Amicus Curiae Brief — Rust v. Sullivan

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Nos.

In THE

Supreme Court of the United States

October Term, 1990

Dr. IrvinGc Rust, et al.,

Petitioners,

Vv

Louis W. SuLLIVAN, Secretary of Health

and Human Services

THE Strate or NEw York, et al.,

Petitioners,

Vv

Louts W. SuLLIvan, Secretary of Health

and Human Services

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICI CURIAE OF

THE NATIONAL RIGHT TO LIFE COMMITTEE, INC.

AND THE CHRISTIAN LIFE COMMISSION

OF THE SOUTHERN BAPTIST CONVENTION

IN SUPPORT OF RESPONDENT

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

Brames, McCormick, Bopp & Abel

191 Harding Avenue

P.O. Box 410

Terre Haute, Indiana 47808-0410

(812) 238-2421

Counsel for Amici Curiae

September 7, >

“Ew

T AVAILABLE COPY seam

—

STATEMENT OF THE ISSUE DEALT WITH HEREIN

Do the DHHS regulations which require Title X funded

family planning services to be separate from abortion services

provided by a grant recipient sufficiently implicate the sub-

stantive due process abortion privacy right declared in Roe v.

Wade so that Roe v. Wade should be expressly reconsidered in

these cases?

a ee a oe (Mitt ta baal at tit

TABLE OF CONTENTS

Page

STATEMENT OF THE ISSUE DEALT WITH

NE, sow cikn shudinns ch cic oditeced cxchcutsimasss i

TABLE OF COMTMIITE oc civ csi cccccedasivecccces ii

TABLE OF AUTHORITIES ...................006. iv

INTEREST OF THE AMICI ...................00- 1

SUMMARY OF THE ARGUMENT................. 3

AROUND . «bis. chicicscddlssnnssocsenees 4

I. Roe v. Wade Is Sufficiently Implicated In These

Cases to Trigger Express Reconsideration of That

CREB. .cccccsccsvaseneneeninuhes sues amaeee

A. Roe v. Wade Is Implicated in the Framing of the

FOONGD, 66 co onccocdiaspbdatassenaes

B. Roe v. Wade Js Implicated in the Decisions of

Lower Courts Concerning These Regulations. .

C. Roe v. Wade Is Sufficiently Implicated for Recon-

sideration Under the Principles Employed by

This Court in Patterson v. McLean Credit Union.

D. This Court Has a Duty to Give a Reasoned Legal

Justification for Its Decisions. ...............

II. This Court Has Adopted a Standard of Review in Its

Recent Abortion Decisions Which is Inimical to Roe

O WEE oc ccecccesdcuconueebewnaneameiaeess

III. The Failure of This Court to Fulfill Its Duty to

Expressly Declare What the Law Is With Regard to

Abortion Has Lead to Chaos in the Law. .........

IV. Stare Decisis Does Not Prevent Reconsideration of

Roe v. Wade In These Cases. ..............ee00:

ii

13

19

V. Therefore, This Court Should Expressly Reconsider

Roe v. Wade In These Cases and, Upon Express

Reconsideration, Overrule It. .............--5+.

COMICEATIIOIN ove cc ccc secs cece sccceccesecesees

23

TABLE OF AUTHORITIES

CASES: Page

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

GaP EEE wnntcbunscaceedbawe sn aeek 6, 9-10, 14-15, 19

Arnold v. Board of Educ. of Escambia County, Alabama,

880 F.2d 305 (11th Cir. 1989) .................... 17

Bowers v. Hardwick, 106 S.Ct. 2841 (1986) ........... 22

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1932) 19

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

Doe v. Bolton, 410 U.S. 179 (1978) .............0000e 2,6

Florida Women’s Clinic, Inc. v. Smith, No. 79-60603, slip

i Ge a ee BBD vids onc wddeekebueiac: 17

Guam Society of Obstetricians et al. v. Ada et al., No.

90-00013, slip op. (D. Guam Aug. 23, 1990) ....... 16

Harris v. McRae, 448 U.S. 297 (1980) ................ 4

Hodgson v. Minnesota, 110 S.Ct. 2926 (1990) ..!... passim

In Re Air Crash Disaster at Detroit Metropolitan Airport

on August 16, 1987, 747 F. Supp. 427 (E.D. Mich.

SN oc vn n0s OMAR EA GEG 6UEMEE Hee Cb aece ¢ 17-18

Lewis v. Pearson Foundation, Inc., [sic], slip op.

Se a inc cc ccctecencccsecce 17

Marbury v. Madison, 1 Cranch 137 (1803) ............ 6-7

Massachusetts v. Secretary of Health and Human Ser-

vices, 873 F.2d 1528 (1st Cir. 1989) .............. 5, 17

Michael H. v. Gerald D., 109 S.Ct. 2333 (1989) ........ 22

Moore v. East Cleveland, 431 U.S. 494 (1977) ......... 22

iv

New York v. Sullivan, 889 F.2d 401 (2d Cir. 1989) ..... 5

Ohio v. Akron Center for Reproductive Health, 110 S.Ct.

GORE atin Xe neve chaatcsbuctocccsttcceun passim

Patterson v. McLean Credit Union, 109 S.Ct. 2363

Ce Li linc cer ademehs deb os cob bias 5, 6, 7, 20-21

Planned Parenthood of Central Missouri v. Danforth, 428

ED on eL DEEN dib Gobo owdges cuendekes 25

Planned Parenthood of Southeastern Pennsylvania et al.

v. Casey et al., No. 88-3228, slip op. (E.D. Pa. Aug.

LNs cunechsWanoatwerve stese ceensceeenen 16-20

Planned Parenthood v. Minnesota, 1990 W.L. 108384 (8th

GS s cecuuh ob bcne chp sc do eees 6cctmeda se 16

Rodriquez de Quijas v. Shearson/American Express,

Fis PE EE MD hin cc ce etcccsceseccdee 18

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

Runyon v. McCrary, 427 B.S. 160 (1976)............. 5

Simopolous v. Virginia, 462 U.S. 506 (1983) .......... 24

Thornburgh v. American College of Obstetricians

and Gynecologists, 476 U.S. 747 (1986) .... 9-10, 21, 24

Webster v. Reproductive Health Services, 109 S. Ct. 3040

CE Lapse eee aed entibase seeks se ebhées passim

CONSTITUTION AND STATUTES:

Se ant cebveteesvdes cocccccestincsns 5

OTHER AUTHORITIES:

Benshocf, Kolbert, Paltrow & Pine, Summary and Legal

Analysis of Webster v. Reproductive Health Serv-

BOGE TD EICRE CUED 0b vc Weer ccsceccccces 13

Blaustein & Field, “Overruling” Opinions in the Supreme

Court, 57 Mich. L. Rev. 151 (1958) .............. 20

Bopp & Coleson, The Right to Abortion: Anomalous,

Absolute, and Ripe for Reversal, 3 B.Y.U. J. Pub.

