements of various Justices, both in Webster

and before, to determine what elements of abortion jurispru-

dence yet enjoy majority support. The result of such analysis

raises significant questions.

1. IS THE ROE TRIMESTER SCHEME OVERRULED

SUB SILENTIO?

It appears from the opinions in Webster that majority sup-

port for the trimester scheme of Roe has disappeared. Justice

O’Connor declared her belief that a state has a compelling

interest in unborn life and maternal health throughout preg-

nancy in her earlier dissents to Akron and Thornburgh. Thorn-

burgh, 476 U.S. at 828 (O’Connor, J., dissenting)(“I . . . remain

of the views expressed in my dissent in Akron. The State has

22

compelling interests in ensuring maternal health and in pro-

tecting potential human life . . . throughout pregnancy.”). With

Chief Justice Rehnquist and Justices White, Scalia, and Ken-

nedy saying the same thing in Webster, it is readily apparent

that a majority of this Court has now recognized these two

interests as existing throughout pregnancy, indicating the

demise of the trimester scheme. Webster, 109 S.Ct. at 3057.

But this Court has not stated this demise in express lan-

guage. Will legislatures feel free to act upon it? By comparison

with the small area of the law this Court settled in Webster, the

areas it unsettled are immense, going to the core of Roe v.

Wade.

2. 1S THE ABORTION RIGHT NOW A LIBERTY

INTEREST?

Similarly, the very nature of a woman's interest in choosing

abortion is now unclear. In Roe, this Court determined that a

woman has a fundamental right to choose abortion, employing

a substantive due process analysis. The Webdster plurality

declared that a woman has only a “liberty interest” in abortion

under the Due Process Clause of the Fourteenth Amendment.

Webster, 109 S.Ct. at 3058. Justice O’Connor, with her advocacy

of the rational basis standard of review in most cases, agrees

that there is no general, fundamental right to abortion. Akron,

462 U.S. at 453 (O’Connor, J., dissenting). However, where

there is an undue burden, she might find a fundamental right,

evidenced by her requiring a compelling state interest to jus-

tify regulation of abortion in such cases. Jd. Thus, there is now

a majority of the Court which no longer believes that there is a

general fundamental right to abortion. But what is the law?

What does the Constitution require?

13 As Justice Scalia would reverse Roe, it is assumed that, to the extent a

fundamentai right to abortion is given continued recognition, he would agree

that there are offsetting compelling interests in maternal health and unborn

life.

23

3. IS AKRON OVERRULED SUB SILENTIO BY

REHABILITATION OF THE UNDULY BURDEN-

SOME TEST?

In Akron, this Court found the unduly burdensome test to

be an unconstitutional form of analysis, forbidden by the dic-

tates of Roe v. Wade itself. Akron, 462 U.S. at 420n.1. Logically

then, any invocation of, or reliance upon, the unduly burden-

some test would be in direct derogation of Roe. However, in

Webster, Justice O’Connor readily relied upon this analysis to

uphold the statutes at issue in Webster and to declare that all of

the Missouri statute could be upheld under prior decisions of

this Court, at the same time arguing that no prior abortion

decision of this Court was sufficiently implicated for purposes

of reconsideration. Webster, 109 S.Ct. at 3060. At a very mini-

mum, however, the resurrection of the unduly burdensome test

implicated Akron, directly rejecting a key holding of that deci-

sion.

Is the unduly burdensome test — as the lowest common

denominator of the current majority on abortion issues — the

proper analysis to be employed by lower courts and legisla-

tures? If Akron is indeed overruled sub silentio, is legislation

such as that found in Akron and in Thornburgh now constitu-

tional?

A further problem arises if Justice O’Connor’s lowest-com-

mon-denominator analysis is now the de facto analysis for

review of abortion legislation. It has been generally thought

since Roe that the fundamental rights analysis required the

showing (1) that the state has a compelling interest and (2) that

the legislation enacted is narrowly tailored to effect only the

compelling interest. Roe, 410 U.S. at 155. But Justice O’Connor

wrote in Akron:

The Court has never required that state regulation that

burdens the abortion decision be ‘narrowly tailored’ to

express only the relevant state interest. In Roe, the Court

mentioned ‘narrowly drawn’ legislative enactments, but the

Court never actually adopted this standard in the Roe analy-

24

sis. In its decision today, the Court fully endorsed the Roe

requirement that a burdensome health regulation, or as the

Court appears to call it, a ‘significant obstacle’ be ‘reasona-

bly related’ to the state compelling interest. The Court

recognizes that ‘[a] state necessarily must have latitude in

adopting regulations of general applicability in this sensitive

area.’

