Amicus Curiae Brief — Bray v. Alexandria Women's Health Clinic

Supreme Court brief1993

Ask Donna

What actually matters in this document.

Text

No. 90-985

IN THE

Supreme Court of the United States

October Term, 1990

JAYNE Bray, et al.,

Petitioners,

ALEXANDRIA WoMEN’s CLINIC, ef al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth 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 PETITIONERS

James Bopp, Jr.

Counsel of Record

Barry A. Bostrom

Brames, McCormick, Bore & Anes.

191 Harding Avenue

P.O. Box 410

Terre Haute, Indiana 47808-0410

(S12) 238-2421

Counsel for Amici Curiae

April 11, 1991

STATEMENT OF THE ISSUE DEALT WITH HEREIN

Does Section 1985(3) protect a “right to abortion” against

violation by private parties which is alleged to afford an alter-

nate ground for affirming the court below?

TABLE OF CONTENTS

Page:

STATEMENT OF THE ISSUE DEALT WITH

| 41 4) re i

TABLE OF CONTENTS. .........0eeeeeeeeeeeeceee ii

TABLE OF AUTHORITIES ..........6565 00 eee cues vi

INTEREST OF AMICI ......... cece cece cece eens

SUMMARY OF ARGUMENT ............655 00s e eee 2

ARGUBENT .ccccccccccccccsccsassueuue enna ‘

Il. Tut ALLEGED VIOLATION oF THE “RicguT To

Il.

ABorvION” BY PETITIONERS Was CLAIMED

BELOW AS AN ALTERNATE GrouND For AFFIRM-

ING THE COURT BRIAW. ..ccccccccccccvcccess

THe “Rigur ro ABorTION” ts ONLY ProrecTEeD

AGAINST STATE ACTION, Wiicu is Nov ALLEGED

PUeceROSEPE. ccccccccsevesseeeecess nn

A. = The Right to Abortion, under Roe v. Wade, is

a Fourteenth Amendment Right Agaimst

State Aeolian. ...ccccisessaeév see

B. = The Right to Abortion is Nota Ninth Amend-

ment Right Against Interference by Private

Furtses, .ccccccccsectesstenunenee

1. The Principal Purpose of the Ninth

Amendment Was to Avoid an Implied

Extension of Federal Power. ..........

2. The Retained Rights Do Not Prevail Over

Powers Delegated to the Federal Govern-

TROT. coccccccccvesseeseseseeneeaeee

Ill.

IV.

SecTION 1985 Provipes a Remepy OnLy For

THE VIOLATION OF FUNDAMENTAL Ricuts, Nor

LAMENTY INTERMENT. .. 2... ccc ccc ccc cece cece

A. This Court Distinguishes Between Funda-

mental Rights and Liberty Interests. .....

B. = Section 1985 Only Protects Fundamental

Constitutional Rights, Not Liberty Inter-

PCE PUC Eis eeadegeeeccevevccoccees

Unper THis Court’s Junisprupence THE

Ricur To Anorvrion ts ONLY A Linerry Inrer-

Est, Norv A FUNDAMENTAL Riau. ............

THis Courr Has Prorerty DereRMINED THAT

THE Ricur To Aporrion Is a Mere Linkery

Cee Tn ceeeen

A. This Court Applies an Historical Test to

Determine Which Liberty Interests Rise to

the Level of Being a Fundamental Right. ..

B. Because Abortion Fails the Historical Test

for Fundamentality, This Court's Majority

Has Demoted the Former Abortion Right toa

Liberty Interest, So That Legislation

Restricting It Need Only Have a “Rational

CONCLUSION ...... DURMERMREEGGE ORCC eC eccccccere

TABLE OF AUTHORITIES

SUPREME COURT CASES

Alexander v. Gardner-Denver Co., AVS U.S. 36 1974). 21

Beal v. Doe, 482 U.S. 438 (1977)... cece eee 4

Bellotti v. Baird, 428 U.S. 182 (1976) 2... eee 4

Bellotti v. Baird, 443 U.S. 379 (A979)... ce ee 4

Bowers v. Hardwick, 478 U.S. 186 (1986) 2.2... 28

Buckley v. Valeo, 424 U.S. 1 (1976) «2... eee ee eee 6

City of Akron v. Akron Center for Reproductive Health,

Ge es GED ehocdccnenncdcaedss< eeecees 4

Colautti v. Franklin, 439 U.S. 379 (A979) oe 4

Connecticut v. Menillo, 423 U.S. 9 A975) 2... 4

Doe v. Bolton, AVO U.S. 179 (97S) o.oo ee ee eee 1,15

Duncan v. Louisiana, 391 USS. 145 (1968) 2... 27

(rreat American Federal S. & L. Ass'n v. Novotny, 442

i EE 6544. ccndsbeasadendndsausandnncns 18,20

Griffin v. Breckenridge, 403 U.S. 88 (A971) .. 1, 19, 20, 21, 22

Griswold v. Connecticut, 381 U.S. 479 (1965)... .. 6,7, 11

H.L. v. Matheson, 450 U.S. 398 (A9BD) oo. eee 4

Harris v. McRae, 448 U.S. 1302 (1980) oe 5

Hodgson v. Minnesota, 1108. Ct. 2926 (1990) .. 2, 23, 24, 25

Lubin v. Panish, 415 U.S. T09 A974) 0 ee 6

Maher v. Roe, 432 U.S. 464 (1977) «2.0.0... cece eee 4

Michael H. v. Gerald D., 1098. Ct. 2333 (1989)... 0... 29

Moore v. City of East Cleveland, 431 U.S. 494

estas duddccecnetssddenstatkecewuseiedade 26, 27

Ohio v. Akron Center for Reproductive Health, OS. Ct.

PE atten étnvdnnduuceus jadeud wae 2, 24, 24, 25

Palko v. Connecticut, 302 U.S. 319 (A987) 200000. 26, 27

Planned Parenthood of Central Missouri v. Danforth, 428

ET Nideonedduddowenes sdnncuneeedens 4

Poe v. Ullman, 367 ULS. 497 (A961) 22. ee 27

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555

SEE Udocupaunessdbuddecdsakeneensedeudasnbas 6

Roe v. Wade, 410 U.S. 113 (1973) 0... eee tea. passim

Snyder v. Massachusetts, 291 U.S. 97 (1984) ......... 26

Thornburgh v. American College of Obstetricians and

Gynecologists, 476 U.S. 747 (1986) 2.0.00... 4, 16,17

Twining v. New Jersey, 211 U.S. 78 (1908) 2.00.00 000.. 20

United Public Workers v. Mitchell, 330 U.S. 75 (1947) . 11

Webster v. Reproductive Health Services, 1098. Ct. 3040

EEE cdnudtndecveseivedeissees 2, 4, 15, 22, 23, 24, 25

OTHER CASES

Hunt v. Weatherbee, 626 F.Supp. 1097 (D.Mass. 1986) .. 22

New York State National Organization for Women v.