SANE Fee CHUN Raed iccccscedeveccderescs 9, 11, 21, 23

Bopp & Coleson, Webster and the Future of Substantive

Due Process, 28 Duq. L. Rev. 271 (1990) ......... 23

Bopp & Coleson, What Does Webster Mean?, 138 U. Pa.

Ba Fs PUT 2 dc caver cbuaebe sede evacue ade 13

Brief of Petitioners, New York et al. v. Sullivan, No.

SEE Mean cnc cintnsmaaneeseg nereen tedmer 5

Brief of Petitioners, Rust et al. v. Sullivan, No. 89-139) 5

Congressional Research Service, The Constitution of the

United States, Analysis and Interpretation

RD SEE his ove vi hk a5 Klas dc ddee de vis 12, 20

Dellapenna, Brief of the American Academy of Medical

Ethics, as Amicus Curiae, Minnesota v. Hodgson,

110 S.Ct. 2926 (1990) (No. 88-1309) .............. 22

Dellinger & Sperling, Abortion and the Supreme Court:

The Retreat from Roe v. Wade, 138 U. Pa. L. Rev. 83

GB dd BAG 6 THs La eT 6? bb de oF Agere sans 8, 13

Maltz, Some Thoughts on the Death of Stare Decisis in

Constitutional Law, 1980 Wis. L. Rev. 467 ....... 19

Robertson, The Future of Early Abortion, A.B.A. J., Oct.

Ss We Ue ads o's Vance candi dd hes eeasadariad sees 13

Nos. 89-1391, 89-1392

In THE

Supreme Court of the United States

October Term, 1990

Dr. IrvinG Rust, et al.,

Petitioners,

Vv

Louis W. SULLIVAN, Secretary of Health

and Human Services

THE STATE oF NEw York, et al.,

Petitioners,

V.

Louis W. SuLLIVAN, Secretary of Health

and Human Services

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICI CURIAE OF

THE NATIONAL RIGHT TO LIFE COMMITTEE, INC.

AND THE CHRISTIAN LIFE COMMISSION

OF THE SOUTHERN BAPTIST CONVENTION

IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICI!

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

organization whose purpose is to promote respect for the worth

! This brief is filed with permission of all the parties. Letters of permission

have been filed with the Clerk of this Court.

l

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 about 3,000

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 sponsors 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 National Right

to Life Committee, Inc. has advocated and encouraged new

DHHS regulations to rid Title X funded family planning of the

taint of abortion, in compliance with the intent of Congress not

to fund programs where abortion is a method of family plan-

ning. The National Right to Life Committee, Inc. seeks to

advance its interests by supporting the DHHS regulations at

issue herein.

The Christian Life Commission of The Southern Baptist

Convention is the agency of the Convention charged by the

Convention with assisting Southern Baptists in understanding

the moral demands of the Christian faith and helping Southern

Baptists apply Christian principles to moral and social prob-

lems. The Southern Baptist Convention, the nation’s largest

Protestant denomination, with 38,000 member churches and

14.9 million church members, has assigned the Christian Life

Commission of The Southern Baptist Convention the specific

task of addressing issues such as abortion.

SUMMARY OF THE ARGUMENT

Roe v. Wade is sufficiently implicated in these cases for this

Court to use this occasion to revisit its decision in Roe v. Wade.

Examination of this Court's latest decisions in abortion cases

reveals a reliance on an analysis inimical to that established in

Roe. Therefore, Roe has been sub silentio reversed. While this

Court has reconsidered and overruled Roe sub silentio, this ,

Court's failure to do so expressly has resulted in chaos in the

law. The lower courts do not know what standard to apply in

reviewing legislation touching on abortion.

This Court has a constitutional duty to provide a reasoned

legal justification for its decision, which requires it to expressly

-reconsider Roe v. Wade in these vases. The doctrine of stare

decisis does not prevent this Court from performing this duty.

Upon express reconsideration, Roe v. Wade should be over-

ruled, for there is no fundamental right to abortion under the

tests established by this Court for determining fundamental

rights.

4

ARGUMENT

I. Roe v. Wade Is Sufficiently Implicated In chese Cases

to Trigger Express Reconsideration of That Case.

In these cases, the abortion privacy right declared in Roe v.

Wade, 410 U.S. 113, is at issue.? This is clear (1) from the

framing of the issues by Petitioners State of New York, et al.,

(2) from the decision of the First Circuit and other lower

courts, which rely on Roe v. Wade in striking down these

regulations, (3) from the principles employed by this Court in

reconsidering precedent, and (4) from the constitutional obli-

gation of this Court to ive a sufficient legal rationale for its

decisions.

A. Roe v. Wade Is Implicated in the Framing of the Issues.

That Roe v. Wade is at issue in the cases at bar is evident

from the framing of the issues by Petitioners State of New

York, et al.. The third issue stated by these Petitioners is:

Does the regulations’ prohibition of abortion counseling

and referral in a Title X-funded program violate the

woman’s constitutionally protected privacy right to make

a fully informed decision on whether or not to continue her

pregnancy.

Brief of Petitioners at i (Issue 5), New York et al. v. Sullivan,

No. 89-1392; cf. Brief of Petitioners at i (Issue 2), Rust et al. v.

Sullivan, No. 89-1391.

The key to this issue is the presence or absence of a constitu-

tional abortion privacy right. If there is no fundamental abor-

2 The abortion privacy right declared by Roe was found in the Fourteenth

Amendment to the United States Constitution, which applies only to the

states. A comparably worded due process clause is found in the Fifth Amend-

ment, which applies to the federal government. The fact that this Court found

within the Fourteenth Amendment due process clause an abortion right does

not automati cally dictate that one must be found in the Fifth Amendment's

liberty clause. The prior decision of this Court in which a distinction could

have been made between these two clauses was Harris v. McRae, 448 U.S.

297 (1980). In that case, however, the issue was avoided. For present pur-

poses, these two clauses will be treated as equivalent.

tion privacy right, then the regulations herein are subject to

the rational basis test. If such a right exists, as declared by

Roe, then strict scrutiny is required. In this way, the standard

of review of the regulations is determined.

B. Roe v. Wade Is Implicated in the Decisions of Lower

Courts Concerning These Regulations.

