Reply Brief — Casey v. Planned Parenthood of Southeastern Pennsylvania (Nos. 91-902, 91-744)

Nos. AL and oo?

IN THE

Supreme Court of the United

OCTOBER TERM, 1991

>

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA,

REPRODUCTIVE HEALTH AND COUNSELING CENTER, WOMEN’S

HEALTH SERVICES, INC., WOMEN’S SUBURBAN CLINIC, ALLENTOWN

WOMEN’S CENTER, and THOMAS ALLEN, M.D., on behalf of himself

and all others similarly situated, Bs

Petitioners and Cross-Respondents,

—

ROBERT P. CASEY, ALLAN S. NOONAN, and ERNEST D. PREATE, JR.,

personally and in their official capacities,

Respondents and Cross-Petitioners.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

REPLY BRIEF FOR PETITIONERS AND

CROSS-RESPONDENTS

LINDA J. WHARTON KATHRYN KOLBERT

CAROL E. TRACY (Counsel of Record)

Women’s Law Project JANET BENSHOOF

125 South Ninth Street LYNN M. PALTROW

Suite 401 RACHAEL N. PINE

Philadelphia, Pennsylvania 19107 ANDREW DWYER

(215) 928-9801 ELLEN K. GOETZ

STEVEN R. SHAPIRO

JOHN A. POWELL

American Civil Liberties Union

Foundation

132 W. 43rd Street

New York, New York 10036

(212) 944-9800

Attorneys for Petitioners and Cross-Respondents

(Counsel continued on inside cover)

SSS a I a TTS

SETH KREIMER

University of Pennsylvania

Law School

3400 Chestnut Street

Philadelphia, Pennsylvania 19104

(215) 898-7447

ROGER K. EVANS

EVE W. PAUL

DARA KLASSEL

Planned Parenthood Action

Fund, Inc.

810 Seventh Avenue

New York, New York 10019

(212) 541-7800

TABLE OF CONTENTS

pe

TT PAGER OdUdesedbudessebbbceoccceccceses

I.

Il.

THIS COURT MUST REJECT THE COM-

MONWEALTH AND SOLICITOR’S PLEA

TO ABANDON ROE’S CENTRAL HOLD-

EO ae

A. Roe Held that the Right to Abortion Is a

Fundamenta! Right Protected by the Strict

Scrutiny Standard of Review; This Court

Caunot Uphold the Pennsylvania Law

Without Abandoning that Standard......

B. The Doctrine of Stare Decisis Requires

CL EEE

C. The Decision To Terminate or Continue a

Pregnancy Must Continue To Be Afforded

Fundamental Constitutional Protection ...

THE PENNSYLVANIA STATUTE IS

UNCONSTITUTIONAL UNDER’ ANY

STANDARD OF REVIEW .................

A. The Factual Findings of the District Court

Are Relevant to the Constitutional Issue

Before This Court and Are Fully Sup-

ported by the Factual Record............

B. This Court Should Reject the Common-

wealth’s ‘‘Rights by Numbers’’ Approach

and Find Unconstitutional the Husband

Notification Provision...................

12

12

14

C. The Biased Counseling Provisions Will

Harm Women and Force Physicians To

Disseminate Pennsylvania’s Anti-abortion

Sn 60.0d0 6060s chemsiboeeaatekanuce

1. The biased counseling provisions inter-

fere with the provision of appropriate

GE Is hk cbse cudedenescenencs<

2. The biased counseling required by

§ 3205 is not commercial speech......

D. The Judicial Bypass Procedure Does Not

Cure the Constitutional Defects of the

Act’s Informed Parental Consent Provision

CSCMMMEEY chovpesccesdccténcseducerecnacecess

SPEED CON dd tc evedcssdescconseeneeseseetensen

PAGE

18

18

20

23

TABLE OF AUTHORITIES

Cases: PAGE

Anderson v. City of Bessemer City, 470 U.S. 564

ddetvbcdtensdieaentanuauetensesessssavccas 12

Arizona v. Rumsey, 467 U.S. 203 (1984) ............ 4

Se Oe Me Ws Ge ic ccccccccccccoces 2

Bellotti v. Baird, 428 U.S. 132 (1976)............... 3

Bellotti v. Baird, 443 U.S. 622 (1979)............... 15

Bigelow v. Virginia, 421 U.S. 809 (1975)............ 21

Board of Trustees v. Fox, 492 U.S. 469 (1989) ...... 21

Bolling v. Sharpe, 347 U.S. 497 (1954).............. 7, 8

Brandenburg v. Ohio, 395 U.S. 444 (1969) .......... 16

Brown v. Board of Educ., 347 U.S. 483 (1954) ...... 8

Carey v. Population Servs. Int’l, 431 U.S. 678

IPT hes Cdn ceenh ened sbebsedeudcsaceccecoence 2, 9, 10

Carrington v. Rash, 380 U.S. 89 (1965) ............. 16

Carter v. Sedgwick County, 929 F.2d 1501 (10th Cir.

PU dwoceteencceresccndvesucsicecsoecddsoveses 11

City of Akron v. Akron Center for Reproductive

Health, Inc., 462 U.S. 416 (1983) ................ passim

Colautti v. Franklin, 439 U.S. 379 (1979) ........... 14

Connecticut v. Menillo, 423 U.S. 9 (1975)........... 3

DeShaney v. Winnebago County Dep’t of Social

Se Ge ee SE ED be ddbdocdevcoocdsceees 8

a

iv

PAGE

Eisenstadt v. Baird, 405 U.S. 438 (1972)....... 6, 8, 10, 17

Eu v. San Francisco Democratic Comm., 489 U.S. 214

ais Anni ie aad Sarid eke ile ced on dc wn 2

Geduldig v. Aiello, 417 U.S. 484 (1974)............. 18

Gideon v. Wainwright, 372 U.S. 335 (1963) ......... 8

Griswold v. Connecticut, 381 U.S. 479 (1965)....... 6, 8, 9

H.L. v. Matheson, 450 U.S. 398 (1981) ............. 15

Harper v. Virginia State Bd. of Elections, 383 U.S. 663

Fn ee A Se ee ee Sy ee 7,8

Harris v. McRae, 448 U.S. 297 (1980).............. 2, 3, 8

Hernandez v. New York, 111 S. Ct. 1859 (1991)..... 12

Hilton v. South Carolina Pub. Rys. Comm’n, 112 S.

RR NRE Lo Se ied |e ee 4

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

Hudson v. McMillian, 112 S. Ct. 995 (1992)......... 7-8, 9

Hunter v. Underwood, 471 U.S. 222 (1985).......... 7

International Union, U.A.W. v. Johnson Controls,

Sn Tee We Ge BE ccc ccccucceseccoces 18

Jane L. v. Bangerter, No. 91-C-345-G (D. Utah filed

i We ic iad ea hd ei i i i 16

Kirchberg v. Feenstra, 450 U.S. 455 (1981).......... 18

Lamprecht v. FCC, No. 88-1395, 1992 U.S. App.

LEXIS 1997 (D.C. Cir. Feb. 19, 1992)............ 14

Landmark Communications, Inc. v. Virginia, 435 U.S.

ERIE ETE a a a 14

Lindsey v. Normet, 405 U.S. 56 (1972).............. 8-9

Lochner v. New York, 198 U.S. 45 (1905)........... 4,5

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

Maher v. Roe, 432 U.S. 464 (1977) ...........005. a

Marks v. United States, 430 U.S. 188 (1977).........

McCabe v. Atchison, T. & S. F. Ry., 235 U.S. 151

SG taGeReehh es RSRNSAKNSAGEHENScdeesosesccees

McDaniel v. Paty, 435 U.S. 618 (1978)..............

McLaughlin v. Florida, 379 U.S. 184 (1964).........

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

Michael H. v. Gerald D., 491 U.S. 110 (1989).......

Michael M. v. Superior Court, 450 U.S. 464 (1981) ..