Terry, 704 F.Supp. 1247 (S.D.N.Y. 1989), aff'd as

modified, 886 F.2d 1339 (2nd Cir. 1989) .......... 22

Portland Feminist Women’s Health Center v. Advocates

for Life, Inc., 712 F.Supp. 165 (D.Or. 1988) ..... .. 22

Skadegaard v. Farrell, 578 F.Supp. 1209 (D.N.J. 1984) . 22

CONSTITUTION AND STATUTES

42 U.S.C.A. § 1985(3) (1871) «2.2... eee eee. passim

Ei TD oii stn cscnsecs sx: oakeaeiase 14

U.S. Const., Fourteenth Amendment ........... 2, 4, 5, 16

U.S. Const, Ninth Amendment .................. passim

U.S. Constitution, Tenth Amendment ........... 11, 12, 18

U.S. Const., Thirteenth Amendment ................ 19

Title VII of the Civil Rights Act of 1964, § 704(a) as

amended 42 U.S.C.A. § 2000e-3(a) 2... 66 ee ee 20, 21

OTHER AUTHORITIES

Berger, The Ninth Amendment, 66 Cornell L. Rev. 1

SED ccincuannsepeecesecsstcccedvsivatvesses 7

Bopp & Coleson, Webster and the Future of Substantive

Due Process, 28 Duquesne L. Rev. 271 (1990) .... 6

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

Re, EE OPED cp ccncnccnensssecceseesneses 23, 24

Bopp, Coleson & Bostrom, Does the United States

Supreme Court Have a Constitutional Duty to

Expressly Reconsider and Overrule Roe v. Wade? 1

Seton Hall Const. L.J. 55 (1990)... 6. oe ee ee 26

Bopp, The Elusive Abortion Right, The Nat'l L.J., June

Oe, Bis 00 BG, BD 0 cciecececcccccsccccccceces 2s-

Brief for Appellees and Cross-Appellants, National

Organization for Women v. Operation Rescue (4th

Cir.) (Nos. 90-2606, 90-2607 & 90-2651) .......... 3, 5

Caplan, The History and Meaning of the Ninth Amend-

ment, 69 Va. L. Rev. 223 (1983) ..........00005: »

Comment, The Uncertain Renaissance of the Ninth

Amendment, 33 U. Chi. L. Rev. 814 (1966) ...... 13

Cong. Globe, 42d Cong., Ist Sess. 485 (1871) ......... 19

Corwin, The “Higher Law” Background of American

Constitutional Law, 42 Harv. L. Rev. 149 (1928) .. 13

Dellapenna, Brief of the American Academy of Medical

Ethics, as Amici Curiae, Minnesota v. Hodgson, 110

S. Ct. 2926 (1990) (No. 881309) ......0...0..... 28

Dellapenna, The History of Abortion: Technology, Moral-

ity, and Law, 40 U. Pitt. L. Rev. 359 (1979) ...... 28

Dellinger & Sperling, Abortion and the Supreme Court:

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

SE (beudbuNeds uienclsebidcscdsdecuseskeedcds 25

E. Dumbauld, The Bill of Rights and What It Means

ESSE FRE ae eee lie Mee WD 7, 10

Elliot’s Debates (1836) 2.0... cece cece cuee |

J. Ely, Democracy and Distrust (1980) ............... 11

Papers of James Madison. ...................... 9, 12, 13

B. Patterson, The Forgotten Ninth Amendment (1955). 13

Speech of James Wilson (October 6, 1787), 13 The Docu-

mentary History of the Constitution 339 (1981)... 8

J. Story, Commentaries on the Constitution of the United

States § 1905 (4th ed. 1873) .................... 10

The Federalist, No. 84 (Hamilton)

Transcript of Oral Arguments Before the Court on Abor-

tron Case, N.Y. Times, April 27, 1989, at B13, col.2. 28

G. Wood, The Creation of the American Republic

1776-1787 (1969)

vii

BRIEF AMICI CURIAE OF

THE NATIONAL RIGHT TO LIFE COMMITTEE, INC.

AND THE CHRISTIAN LIFE COMMISSION

OF THE SOUTHERN BAPTIST CONVENTION

IN SUPPORT OF PETITIONERS

INTEREST OF AMICI!

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 about 3,000

local chapters made up of individuals from every race,

denomination, ethnic background, and political belief. It

engages in various lawful political, legislative, legal, and edu-

cational 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 primary promoters of laws restricting abortion

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

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

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

to Life Committee, Inc. have supported legisk » protect

unborn human life within the limits set by these. _.sions and

have sought, through lawful means, those changes in the law

which would allow full legal protection for the unborn. The

National Right to Life Committee, Inc. seeks to advance its

interests by addressing the legal issues herein.

The Christian Life Commission of The Southern Baptist

Convention is the agency of the Convention charged by the

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

have been filed with the Clerk of this Court.

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 congregations and 15

million church members, has assigned the Christian Life Com-

mission of the Southern Baptist Convention the specific task of

addressing issues such as abortion.

SUMMARY OF ARGUMENT

The Respondents have claimed that the “right to abortion,”

like the right to travel, is protected by Section 1985(3). How-

ever, this Court has declared that the “right to abortion,”

whatever its appropriate constitutional weight, is found within

the Fourteenth Amendment, and thereby is protected only

against state action. The Respondents admit that no state

action is present in this case.

Respondents argue that the Ninth Amendment provides

alternate constitutional grounds for recognizing a “right to

abortion” which would protect women seeking abortions from

even private interferences with abortion. However, the Ninth

Amendment’ retained rights cannot be a new source of funda-

mental constitutional rights. This is true because (1) the princi-

ple purpose of the Ninth Amendment was to avoid an implied

extension of federal power due to the ratification of the Bill of

Rights; (2) retained rights cannot prevail over the delegated

powers of the federal government; and (3) the federal courts are

not empowered to enforce retained rights against the states.

This Court has determined that Section 1985 is not a source

of substantive rights, it only provides a remedy for the vio-

lation of fundamental constitutional rights found elsewhere.

This Court distinguishes between fundamental rights and

mere liberty interests. It is clear from the language of the Act

itself and this Court's precedent in Griffin v. Breckenridge that

Section 1985(3) only protects fundamental constitutional

rights, not liberty interests. Section 1985(3) cannot be invoked

to protect mere personal or property interests without the

violation of fundamental constitutional rights.

This Court’s decisions in Webster, Hodgson, and Ohio reveal

that the right to abortion is no longer considered by the major-

ity of this Court to be a fundamental right. Therefore, abortion

is not of sufficient constitutional weight to merit protection

under Section 1985(3). This Court's determination that abor-

tion is a mere liberty interest is consistent with this Court's

tests for determining which rights are properly deemed funda-

mental.

For these reasons this Court should find that Section 1985(3)

does not protect abortion from interference by private parties.

ARGUMENT

I. THe ALLEGED VIOLATION OF THE “Ricutr TO ABOR-

TION” BY PETITIONERS Was CLAIMED BELOW AS AN

ALTERNATE GROUND FOR AFFIRMING THE CouRT

BELow.

The Respondents claimed before the Fourth Circuit that “by

blockading clinics, defendants prevented women from exercis-

ing their constitutional right to choose to have abortions. This

right, like the right to travel, is protected by Section 1985(3).

The [sic] point affords an alternative ground for affirming the

finding of a Section 1985(3) violation.” Brief for Appellees and

Cross-Appellants at 19, National Organization for Women v.

Operation Rescue (4th Cir.) (Nos. 90-2606, 90-2607 & 90-2651).

This amicus curiae brief seeks to address this issue, in the

event that Respondents make this claim before this Court.

Il. The “Ricutr To ABORTION” ts ONLY PROTECTED

AGAINST STATE ACTION, Wuicn ts Nort ALLEGED

HEREIN.

This Court has declared that the “right to abortion,” what-

ever its appropriate constitutional weight, is found within the

Fourteenth Amendment and, thereby, is protected only

against state action. It is not, as Respondents argue, a Ninth

Amendment right against intereference by private persons.

A. The Right to Abortion, under Roe v. Wade, is a

Fourteenth Amendment Right Against State

Action.

The right to abortion, under Roe v. Wade, 410 U.S. 113 (1973),

is a Fourteenth Amendment right against government inter-

ference with the abortion decision, not a right against all

interference. In this case the Respondents admit that there is

no state action. However, state action is a necessary element of

any claim for violation of the abortion right. This can be demon-

strated in three ways.