The issues of this case have been litigated in several federal

jurisdictions. In the decisions of these courts, Roe v. Wade has

been at issue. Although the Second Circuit found that the right

declared in Roe was not violated by these regulations, New

York v. Sullivan, 889 F.2d 401, 410 (2d Cir. 1989), the First

Circuit held that the new regulations “constitute[] a govern-

ment created obstacle in violation of Roe v. Wade and its

progeny.” Massachusetts v. Secretary of Health and Human

Services, 873 F.2d 1528, 1545 (1st Cir. 1989).

Thus, the reach of Roe v. Wade, along with its continued

vitality, is clearly at issue in these cases. Indeed, the very fact

that this case involves abortion rights implicates Roe v. Wade,

as discussed below, for there is no fundamental right to abor-

tion without Roe v. Wade.

C. Roe v. Wade Is Sufficiently Implicated for Recon-

sideration Under the Principles Employed by This

Court in Patterson v. McLean Credit Union.

Where a claimed violation of one’s right is asserted, the

presence or absence of that right is logically at issue. This

precise logic guided this Court in its decision in Patterson v.

McLean Credit Union, 109 S.Ct. 2363 (1989), to reconsider

Runyon v. McCrary. 427 U.S. 160 (1976). In Patterson, the

plaintiff brought an action based upon the statutory right

created by an interpretation of 42 U.S.C. § 1981 in Runyon,

i.e., that § 1981 encompasses a private contract between an

employer and employee, and the Court found it appropriate to

revisit the case that created that right in such a context.

The rule derivable from Patterson is that it is sufficient for

reconsideration of a prior case if the right created by the prior

case is the basis of the claim in a later case. This common-sense

approach normally governs the Court in deciding when recon-

sideration is appropriate.

However, the majority which decided Webster v. Reproduc-

tive Health Services, 109 S. Ct. 3040 (1989), disagreed over

whether and to what extent Roe v. Wade should be expressly

reconsidered. The failure of a majority to agree to reconsider

Roe was based upon an analysis contrary to that employed in

Patterson. The result of this refusal to provide an adequate

justification for its decision and thereby to declare what the

law is in the area of abortion has left abortion law in chaos.

The abortion privacy right is fairly at issue in this case, and

nothing is served by seeking to avoid the issue. Rather, a

tremendous disservice would be done to the nation. Dis-

tinguishing the degrees of implication of a seminal case — one

which creates the right or analysis under which the cause of

action arose — is unnecessary. Such a seminal 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 appropriate under the principle that

the decision of all matters necessary to a reasoned justification

of the Court’s decision — including establishment of the stan-

dard of review — is constitutionally necessary.

The result of the failure of the Court to employ a consistent

analysis with regard to reconsideration has resulted in turmoil

and confusion in abortion jurisprudence, as more fully set forth

below. It further resulted in the failure of a majority of the

Court to expressly address a decision, Roe, which five Justices

have declared to be constitutionally flawed. See, e.g., Roe, 410

U.S. at 171 (Rehnquist, J. dissenting); Bolton, 410 U.S. at 179

(White, Rehnquist, J.J., dissenting); Akron v. Akron Center

for Reproductive Health, 462 U.S. 416, 452 (1983) (O’Connor,

White, Rehnquist, J.J. dissenting); Webster, 109 S.Ct. at

3054-58 (Rehnquist, C.J., joined by White and Kennedy, J.J.,

plurality opinion); id. at 3064 (Scalia, J.J., concurring in part

and concurring in the judgment).

D. This Court Has a Duty to Give a Reasoned Legal Justi-

fication for Its Decisions.

_ “It is emphatically the province and duty of the judicial

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

Cranch 137, 177 (1803) (emphasis added). The duty to decide,

when constitutionally required, is illustrated by Justice Mar-

shall in Marbury, where he felt compelled, in giving an ade-

quate legal justification for his decision, to comment on mat-

ters 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 principles on which the opinion to be given by the

Court is founded.

Marbury, 1 Cranch at 154 (emphasis added).

To this comment must be added another of Justice Mar-

shall’s remarks in the case of Cohens v. Virginia, 6 Wheat 264

(1821):

Questions may occur which we would gladly avoid; but we

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

judgment and conscientiously to perform our duty.

Id. at 404 (emphasis added).

The duty of the Court is to provide a sufficient legal justifica-

tion for its ruling. The standard of review of a law — whether it

is the rational basis test or strict scrutiny — is an essential, and

therefore unavoidable, part of this Court’s legal duty to pro-

vide a justification for its ruling. If a prior case has established

one standard of review, but the Court is persuaded that the

Constitution requires another, the prior case must necessarily

be reconsidered; and if found contrary to the Constitution,

overruled. Whether a fundamental abortion right exists — and

is thereby implicated — determines the standard of review to

be employed by the Court. If a prior case declares that such a

fundamental right exists, but this Court is persuaded other-

wise, the express reconsideration and overruling of that case is

required. Only by establishing the presence or absence of a

fundamental right, and the analysis derived thereby to be

applied to the law at issue, does this Court provide the legal

justification for its decision, which the Court is required by the

Constitution to do.

The Nation presently needs this Court te clarify the state of

abortion law, for, as noted in a later section, the lower courts

do not even know what standard of review to apply to abortion

cases. This is due to this Court’s failure to provide a legal

justification for its ruling in Webster v. Reproductive Health

Services, 109S.C. 3040, Hodgson v. Minnesota, 110S.Ct. 2926

(1990), and Ohio v. Akron Center for Reproductive Health, 110

S.Ct. 2972 (1990). This duty should be fulfilled herein.

Il. This Court Has Adopted a Standard of Review in Its

Recent Abortion Decisions Which Is Inimical to Roe

v. Wade.

On June 25, 1990, this Court handed down its latest decisions

on abortion. These decisions, Hodgson v. Minnesota, and Ohio

v. Akron Center for Reproductive Health, confirm the radical

change in abortion jurisprudence indicated by this Court’s

decision in Webster v. Reproductive Health Services. This

Court’s decisions in Hodgson and Ohio demonstrate that a

majority of this Court has now abandoned the key underpin-

ning of the Roe v. Wade decision — that there is a general

“fundamental right to abortion.” By so doing, this Court has

sub silentio overruled Roe v. Wade. But the Court has refused

to make this clear by expressly reconsidering Roe.

The failure of this Court to say expressly what it is doing

implicitly and to provide the necessary legal justification has

triggered stinging criticism on the Court. Justice Blackmun,

writing in his dissent in Webster, observed that the plurality

has “gone about its business in . . . a deceptive fashion. . .

[which] obscures the portent of its analysis.” Webster, 109

S.Ct. at 3067 (Blackmun, Brennan, Marshall, J.J., concurring

in part and dissenting in part). Commentators correctly point

out that the Webster plurality “eviscerate[d] . . . without

explaining what, if anything, was wrong with the decision.”