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

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449

a ake Be ee Ess ne cee dé les

NAACP v. Button, 371 U.S. 415 (1963).......... 20-21,

Nashville Gas Co. v. Satty, 434 U.S. 136 (1977)..... ll,

National Railroad Passenger Corp. v. Florida, 929

on cconccaneesecaes

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

Newport News Shipbuilding & Dry Dock Co. vy.

es Ge Ge I Ec ccccccecccecccccecece

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

i

Olmstead v. United States, 277 U.S. 438 (1928)......

Payne v. Tennessee, 111 S. Ct. 2597 (1991)..........

vi

PAGE

Planned Parenthood v. Danforth, 428 U.S. 52

Ss nose aceeconeecesctedauncdhcwarnsanes 3, 14, 16-17

Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476

Pre rrrrrrrrrit TT Tri TTrt TTT rire Te 3, 14

Poe v. Uliman, 367 U.S. 497 (1961) .............55- 21

Regina v. Sims, 75 Eng. Rep. 1075 (Q.B. 1601)...... 6-7

Rex v. Lichefeld, K.B. 27/974, Rex. m.4 (1505)...... 6

Rhodes v. Chapman, 452 U.S. 337 (1981) ........... 8

Riley v. National Fed’n of the Blind, Inc., 487 U.S.

fF —-_- PREP PECL OTT TT TTT TTT CT TTT TTT 20, 21

Roe v. Wade, 410 U.S. 113 (1973) .............445. passim

Sable Communications, Inc. v. FCC, 492 U.S. 115

GEE sas Wevcccescocecuccecesneescoeccescseccces 14

Schweiker v. Gray Panthers, 453 U.S. 34 (1981) ..... 1]

Shapiro v. Thompson, 394 U.S. 618 (1969).......... 8

Shelley v. Kraemer, 334 U.S. 1 (1948)............... 10

Simon & Schuster, Inc. v. Members of New York State

Crime Victims Bd., 112 S. Ct. 501 (1991) ......... 21

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535

GPE occccccccecececevesoceesedsceseocecosecens 8

Stanley v. Georgia, 394 U.S. 557 (1969)............. 10

Stanley v. Illinois, 405 U.S. 645 (1972).........6655. 8

Taylor v. Louisiana, 419 U.S. 522 (1975)............ 8

Texas v. Johnson, 491 U.S. 397 (1989)............4.. 16

Thornburgh v. American College of Obstetricians &

Gynecologists, 476 U.S. 747 (1986) ..........00065 passim

a

PAGE

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

REN ee ES a nn On 10

United States v. Salerno, 481 U.S. 739 (1987)........ 13

Virginia State Bd. of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748 (1976)...... 21

Webster v. Reproductive Health Servs., 492 U.S. 490

DPSUEE de bedidneebUNs 666000660000 tcoencteces 2, 3, 13

Welch v. Texas Dep’t of Highways & Pub. Transp.,

ee Es tiidn cic ek gtaudentcceéacsees 4

West Virginia State Bd. of Educ. v. Barnette, 318 U.S.

EE nn 22

Wooley v. Maynard, 430 U.S. 705 (1977) ........... 22

Zauderer v. Office of Disciplinary Counsel, 471 U.S.

ESM Ey ers 21-22

Statutes and Rules:

Comstock Act, ch. 258, § 1, 17 Stat. 598 (1873) (codi-

fied as amended at 18 U.S.C. § 1461 (1988)) ...... 6

18 Pa. Cons. Stat. Ann. § 3204(c) (Supp. 1991)...... 1]

18 Pa. Cons. Stat. Ann. § 3205 (Supp. 1991)........ 19

18 Pa. Cons. Stat. Ann. § 3209 (Supp. 1991) ....... passim

rr er re ete ee cuueébeeddeveteuseees 12, 13

Viii

PAGE

Articles:

Walter Dellinger and Gene B. Sperling, Abortion and

the Supreme Court: The Retreat from Roe v. Wade,

8S Se eee 1]

James C. Mohr, Abortion in America: The Origins and

Evolution of National Policy, 1800-1900 (1978) .... 7

J. Reed, The Birth Control Movement and American

Society: From Private Vice To Public Virtue (1983) 6

Jeb Rubenfeld, The Right of Privacy, 102 Harv. L.

Ss Fae Se one kn 4accmenchaanséaaéscniwake dss 5

Laurence H. Tribe, American Constitutional Law (2d

i El rb ds kh baa dads Wonk ode bedaaelenneeess 5

ARGUMENT

I. THIS COURT MUST REJECT THE COMMON-

WEALTH AND SOLICITOR’S PLEA TO ABANDON

ROE’S CENTRAL HOLDING.

A. Roe Held that the Right to Abortion Is a Fundamental

Right Protected by the Strict Scrutiny Standard of

Review; This Court Cannot Uphold the Pennsylvania

Law Without Abandoning that Standard.

Apparently mindful of the potential negative political

repercussions of a decision explicitly overruling Roe v. Wade,

410 U.S. 113 (1973), the Commonwealth contrives to avoid

that result by arguing that the Pennsylvania law ‘‘comports

with Roe in all respects.’’ R.B. 35.' In support of this argu-

ment, the Commonwealth claims that Roe establishes only a

‘‘limited’’ right to abortion, R.B. 35-39, and that Justice

O’Connor’s undue burden test? is the standard of review

mandated by Roe. R.B. 42-48.° Thus, the Commonwealth

claims, this Court need not overrule Roe to uphold the Penn-

sylvania restrictions. R.B. 35.‘

The Commonwealth’s argument misstates Roe’s holding

and, if accepted, would dismantle this Court’s substantive

due process jurisprudence. This Court has repeatedly found

l Petitioners cite the Brief for Respondents as ‘“‘R.B. __,”’ the Brief

for Petitioners as ‘‘P.B. __,’” and the Brief of Amicus United States as

“SG. —

2 City of Akron v. Akron Center for Reproductive Health, Inc., 462

U.S. 416, 461-64 (1983) (O’Connor, J., dissenting); Thornburgh v. American

College of Obstetricians & Gynecologists, 476 U.S. 747, 828-29 (1986)

(O’Connor, J., dissenting). ,

3. The Commonwealth’s argument is inconsistent with that made by all

of its supporting amici, who concede that Roe held that the right to choose

aboriion is a fundamental right protected by strict scrutiny. E.g., S.G. 5;

Feminists for Life Br. 3.

4 Alternatively, the Commonwealth, joined by the Solicitor, argues

that this Court should explicitly overrule Roe and replace the strict scrutiny

standard of review with the rational basis test. R.B. 105-17; S.G. 8-18.

2

that once a liberty interest rises to the level of a ‘‘fundamen-

tal right,’’ restrictions on that right are subject to the strict

scrutiny standard of review. See, e.g., Eu v. San Francisco

Democratic Comm., 489 U.S. 214, 222 (1989).° This Court

has also repeatedly acknowledged that Roe established the

right to choose abortion or childbirth as a fundamental right;

state laws that intrude upon these reproductive decisions must

therefore be examined with exacting scrutiny. 410 U.S. at

153-55.

The Commonwealth’s assertion that this Court can avoid

overruling Roe by applying the ‘‘undue burden’’ test is disin-

genuous at best. As the Commonwealth concedes, that test,

which presently has ‘‘the support of only a single Justice,”’

R.B. 52,’ provides far less protection for women seeking

abortion than Roe’s strict scrutiny standard. See P.B. 35-36."

5 The Commonwealth confuses fundamental rights with limited state

interests. Roe’s accommodation of the state’s interest in potential human life

did not reduce the status of the abortion right to that of a so-called ‘‘limited

right’’ and thereby sanction the imposition of a less protective standard of

review. See R.B. 36-39. To the contrary, those concerns relate only to

whether a state’s interest is sufficient to override a woman's right to choose

abortion. 410 U.S. at 163-64.

6 E.g., Carey v. Population Servs. Int’l, 431 U.S. 678, 686 (1977);

Thornburgh, 476 U.S. at 772; Akron, 462 U.S. at 419-20 & n.1.