First, since Roe v. Wade, the right to abortion has always

been held to be a right arising under the Fourteenth Amend-

merit. In Roe this Court declared the Texas abortion statute to

be a violation of the right of privacy “founded in the Fourteenth

Amendment's concept of personal liberty.” /d. at 153. In Web-

ster v. Reproductive Health Services, 1098. Ct. 3040 (1989), this

Court explicitly left Roe’s foundation in the Fourteenth

Amendment undisturbed:

This case therefore affords us no occasion to revisit the

holding of Roe, which was that the Texas statute uncon

stitutionally infringed the right to an abortion derived

from the Due Process Clause, |410 U.S.| at 164, and we

leave it undisturbed.

109 S. Ct. at 3058.

Second, the whole thrust of the Roe decision was to free

women from government interference in the abortion decision,

at least during the first trimester: “This right of privacy. . . is

broad enough to encompass a woman's decision whether to

terminate her pregnancy. The detriment that the State would

impose upon the pregnant woman by denying this choice

altogether is apparent.” 410 U.S. at 153. The trend toward

limitation of state action in regulating abortion is the major

theme of Roe’s progeny. See, e.g., Connecticut v. Menillo, 423

U.S. 9 (19%));-Ptarned Parenthood of Central Missouri v.

Danforth, 428 U.S. 52 (1976); Bellotti v. Baird, 428 U.S. 132

(1976); Beal v. Doe, 432 U.S. 438 (1977); Maher v. Roe, 432 U.S.

464 (1977); Colautti v. Franklin, 439 U.S. 379 (1979); Bellotti v.

Baird, 443 U.S. 622 (1979); H.L. v. Matheson, 450 U.S. 398

(1981); City of Akron v. Akron Center for Reproductive Health,

462 U.S. 420 (1983); and Thornburgh v. American College of

Obstetricians and Gynecologists, 476 U.S. 747 (1986).

Third, the abortion funding decisions held that Roe was not

implicated, therefore, the states need only show a rational

basis for limiting funds for abortions. In Maher v. Roe, 432

U.S. 464, indigent women brought suit challenging a Connecti-

cut regulation prohibiting the funding of abortions that were

not medically necessary. Although failure to fund abortions for

indigent women would limit their access to abortion, this Court

held that the “Constitution imposes no obligation on the States

to pay the pregnancy-related medical expenses of indigent

women, or indeed to pay any of the medical expenses of indi-

gents.” Jd. at 469.

Similarly, in Harris v. McRae, 448 U.S. 1302 (1980), this

Court upheld the constitutional validity of the Hyde Amend-

ment which severely limits use of federal funds to reimburse

the cost of abortions under the medicaid program. The Court

held:

Although the liberty protected by the Due Process Clause

affords protection against unwarranted government

interference with freedom of choice in the context of cer-

tain personal decisions, it does not confer an entitlement

to such funds as may be necessary to realize all the advan-

tages of that freedom. To hold otherwise would mark a

drastic change in our understanding of the Constitution.

Id. at 317-18.

From these decisions, it may be concluded that the abortion

right created in Roe arises under the Fourteenth Amendment

and that any violation of such right occurs only as a result of

state action which constitutes an unwarranted interference

with that right. Without state action, there is no violation of the

oe. ate, a a i a

Fourteenth Amendment. Wit \out a violation of the Fourteenth

Amendment, there is no basis for a claim of violation of an

abortion right and, therefore, no Section 1985(3) action by the

Respondents.

B. The Right to Abortion is Not a Ninth Amendment

Right Against Interference by Private Parties.

The Ninth Amendment declares: “The enumeration in the

Constitution of certain rights shall not be construed to deny or

disparage others retained by the people.” In the court below,

the Respondents argued that the Ninth Amendment contains a

right to abortion that applies against purely private actors.

Brief for Appellees and Cross-Appellants at 21-23, National

Organization for Women v. Operation Rescue (4th Cir.) (Nos.

W)-2606, 90-2607 & 90-2651). Your amicus addresses this argu-

ment in response to its anticipation of a similar argument to

this Court.

The Ninth Amendment has been cited by this Court and

others in support of the concept that there are other protected

rights not enumerated in the Constitution. See, e.g., Griswold

v. Connecticut, 381 U.S. 479, 486 (1965) (Goldberg, J., concur-

ring) (“[T|here are additional fundamental rights, protected

from governmental infringement, which exist alongside those

fundamental rights specifically mentioned in the first eight

constitutional amendments.” /d. at 488); Richmond News-

papers, Inc. v. Virginia, 448 U.S. 555 (1980) (“[T Jhe Constitu-

tion’s draftsment ... were concerned that some important

rights might be thought disparaged because not specifically

guaranteed.” /d. at 579); Roe v. Wade, 410 U.S. 113, 153 (1973)

(alluding to the possibility that the right of privacy may be a

right reserved to the people by the Ninth Amendment); Buck-

ley v. Valeo, 424 U.S. 1, 59 n.67, 84 n.113 (1976) (per curiam)

(campaign spending limits may implicate Ninth Amendment

rights); and Lubin v. Panish, 415 U.S. 709, 721 n. (1974) (Doug-

las, J., concurring) (right to vote in state elections).

This amicus has no quarrel with the view that there are

other protected rights not enumerated in the Constitution. See

generally Bopp & Coleson, Webster and the Future of Substan-

tive Due Process, 28 Duquesne L. Rev. 271 (1990). However,

this amicus does dispute the concept that the Ninth Amend-

ment protects unenumerated rights that conflict with the dele-

gated powers of the federal government or that the Ninth

Amendment limits the people’s authority to constitute state

governments. *

The natural meaning of the Ninth Amendment is that the

Constitution’s enumeration of certain rights does not deny,

disparage, expand, or restrict the rights, unenumerated in the

Constitution, that are retained by the people under state law.

The words, history, and purpose of the Ninth Amendment

demonstrate that it is not a “bottomless well in which the

judiciary can dip for the formation of undreamed of ‘rights’ in

their limitless discretion.” Berger, The Ninth Amendment, 66

Cornell L. Rev. 1, 2 (1980) (characterizing Justice Goldberg's

concurrence in Griswold). It is, instead, a rule of construction

that confirms that the federal government is one of limited

powers, and that rights not delegated by the people to the

federal government are not to be denied or disparaged simply

because they are not enumerated in the Constitution. By defi-

nition, then, the “rights retained” do not overlap or trump

granted federal powers, nor do they override state powers.

1. The Principal Purpose of the Ninth Amendment

Was to Avoid an Implied Extension of Federal

Power.

As sent to the states for ratification, the Constitution did not

include a general bill of nghts. This omission provoked consid-

erable opposition to the ratification of the Constitution. See G.

Wood, The Creation of the American Republic 1776-1787 536-43

(1969); E. Dumbauld, The B'll of Rights and What It Means

2 This section of this Brief draws heavily from the Report to the Attorney

General, Wrong Turns on the Road to Judicial Activism: The Ninth Amend.

ment and Privileges or Immunities Clause, U.S. Department of Justice,

Sept. 25, 1987, at 15-27, which is an excellent discussion of the purpose and

intent of the Ninth Amendment.

Today 10-33 (1957). Two principal arguments were made in

opposition to the addition of a bill of rights. First, it was argued

that a bill of rights was unnecessary because the federal gov-

ernment was a government of limited, delegated powers. James

Wilson explained in a widely republished speech that every

power

which is not given, is reserved. This distinction being

recognized, will furnish an answer to those who think the

omission of a bill of rights, a defect in the proposed con-

stitution: for it would have been superfluous and absurd,

to have stipulated with a federal body of our own creation,

that we should enjoy those privileges, of which we are not

divested either by the intention or the act that has

brought that body into existence.

Speech of James Wilson (October 6, 1787), 13 The Documentary

History of the Constitution 339-40 (1981).