Dellinger & Sperling, Abortion and the Supreme Court: The

Retreat from Roe v. Wade, 138 U. Pa. L. Rev. 83, 83-84 (1989).

Thus, “(t]he Court’s prevailing opinion . . . failed to meet the

most minimal standards of sound judicial decisionmaking.” Jd.

at 83.

The rationale employed by this Court in Hodgson and Ohio

was dramatically different from that of Roe v. Wade. Under

Roe v. Wade, this Court held that abortion is a fundamental

right, meaning that the state must show a compelling state

interest to regulate abortion. See Akron v. Akron Center for

Reproductive Health, 462 U.S. at 420 n.1. The Court created a

trimester scheme whereby it recognized a compelling interest

in maternal health arising at the end of the first trimester and a

compelling interest in “potential” human life arising at fetal

viability. Roe, 410 U.S. at 162-63. Despite these compelling

interests, the task of regulating abortions has proven

extremely difficult. See generally Bopp & Coleson, The Right

to Abortion: Anomalous, Absolute, and Ripe for Reversal, 3

B.Y.U. J. Pub. L. 181 (1989).

Prior to Roe, abortion was, at most, a “liberty interest”

which meant that the state needed only to show a rational basis

for any restriction on abortion, because abortion did not enjoy

any special constitutional protection. See Roe, 410 U.S. at

172-73 (Rehnquist, J., dissenting). Chief Justice Rehnquist

and Justice White dissented in Roe v. Wade on the grounds

that abortion was not a fundamental right but only a liberty

interest which was subject to the rational basis test. /d.;

Thornburgh v. American College of Obstetricians and

Gynecologists, 476 U.S. 747, 788-97 (1986) (White, J., dissent-

ing). |

In Webster, Justice Kennedy joined Chief Justice Rehnquist

and Justice White in the plurality opinion which declared that

abortion was “a liberty interest protected by the Due Process

Clause.” Webster, 109 S.Ct. at 3058 (plurality opinion) (in

contradistinction to a “fundamental right” or “limited funda-

mental constitutional right”).

In Hodgson and Ohio, Justices Scalia and O’Connor joined

with the Webster plurality in applying the rational basis test to

uphold the Ohio parental notice statute, Ohio, 110 S. Ct. at

2977,°, the Minnesota 48-hour waiting period, Hodgson, 110S.

’ The plurality employed the rational-basis test explicitly in several pas-

sages, e.g., “the Legislature acted in a rational manner;” “It is both rational

and fair;” and “The statute in issue here is a rational way to further those

ends.” Jd. at 2983-2984.

10

Ct. at 2960 (Scalia, J., concurring in the judgment in part and

dissenting in part); id. at 2944 (Stevens, O’Connor, J.J.) (the

48-hour waiting period “reasonably further[s] the legitimate

state interest in ensuring that the minor’s decision is knowing

and intelligent.” (emphasis added)), and the Minnesota two-

parent notification requirement with a judicial bypass.

Hodgson, 110 8. Ct. at 2949 (O’Connor, J., concurring in part

and concurring in the judgment in part).

Thus, a new five-member majority has emerged on this

Court, prepared to review and uphold abortion statutes under

the rational basis test.° Because the analysis employed by the

new abortion majority in Hodgson and Ohio (applying the low-

level scrutiny) is inimical to Roe v. Wade (requiring strict

pr Roe has, in fact, been supplanted and is implicitly

overruled.

Justice Scalia would have expressly overruled Roe in Web-

ster, 109 S. Ct. at 3064 (The plurality opinion “effectively

° While all members of the new abortion majority agree that there is no

general fundamental right to abortion, Justice O’Connor recognizes a limited

fundamental right to abortion where restrictions on abortion impose an

“undue burden.” Akron, 462 U.S. at 453. This triggers strict scrutiny in cases

where such a burden exists. Justice O’Connor defines as undue those burdens

arising from restrictions which impose “absolute obstacles or severe limita-

tions on the abortion decision.” /d. at 464. Even where there is an undue

burden, leading to heightened scrutiny, Justice O’Connor recognizes compel-

ling interests in protecting unborn life and maternal health throughout preg-

nancy. Thornburgh, 476 U.S. at 828 (O’Connor, J., dissenting). These would

be sufficient to uphold abortion restrictions, even where an undue burden

required strict scrutiny. Justice O’Connor explicitly employed this analysis in

Akron to vote to uphold a 24-hour waiting period from the time when women

received state-prescribed information about abortion and fetal development

to the time when they could give consent:

Assuming arguendo, that any additional costs are such as to impose an

undue burden on the abortion decision, the State's compelling interests

in maternal physical and mental health and protection of fetal life

clearly justify the waiting period. ... The decision . . . has grave

consequences for the fetus, whose life the State has a compelling

interest to protect and preserve. ‘(No other [medical] procedure

involves the purposeful termination of a potential life.’ Akron, 462 U.S.

at 473-74 (O'Connor, J., dissenting) (citation omitted).

ll

would overrule Roe v. Wade [citation omitted]. I think that

should be done, but would do it more explicitly.”), and then in

Hodgson, 110 S.Ct. at 2961 (“I continue to dissent from this

enterprise of devising an Abortion Code, and from the illusion

that we have authority to do so.”), and Ohio. 1108S. Ct. at 2984

(Scalia, J., concurring) (“The Court should end its disruptive

intrusion into. . . [the abortion] field as soon as possible.”).

The plurality of Chief Justice Rehnquist, and Justices White

and Kennedy, voted to expressly overrule Roe’s trimester

scheme in Webster, 109 S.Ct. at 3056-58 (plurality opinion)

(finding that the trimester division is “not found in the text of

the Constitution or in any place else one would expect to find a

constitutional principle” and that the state’s interest in pro-

tecting unborn life “if compelling after viability, is equally

compelling before viability,” (quoting Thornburgh, 476 U.S. at

795 (White, J., dissenting)) and, thus, declaring that “[(t]o the

extent indicated in our opinion, we would modify and narrow

Roe and succeeding cases.”), but avoided Roe in Hodgson and

Ohio by finding that these statutes were consistent with Roe’s

progeny concerning parental notice and consent. 110 S. Ct. at

2978 (citing Planned Parenthood of Central Missouri v. Dan-

forth; Bellotti v. Baird; H.L. v. Matheson; Planned Parent-

hood Association of Kansas City, Mo., Inc., v. Ashcroft;

Akron v. Akron Center for Reproductive Health, Inc. (cita-

tions omitted)).