7 Relying on Marks v. United States, 430 U.S. 188 (1977), the Com-

monwealth insists that the undue burden test became the ‘‘governing stan-

dard’’ in Webster v. Reproductive Health Servs., 492 U.S. 490 (1989), and

Hodgson v. Minnesota, 110 S. Ct. 2926 (1990). R.B. $3. But in Webster, Jus-

tice O’Connor’s decisive opinion found Missouri's viability testing provision

consistent with Roe’s strict scrutiny standard and expressly declined to reex-

amine Roe’s validity. Webster, 492 U.S. at 525-26 (O’Connor, J., concur-

ring). In Hodgson, this Court found that the Minnesota restrictions

unconstitutionally interfered with ‘‘family[ ] decisionmaking processes,’’ 110

S. Ct. at 2950 (O’Connor, J., concurring), and failed to pass even rational

basis review. Jd. at 2945-47. Even when upholding that portion of the statute

with a judicial bypass procedure, this Court carefully reconciled its ruling

with past precedents. Jd. at 2950-51 (O’Connor, J., concurring); id. at 2970

(Kennedy, J., concurring in part and dissenting in part) (plurality). More-

over, the Commonwealth's reliance on Marks is misplaced. See Representa-

tive Don Edwards, ef a/. Br. 8-9.

8 Respondents incorrectly cite Harris v. McRae, 448 U.S. 297 (1980),

Maher v. Roe, 432 U.S. 464 (1977), and Beal v. Doe, 432 U.S. 438 (1977), to

Under the undue burden test, heightened judicial scrutiny is

reserved for only those instances in which the state imposes

** ‘absolute obstacles or severe limitations on the abortion

decision.’ ’’ Thornburgh, 476 U.S. at 828 (O’Connor, J., dis-

senting) (quoting Akron, 462 U.S. at 464 (O’Connor, J., dis-

senting)). By contrast, under Roe, any non-de minimis

interference with the abortion right triggers strict scrutiny.’

Absent a compelling purpose, both bans on abortion and

restrictions—-like those at issue here—that encumber the

abortion choice with delay, administrative hurdles, or expense

are invalid. See P.B. 17-18. In short, upholding the Pennsy]-

support their claim that the undue burden test has been regularly applied to

review abortion regulations. R.B. 45. In these cases, this Court upheld fund-

ing schemes, applying rational basis review because the governments’ deci-

sion to encourage childbirth over abortion ‘“‘place{d] no governmental

obstacle in the path of a woman who chooses to terminate her pregnancy.”

Harris, 448 U.S. at 315. But those cases acknowledged that regulations that

interfere with women’s rights are subject to exacting scrutiny. See Maher,

432 U.S. at 472-73.

Similarly, Bellotti v. Baird, 428 U.S. 132 (1976), is distinguishable as it

involved minors’ access to abortion, an area in which this Court has permit-

ted greater state regulation. To conclude from Bellotti’s casual use of the

phrase ‘‘undue burden”’ in describing the holding in Planned Parenthood v.

Danforth, 428 U.S. 52 (1976), that this Court in Danforth intended to

replace Roe’s strict scrutiny standard with a less protective standard of

review strains credulity.

9 The right in Roe, like other fundamental rights, is not absolute. This

Court has upheld numerous ‘‘regulations that have no significant impact on

the woman’s exercise of her right [and are]. . . justified by important state

health objectives.”’ Akron, 462 U.S. at 430. See Planned Parenthood Ass’n

v. Ashcroft, 462 U.S. 476, 486-90 (1983) (plurality opinion); id. at 505

(O’Connor, J., concurring in part and dissenting in part) (requirement that

tissue removed following abortion be submitted to pathologist); Danforth,

428 U.S. at 65-67, 79-81 (woman’s written consent requirement, record-

keeping requirement); Connecticut v. Menillo, 423 U.S. 9 (1975) (require-

ment that only physicians perform abortions). Additionally, this Court has

upheld state laws regulating the performance of abortions after viability is

possible. Webster, 492 U.S. at 513-20 (plurality opinion); id. at 525-31

(O’Connor, J., concurring) (viability testing requirement); Ashcroft, 462

U.S. at 482-86 (plurality opinion); id. at SOS (O’Connor, J., concurring in

part and dissenting in part) (second physician must be present during post-

viability abortions).

4

vania law under the less protective undue burden standard

plainly entails overturning Roe by eviscerating its core

principle.

B. The Doctrine of Stare Decisis Requires Reaffirmation

of Roe.

This Court has recognized time and time again that the

doctrine of stare decisis ‘‘is of fundamental importance to the

rule of law.’’ Hilton v. South Carolina Pub. Rys. Comm’n,

112 S. Ct. 560, 563 (1991) (quoting Welch v. Texas Dep’t of

Highways & Pub. Transp., 483 U.S. 468, 494 (1987)). Here,

where there is the potential for disrupting the lives and settled

expectations of millions of American women, it is beyond

dispute that stare decisis applies with special force. P.B. 19-

22. Astonishingly, while boldly advocating Roe’s demise, the

Commonwealth and the Solicitor make only passing reference

to this doctrine.

The Solicitor virtually ignores stare decisis, arguing in a

brief footnote that it has less potency in constitutional cases.

S.G. 8-9 n.4. But ‘‘even in constitutional cases, the doctrine

carries such persuasive force that . . . departure from prece-

dent [must] be supported by some ‘special justification.’ ’’

Payne v. Tennessee, 111 S. Ct. 2597, 2618 (1991) (Souter, J.,

concurring) (quoting Arizona v. Rumsey, 467 U.S. 203, 212

(1984)). This Court has already concluded that stare decisis

provides ‘‘especially compelling reasons’’ for continued

adherence to Roe. Akron, 462 U.S. at 419-20 & n.1; Thorn-

burgh, 476 U.S. at 759; id. at 780-81 (Stevens, J., concur-

ring).

Similarly, the Commonwealth gives short shrift to stare

decisis," relying simply on this Court’s overturning of Loch-

ner v. New York, 198 U.S. 45 (1905), to justify overturning

Roe. R.B. 115-16. However, Lochner is not remotely compa-

rable to Roe. In overruling Lochner, this Court allowed

10 Both approaches to the resolution of this case advocated by the

Commonwealth implicate stare decisis. As respondents concede, upholding

Pennsylvania's biased counseling and 24-hour delay provisions without

explicitly rejecting Roe would require this Court, at a minimum, to overrule

Akron and Thornburgh. R.B. 40.

5

states to regulate the working conditions of employees. While

this action upset some expectations of business owners and

reduced their profits, it did not withdraw a right central to

the ability of countless individuals to order and contro! their

lives and destinies, a result that overruling Roe would entail.

See Jeb Rubenfeld, The Right of Privacy, 102 Harv. L. Rev.

737, 806 (1989) (laws upheld following Lochner era ‘‘did not

involve the forced, affirmative occupation and direction of

individuals’ lives’’). Moreover, while Lochner frustrated

states’ ability to protect workers from abusive working condi-

tions, Roe protects women from state intervention that

endangers their lives and health.’

For the past nineteen years, Roe has secured fundamental

protection for private choices affecting millions of American

women. The heavy burden of convincing this Court to

destroy those settled expectations falls on those who propose

this radical step. Both the Commonwealth and the Solicitor

have utterly failed to meet their burden.

C. The Decision To Terminate or Continue a Pregnancy

Must Continue To Be Afforded Fundamental Constitu-

tional Protection.

The Commonwealth and the Solicitor premise their argu-

ment that the right to abortion must not be accorded funda-

mental status primarily on two assertions: abortion is not

deeply rooted in the nation’s history and traditions, R.B.

109, S.G. 9-12, and abortion is different from other privacy

rights previously recognized by this Court. R.B. 109-10, S.G.

13 n.10. These arguments rest on an incomplete view of his-

tory and flawed legal analysis, and fail to distinguish Roe’s

holding from a century of this Court’s privacy decisions.

1! In addition, overruling Lochner resulted from the changed economic

conditions of the 1930s. See Laurence H. Tribe, American Constitutional

Law 578 (2d ed. 1988) (‘‘it was the economic realities of the Depression that

graphically undermined Lochner’s premises. . . . Positive government inter-

vention came to be more widely accepted as essential to economic survival

.. .*). In contrast, no changed social conditions justify overturning Roe.

P.B. 31-34.