Second, it was argued that the addition of a bill of rights

would imply that all other rights and powers had been dele-

gated to the federal government. Such an implication was

inconsistent with the concept of a government of limited

powers and therefore was to be avoided. James Wilson

expressed it this way:

{I Jn a government consisting of enumerated powers, such

as is proposed for the United States, a bill of rights would

not only be unnecessary, but in my humble judgment,

highly imprudent. In all societies, there are many powers

and rights which cannot be particularly enumerated. A

bill of rights annexed to a constitution is an enumeration

of the powers reserved. If we attempt an enumeration,

every thing that is not enumerated is presumed to be

given. The consequence is, that an imperfect enumeration

would throw all implied power into the scale of the govern-

ment, and the rights of the people would be rendered

incomplete.

2 Elliot's Debates 436-37 (1836) (emphasis in original). See also

The Federalist, No. 84, at 579-80 (Hamilton) (referring to a bill

of rights as “dangerous” for this reason).

In order to secure its ratification by the states, the

federalists agreed to amend the Constitution to include a bill of

rights. James Madison proposed the amendments that even-

tually became the Bill of Rights. He defended his proposal

which became the Ninth Amendment:

It has been objected also against a bill of rights, that, by

enumerating particular exceptions to the grant of power,

it would disparage those rights which were not placed in

that enumeration, and it might follow by implication, that

those rights which were not singled out, were intended to

be assigned into the hands of the general government, and

were consequently insecure. This is one of the most plausi-

ble arguments I have ever heard urged against the admis-

sion of a bill of rights into this system; but, I conceive, that

may be guarded against. | have attempted it, as gen-

tlemen may see by turning to the last clause of the 4th

resolution... .

12 Papers of James Madison at 206. In this way Madison

confirmed his understanding that his proposal operated as a

restriction on the implied extension of federal powers.

2. The Retained Rights Do Not Prevail Over Powers

Delegated to the Federal Government.

In his statement on the House floor introducing the resolu-

tions that, with revisions, became the Bill of Rights, Madison

spoke of the role of the courts in enforcing rights.

It has been said, that it is unnecessary to load the

constitution with this provision, because it was not found

effectual in the constitution of particular states. It is true,

there are a few particular states in which some of the most

valuable articles have not, at one time or other, been

violated; but does it not follow but they may have, to a

certain degree, a salutary effect against the abuse of

power. If they are incorporated into the constitution, inde-

pendent tribunals of justice will consider themselves in a

peculiar manner the guardians of those rights; they will be

an impenetrable bulwark against every assumption of

power in the legislative or executive; they will be naturally

led to resist every encroachment upon rights expressly

stipulated for in the constitution by the declaration of

rights.

12 Papers of James Madison 206-07 (emphasis added).

This contemporaneous explanation contemplates that courts

will serve as an “impenetrable bulwark” against (1) unconstitu-

tional expansions of power and (2) infringement of “expressly

stipulated” rights in the Constitution. There is no suggestion

that courts are to create and enforce exceptions to granted

powers in favor of retained rights. Of course, if, as the tradi-

tional interpretation maintains, the retained rights are those

not delegated to the federal government, then, to the extent

courts are an “impenetrable bulwark” against every “assump-

tion of power” beyond those granted the government, no other

specific protection of retained rights is required.

The text, history, and purpose of the Ninth Amendment all

demonstrate that retained rights do not prevail over delegated

powers. Thus, the Respondents’ argument that a right to abor-

tion resides within the Ninth Amendment misinterprets the

nature of the Ninth Amendment. This amendment has been

traditionally understood to contradict the concept that the

people have abandoned all rights not specifically granted to

them in the Bill of Rights. Without the Ninth Amendment

there was a concern that the Bill of Rights might be misin-

terpreted to be an implied extension of federal power.

For example, Justice Story explained that the Ninth Amend-

ment “was manifestly introduced to prevent any perverse or

ingenious misapplication of the well-known maxim, that an

affirmation in particular cases implies a negation in all others;

and, e converso, that a negation in particular cases implies an

affirmation in all others.” J. Story, Commentaries on the Con-

stitution of the United States § 1905, at 624-25 (4th ed. 1873).

Edward Dumbauld, in his book, The Bill of Rights and What

It Means Today, stated the purpose of the Ninth Amendment:

The Ninth Amendment was not intended to add anything

to the meaning of the remaining articles in the Constitu-

tion. It was simply a technical proviso inserted to forestall

the possibility of misinterpretation of the rest of the docu-

ment... . It is destitute of substantive effect.

E. Dumbauld, supra 63-64.

Since this is true, then the retained rights referred to in the

Ninth Amendment are simply those rights that remain after

subtracting the powers delegated to the federal government

from the original sovereignty of the people. Thus, retained

rights are subordinate to the delegated powers of the federal

government and cannot prevail over those delegated powers

when they conflict.

Justice Reed stated this in United Public Workers v.

Mitchell, 330 U.S. 75 (1947): “(When objection is made that

the exercise of a federal power infringes upon rights reserved

by the Ninth. . . Amendment|], the inquiry must be directed

toward the granted power under which the action of the Union

was taken. If the granted power is found, necessarily the

objection of invasion of those rights, reserved by the Ninth. . .

Amendment| |, must fail.” Jd. at 95-96.

The purpose of the Ninth Amendment was not to expand the

powers of the courts in determining the nature of these

retained rights, the purpose was to limit the federal govern-

ment to the powers expressly granted in the Constitution.

Justice Black, in his dissent in Griswold v. Connecticut, 381

U.S. at 520, stated: “as every student of history knows,” the

Ninth “Amendment was passed, not to broaden the powers of

this Court or any other department of ‘the general govern-

ment’ but . . . to assure the people that the Constitution in all

its provisions was intended to limit the Federal Government to

the powers granted expressly or by necessary implication.”

Activists argue that the focus on rights, rather than powers,

in the Ninth Amendment and in Madison's statement introduc-

ing his draft (quoted above), implies that the amendment

means something more than that federal powers are limited.

Professor Ely, for example, after quoting Madison's explana-

tion, contends “that even here Madison, though he may have

linked them in a way that seems unnatural today, made both

|points| that he wished to forestall both the implication of

unexpressed powers and the disparagement of unenumerated

rights. What is more important is that just as the Tenth

Amendment clearly expresses the former point, the Ninth

Amendment clearly expresses the latter.” J. Ely, Democracy

and Distrust 36 (1980) (emphasis in original). The point appears

to be that unless retained rights trump granted powers, the

Ninth Amendment is superfluous.

This argument depends upon the significance assigned to the

use of the words “powers” in the Tenth Amendment and “rights

retained” in the Ninth Amendment. The change in focus from

“powers” to “rights retained” was the cause of some opposition

to ratification. Hardin Burnley reported in a letter to Madison

that what became the Ninth and Tenth Amendments were

initially rejected by the Virginia Assembly. Governor Ran-

dolph led the opposition, arguing that it was not possible to

determine which rights were retained by the people.

His principal objection was pointed against the word

retained .. . and his alrjgument if I understood it was

applied in this manner, that as the rights declared in the

\first eight amendments] were not all that a free people

would require the exercise of; and that as there was ne

criterion by which it could be determined whether any

other particular right was retained or not, it would be

more safe, & more consistent with the spirit of the Ist. &

17th. amendments proposed by Virginia |which were

predecessors to the Ninth and Tenth Amendments], that

this reservation against constructive power, should oper-

ate rather as a provision against extending the powers of

Congress by their own authority, than as a protection to

rights reducible to no definitive certainty.

Letter from Hardin Burnley to James Madison (November 2%,

1789), 12 Papers of James Madison 456 (original spelling

retained) (emphasis in original).

In a letter to George Washington, Madison responded to

Randolph's argument, contending that it raised, in essence, a

distinction without a difference.