Akron, 462 U.S. at 467 n.11 (O’Connor, J., dissenting)(citations

omitted and case names not italicized in original). Which stan-

dard must abortion legislation now meet — must it be narrowly

tailored or rationally related to a compelling interest?

In sum, Webster has thrown abortion jurisprudence into

disarray. The very core analysis of Roe has been placed in

question: as to the nature of the interest, as to the standard of

review, as to the temporal extent of the states’ compelling

interests, and as to the second prong of the Roe analysis for

legislation burdening (unduly or not?) a fundamental right — if

indeed, there is yet a fundamental right. And if the unduly

burdensome test controls, what does unduly mean? This chaos

alone compels this Court to perform its constitutional duty,

which it avoided in Webster but which exists in these cases, to

say what the law is. |

Ill. EMPLOYING THE PROPER ANALYSIS TO THE

ISSUE OF RECONSIDERATION HEREIN

REVEALS THAT ROE v. WADE SHOULD BE REC-

ONSIDERED IN THESE CASES.

A. THIS COURT SHOULD GO THROUGH THE

FULL ANALYSIS TO DETERMINE WHAT

ISSUES SHOULD BE DECIDED AND ON

WHAT GROUNDS.

It is beyond the scope of this brief — which addresses recon-

sideration of Roe v. Wade — to apply the analysis herein in all of

its respects to the statutes at bar. This Court should take this

opportunity to employ a systematic approach to determine

what issues should be decided and on what grounds. However,

ene eer ne

25

if this Court decides to consider the constitutionality of any

part of the statutes at issue herein, i.e., it finds that it cannot

avoid them by decisions on other than a Constitutional basis,

then it should reconsider Roe, which is the nexus between the

Constitution and the statutes. Roe v. Wade, as both the source

of both the right and analysis to be employed in constitutional

review is clearly implicated for purposes of reconsideration.

B. THE ISSUE OF RECONSIDERATION ITSELF IS

NOT ONE WHICH THIS COURT MAY AVOID IF IT

CHOOSES TO DECIDE THESE CASES AND ISSUE

A WRITTEN OPINION BECAUSE ROE AND ITS

RIGHT AND ANALYSIS ARE CLEARLY IMPLI-

CATED.

In giving a reasoned, legal justification for any decision

reached in these cases, the Court must set forth the proper

constitutional analysis to be employed. This requires recon-

sideration of Roe v. Wade. It is inherent in the analysis as

discussed at length above.

Moreover, although further “implication” is not required, it

is certainly present in these cases. These cases more directly

implicate Roe, in terms of involving more of its analysis and

affecting more periods of pregnancy, than did Webster. Unlike

Webster, which largely involved funding matters (already set-

tled in principle by this Court) and regulation after viability

(where compelling state interests exist even under Roe), the

cases at bar implicate three key elements of Roe, the compel-

ling interests in unborn life and maternal health throughout

pregnancy, the right to effectuate the abortion decision, and

the right to make the abortion decision in consultation with

one’s physician. The statutes at issue in these cases, therefore,

directly impinge upon the right to abortion created in Roe to an

even greater extent than in Webster.

26

3

1. COMPELLING STATE INTERESTS IN MATERNAL

HEALTH AND UNBORN LIFE, WHICH UNDERLIE

THESE STATUTES, ARE ASSERTED THROUGH-

OUT PREGNANCY.

Underlying the Minnesota parental notice statute at issue in

Hodgson are compelling state interests in unborn human life

and in protecting traditional family authority and vulnerable

minors. Indeed, the Minnesota parental notice statute has had

the demonstrated effect of reducing the adolescent abortion

rate — dramatically furthering the State’s compelling interest

in protecting unborn human life.'4 Yet this statute applies

throughout pregnancy, not just after viability.

Furthermore, underlying the Illinois clinic statute at issue in

Turnock are the State’s compelling interests in maternal health

and in unborn life. These likewise apply throughout pregnancy.

The State’s compelling in protecting maternal health is the

14 Statistics from the Minnesota Department of Health indicate that in

Minnesota during 1975-80, before the parental notice statute went into affect,

minors showed the following annual patterns:

1. Pregnancies increased from 4142 to 4360 = an increase of 5%.

2. Births decreased from 2494 to 2033 = a decrease of 19%.

3. Abortions increased from 1648 to 2327 = an increase of 41%.

In the period from 1981-86, following enactment of the statute the following

patterns emerged:

1. Pregnancies decreased from 4360 to 3171 = a decrease of 27%.

2. Births decreased from 2033 to 1626 = a decrease of 20%.

3. Abortions decreased from 2327 to 1545 = a decrease of 34%.

Data from Minnesota Department of Health (adjusted for population fluctua-

tion).