6

The Commonwealth and the Solicitor argue that abortion

is not rooted in our nation’s history and tradition, S.G. 10-

11, R.B. 109, because statutes limiting abortion were com-

mon when the Fourteenth Amendment was ratified. The

Solicitor’s narrow focus on the historical treatment of abor-

tion in the mid-nineteenth century, rather than the general

historical protection of the right of privacy, is contrary to the

historical analysis traditionally used to identify fundamental

rights protected by the Fourteenth Amendment. See Michael

H. v. Gerald D., 491 U.S. 110, 132 (1989) (O’Connor, J.,

concurring) (‘‘the Court has characterized relevant traditions

protecting asserted rights at levels of generality that might

not be ‘the most specific level’ available’’). See also id. at 139

(Brennan, J., dissenting).'”

Furthermore, in Roe, this Court undertook an extensive

historical analysis and concluded that there was no long-

standing tradition of laws proscribing abortion. 410 U.S. at

129-41. Indeed, as the Solicitor concedes, S.G. 10, at the time

of the nation’s founding and at common law,” abortion was

12 __—In cases such as Griswold v. Connecticut, 381 U.S. 479 (1965), and

Eisenstadt v. Baird, 405 U.S. 438 (1972), this Court focused on the historic

respect for privacy, rather than state laws prohibiting the use of contracep-

tives. Had this Court adopted the Solicitor’s approach, the important rights

recognized in these cases might not enjoy constitutional protection at all. See

Michael H., 491 U.S. at 139 (Brennan, J., dissenting). For although the first

specifically anti-contraception statute was enacted in 1873, Comstock Act,

ch. 258, § 1, 17 Stat. 598 (1873) (codified as amended at 18 U.S.C. § 1461

(1988)), anti-obscenity statutes had been used decades earlier to prosecute

those who disseminated contraceptive information. J. Reed, The Birth Con-

trol Movement and American Society: From Private Vice To Public Virtue 9

(1983).

13. Amicus American Academy of Medical Ethics purports to demon-

strate that abortion was criminal at common law. Their brief fails, however,

to cite even one early English common law case in which either a woman or

an ‘‘abortionist’’ was criminally prosecuted for a successful, voluntary termi-

nation of pregnancy. Rather, the cases cited involved assaults that resulted in

injury or death of a pregnant woman and her fetus, see, e.g., Rex v. Liche-

feld, K.B. 27/974, Rex. m.4 (1505) (defendant charged as accessory to sui-

cide, a felony killing), or the killing of a child born alive, which then, as now,

was considered murder. See, e.g., Regina v. Sims, 75 Eng. Rep. 1075 (Q.B.

5

permitted until the time of quickening. Roe, 410 U.S. at 140-

41; James C. Mohr, Abortion in America: The Origins and

Evolution of National Policy, 1800-1900 3-19 (1978). The his-

Po elucidated by this Court in Roe has not changed since

Finally, the state of the law in 1868 cannot define funda-

mental rights for all future generations.’® As this Court

emphasized in Harper v. Virginia State Bd. of Elections, 383

U.S. 663, 669 (1966), ‘‘we have never been confined to his-

toric notions of equality, any more than we have restricted

due process to a fixed catalogue of what was at a given time

deemed to be the limits of fundamental rights.’’ See also

Hudson v. McMillian, 112 S. Ct. 995, 1000 (1992) (‘‘the

Eighth Amendment’s prohibition of cruel and unusual pun-

1601) (man who violently beat a pregnant women indicted for death of child

who was born alive and then died due to injuries from the beating).

14 Moreover, historians now condemn as obsolete or illegitimate the

major reasons for the adoption of anti-abortion laws in the nineteenth cen-

tury: nativist fears, the movement to consolidate control over the medical

profession, and fears about the rising status of women. Mohr, supra, at 37,

166-70. Contrary to the Solicitor’s claim, S.G. 11 n.8, the racist and sexist

justifications for the criminalization of abortion in the nineteenth century are

constitutionally relevant. A legislative enactment motivated by a desire to

discriminate on account of race or other constitutionally illegitimate basis is

unconstitutional under the Equal Protection Clause, unless the state can

prove that the law would have been enacted without the illegitimate factor.

Hunter v. Underwood, 471 U.S. 222, 228-29 (1985). This is so even where a

statute is motivated by permissible as well as impermissible motives. /d. at

232. Although the Solicitor tries to downplay the presence of those illegiti-

mate motives by citing the work of certain historians, $.G. 11 n.8, these

works support, rather than refute, the argument made by Amici 250 Ameri-

can Historians in Support of Petitioners.

1S The Solicitor’s use of 1868, rather than 1791 when the Bill of Rights

was adopted, as the reference point for determining fundamental rights is not

surprising since, in 1791, abortion was legal until quickening. Roe, 410 U.S.

at 140-41. Were the requirements of due process to depend on the state of the

law at the time of the framing of either the Fifth or Fourteenth Amendments,

an individual might have fundamental rights guaranteed against interference

by the federal government, but not against the states—an ‘‘unthinkable’’

result. See Bolling v. Sharpe, 347 U.S. 497, 500 (1954)

ishments ‘draw[s] its meaning from the evolving standards of

decency that mark the progress of a maturing society’ ’’)

(quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). To

choose 1868 as the touchstone by which rights are validated is

to state that many of our most unassailable rights are not

‘‘fundamental”’ at all."

The Solicitor makes a second, equally disturbing claim.

While conceding that pregnancy entails ‘‘profound physical,

emotional, and psychological consequences,’’ Michael M. v.

Superior Court, 450 U.S. 464, 471 (1981) (plurality), and that

the denial of safe, legal abortion will pose significant burdens

on women, the Solicitor nonetheless urges this Court to turn

its back on American women, callously insisting that this

Court’s constitutional jurisprudence does not protect women

from governmentally imposed harms. The cases relied upon

to support this preposterous argument, this Court’s abortion

funding cases, S.G. 14, are totally inapposite. In these cases,

this Court upheld the government's refusal to subsidize abor-

tion with public resources. Nothing in those cases suggests

that the Constitution would permit the government similar

license when it affirmatively prohibits or, as here, places

onerous restrictions on the abortion choice.'’ Indeed, just this

16 Relying exclusively on what the fifty states have legislated in deter-

mining the scope of ‘‘liberty’’ would imperil numerous fundamental free-

doms protected by this Court's decisions: the right to be free from racial

segregation, Brown v. Board of Educ., 347 U.S. 483 (1954), Bolling, 347

U.S. 497; the right to marry a person of another race, Loving v. Virginia,

388 U.S. 1 (1967); the right to live with a person of another race,

McLaughlin v. Florida, 379 U.S. 184 (1964); the right to be free from forced

sterilization, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942);

the right of married persons to use contraceptives, Griswold, 381 U.S. 479;

the right of unmarried persons to use contraceptives, Eisenstadt, 405 U.S.

438; the right to travel, Shapiro v. Thompson, 394 U.S. 618 (1969); the right

to court-appointed counsel, Gideon v. Wainwright, 372 U.S. 335 (1963); the

right of women to serve on juries, Taylor v. Louisiana, 419 U.S. 522 (1975);

the right of poor people to vote, Harper, 383 U.S. 663; and the right to raise

one’s natural but illegitimate children, Stanley v. Illinois, 405 U.S. 645

(1972).

17 E.g., Harris v. McRae, 448 U.S. at 317 0.19. DeShaney v. Winne-

bago County Dep't of Social Servs., 489 U.S. 189 (1989), and Lindsey v.

9

term, this Court recognized that governmentally imposed

harms, less severe than those that forced pregnancy would

entail, are unacceptable under our constitutional scheme.

Hudson, 112 S. Ct. 995."

Both the Solicitor and the Commonwealth further argue

that a fundamental right to abortion does not flow logically

from the long line of privacy cases relied upon by this Court

in Roe. S.B. 13 n.10; R.B. 109-10. This argument miscon-

strues the nature of the privacy right in those cases, and fails

miserably to distinguish them from Roe.