The difficulty [stated] against the amendments is really

unlucky, and the more to be regretted as it springs from a

friend to the Constitution. It is still a greater cause of

regret, if the distinction be, as it appears to me,

altogether fanciful. If a line can be drawn between the

powers granted and the rights retained, it would seem to

be the same thing, whether the latter be secured, by

declaring that they shall not be abridged, or that the

former shall not be extended. If no line can be drawn, a

declaration in either form would amount to nothing.

Letter from James Madison to George Washington (December

5, 1789), 12 Papers of James Madison 459. Madison thus con-

firmed his understanding that, notwithstanding the reference

to “rights” instead of “powers,” the Ninth Amendment con-

tinued to operate as a restriction on the implied extension of

federal powers.

Under Madison's and traditional interpretation, the Ninth

Amendment is a companion to the Tenth Amendment and is

not redundant. The Tenth Amendment affirms that powers not

delegated to the federal government are reserved to the states

and the people; in other words, it is a statement of who pos-

sesses undelegated powers. The Ninth Amendment, on the

other hand, concerns the location of the line between delegated

powers and retained rights, and commands that the line not be

moved by virtue of the enumeration of some rights.

Some argue that the “rights retained by the people” refer to

“natural rights,” theories of which were popular among some at

the time of the ratifications of the Constitution and the Bill of

Rights, and that those unwritten “natural rights” trump

powers. Corwin, The “Higher Law” Background of American

Constitutional Law, 42 Harv. L. Rev. 149, 152 (1928); B. Patter-

son, The Forgotten Ninth Amendment 19-22 (1955); Comment,

The Uncertain Renaissance of the Ninth Amendment, 33 U.

Chi. L. Rev. 814, 816 (1966).

The Constitution, however, nowhere incorporates natural

law or provides that natural, fundamental, or any sort of higher -

law is superior to it. To the contrary, as previously noted,

article VI provides that the “Constitution,” not some higher

law principles, “shall be the supreme Law of the Land.”

Furthermore, the “rights retained” by the people under the

Ninth Amendment may be delegated to or waived as against a

state. Thus, whether the right has been retained by the people

as against a state depends upon the allocation of governmental

powers and individual rights under that state's constitutional

law. One would not look to the U.S. Constitution or the federal

courts for their origin, description, or enforcement. Certainly,

the rights retained by the people could be waived, limited or

defined by state law and constitutions pursuant to the actions

of the people or their constitutionally empowered legislative

representatives. To assert, as the Respondents do, that the

retained rights are now incorporated by the Fourteenth

Amendment, including a right to abortion, and that federal

courts are now under an obligation to protect such retained

rights as against the states, transforms the Ninth Amendment

into a restriction on the people's right to create state govern-

ments and to empower those states with such authority as they

may constitutionally delegate to them.

Russell Caplan reaches a similar conclusion by focusing on

the state-law basis of rights at the time of the Constitution's

ratification. He argues that the “rights retained” in the Ninth

Amendment refer only to state-based rights, that those state.

based rights do not trump federal powers because of the

Supremacy Clause, and that it is logically impossible to “incor-

porate” the Ninth Amendment through the Fourteenth against

the states, because the amendment was intended to protect,

not circumscribe, state-based rights and circumstances.

Caplan, The History and Meaning of the Ninth Amendment,

69 Va. L. Rev. 223, 260-62 (1983).

Therefore, the Ninth Amendment is not substantive in

nature. It does not create rights, neither is it a source from

which new rights may be created. It is simply a rule of con-

struction, no more, no less. It cannot be the source of a right to

abortion that is enforceable against interierence by private

actors. Thus it cannot be the basis for a constitutional right

which activates Section 1985(3).

Hil. Section 1985 Provipes a Remepvy ONLY FoR THE

VIOLATION OF FUNDAMENTAL Ricuts, Nor Linertry

INTERESTS.

A. This Court Distinguishes Between Fundamental

Rights and Liberty Interests.

The terms “fundamental right” and “liberty interest” are

used in contra-distinction in this Court's plurality opinion in

Webster v. Reproductive Health Services, 1098. Ct. 3040 (1989):

The experience of the Court in applying Roe v. Wade in

later cases . . . suggests to us that there is wisdom in not

unnecessarily attempting to elaborate the abstract dif-

ferences between a fundamental right’ to abortion, as the

Court described it in Akron, . . . a limited fundamental

constitutional right,’ which Justice BLACKMUN '’s dis-

sent today treats Rue as having established, ... or a

liberty interest protected by the Due Process Clause,

which we believe it to be.

Id. at 3058 (emphasis added) (citations omitted).

A clear explanation of how these two terms are used by the

new Court majority is found in the opinions of Justice White

and Chief Justice Rehnquist. Justice White, together with

now-Chief Justice Rehnquist, were the original dissenters in

Roe v. Wade and Doe v. Bolton, but are now in the Court's

majority on abortion. Roe, 410 U.S. at 171 (Rehnquist, J.,

dissenting); Roe and Bolton, 410 U.S. at 221 (White, J., dissent-

ing to both Roe and Bolton); Doe, 410 U.S. at 223 (Rehnquist,

J., dissenting).

In Roe, now-Chief Justice Rehnquist explained the meaning

of substantive due process liberty interests:

(T jhe “liberty,” against deprivation of which without due

process the Fourteenth Amendment protects, embraces

more than the rights found in the Bill of Rights. But that

liberty is not guaranteed absolutely against deprivation,

only against deprivation without due process of law. The

test traditionally applied in the area of social and economic

legislation is whether or not a law such as that challenged

has a rational relation to a valid state objective.

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

added).

Justice White's dissent in Thornburgh v. American College

of Obstetricians and Gynecologists, 476 U.S. 747 (1986), dis-

cussed the distinction between a fundamental right and a lib-

erty interest:

The Due Process Clause of the Fourteenth Amendment,

which forbids the deprivation of “life, liberty, or property

without due process of law,” has been read by a majority of

the Court to be broad enough to provide substantive

protection against state infringement of a broad range of

individual interests.

* * *

In most instances, the substantive protection afforded the

liberty or property of an individual by the Fourteenth

Amendment is extremely limited: State action impinging

on individual interests need only be rational to survive

scrutiny under the Due Process Clause, and the deter-

mination of rationality is to be made with a heavy dose of

deference to the policy choices of the legislature. Only

fundamental’ rights are entitied to the added protection

provided by strict judicial scrutiny of legislation that

impinges upon them.

Id. at 789 (citation omitted) (White, J., dissenting).

It was in this context that Justice White made his sometimes

misconstrued comment regarding an abortion liberty:

I can certainly agree with the ition — which I deem

indisputable — that a woman's ability to choose an abor-

tion is a species of “liberty” that is subject to the general

protections of the Due Process Clause. | cannot agree,

however, that this liberty is so “fundamental” that

restrictions upon it call into play anything more than the

most minimal judicial scrutiny.

Id. at 790.

Justice White’s comment, that “abortion is a species of ‘lib-

erty,” does not mean that he recognizes special constitutional

protection for abortion. His view is stated clearly in Thorn-

burgh:

Roe v. Wade implies that the people have already resolved

the debate by weaving into the Constitution the values

and principles that answer the issue. As I have argued, I

believe it is clear that the people have never — not in 1787,

1791, 1868, or at any time since done any such thing. |

— return the issue to the people by overruling Roe v.

é.

Id. at 796-97.

In sum, there is a clear distinction between “liberty inter-

ests” and “fundamental rights” under the liberty clause of the

Fourteenth Amendment. As discussed below, only fundamen-

tal rights are protected under 1985(3).

B. Section 1985 Only Protects Fundamental Con-

stitutional Rights, Not Liberty Interests.