Justice O’Connor found “no necessity . . . to reexamine” Roe

in Webster, because the statutes could be upheld under exist-

ing precedent, 109 S.Ct. at 3060-61, and in Hodgson and Ohio

because she employed the rational basis test. To the extent

that Justice O’Connor was relying upon her “unduly burden-

some” test, in Webster, id. at 3063, she was directly “implicat-

ing” Roe because this Court in Akron v. Akron Center for

Reproductive Health had held this test unconstitutional under

Roe. Akron, 462 U.S. at 420 n.1. Furthermore, applying the

rational basis test to uphold the Hodgson and Ohio statutes is

clearly contrary to Roe, as the dissenters correctly pointed

out. Hodgson, 110 S. Ct. at 2951; Ohio, 110 S. Ct. at 2984.

It is not unusual, however, for this Court to abandon prior

precedent without expressly overruling it. Of the 184 cases

12

identified by the Library of Congress as having overruled prior

precedent, it’s researchers found that, “[wJhile the Supreme

Court sometimes expressly overrules a prior decision, in a

great many instances the overruling must be deduced from the

principles” of the cases. Congressional Research Service, The

Constitution of the United States, Analysis and Interpreta-

tion 2117-27 & Supp. (1988).

However, the Court’s reluctance to say expressly what it is

doing implicitly can leave the People, the legislatures, and

even the courts uncertain of what course the Court is follow-

ing. This is compounded when some dissenting Justices disin-

genously proclaim that “Roe remains the law of the land,”

Hodgson, 110 S. Ct. at 2952 (Marshali, J., concurring in part,

concurring in the judgment in part, and dissenting i in part); see

also Webster, 109 S.Ct. at 3067 (Blackmun, J., concurring in

part and dissenting i in part) (“For today, at least, the law of

abortion stands undisturbed.” Jd. at 3079.), while finding that

the state abortion statutes, upheld by the Court, were uncon-

roan s under Roe. Roe clearly does not remain the law of

the land.

One looks in vain for even a passing reference to Roe v. Wade

in any majority opinion in Hodgson and Ohio. Only in the

dissenting opinions of Justice Marshall (joined by Justices

Brennan and Blackmun), in Hodgson, 110 S. Ct. at 2951, and

Justice Blackmun (joined by Justices Brennan and Marshall),

in Ohio, 110 S. Ct. at 2984, was Roe v. Wade even mentioned.

In each case, the dissent explicitly reaffirmed Roe and applied

its analysis to declare unconstitutional all provisions of the

Minnesota and Ohio statutes. In these cases, the strict

jw ney to Roe v. Wade and its progeny numbered only three

ustices.

The analysis used in Roe v. Wade has become virtually

irrelevant in deciding abortion cases, because neither the

heightened scrutiny employed by Roe for reviewing abortion

restrictions affecting adujt women nor the intermediate scru-

tiny required under Roe for restrictions affecting minors is

being applied by the majority of this Court. The new analysis is

the rational basis test — as if there is no fundamental right to

abortion. Application of this lowest level of constitutional scru-

tiny to abortion restrictions is in direct contradiction of Roe.

UR a ——

13

Ill. The Failure of This Court to Fulfill Its Duty to

Expressly Declare Whai the Law Is With Regard to

Abortion Has Lead to Chaos in the Law.

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, see, e.g.,

Dellinger & Sperling, Abortion and the Supreme Court: The

Retreat from Roe v. Wade, 138 U. Pa. L. Rev. 83 (1989); Bopp

& Coleson, What Does Webster Mean?, 138 U. Pa. L. Rev. 157

(1989), to a sub silentio reversal of the trimester scheme and

the Court’s pronouncements in Akron and Thornburgh, see,

e.g., Robertson, The Future of Early Abortion, A.B.A. J.,

Oct. 1989, at 73, to a mere funding case with few other implica-

tions. See, e.g., Benshoof, Kolbert, Paltrow & Pine, Summary

and Legal Analysis of Webster v. Reproductive Health Serv-

ices, BioLaw U:1497 (1989). In light of such diversity of pos-

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

The significance of this change is in the standard of review

now employed by the Court. Viewed as a fundamental right,

strict scrutiny is employed and virtually no restriction on

abortion is upheld. However, when viewed only as a “liberty

interest,” as a majority of the Court now does,’ abortion

restrictions must only be rationally related to a legitimate

state interest with the result that nearly all restrictions on

abortion are constitutional. See generally Bopp & Coleson,

What Does Webster Mean?, 138 U. Pa. L. Rev. 157 (1989).

6 See generally Bopp & Coleson, What Does Webster Mean?, supra. See also

Webster, 109 S.Ct. at 3068 n. 1 (Blackmun, J., concurring in part and dissent-

ing in part); Hodgson, 110 S.Ct. at 2951 (Marshall, J., concurring in part,

concurring in the judgment in part, and dissenting in part); Ohio, 110 S.Ct.

2984 (Blackmun, J., dissenting).

7 Webster, 109 S.Ct. at 3058 (plurality opinion) (abortion characterized as “a

liberty interest protected by the Due Process Clause, which we believe it to

be.” (emphasis added); Hodgson, 110 S.Ct. at 2949 (O’Connor, J., concurring

in part and concurring in the judgment in part) (“This Court extended that

liberty interest to minors . . .” (citations omitted) (emphasis added)).

14

Given that the Court has not stated this change in analysis in

express language, will the states feel free to act upon it? The

Court’s lack of candor in stating expressly what it has done

implicitly multiplies confusion in abortion jurisprudence and in

the legislatures.

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

abortion is now unexplained. In Roe, the Court determined

that a woman has a fundamental right to choose abortion,

employing a substantive due process analysis. The Webster

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 b:y her requiring a compelling

state interest to justify regulation of abortion in such cases.

Akron, 462 U.S. at 453 (O’Connor, J., dissenting). Thus, there

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

there is a general fundamental right to abortion.

In Akron, the Court found the unduly burdensome test to be

an unconstitutional form of analysis, forbidden by the dictates

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

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

decision of the Court was sufficiently implicated for purposes

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

minimum, however, the resurrection of the unduly burden-

some test implicated Akron because it directly rejected a key

holding of that decision.

Is the unduly burdensome test — as the lowest common

15

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? This Court’s decisions in Hodgson and Ohio indicate

that the answer is yes. In Hodgson and Ohio, five Justices

analyzed and upheld the parental notification statutes under a

rational basis standard. Hodgson, 110 S.Ct. at 2927; Ohio, 110

S.Ct. at 2972. This is a dramatic transformation in the way

abortion statutes have been reviewed by the Supreme Court.

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 legisiation enacted is narrowly tailored to effect only the

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

nor 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 enact-

ments, but the Court never actually adopted this stan-

dard in the Roe analysis. 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 ‘reasonably 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) (cita-

tions omitted and case names not italicized in original).