The common denominator of these and subsequent privacy

cases is that personal decisions that profoundly affect bodily

integrity and destiny are largely beyond the reach of govern-

ment, and not, as the Solicitor suggests, ‘‘a recognition of

the importance of the family.’’ S.G. 13 n.10. Indeed, in

Carey, Justice Brennan rejected precisely this reading of this

Court’s privacy decisions. Even though the Connecticut stat-

ute at issue in Griswold intruded into ‘‘the sacred precincts of

marital bedrooms,’’ 379 U.S. at 485, this Court held that

Griswold was

not dependent on that element . . . . Griswold may no

longer be read as holding only that a State may not pro-

hibit a married couple’s use of contraceptives. Read in

light of its progeny, the teaching of Griswold is that the

Constitution protects individual decisions in matters of

childbearing from unjustified intrusion by the State.

Normet, 405 U.S. 56 (1972), are also cases involving failure to provide gov-

ernmental assistance and are therefore also inapposite.

18 Amici attack plaintiffs for “‘inflating’’ the number of women who

died from illegal abortions. See American Ass'n of Prolife Ob/Gyn, ef al.

Br. 22. Considering the severe criminal penalties that were attached to abor-

tion, it is not surprising that the figures for reported illegal abortion deaths

cited by amici are lower than the estimates of actual deaths cited by petition-

ers. P.B. 32. But even by amici’s figures, almost 2300 women died from ille-

gal abortion during the 1960s. Surely this demonstrates the catastrophic

effects of criminal abortion laws and provides a graphic illustration of the

Commonwealth's appalling ‘‘rights by numbers’’ approach, discussed more

fully in Section II.B, infra.

10

Carey, 431 U.S. at 687. Moreover, contrary to the suggestion

of amici, see U.S. Catholic Conference, ef a/. Br. 11, this

Court did not err in Eisenstadt by finding that ‘‘personal

interests alone—not relational interests . . . are entitled to

special protection.’’ On the contrary, as this Court explained

in Shelley v. Kraemer, 334 U.S. 1, 22 (1948), “‘[t}he rights

created by the first section of the Fourteenth Amendment

are, by its terms, guaranteed to the individual. The rights

established are personal rights.’

If accepted, the Solicitor’s arbitrary dividing line in this

Court's privacy jurisprudence might eliminate privacy protec-

tion for millions of Americans who are unmarried, separated,

or divorced, or who live in ‘‘families’’ that are not recog-

nized by the state. Not just the abortion right, but all aspects

of individual privacy—including the right of bodily integrity,

Union Pacific Ry. Co. v. Botsford, 141 U.S. 250 (1891), the

right to privacy in one's home, Stanley v. Georgia, 394 U.S.

557 (1969), the right to use contraceptives, Eisenstadt, 405

U.S. 438; Carey, 431 U.S. 678, and the right to form alterna-

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

(1977)—might be jeopardized.

Similarly, the Solicitor’s attempt to distinguish Roe on the

ground that a “‘pregnant woman cannot be isolated in her

privacy’’ misperceives this Court’s privacy decisions. S.G. 13

n.10. The privacy right is not dependent on whether an indi-

vidual is ‘‘isolated’’ in her privacy. Rather, it is a right, ‘‘as

against the government. . . to be let alone’ in making deci-

sions of critical life importance. Olmstead v. United States,

277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). The pres-

ence of the fetus thus does not change or undercut the ‘‘fun-

damental’’ nature of the privacy right. Cf. note 5 supra.”

The weakness of the Solicitor’s contention that abortion is

not a fundamental right is further evidenced by his wholly

unsatisfactory effort to distinguish laws that prohibit abor-

tions from those that compel them. The Solicitor contends ‘‘a

19 This reasoning also ignores the reality that no bright line exists

between contraceptives and abortion, see Alan Guttmacher Institute, ef a/.

Br. 28-45, and might impermissibly sanction a wide variety of incursions on

the liberty of pregnant women. P.B. 40.

1]

law mandating abortions would pose a starkly different

issue’’ because our nation’s legal traditions permit ‘‘a compe-

tent adult ... to refuse medical care.’’ S.G. 13 n.10

(emphasis in original). As noted by legal scholars, the Solici-

tor’s position not only fails to distinguish compelled abortion

from abortion restrictions, but ‘‘powerfully supports’’ Roe’s

basic holding:

A competent adult's decision to have an abortion in the

early weeks is clearly a decision to ‘‘refuse unwanted

medical intrusion.’’ Compelled childbirth is a major

medical event and far more dangerous than aborting an

early pregnancy. . . . By denying women the right to

elect early, medically simple abortion, and thereby forc-

ing pregnant women to undergo childbirth, the United

States government necessarily violates the principle that

it concedes ...: ‘“‘competent adult[s] may generally

refuse unwanted medical intrusion.’’

Walter Dellinger and Gene B. Sperling, Abortion and the

Supreme Court: The Retreat from Roe v. Wade, 138 U. Pa.

L. Rev. 83, 96-97 (1989).”°

20 The Commonwealth disputes the propriety of remand should this

Court overrule Roe. R.B. $3 n.21. But upon reversal, courts often remand to

allow plaintiffs to pursue alternative claims not reached by the trial court,

see, e.g., Schweiker v. Gray Panthers, 453 U.S. 34, $0 1.23 (1981), or where

there has been a change in the law. See, e.g., National Railroad Passenger

Corp. v. Florida, 929 F.2d 1532, 1537 (11th Cir. 1991). Where, as here, the

trial court’s decision was based on fully developed and as yet sound prece-

dent, and ‘‘plaintiff[s} had little incentive to insist that the district court's

written order also base liability on’’ their alternative theories, equitable prin-

ciples demand a remand. Carter v. Sedgwick County, 929 F.2d 1501, 1505

(10th Cir. 1991) (remand to consider alternative claims was proper where

decision was reversed in light of subsequent Supreme Court decision). More-

over, disputes regarding whether plaintiffs should be allowed to pursue alter-

native claims on remand are best resolved by the lower courts. See Nashville

Gas Co. v. Satty, 434 U.S. 136, 146 (1977). Finally, the Solicitor’s contention

that petitioners opted not to challenge § 3204(c) (prohibiting abortions based

on the sex of the fetus) because they believe it is constitutional, S.G. 18 n.13,

is simply wrong. While petitioners believe this provision violates Roe, it obvi-

ously could only be challenged by a plaintiff who could satisfy Article III's

standing requirement. Thus, a challenge remains a future possibility.

12

Il. THE PENNSYLVANIA STATUTE IS UNCONSTITU-

TIONAL UNDER ANY STANDARD OF REVIEW.

A. The Factual Findings of the District Court Are Rele-

vant to the Constitutional Issue Before This Court and

Are Fully Supported by the Factual Record.

The Commonwealth cannot carry the extraordinary burden

of proving that the district court’s factual findings are

“clearly erroneous’’ under Federal Rule of Civil Procedure

52(a). This Court has held:

If the district court’s account of the evidence is plausible

in light of the record viewed in its entirety, the court of

appeals may not reverse it even though convinced that

had it been sitting as the trier of fact, it would have

weighed the evidence differently. Where there are two

permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74

(1985) (citations omitted). Here, where the trial court’s find-

ings of fact are based heavily on weighing the credibility of

witness testimony, ‘‘Rule 52(a) demands even greater defer-

ence to the trial court’s findings. . . .”’ Id. at 575. See also

Hernandez v. New York, 111 S. Ct. 1859, 1868-70 (1991)

(plurality).”"

The district court carefully documented the record evidence

supporting each of its 387 findings of fact. The court of

appeals did not reverse any of the district court’s factual

findings,” and the Commonwealth cannot justify challenging

21 The district court specifically found that the testimony of each of

petitioners’ nine expert and fact witnesses was ‘‘credible in all respects.’

115a, 117a-124a. However, the district court made adverse credibility deter-

minations against two of the three witnesses offered by the Commonwealth,

and found that the testimony of marriage counselor Vincent Rue was simply

**not credible.’’ 127a. Certain of the Commonwealth's amici continue to rely

on the discredited testimony of the Commonwealth's witnesses, particularly

that of Vincent Rue, but the Commonwealth itself does not challenge the dis-

trict court's credibility determinations in any respect.