Section 1985 provides no substantive rights itself; it merely

provides a remedy for the violation of the fundamental con-

stitutional rights. It does not protect mere liberty interests.

The wording of Section 1985(3) itself indicates that only

fundamental constitutional rights are protected:

If two or more persons in any State or Territory conspire

or go in disguise on the highway or on the premises of

another, for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immu-

nities under the laws; or for the purpose of preventing or

hindering the constituted authorities of any State or Ter-

ritory from giving or securing to all persons within such

State or Territory the equal protection of the laws; or if

two or more persons conspire to prevent by force, intim-

idation, or threat, any citizen who is lawfully entitled to

vote, from giving his support or advocacy in a legal man-

ner, toward or in favor of the election of any lawfully

qualified person as an elector for President or Vice Presi-

dent, or as a Member of Congress of the United States; or

to injure any citizen in person or property on account of

such support or advocacy; in any case of conspiracy set

forth in this section, if one or more persons engaged

therein do, or cause to be done, any act in furtherance of

the object of such conspiracy, whereby another is injured

in his person or property, or deprived of having and exer-

cising any right or privilege of a citizen of the United

States, the party so injured or deprived may have an

action for the recovery of damages occasioned by such

injury or deprivation, against any one or more of the

conspirators.

42 U.S.C.A. § 1985(3) (1871) (emphasis added)

The rights specifically named in the statute are all fundamen-

tal constitutional rights, i.e., equal protection of the laws,

equal privileges and immunities under the laws, the right to

vote and to support or campaign for political candidates, In

order to make sure that no fundamental right would be

excluded, the statute specifically protects “any right or priv-

ilege of a citizen of the United States.” The rights Congress

sought to protect were those rights that were necessary to free

participation in a political democracy. Those were the rights

most in jeopardy in the period of Civil War Era Reconstruction.

The seminal case of Griffin v. Breckenridge, 403 U.S. 88

(1971) established this interpretation. Griffin involved the vio-

% Section 1985(3) “as first enacted authorized both criminal and civil actions

against those who have conspired to deprive others of federally guaranteed

rights. Beforéthe 19th century ended, however, the Court found the criminal

provisions of the statute unconstitutional because they exceeded the scope of

congressional power, [citations omitted], and the provisions thus invalidated

were later formally repealed by Congress. The civil action provided by the

Act remained, but for many years was rarely, if ever, invoked.” Great Ameri-

can Federal S. & L. Ass'n v. Novotny, 442 U.S. 366, 370-71 (1979).

lent acts of Ku Klux Klan members in attempting to discourage

black persons, whom they mistakenly thought were civil rights

workers, from entering and working within the state of Mis-

sissippi. In Griffin this Court determined forthe first time that

the Ku Klux Klan Act, now encoded at 42 U.S.C.A. § 1985(3),

extended to private conspiracies and that the Act was constitu-

tional as applied under the Thirteenth Amendment and the

constitutional power to protect the right of interstate travel.

However, the Court did not see fit to include every possible

violation committed by two or more persons within a state.

Justice Stewart wrote:

That the statute was meant to reach private action does

not, however, mean that it was intended to apply to all

tortious, conspiratorial interferences with .the rights of

others. For, though the supporters of the legislation

insisted on coverage of private conspiracies, they were

equally emphatic that they did not believe, in the words of

Representative Cook, “that Congress has a right to

punish an assault and battery when committed by two or

more persons within a State.” (Cong. Globe, 42d Cong.,

Ist Sess. 485 (1871). |

Id. at 101-02 (emphasis added).

In reaching its conclusion, this Court identified “two con-

stitutional sources” (id. at 107) relied upon to support a cause of

action under Section 1985(3):

We can only conclude that Congress was wholly within its

powers under § 2 of the Thirteenth Amendment in creat-

ing a statutory cause of action for Negro citizens who have

been the victims of conspiratorial, racially discriminatory

private action aimed at depriving them of the basic rights

that the law secures to all free men.

** *

Our cases have firmly established that the right of inter-

state travel is constitutionally protected, does not neces-

sarily rest on the Fourteenth Amendment, and is

assertable against private as well as governmental inter-

ference. (Citations omitted.| The “right to pass freely

from State to State” has been explicitly recognized as

“among the rights and privileges of National citizenship.”

Twining v. New Jersey, 211 U.S. 78, 97 (1908). That right,

like other rights of national citizenship, is within the

power of Congress to protect by appropriate legislation.

403 U.S. at 105-06 (emphasis added).

If the plaintiffs’ physical injuries alone in Griffin were suffi-

cient to invoke the protections of Section 1985(3), why did this

Court rest its holding squarely on the Thirteenth Amendment

and the fundamental constitutional right of interstate travel? It

would not have done so unless the existence of a fundamental

right was necessary to its holding.

This interpretation is also supported by Justice Powell's con-

curring opinion in Great American Federal S. & L. Ass'n v.

Novotny, 442 U.S. 366, 378 (1979) (Powell, J., concurring). In

Novotny, an action was brought by a former male employee,

who alleged that his support for female employees was the

cause of his discharge, contending that he had been injured as a

result of a conspiracy to deprive him of equal protection of and

equal privileges and immunities under the laws. /d. at 366.

This Court held that the statutory right created by Title VII of

the Civil Rights Act of 1964, § 704(a) as amended 42 U.S.C.A.

§ 2000e-3(4),4 could not be the basis for a cause of action under

Section 1985(3). The Court's rationale was that only this holding

could preserve the effectiveness of the administrative remedies

provided for in Title VII.

Justice Powell concurred with the result reached in the

majority opinion but felt that it failed to give proper guidance

to the federal courts as to when Section 1985(3) may be invoked:

I agree with the opinion of the Court as far as it goes, and I

join it. I also agree with the views expressed- by Mr.

* “Congress enacted Title VII of the Civil Rights Act of 1964 to assure

equality of employment opportunities by eliminating those practices and

devises that discriminate on the basis of race, color religion, sex or national

(footnote continued)

Justice STEVENS’ concurring opinion. I write sepa-

rately because it seems to me that the Court's decision

affords unnecessarily little guidance to courts in the

federal system.

Id. at 378.

Justice Powell's reason for siding with the majority was that

the reach of Section 1985(3) “is limited to conspiracies to violate

those fundamental rights derived from the Constitution.” Id.

(emphasis added). In support of this view he cites the holding

and rationale of Griffin. He notes the “two constitutional

sources” cited in Griffin, and quotes Griffin's holding that the

right of interstate travel, “like other rights of national cit-

izenship, is within the power of Congress to protect by appro-

priate legislation.” Then he concludes stating:

By contrast, this Court has never held that the right to

any particular private employment is a “right of national

citizenship,” or derives from any other right created by

the Constitution. Indeed, even Congress, in the exercise

of its powers under the Commerce Clause of the Constitu-

tion, has accorded less than full protection to private

employees. ... Nor does the Constitution create any right

to be free of gender-based discrimination perpetuated

solely through private action.

The rationale of Griffin accords with the purpose, his-

tory, and common understanding of this Civil War Era

statute. Rather than leave federal courts in an y doubt as

to the scope of actions under § 1985(3), I would explicitly

reaffirm the constitutional basis of Griffin.

Id. at 380-81 (emphasis added). Thus Justice Powell concludes

that the precedent of this Court inG riffin requires the violation

Footnote 4 continued

origin. .. » To this end, Congress created the Equal Employment Oppor-

tunity Commission and established a procedure whereby existing state and

persuasion before the aggrieved party was permitted to file a lawsuit.”

Alerander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974),

of a fundamental constitutional right before Section 1985(3)

may be properly invoked.