Which standard must abortion legislation now meet — must

it be narrowly tailored or rationally related to a compelling

interest?

16

In sum, Webster, Hodgson, and Ohio overturned the abor-

tion jurisprudence established by Roe. The very core analysis

of Roe has been drawn into question: as to the nature of the

interest, as to the standard of review, as to the temporal

extei.t of the states’ compelling interests, and as to the second

prong of the Roe analysis for legislation burdening a funda-

mental right — if indeed, there is yet a fundamental right. The

Court has failed to state explicitly what it has done and has not

given a reasoned justification for it. This failure alone is a

compelling reason why this Court should proceed to perform

its constitutional duty to provide such justification, which it

avoided in Webster, Hodgson, and Ohio.

Another reason for this Court to proceed to a reconsidera-

tion of Roe is that the lower courts are already differing widely

in their understanding of the standard of review in abortion

cases. In Planned Parenthood v. Minnesota, 1990 W.L.

108384 (8th Cir. 1990) the Eighth Circuit remarked in its

review of a fetal remains disposal statute, “Prior to Webster,

we believe the statute would have been reviewed under the

strict scrutiny standard . . . In Webster, however, the Supreme

Court appears to have adopted a less rigorous standard of

review than the strict scrutiny analysis . . .” Jd. at 5.

By contrast, the United States District Court for the Ter-

ritory of Guam made absolutely no mention of Webster,

Hodgson, or Ohio, or the views of the current majority of the

Justices of this Court in striking Guam’s recently enacted

abortion law. Guam Society of Obstetricians et al. v. Ada et

al., No. 90-00013, slip op. (D. Guam August 23, 1990). Rather,

the Guam District Court merely relied on Roe v. Wade as if

nothing had happened to affect that decision. /d. at 14.

The United States District Court for the Eastern District of

Pennsylvania did take note of Webster, Hodgson, and Ohio in

its recent opinion in Planned Parenthood of Southeastern

Pennsylvania et al. v. Casey et al., No. 88-3228, slip op. (E.D.

Pa. Aug. 24, 1990). However, it concluded that abortion juris-

prudence had not been altered in the least: “For now, at least,

17

the law of abortion remains undisturbed, because only the

United States Supreme Court has the power to change it.” Jd.

at 190. Thus the District Court reviewed Pennsylvania’s com-

prehensive abortion legislation under strict scrutiny, requir-

ing the State to show both a compelling state interest for its

legislation and that the legislation was “narrowly tailored to

the precise compelling interest at stake.” Jd. at 135.

The Pennsylvania District Court reached this conclusion by

repeated reliance on the statements of the dissenters in Web-

ster, Hodgson, and Ohio to the effect that Roe remained the

law of the land. /d. at 132 n.29, 136, 138, 190-91. Moreover, the

district court strongly advocated Roe’s abortion doctrine as

proper, contrary to the views of the new majority on this Court

concerning abortion, and rejected criticisms of Roe by Justices

O’Connor and Scalia. Jd. at 132 n.29, 190-91.

The Pennsylvania District Court opinion highlights in three

further ways the need for this Court to id apt what it

hee done implicitly. First, the court set forth a list of lower

court decisions which declared that abortion law remained

unaltered from the analysis of Roe:

Lewis v. Pearson Foundation, Inc., F.2d _, (slip

op. at 5) (8th Cir. July 10, 1990) (Webster and Hodgson

both “recognized the continuing viability of Roe v. Wade”

and, therefore, Roe v. Wade remains controlling); Mas-

sachusetts v. Secretary of Health and Human Services,

899 F.2d 53, 54 (1st Cir. 1990) (“The [Webster] Court

relied upon and reaffirmed the holdings of McRae and

Maher v. Roe... and upheld the validity of Roe v.

Wade”); Arnold v. Board of Educ. of Escambia County,

Alabama, 880 F.2d 305, 311 & n.6 (11th Cir. 1989)

(reaffirming the principles of Roe v. Wade and concluding

that Webster did not affect its decision); Florida Women’s

Clinic, Inc. v. Smith, No. 79-60603, slip op. at 2S.D. Fla.

Aug. 1, 1990) (“Defendants|’] reading of Webster is simply

wrong. Webster did not overrule or modify Roe”); In Re

Air Crash Disaster at Detroit Metropolitan Airport on

15

August 16, 1987, 747 F. Supp. 427, 429 (E.D. Mich. 1989)

(“The Webster Court neither overturned Roe with respect

to viability nor found as a matter of law that viability

occurs at twenty weeks”).

Id. at 136-37. This demonstrates the resistance of many lower

courts to applying the analysis now employed by this Court in

abortion cases until this Court explicitly states that the analy-

sis of Roe v. Wade no longer applies.

Second, the Pennsylvania district court set forth a state-

ment by this Court assertedly applicable to the state of abor-

tion law, which will be a pattern for many lower courts hostile

to the actions of this Court in Webster, Hodgson, and Ohio, as

the Pennsylvania district court is. Jd. at 190-91. These courts

will refuse to follow the analysis employed by this Court in

recent abortion cases without more express statements of this

Court’s rationale. This principle asserted by the Pennsylvania

district court is that:

If a precedent of this Court has direct application in a

case, yet appears to rest on reasons rejected in some line

of decisions, the Court of Appeals should follow the case

which directly controls, leaving to this Court the pre-

rogative of overruling its own decisions.

Id. at 129 (quoting Rodriquez de Quijas v. Shearson/American

Express, Inc., 109 S.Ct. 1917 (1989)). Although the analysis

applied by this Court in the most recent cases should control

the analysis employed by lower courts, many lower courts will

insist on applying Roe’s analysis until this Court makes

express what is now implicit.

Third, the Pennsylvania district court struck down legisla-

tion which a majority of this Court now clearly would approve,

as evidenced by prior opinions and by expressed analysis. For

example, the Pennsylvania district court struck down a statute

requiring a 24-hour waiting period from the giving of a

woman’s informed consent to the performance of the abortion.

Id. at 142-44. The district court declared the issue “identical to

19

the issue addressed by the Supreme Court in« ron.” Id. at

143. The Pennsylvania court, however, totally ignored the fact

that Justice O’Connor, joined by Justices Rehnquist and

White, dissented in that case, Akron, 462 U.S. at 474, and that

Justice Scalia and Kennedy would apparently agree, judging

by the analysis employed in opinions they have since authored

and joined. Some courts will continue to ignore the law as

expressed by a current majority of this Court on abortion

issues until these views are set forth in a manner which lower

courts cannot avoid.