22 Both the Commonwealth, R.B. 8 n.5, and amici, see Nat’! Legal

Found. Br. 27 n.13, claim that the court of appeals overturned some of the

13

a single factua! finding under the clearly erroneous stan-

dard.”* Thus, for purposes of this appeal, the district court’s

findings must be accepted by this Court. P.B. 4 n.6.

Perhaps recognizing the futility of challenging the district

court’s findings, amici argue that facts are irrelevant in a

facial constitutional challenge, because plaintiffs ‘‘must prove

that the statute cannot be constitutionally applied to any-

one.’’ S.G. 19 (emphasis in original); see also Nat’] Legal

Found. Br. 3-5, 27-28. Cf. R.B. 92. For this claim amici rely

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

Ct. 2972, 2980-81 (1990), United States v. Salerno, 481 U.S.

739, 745 (1987), and Webster, 492 U.S. at 524 (O’Connor,

J., concurring). Each of these cases involved speculative chal-

lenges to the possible application of statutory provisions in

the absence of factual support, and only held that facial chal-

lenges cannot succeed ‘‘based upon a worst-case analysis that

may never occur.’’ Akron Center, 110 S. Ct. at 2981. By

contrast, far from raising remote or speculative claims based

on a worst-case scenario, the record here demonstrates that,

if enforced, the Act will severely harm women.

In facial challenges, this Court has always looked

beyond the four corners of the statute to consider the

district court’s factual findings on appeal. However, reference to the cited

pages of the court of appeals opinion in fact reveals no instance where the

court of appeals declared any finding clearly erroneous. Typically, the cited

portions of the court of appeals opinion do not even mention the district

court's findings. See, e.g., 38a-40a, 83a.

23 The Commonwealth insists that it ‘‘continue[s]’’ to challenge the

district court's findings of fact, R.B. 8, but its brief reveals no instance where

the Commonwealth even attempts to show that any particular finding was

clearly erroneous. For example, the district court found that trained coun-

selors are capable of providing to patients the information necessary for

obtaining informed consent. 175a. The Commonwealth complains that this

finding ‘‘simply represcni(s} [the district court’s] own disagreement with the

considered judgment of the legislature,"’ R.B. 66, but does not—and

cannot—suggest why this finding is clearly erroneous under Rule 52(a). The

Commonwealth also argues that the district court erred in failing to make

certain additional findings. But unless the Commonwealth properly chal-

lenges the district court's findings, it is immaterial that it might have made

other findings as well.

14

facts.“ In Hodgson, for example, the Court relied extensively

on the factual findings of the district court in striking down

Minnesota’s requirement of two-parent notification without a

bypass option, a provision that had never been in effect and

was challenged on its face. See Hodgson, 110 S. Ct. at 2938-

41, 2945-46; id. at 2950 (O’Connor, J., concurring).

Furthermore, adoption of amici’s position would effec-

tively preclude all facial challenges and prevent federal courts

from scrutinizing legislative findings offered to justify an

infringement of constitutional rights.** As Justice Thomas

recently recognized:

We know of no support . . . for the proposition that if

the constitutionality of a statute depends in part on the

existence of certain facts, a court may not review a legis-

lature’s judgment that the facts exist. If a legislature

could make a statute constitutional simply by ‘‘finding’’

that black is white or freedom, slavery, judicial review

would be an elaborate farce. At least since Marbury v.

Madison, | Cranch 137 (1803), that has not been the

law.

Lamprecht v. FCC, No. 88-1395, 1992 U.S. App. LEXIS

1997, at *30 n.2 (D.C. Cir. Feb. 19, 1992).

B. This Court Should Reject the Commonwealth’s ‘‘Rights

by Numbers’’ Approach and Find Unconstitutional the

Husband Notification Provision.

The Commonwealth does not contest the conclusion

reached by both lower courts that forced husband notifica-

tion will impose on some women seeking abortions a wide

array of ‘‘dire consequences,’’ completely frustrating the

abortion decision of some and endangering the lives and

24 ~=©See, e.g., Ashcroft, 462 U.S. at 483-86 (citing physician testimony);

Akron, 462 U.S. at 434-37 (multiple references to statistical studies and med-

ical association standards and guidelines); Colautti v. Franklin, 439 U.S.

379, 395-96, 398-99 (1979) (citing physician testimony); Danforth, 428 U.S.

at 75-79 (relying on record evidence).

25 Sable Communications, Inc. v. FCC, 492 U.S. 115, 129 (1989);

Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843-44 (1978).

15

health of others.” See 66a-70a & n.26; 255a-257a & n.42.”

Nor does it seriously offer a legitimate state interest to sup-

port the statute.” Instead, the Commonwealth claims that

only a ‘‘very small’’ number of women will suffer health con-

sequences and that it is not enough in a facial challenge ‘‘to

show that [a statute] may deter or inhibit some women from

getting an abortion.’’ R.B. 83, 85 (emphasis in original). In

the Commonwealth’s view, the Constitution only protects

26 Citing Justice Stevens’ concurrence in H.L. v. Matheson, 450 U.S.

398, 423-24 (1981), the Commonwealth contends that the courts below

unfairly assumed that either a marriage is so perfect that communication will

routinely occur, or it is so imperfect that forced communication will always

be harmful. See R.B. 93-96. But the lower courts, following this Court’s

decision in Hodgson, 110 S. Ct. at 2945, simply made the common sense

observation that the statute serves no purpose for the vast majority of

women who voluntarily discuss the abortion decision with their husbands,

and therefore must be evaluated based on its impact on women who would

otherwise not notify their husbands. See 66a, 193a, 26la. As the district

court found, in this context, forced husband notification disserves any legiti-

mate state interest. See 20la, 262a.

27 The Commonwealth’s asserted distinction between husband notice

and consent statutes, R.B. 93 n.38, is conclusively refuted by the holdings of

this Court and the record in this case. A notice provision can give the hus-

band effective veto power over the woman’s decision, preventing the abor-

tion or penalizing her for exercising her choice. See Hodgson, 110 S. Ct. at

2939, 2945 & n.36; Bellotti v. Baird, 443 U.S. 622, 647 (1979). See also 69a;

256a. That the retaliation comes not from the state but from the husband

does not exonerate the state. As Justice Harlan wrote for a unanimous Court

in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 463 (1958): ‘‘The

crucial factor is the interplay of governmental and private action, for it is

only after the initial exertion of state power . . . that private action takes

hold.”’

28 Raw paternalism informs the arguments of the amici who support

husband notification. One brief describes a woman who obtains an abortion

without first notifying her husband as one who ‘‘considers herself

‘liberated,’ ’’ or who is a “‘highly dominant, independent wife who is not in

touch with her emotions,’’ or ‘‘who makes a hasty, impulsive decision.’’ See

Rutherford Inst. Br. 13. 15. The Solicitor argues that husband notification

will preserve “‘marital i egrity,’’ albeit not “marital accord.’’ S.G. 25. The

district court’s unrefuted findings that forced husband notification could

destroy marriages and subject women to physical abuse, see 20la, 262a,

make plain that the statute’s only purpose is to further the husband’s ability

to control his wife’s behavior.

16

American women from legislation that will result in dire con-

sequences to their lives and health, if all, or at least the vast

majority of, women are affected.

The Commonwealth’s effort to defeat the constitutional

rights of entire classes of women surely must fail.” This

Court has repeatedly recognized that rights under the Four-

teenth Amendment are ‘‘personal ones’’ that cannot ‘‘depend

on the number of persons who may be discriminated

against.’’ McCabe v. Atchison, T. & S.F. Ry., 235 U.S. 151,

161-62 (1914). To accept the Commonwealth’s view that a

proportionately small class of women may be singled out

might justify a wide range of prohibitive restrictions on abor-

tion, including, for example, bans on abortion for Hispanic

or Asian women, women under 16 or over 35, or an absolute

ban on all second trimester saline abortions.*' See Danforth,

29 The contention that the numbers of women affected is ‘‘very small!’’

is itself highly questionable. The statute affects all married women, who

comprise at least twenty percent of the approximately 50,000 women who

obtain abortions in Pennsyivania each year. 149a. Even by Judge Alito’s cal-

culations, had the notification requirement been in effect in Pennsylvania

during the 1980s, 8500 women could have been affected. See 92a & n.3; 149a.