Furthermore, the violations of Section 1985(3) that have been

recognized by the federal courts have involved fundamental

constitutional rights. See, e.g., Griffin, 403 U.S. 88 (interstate

travel); Skadegaard v. Farreil, 578 F.Supp. 1209 (D.N.J. 1984)

(sexual harassment under 14th Amendment); Hunt v. Weath-

erbee, 626 F.Supp. 1097 (D.Mass. 1986) (sexual harassment);

Portland Feminist Women’s Health Center v. Advocates for

Life, Inc., 712 F.Supp. 165 (D.Or. 1988) (interstate travel); and

New York State National Organization for Women v. Terry, 704

F.Supp. 1247 (S.D.N.Y. 1989), aff'd as modified, 886 F.2d 1339

(2nd Cir. 1989) (interstate travel).

For these reasons, the rights protected by Section 1985(3)

are limited to fundamental constitutional rights, not mere lib-

erty interests. Section 1985(3) cannot be invoked to protect

mere personal or property interests without the violation of

fundamental constitutional rights.

IV. Unver THis Court’s JurisrerupENCE THE RIGHT TO

ABORTION 18 ONLY A Liperty INTEREST, Not A FuN-

DAMENTAL RiGHut.

The right to abortion is no longer considered by this Court (o

be a fundamental right. This is evident from this Court's plu-

rality and concurring opinions in Webster v. Reproductive

Health Services, 1098. Ct. 3040 (1989), Hodgson v. Minnesota,

110 S. Ct. 2926 (1990), and Ohio v. Akron Center for Reprodue-

tive Health, 110 8. Ct. 2972 (1990).

In Webster, this Court upheld Missouri statutes (1) banning

the use of public employees and facilities for the performance of

abortion, except to save the life of the mother, 109 S. Ct. at

3053, and (2) requiring viability testing before abortions could

be performed where the abortionist has reason to believe a

woman is carrying an unborn child of twenty or more weeks

gestational age. /d. at 3056. The Court also determined that

federal courts could not consider (and reversed the lower

court's decision to do so) the preamble to the Missouri law,

which made a legislative finding that individual human life —

begins at conception. /d. at 3050.

The pivotal change wrought by Webster in abortion jurispru-

dence was evident in the express analyses employed by a new

majority of Justices on the Court. Compiling these analyses

into a single analysis reveals that, after Webster, (a) “the unduly

burdensome test ha[d] become the de facto standard of review

in abortion jurisprudence,” (b) there [was] no longer a “gen-

abortion right | would be | recognized, the trimester scheme is

defunct and states have compelling interests in unborn life and

maternal health throughout pregnancy,” and (d) “to the extent

any fundamental right to abortion | would be] recognized, abor-

tion regulations need no longer be narrowly tailored.” See Bopp

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

159, 161, 162, 164 (1989), The key element of these changes is the

fact that the abortion right has been demoted to a mere liberty

interest. Webster, 109 S. Ct. at 3058 (plurality opinion of Rehn-

quist, C.J., and White and Kennedy, JJ.) (abortion charac-

terized as “a liberty interest protected by the Due Process

Clause, which we believe it to be” (emphasis added); 109 S. Ct.

at 3064 (Scalia, J., concurring in part and concurring in the

judgment) (Justice Scalia wrote, “I. . . would loverrule Roe |

more explicitly,” thereby recognizing abortion as a liberty

interest rather than a fundamental right. ).°

Thus, the significance of Webster goes beyond the statutes

which the Court upheld. A majority of this Court has now

abandoned the key underpinning of the decision in Roe ». Wade,

410 U.S. 113 (1973)that there is a general “fundamental right to

abortion.” By so doing, the new majority has sub silentio

overruled Roe v. Wade. See Bopp & Coleson, What Does Web-

ster Mean’, 138 U. Pa. L. Rev. 157.

* Justice O'Connor, likewise, did not employ strict scrutiny, for her analysis

does not treat abortion as a general fundamental right.

The profound change in abortion jurisprudence indicated by

Webster is further apparent in this Court’s latest decisions on

abortion. These decisions, Hodgson v. Minnesota, 110 S. Ct.

2926, and Ohio v. Akron Center for Reproductive Health, 1108.

Ct. 2972, confirm the radical change in abortion jurisprudence

indicated by the Court's decision in Webster, 109 S. Ct. 3040.

In Hodgson and Ohio, five of the nine justices again treated

- abortion as a mere “liberty interest” rather than a “fundamen-

tal right.” This is evident from the fact that these five justices

required only a “rational basis” for the state's abortion statutes

rather than a higher standard, as would be required if abortion

were a fundamental right. Ohio, 110 S. Ct. at 2977, 2983-84

(plurality opinion of Kennedy, J., joined by Rehnquist, C.J.,

and White and Scalia, JJ.) (“The Statute in issue here is a

rational way to further those ends.”); Ohio, 110 S. Ct. at 2981

(The Court, including Justice O'Connor, referred to minors

abortion interest as a “liberty interest.”); Hodgson, 110 S. Ct.

at 2944 (Stevens, J., joined by O'Connor, J.) (the statute at issue

“would reasonably further the legitimate state interest”); id. at

2945 (the Court) (the statute at issue “does not reasonably

further any legitimate state interest”); id. at 2949 (O'Connor,

J., concurring in part and concurring in the judgment in part)

(“It bas been my understanding in this area that [i}f the partic-

ular regulation does not “unduly burde(n]” the fundamental

right, . . . then our evaluation of that regulation is limited to

our determination that the regulation rationally relates to a

legitimate state purpose. It is with that understanding that |

agree with Justice Stevens’ statement that the statute cannot

be sustained if the obstacles it imposes are not reasonably

related to legitimate state interests.” (citations omitted)).

The new Court majority, evident in Webster, Hodgson, and

Ohio, therefore, treats abortion as only a liberty interest.

Since abortion is no longer a fundamental right, it is no longer

of sufficient weight to merit protection under Section 1985(3).

Vv. Tats Court Has Property Dererminep Tuat THE

Ricut To Abortion ts A Mere Linerty INTEREST.

This Court has been criticized for its failure to justify its

treatment of abortion as a liberty interest, not a fundamental

right. Dellinger & Sperling, Abortion and the Supreme Court:

The Retreat from Roe v. Wade, 138 U. Pa. L. Rev. 83, 83-84

(1989). However, pursuant to this Court's precedent for such

, mations. the right to abortion is rly el sed

as a liberty interest.®

A. This Court Applies an Historical Test to Determine

Which Liberty Interests Rise to the Level of Being a

Fundamental Right.

To determine which liberty interests rise to the level of

fundamental rights, this Court has employed t wo tes®s to assist

in determining which rights are properly deemed “fundamen- ,

tal.” As discussed below, the second test has come to be the one

relied upon by the Court.

The first test asks whether an asserted fundamental right is

“implicit in the concept of ordered liberty.” Palko v. Connecti-

cut, 302 U.S. 319, 325 (1937). The second test asks whether a

failure to recognize the asserted liberty interest as fundamen-

tal would “violate a ‘principle of justice so rooted in the tradi-

tions and conscience of our people as to be ranked as

fundamental.” /d. (quoting Snyder v. Massachusetts, 291 U.S.

97, 105 (1934). These tests for fundamentality have been

qualified in more recent cases to clarify precisely which history |

is relevant: an asserted fundamental right must be “necessary

to an Anglo-American regime of ordered liberty,” Duncan v.

Louisiana, 391 U.S. 145, 149 n.14 (1968) (emphasis added), or

“deeply rooted in this Nation's history and tradition,” Moore v.

* Furthermore, the doctrine of stare decisis does not prevent this Court from

overruling Roe"s holding that abortion is a fundamental right. See general y

Bopp, Coleson & Bostrom, Does the United States Supreme Court Have a

Constitutional Duty to Exrpressly Reconsider and Overrule Roe v. Wade” |

Seton Hall Const. L. J. 55, 84-107 (1990).