There is no evidence that this dramatic drop in the abortion rate resulted

from teens leaving the state to obtain abortions. Blum, Resnick & Stark, The

Impact of Parental Notification Law on Adolescent Abortion Decision-Mak-

ing, 77 AJPH 619, 620 (1987).

27

principle justification of this regulatory scheme. The State’s

interest in protecting unborn life, however, is also advanced by

the provision requiring counseling concerning alternatives to

abortion. Ill. Rev. Stat. ch. 111 1/2, para. 205.730(b)(3). This

counseling is intended, in part, and has the effect, to cause

women to more seriously consider alternatives to abortion,

thereby decreasing the number of abortions. Unborn lives are

thereby saved.

Thus, for purposes of reconsideration, the holdings of Roe

that the state’s compelling interests in maternal health only

arise after the first trimester and in unborn life after viability

are squarely contradicted. In contrast, Webster involved only

the State’s compelling interest in unborn life after viability.

2. THE RIGHT TO EFFECTUATE THE ABORTION

DECISION IS IMPLICATED.

The right to effectuate the abortion decision is also guaran-

teed by the decisions of this Court. Roe, 410 U.S. at 163. Under

the Illinois statute at issue in Turnock, first trimester abortion

clinics are thoroughly regulated. This again implicates a key

holding of Roe that regulation of the abortion decision and its

effectuation must be left to the woman and her physician in the

first trimester. After that, regulation is only permitted for

protection of the woman's health. In this case, it is asserted that

such regulations are not indicated for the protection of mater-

nal health, and, in any event, these regulations extend into the

forbidden zone of the first trimester. For purposes of recon-

sideration, Roe is sufficiently ‘mplicated.

3. THE RIGHT TO CONSULT ONE’S PHYSICIAN IN

a THE ABORTION DECISION IS FORBID-

Finally, a direct and absolute bar to one of Roe’s key elements

is present in the Illinois provision (at issue in Turnock) which

prevents anyone with a monetary interest in the performance

of the abortion decision from counseling a woman concerning

her abortion decision. Ill. Rev. Stat. ch. 111 1/2, para.

28

205.730(b)(2)(D). As interpreted by the lower courts, this

provision directly conflicts with Roe’s provision that a woman is

free to make her abortion decision “in consultation with her

physician,” Roe, 410 U.S. at 163, because it forbids this con-

sultation. A key holding of Roe is therefore implicated, which

justifies reconsideration of that case.

In sum, this Court ought to reconsider Roe v. Wade if it

decides any constitutional issue in this case; because establish-

ing the standard of review and confirming the right under

which the case is brought are essential to the analysis of con-

stitutionality; because explication of the standard of review is

necessary to providing a reasoned, legal justification for the

judgment; and because key aspects of Roe are implicated by the

statutes themselves.

- on wet as

29

CONCLUSION

For the reasons given herein, this Court should reconsider

Roe v. Wade in its consideration of the cases at bar. Upon

reconsideration, this Court should determine that the doctrine

of stare decisis does not pre« !ade the reversal of Roe v. Wade,"

that, under the correct test for fundamentality, there is no

fundamental right to abortion in the history and tradition of

our nation,'’ and that, therefore, Roe v. Wade should be

reversed.

Respectfully submitted,

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

BRAMES, McCORMICK, BOPP &

ABEL

191 Harding Avenue

Post Office Box 410

Terre Haute, Indiana 47808-0410

(812) 238-2421

Counsel for Amicus Curiae

August 31, 1989

‘6 See Brief Amici Curiae of the Hon. Christopher H. Smith, Alan B.

Mollohan, Vin Weber, Robert K. Dornan, Ear! Hutto, John La Falce, Virginia

Smith, Bill Emerson, Henry H. Hyde, and Gordon J. Humphrey, Members of .

the Congress of United States, in Support of Appellants in Turnock and

Cross-Petitioners in Hodgson.

© See Brief Amicus Curiae of Free Speech Advocates in Support of

Appellants in Turnock v. Ragsdale.

'7 See Brief Amicus Curiae of the American Academy of Medical Ethics in

Support of Appellants in Turnock and in Support of Cross-Petitioners in

Hodgson.