Amicus State of Utah claims that its husband notification requirement has

had no ill effects, see Utah Br. 18-19, but this very provision is currently sub-

ject to litigation. Jane L. v. Bangerter, No. 91-C-345-G (D. Utah filed Apr.

4, 1991). The self-serving claims of the Attorney General charged with

defending this statute are hardly entitled to great weight, especially where, as

here, there are declarations to the contrary.

30 This Court certainly would not sanction state statutes that prohibit

flag burning in protest, Texas v. Johnson, 491 U.S. 397 (1989), or advocating

the use of violence as a means of accomplishing political reform, Branden-

burg v. Ohio, 395 U.S. 444 (1969) (per curiam), even though very few people

engage in such activities. Nor could a state prohibit from voting any member

of the Armed Forces who moves from another state for military duty, Car-

rington v. Rash, 380 U.S. 89 (1965), or disqualify ministers or priests from

serving as state legislators, see McDaniel v. Paty, 435 U.S. 618 (1978),

because only a few would feel the weight of these restrictions. Surely, this

Court's holding in Meyer v. Nebraska, 262 U.S. 390 (1923), invalidating a

state statute prohibiting the teaching of German language in private schools,

would not have been different if only a small number of German immigrants

lived in Nebraska.

31 Attempting to provide a limit to its argument, the Commonwealth

suggests that Hodgson presented a case where a sufficiently large percentage

17

428 U.S. at 75-79. This “rights by numbers’’ approach is

particularly inappropriate here, where the constitutional right

to abortion is premised on the right of the individual to make

autonomous decisions about critical life issues.”

Just as it tries to downplay the number of women harmed

by forced husband notification, the Commonwealth attempts

to shore up the obviously inadequate statutory exceptions.”

Ignoring all of the statute’s defects save one, compare P.B.

41-43, the Commonwealth focuses exclusively on the district

court’s finding that battered women will be psychologically

incapable of availing themselves of the statutory exceptions

to forced husband notification. See 20la. The Common-

wealth concedes, as it must, the validity of this finding, see

R.B. 88-90, but speculates, without evidence, that women will

be too victimized to seek out abortions in the first place. Jd.

at 90. This Court must reject the Commonwealth’s insulting

and unacceptable view that women are either too independent

of women were affected to raise constitutional concerns. See R.B. 85. But the

percentage of women seeking abortions under the age of 18 is only 12%, see

150a, far less than the proportion who are married.

32 The Commonwealth ignores altogether the provision’s interference

with marital integrity and a woman’s autonomy. In violation of the right of

marital integrity, § 3209 subjects marital discussions to state surveillance and

control. P.B. 44-45. Additionally, by forcing women to obtain counsel from

their husbands, the notification requirement strikes at the core of the right of

privacy by denying women the ability to make critical life choices indepen-

dently. As this Court recognized in Danforth, 428 U.S. at 69 n.11:

the marital couple is not an independent entity with a mind and heart

of its own, but an association of two individuals each with a separate

intellectual and emotional makeup. If the right of privacy means any-

thing, it is the right of the individual, married or single, to be free from

unwarranted governmental interference into matters so fundamentally

affecting a person as the decision whether to bear or beget children.

Id. (quoting Eisenstadt, 405 U.S. at 453) (emphasis in original).

33| The Commonwealth tries to distinguish Hodgson on the basis that

the exceptions there could trigger parental notification, see R.B. 87. How-

ever, the spousal sexual assault exception can operate in precisely the same

fashion—a point the Commonwealth simply ignores. P.B. 42.

18

to require constitutional protection, or too oppressed to bene-

fit from it.*

C. The Biased Counseling Provisions Will Harm Women

and Force Physicians To Disseminate Pennsylvania’s

Anti-abortion Ideology.

1. The biased counseling provisions interfere with the

provision of appropriate medical care.

The Commonwealth argues that the Act’s biased counsel-

ing provisions must be upheld because the Constitution does

not forbid state informed consent laws from requiring the

provision of specific information to all patients without

regard to their medical neeeds. R.B. 63. But this Court has

twice rejected this view, finding that nearly identical statutory

schemes failed for two independent reasons. In conflict with

accepted medical practice, the schemes ‘‘intrude upon the dis-

cretion of the pregnant woman’s physician,’’ by requiring

that a ‘‘specific body of information be given in all cases,

34 Citing Geduldig v. Aiello, 417 U.S. 484 (1974), amici contend that

§ 3209 does not deny women equal protection, because discrimination based

on pregnancy is not sex-based. See, e.g., S.G. 26 n.25; Life Issues Inst. Br. 6.

Unlike the exclusion of pregnancy from the disability program at issue in

Geduldig, where the “fiscal and actuarial benefits {of the exclusion]

accrue[d] to both sexes,’’ 417 U.S. at 496 n.20, the forced husband notifica-

tion requirement here gives a right to a class comprised entirely of men. Mar-

riage carries with it for men and only men the right to notification of their

wives’ reproductive choices. Cf. International Union, U.A.W. y. Johnson

Controls, Inc., 111 S. Ct. 1196, 1202 (1991) (‘‘Fertile men, but not fertile

women, are given a choice as to whether they wish to risk their reproductive

health for a particular job’’); Newport News Shipbuilding & Dry Dock Co.

v. EEOC, 462 U.S. 669 (1983). Here, where the Commonwealth has refused

to impose spousal notification requirements on husbands who obtain surgical

procedures altering their reproductive capacity, 199a, the discrimination is

particularly invidious. See Kirchberg v. Feenstra, 450 U.S. 455, 459-61

(1981). Moreover, unlike the program in Geduldig, § 3209 does not merely

fail to provide benefits in the event of pregnancy, but imposes new and

potentially dangerous obligations on pregnant women. Cf. Satty, 434 U.S. at

142 (recognizing distinction between refusing to extend to women a benefit

that men do not receive and imposing a burden upon women that men need

not suffer).

A i i

19

irrespective of the particular needs of the patient.’’ Thorn-

burgh, 476 U.S. at 762, see also Akron, 462 U.S. at 445.

They also force physicians to exploit the trust of their

patients by disseminating irrelevant, inflammatory, mislead-

ing, and inaccurate information that discourages abortion.

Thornburgh, 476 U.S. at 763. The state’s real purpose is to

send an ideological message to women,” and the Common-

wealth concedes that the provisions will have their intended

effect. R.B. 69-70, S.G. 21. The biased counseling provi-

sions will result in disastrous consequences for women’s

health, P.B. 8-9, 50-53, subjecting them to ‘‘undesirable and

unnecessary anxiety, anguish and fear,’’ 178a; see also J.A.

135,” and furthering no legitimate state interest. They are

therefore invalid.

In a feeble attempt to justify these burdens, the Common-

wealth claims that petitioners already provide all of the man-

35 ‘If the state enacted a law requiring a physician to provide all women

who decided to continue their pregnancies to term with a list of agencies pro-

viding abortion services; information about the availability of medical assis-

tance for abortion; the fact that the woman’s male partner may be liable to

pay for the abortion; and the complete medical risks of both procedures,

even when the woman has already chosen to carry the pregnancy to term, the

Act’s ideological bias would be obvious. The same is true with the Pennsylva-

nia statute.

36 Although conceding that the Act “‘may dissuade some women”’

from their abortion choice, both the Commonwealth and the Solicitor claim

that this is constitutionally irrelevant because the statute serves the legitimate

interest in encouraging childbirth over abortion. S.G. 21; R.B. 69-70. Unlike

the denial of abortion funding, which does ‘‘not add any ‘restriction on

access to abortion that was not already there,’ "’ Akron, 462 U.S. at 444 n.33

(quoting Maher, 432 U.S. at 474), the State’s interest in encouraging child-

birth over abortion cannot justify ‘‘substituting a state decision for an indi-

vidual decision that a woman has a right to make for herself. Otherwise, the

interest in liberty protected by the Due Process Clause would be a nullity.”’