IV. Stare Decisis Does Not Prevent Reconsideration of

Roe v. Wade In These Cases.

In his dissent in Burnet v. Coronado Oil & Gas Co., 285 U.S.

393 (1932), Justice Brandeis declared the following:

Stare decisis is usually the wise policy, because in most

matters it is more important that the applicable rule of

law be settled than it be settled right. This is commonly

true even where the error is a matter of serious concern,

provided correction can be had by legislation. But in cases

involving the Federal Constitution where correction

through legislative action is practically impossible, this

Court has often overruled its prior decisions. The Court

bows to the lessons of experience and the force of better

reasoning, recognizing that the process of trial and error,

so fruitful in the sciences, is appropriate also in the judi-

cial function.

Id. at 406-410 (Brandeis, J., dissenting) (emphasis added).®

. On numerous occasions since Burnet, this Court has exer-

cised its liberty to review and reverse its decisions on constitu-

* Justice Brandeis identified 28 instances in which the Court had reversed or

qualified its own prior reading of the Constitution. That number has at least

tripled in the years since Burnet. See Maltz, Some Thoughts on the Death of

Stare Decisis in Constitutional Law, 1980 Wis. L. Rev. 467, 467.

20

tional law. The Library of Congress has identified, through

1986, 184 cases in which this Court has pa its - a

rulings. Congressional Research Service, The onstitution o

the United States, Analysis and Interpretation, 2115-2127, &

Supp. (1987).

However, given the importance of stare decisis in the law, it

is appropriate that the Court set furth a reliable standard for

determining when reconsideration of precedent is justifiable.

This was done recently in Patterson v. McLean Credit Union,

109 S.Ct. 2363, which stated:

Our precedents are not sacrosanct, for we have overruled

prior decisions where the necessity and propriety of doing

so has been established. Nonetheless, we have held that

‘any departure from the doctrine of stare decisis demands

special justification.’ We have also said that the burden

borne by the party advocating the abandonment of an

established precedent is greater where the Court is asked

to overrule a point of statutory construction. Considera-

tions of stare decisis have special force in the area of

statutory interpretation, for here, unlike in the context of

constitutional interpretation, the legislative power is

implicated, and Congress remains free to alter what we

have done.

Id. at 2370 (emphasis added) (citations omitted).

Unlike Patterson, reconsideration of Roe v. Wade involves

constitutional interpretation rather than statutory interpreta-

tion. The burden borne in establishing the necessity of recon-

sideration is therefore diminished.

In Patterson the Supreme Court set out three standards,

any one of which, if met, constitutes sufficient justification to

9 Blaustein & Field, “Overruling” Opinions in the Supreme Court, 57 Mich.

L. Rev. 151, 167, 184-194 (1958) (identifying sixty constitutional law ‘ecisions

among ninety overrulings of prior Supreme Court decisions).

21

reconsider a judicial precedent. Roe v. Wade meets all three

tests and is thus ripe for reconsideration in an appropriate

case, such as the case at bar.

The Patterson standards are: (1) Whether the precedent has

been “undermined by subsequent changes or development in

the law;” (2) Whether the precedent is “a positive detriment to

coherence and consistency in the law, either because of inher-

ent confusion created by an unworkable decision,” or “because

the decision poses a direct obstacle to the realization of impor-

tant objectives embodied in other laws;” or (3) Whether the

precedent is “outdated and after being ‘tested by experience,

has been found to be inconsistent with the sense of justice or

with the social welfare.”” Patterson, 109 S.Ct. at 2371 (cita-

tions omitted). Each of these tests applies positively to Roe v.

Wade, indicating that reconsideration of that case is appropri-

ate.

First, Roe has been undermined by subsequent changes in

the law. Contributing to the undermining of Roe is the fact

that, while claiming to follow Roe, the Supreme Court has

systematically gutted Roe in order to provide for the desired

result. Thornburgh v. American College of Obstetricians and

Gynecologists, 476 U.S. at 783 (Burger, C.J., dissenting)

(“The extent to which the Court has departed from the limita-

tions expressed in Roe is readily apparent.”); Bopp & Coleson,

The Right to Abortion: Anomalous, Absolute, and Ripe for

Reversal, 3B. Y.U. J. Pub. L. 157, 202-10 (1989). The doctrine

of stare decisis presupposes a precedent with content to be

followed. By emptying Roe of content, any appeal to stare

decisis is now an appeal only to the skeletal concept that a

woman may have an abortion whenever she desires, for what-

ever reason.

However, the undermining of Roe in the Roe progeny takes

a secondary place to the important changes heralded by the

Court’s abortion decisions in Webster, Hodgson, and Ohio. As

the changes wrought by this Court in these cases is discussed

at length supra, it need not be recounted here.

22

The Court has also recently clarified the fundamental rights

analysis and this clarification undermines the fundamental

rights analysis in Roe. In Bowers v. Hardwick, 106 S.Ct. 2841

(1986), this Court, examining the history of state regulation of

sodomy, concluded that there was no fundamental right to

commit sodomy. The test used in Bowers was an historical one,

that is, whether such conduct is “deeply rooted in this Nation’s

history and tradition.” 106 S.Ct. at 2844 (quoting Moore v.

East Cleveland, 431 U.S. 494, 503 (1977) (Powell, J., concur-

ring)). Finding that homosexual sodomy had long been regu-

lated by the states, the Court concluded that it did not

constitute a fundamental right. Jd. at 2844-46.

The historical case for the fundamentality of abortion is no

more convincing than the historical case for sodomy. The

majority in Roe relied heavily, and uncritically, on the work of

Professor Cyril Means. 410 U.S. at 132-39. Means’ history of

abortion was neither objective’ nor accurate. See Dellapenna,

Brief of the American Academy of Medical Ethics, as Amicus

Curiae, Hodgson, 110 S.Ct. 2926 (No. 88-1309). Had this his-

torical test for fundamentality been scrupulously applied in

Roe, no right to abortion could have been found. This being

true, Roe should be revisited:

In Michael H. v. Gerald D., 109S.Ct. 2333 (1989), this Court

considered whether a biological father (who is adulterous) has

a constitutional right to visit his child born in an intact mar-

riage. Using the historical test of Bowers, this Court held that

there is no fundamental right to visitation in such a case,

because states have historically presumed that a child born

within a marriage is the product of that marriage and rejected

visitation claims by adulterous fathers. Both Michael H. and

Bowers reveal that a proposed fundamental right should be

framed concretely and narrowly, rather than abstractly and

10 The majority cited Means seven times during its depiction of the history of

abortion — without noting that he was the general counsel of the National

Association for the Reform of Abortion Laws (now the National Abortion

Rights Action League).