City of East Cleveland, 431 U.S. 494, 503 (1977) (emphasis

added).

This Court has relied increasingly on the “history and tradi-

tion” test as being more concrete and reliable. This is expressly

stated in the case of Duncan v. Louisiana, 391 U.S. at 149-50

n.14, which the Court has described as “rejecting the Palko

|implicit-in-the-concept-of-ordered-liberty] formula as the

basis for deciding what procedural protections are required of a

State, in favor of a historical approach based on the Anglo-

American legal tradition.” Moore v. City of East Cleveland, 431

U.S. at 504 n.12. In Moore, the Court noted that “an approach

grounded in history imposes limits on the judiciary that are

more meaningful than any based on the abstract formula taken

from Palko v. Connecticut.” Id.?

The predominant reliance on the historical test is evident in

the recent decisions of this Court involving asserted fundamen-

tal rights. See, e.g., Bowers v. Hardwick. 478 U.S. 186 (1986)

(The Court noted the fact that sodomy was historically a crime

sodomy as a fundamental right). In applying the historical test,

two factors must be kept in mind. The first factor is summa-

rized in Justice Harlan’s dissent in Poe v. Ullman, 367 U.S.

497, 522 (1961) (a discussion often cited in the Court's discus-

sions of the test for fundamentality), namely that the substan-

tive content of the due process clause consists of “the balance

which our Nation . . . has struck between . . . liberty and the

demands of organized society.” Id. at 542. It “is the balance

struck by this county, having regard to what history teaches

are the traditions from which it developed as well as the tradi-

tions from which it broke.” /d.

7 It is noteworthy that Justice White expressed reservations about the his-

tornéal test in Moore, arguing that it “suggests a far too expansive charter for

this Court and a far less meaningful and less confining guiding principle than

[the implicit-in-ordered-liberty test] for serious substantive due process

review. Moore, 43! U.S. at 549 (White, J., dissenting). However, by the time

of Bowers v. Hardwick, 478 U.S. 186 (1986), he had adopted the majority

analysis, employing it in the opinion he authored for the majority.

The second factor which must be considered is the way in

which a proposed fundamental right is formulated prior to

being submitted to the historical test for fundamentality. Mern-

bers of the Court have debated the level of specificity at which a

proposed fundamental right must be formulated before being

tested by the historical test for fundamentality. For example,

in the homosexual sodomy case of Bowers v. Hardwick, 478

U.S. 186 (1986), the majority rejected a number of broad for-

mulations of the proposed fundamental right, such as the right

to do what one wishes “in the privacy of the home,” id. at 195, or

the right to engage in “voluntary sexual conduct between

consenting adults,” id." Rather, the Bowers majority formu-

lated the proposed fundamental right in a narrower, concrete,

fact-sensitive manner, e.g., the right to engage in “consensual

homosexual sodomy.” /d. at 188 n.2.°

What this means for abortion jurisprudence is that the new

majority on this Court has rejected the free-wheeling test of

Roe v. Wade, which asks whether a right of privacy is “broad

enough to encompass” a right to abortion, Roe, 410 U.S. at 153.

Under the rejected Roe approach, this Court could simply

determine that there is broad, undefined right of privacy and

conclude that it is sufficiently broad to encompass abortion.

Under such an approach, the Court could have as easily found a

constitutional right to infanticide. Instead, the Court will now

ask whether a right to abortion on demand is deeply rooted in

this Nation's history and tradition.

* The Bowers dissenters employed ten different board and abstract formula-

tions, such as the “right to be let alone,” which could encompass nearly

anything. Bowers, 478 U.S. at 199, 204, 205. 206, 20% 211, 217.

* This is confirmed in the recent case of Michael H. v. Gerald D., W898. Ct.

ZEK3 (1989). In Michael H_, the plurality formulated the proposed fundamen.

tal right as “the power of the natural father to assert paternal rights over a

child born into a woman's existing marriage with another man.” Id. at 2343

(plurality opinion). In so doing, the Michael H. plurality rejected the broad

B. Because Abortion Fails the Historical Test for Fun-

damentality, This Court's Majority Has Demoted

the Former Abortion Right to a Liberty Interest, So

That Legislation Restricting It Need Only Have a

“Rational Basis.”

When the issue is framed as whether abortion on demand is

deeply rooted in the history and tradition of our Nation, it is

readily apparent that it was not. Therefore, there could prop-

erly be no fundamental right to abortion.

An examination of the history of legal restrictions on abor-

tions reveals that abortion has been legally restricted through-

out the history of our Republic until Roe v. Wade overturned

the laws of the States. Roe, 410 U.S. 113. The history of abor-

tion restrictions in Anglo-American common law and statutory

law is discussed at great length by Professor Joseph

Dellapenna. See Dellapenna, Brief of the American Academy

of Medical Ethics, as Amici Curiae, Minnesota v. Hodgson, 110

S. Ct. 2926 (1990) (No. 88-1309); and Dellapenna, The History

of Abortion: Technology, Morality, and Law, 40 U. Pitt. L.

Rev. 359 (1979).

The history of abortion regulation in this country has been

set forth concisely by now-Chief Justice Rehnquist in his dis-

sent to Roe v. Wade, 410 U.S. at 174-77 (Rehnquist, J., dissent-

ing) (listing the ubiquitous abortion statutes in the States),

Justice Rehnquist summed up the implications of history for

determining the fundamentality of a right to abortion: “The

fact that a majority of the States reflecting, after all, the

majority sentiment in those States, have had restrictions on

abortions for at least a century is a strong indication, it seems

to me, that the asserted right to an abortion is not so rooted in

the traditions and conscience of our people as to be ranked as

fundamental.” Jd. at 174.

This theme was revisited in oral arguments in the Webster

case, when Frank Susman, attorney for Planned thood,

deciared to this Court that an abortion right is “ y rooted

in this nation’s history and tradition.” Transcript of Oral Argu-

ments Before the Court on Abortion Case, N.Y. Times, April

27, 1989, at B13, col. 2. Susman endeavored to establish this by

defining the proposed right broadly as a right of procreative

choice, thereby seeking to inextricably link abortion and pro-

creation. See Bopp, The Elusive Abortion Right, The Nat’!

L.J., June 12, 1989, at 13, col. 1 (discussing this flawed analysis

at length and Justice Scalia’s rejection of the contraception-

abortion link). This effort was rejected by Chief Justice Rehn-

quist who refocused the issue on the narrow, concrete issue of

abortion in his response: “(SJurely abortion was regulated by

the states in the 19th century and in the 20th century?” He

continued, “If you say there is a deeply rooted tradition in this

area, that suggests that there had been no legislative interven-

tiontome.. . . (That simply is not the fact.” Transcript of Oral

Arguments Before the Court on Abortion Case, N.Y. Times,

April 27, 1989, at B13, col. 3. *° *

From these comments and from the historical facts, it is

evident that there is no fundamental constitutional right to

abortion, using the now-controlling historical test, and the

majority on this Court no longer recognizes a fundamental

right to abortion. This is evident from this Court's recent Cases,

in which it has abandoned the analysis required by Roe v. Wade.

CONCLUSION

The “right to abortion,” whatever its constitutional dimen-

sions, only arises under the Fourteenth Amendment. It there-

fore is only protected against state action which has not been

alleged herein. Further, Section 1985(3) has traditionally pro-

vided a remedy only for violations of fundamental rights, not

mere liberty interests. Under this Court's jurisprudence the

right to abortion is only a liberty inte: est, not a fundamental!

right. This Court’s characterization of the right as a liberty

interest is consistent with its own precedent in making such

determinations.

For the above reasons, this Court should find that Section

1985(3) does not protect a “right to abortion” against violation

by private parties.

Respectfully submitted,