23

broadly. See Bopp & Coleson, Webster and the Future of

Substantive Due Process, 28 Duq. L. Rev. 271 (1990). Thus,

the issue concerning abortion must be whether there is an

historically protected and unregulated right to choose abor-

tion, not whether there is an abstract right of privacy and

whether one can construe such privacy broadly enough to

encompass abortion. Under such a test, no fundamental con-

stitutional right to abortion may be found.

Therefore, Roe v. Wade clearly falls within the first Patter-

son test justifying abortion. It likewise falls within the latter

two tests. It is, second, “a positive detriment to coherence and

consistency in the law” both because of “inherent confusion” in

an “unworkable decision” and because it “poses a direct obsta-

cle to the realization of important objectives embodied in other

laws.” See generally Bopp & Coleson, The Right to Abortion:

Anomalous, Absolute, and Ripe for Reversal, 3 B.Y.U. J.

Pub. L. 181 (setting forth at great length the ways in which

Roe and abortion law are inconsistent with the rest of the law

and limits the expanding protection afforded the unborn).

Third, Roe is outdated in its failure to recognize the scientific

evidence for the essential humanity of the unborn, and is

contrary to the social welfare. Jd.

V. Therefore, This Court Should Expressly Reconsider

Roe v. Wade In These Cases and, Upon Express Recon-

sideration, Overrule It.

The chaos created by the failure of this Court to say

expressly in Webster, Hodgson, and Ohio what it has done

implicitly will continue until this Court provides the necessary

legal justification for its decisions in recent abortion cases. The

decision of this Court in Roe v. Wade has proven unsound and is

in need of reversal. See generally Bopp & Coleson, The Right

to Abortion: Anomalous, Absolute, and Ripe for Reversal, 3

B.Y.U. J. Pub. L. 181; Bopp & Coleson, Webster and the

Future of Substantive Due Process, 28 Duq. L. Rev. 271

(1989). The cases at bar are appropriate vehicles, the timing is

appropriate, and the need is urgent for reconsideration of Roe

v. Wade.

24

Roe v. Wade was intended to settle the issue of abortion in

American law. However, Roe has proven to be inherently

difficult to apply in any consistent and principled manner. This

fact is evident in Roe’s progeny, which have produced a grow-

ing body of intricate and arbitrary, judicially-created regula-

tions surrounding the abortion decision. For example, a state

may require second trimester abortions to be performed in

clinics, Simopolous v. Virginia, 462 U.S. 506 (1983), but may

not require that ‘they be performed in hospitals. Akron, 462

U.S. at 459. A state may require a physician to assure that

certain information be provided to a pregnant woman, /d. at

448, but may not require that the doctor himself provide the

information. Jd. at 449. The quantum of information a state

may require to be provided has been severely circumscribed.

Thornburgh, 476 U.S. at 759, 765. Prior to the decision in

Webster, the Court struck down any meaningful attempt to

codify the restrictions allowed in Roe and abandoned key ele-

ments of the Roe formula when convenient. Far from settling

the debate, these subsequent decisions have multiplied confu-

sion and spawned further unanswered questions.

Even the dissenting opinions of Roe supporters in recent

cases demonstrate the inherent confusion created by Roe. In

Hodgson and Ohio, three Justices explicitly reaffirmed Roe

and claimed to apply its analysis to declare unconstitutional all

provisions of the Minnesota and Ohio statutes. Hodgson, 110

S.Ct. at 2951 (Justice Marshall, with whom Justices Brennan

and Blackmun join, concurring in part, concurring in the judg-

ment in part, and dissenting in part); Ohio, 110 S.Ct. at 2984

(Justice Blackmun, with whom Justices Brennan and Marshall

join, dissenting). While these three Justices vigorously

defended Roe, Justices Marshall and Blackmun differ dramat-

ically on the standard of review that Roe requires. Justice

Marshall declared that “[nJeither the scope of a woman’s pri-

vacy right nor the magnitude of a law’s burden is diminished

because a woman is a minor.” Hodgson, 110 S.Ct. at 2952.

Therefore, “state laws limiting that right [are subject} to the

most exacting scrutiny, requiring a State to show that such a

25

law is narrowly drawn to serve a compelling interest.” Id

(emphasis added). athe; Phe

Justice Blackmun, on the other hand, claimed that “the

Court has recognized that the State ‘has somewhat broader

authority to regulate the activities of children than of adults,’

{but} in doing so, the State nevertheless must demonstrate

that there is a ‘significant state interest in conditioning an

abortion . . . that is not present in the case of an adult.” Ohio,

110 S.Ct. at 2984 (emphasis in original) (quoting Planned

Parenthood of Central Missouri v. Danforth, 428 U.S. 52

74-75 (1976)). Thus, Justice Marshall employed strict scrutiny

for minors and Justice Blackmun applied an intermediate stan-

dard. Both joined each other’s opinion; Justice Brennan joined

both opinions. Justice Brennan also joined Justice Steven’s

opinion, thereby subscribing to three standards of review

simultaneously. One is at a loss to understand which analysis is

required by Roe. Thus, the confusion in the law caused by Roe

v. Wade is demonstrable from both the majority opinions in

Hodgson and Ohio and the dissenting opinions of those that

adhere to Roe. This Court needs to explain what the law is with

regard to abortion.

26

CONCLUSION

Under the principles previously employed by this Court,

Roe v. Wade is sufficiently implicated in these cases to use this

occasion to reconsider Roe v. Wade. Indeed this Court has a

constitutional duty to declare what the law is with regard to

abortion and to give a full legal justification for its decisions,

including an explanation of the applicable standard of review to

be used in abortion cases.

Examination of this Court’s latest decisions in abortion cases

reveals that Roe has already been sub silentio reversed by

employment of an analysis inimical to Roe. However, this

Court’s failure to expressly reconsider and overrule Roe has

resulted in chaos in the law. The lower courts are applying

different standards of review than the analysis used by this

Court in its most recent abortion cases.

Upon reconsideration, Roe should be reversed. Employing

substantive due process analysis, as it has been recently

employed by this Court, and accurately portraying the long

history of abortion restriction and regulation in this Nation,

precludes any finding of a fundamental abortion right in the

Constitution of the United.States. Therefore, this Court

should fulfill its duty to declare what the law is, and Roe v.

Wade should be expressly reconsidered and overruled in these

cases.

Respectfully submitted,

JAMES BOPP, JR.

Counsel of Record

RICHARD E. COLESON

Brames, McCormick, Bopp & Abel

191 Harding Avenue

PO. Box 410

Terre Haute, Indiana 47808-0410

(812) 238-2421

Counsel for Amici Curiae

September 7, 1990