Hodgson, 110 S. Ct. at 2937 (opinion of Stevens, J.).

37. The exemption provided in § 3205(c), where the physician can dem-

onstrate that providing the mandated information would result in a ‘‘severely

adverse effect on the physical or mental health of the patient,’’ 291a, is

wholly inadequate to protect women’s health. Women who suffer damage to

their health that falls short of a ‘‘severely adverse effect’’ are left totally

unprotected.

20

dated information. R.B. 59, 68-69. But, as evidence amassed

at trial shows, absent statutory mandate, abortion providers

would not inform a// women seeking abortions about the

availability of child support payments and medical assistance

benefits if a woman carries to term, nor show them pictures

and a description of fetal development. J.A. 252-53, 258.

Nor would petitioners provide options counseling or a comp-

lete discussion about the many medical risks of carrying a

pregnancy to term to those women who have already

obtained this counseling or who clearly indicate that their

decision to choose abortion is firm. 138a, 142a, 146a,

J.A. 140-41." Although petitioners, consistent with medical

standards, offer accurate and appropriate information and

referral of the type mandated by the Act to some women,

some of the time, J.A. 258, 266-67, this cannot be equated

with § 3205’s requirement that physicians offer state-

prescribed information in all cases, irrespective of the needs

of the patient.

2. The biased counseling required by § 3205 is not

commercial speech.

The Commonwealth does not dispute that the biased

patient counseling provisions compel speech, or that state

compulsion of speech is ‘‘a content-based regulation of

speech,’” and is therefore ‘‘subject to exacting First Amend-

ment scrutiny,’ Riley v. National Fed’n of the Blind, Inc.,

487 U.S. 781, 795, 798 (1988). Nor does it dispute that the

provision cannot possibly survive this test. Instead, the Com-

monwealth argues that the physician-patient dialogue falls

outside the ambit of the First Amendment because it is

“‘commercial’’ speech. See R.B. 70-71.

This Court, however, has long eschewed reliance on ‘‘mere

labels’ for determining the level of constitutional protection

under the First Amendment. NAACP v. Button, 371 U.S.

38 Abortion providers would not refer their patients to many of the cri-

sis pregnancy centers on the state-approved list, since these centers often pro-

vide women with inflammatory, misleading, and inaccurate information

about abortion. J.A. 256. See also 169a.

21

415, 429 (1963). See also Bigelow v. Virginia, 421 U.S. 809,

826 (1975). In fact, this Court has consistently limited com-

mercial speech to expression that does no more than ‘“‘pro-

pose a commercial transaction.’’ Board of Trustees v. Fox,

492 U.S. 469, 473 (1989) (quoting Virginia State Bd. of Phar-

macy v. Virginia Citizens Consumer Council, Inc., 425 U.S.

748, 762 (1976)). By contrast, the ‘‘right of the doctor to

advise his patients according to his best lights seems so obvi-

ously within [the] First Amendment ... as to need no

extended discussion.’’ Poe v. Uliman, 367 U.S. 497, 513

(1961) (Douglas, J., dissenting).”? That the physician is paid

for her advice ‘“‘is as immaterial in this connection as is the

fact that newspapers and books are sold.’’ New York Times

Co. v. Sullivan, 376 U.S. 254, 266 (1964). See also Simon &

Schuster, Inc. v. Members of New York State Crime Victims

Bd., 112 S. Ct. 501 (1991). Like the abortion advertisement

in Bigelow, the mere “relationship of speech [between a doc-

tor and patient] to the marketplace of products or of services

does not make it valueless in the marketplace of ideas.’’ Bige-

low, 421 U.S. at 826. ao

Moreover, even if physicians’ speech were commercial in

part, as the Commonwealth contends, ‘“‘it is inextricably

intertwined with otherwise fully protected speech,’’ namely,

the informed consent dialogue that is at the heart of pro-

tected professional expression, and therefore no longer

‘‘retains its commercial character.’’ Riley, 487 U.S. at 796.

[W]e cannot parcel out the speech, applying one test to one

phrase and another test to another phrase. such an endeavor

would be both artificial and impractical. Therefore, we apply

our test for fully protected expression.’’ Jd. Thus, Riley is

controlling here. .

Finally, even in cases involving ‘‘pure’’ commercial speech,

this Court has recognized that ‘‘unjustified or unduly burden-

39 The court of appeals erred in suggesting that petitioners conceded al

oral argument that the speech at issue was ‘‘commercial.’’ The First Amend-

ment issues were never discussed at oral argument, see Appendix A for the

full discussion of § 3205, and petitioners’ briefs took exactly the contrary

position. See Brief of Appellees at 33-36, Casey v. Planned Parenthood, No.

90-1662.

22

some disclosure requirements’’ may not be used to “ ‘pre-

scribe what shall be orthodox in politics, nationalism,

religion, or other matters of opinion, or force citizens to con-

fess by word or act their faith therein.’ ’’ Zauderer v. Office

of Disciplinary Counsel, 471 U.S. 626, 651 (1985) (quoting

West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624,

642 (1943)). In Zauderer, the Court upheld a non-criminal

reprimand for an attorney who deceived and misled potential

clients by failing to disclose in a paid advertisement ‘‘purely

factual and uncontroversial information about the [financial]

terms under which [the] services will be available.’’ Zauderer,

471 U.S. at 651-53. In this case, by comparison, the Com-

monwealth, on pain of criminal penalties, forces all abortion

providers to disclose often inaccurate and misleading infor-

mation designed, as the Commonwealth admits, to discour-

age abortion and encourage childbirth in all but ‘‘the most

urgent circumstances.’ R.B. 69-70. By compelling physicians

to deliver this anti-abortion message,“ the statute forces the

“individual . . . to be an instrument for fostering public

adherence to an ideological point of view he for she] finds

unacceptable.’ Wooley v. Maynard, 430 U.S. 705, 715

(1977). Thus, the Act violates the First Amendment.

40 Imagine, for example, that the state enacted a criminal statute that

required an attorney, before agreeing to represent a civil rights plaintiff, to

advise the potential client (1) that alternatives to litigation, such as letting the

matter drop, ignoring the abuse, or settling the matter for a nominal sum,

may be preferable to litigation; (2) that a state-prepared list of agencies able

to assist the person in avoiding litigation is available; (3) that the defendant

may assume legal fees or that free legal services may be available in the event

of settlement; and (4) to ensure proper consideration of the weighty effort

the client is about to undertake, that the client must return to the lawyer's

office on a second occasion, even if the delay will push the client past the

deadline for the statute of limitations on some of his or her claims. There can

be little doubt that such a poorly disguised attempt to discourage civil rights

suits would interfere with the attorney-client relationship and would violate

the First Amendment. Cf, NAACP v. Button, 371 U.S. at 429-30, 434-37.

:

:

;

23

D. The Judicial Bypass Procedure Does Not Cure the Con-

stitutional Defects of the Act’s Informed Parental Con-

sent Provision.

The Commonwealth does not challenge the district court’s

finding that the Act’s ‘‘informed’’ parental consent provision

mandates face-to-face counseling for parents,*’ and thereby

impermissibly burdens privacy rights, nor does it suggest that

any legitimate state interest supports this requirement. See

also P.B. 55-57. Instead, relying exclusively on Hodgson, the

Commonwealth argues that these defects are cured by the

presence of a judicial bypass procedure. See R.B. 80.

Reliance upon Hodgson is misplaced. In Hodgson, this

Court held that Minnesota’s two-parent notification statute

interfered with rights of familial integrity.“ Since only half of

the minors in Minnesota reside with both biological parents,

this Court recognized that the statute fails to ‘‘serve the pur-

poses asserted by the state’’—parental involvement—‘‘in too

many cases.’’ Hodgson, 110 S. Ct. at 2950 (O’Connor, J.,

concurring).

Nevertheless, this Court held that the bypass procedure is

the appropriate mechanism to cure the defect in the statute.

As Justice Kennedy recognized:

If one were to attempt to design a statute that would

address the Court’s concerns, one would do precisely

what Minnesota has done. . . : create a judicial mecha-

nism to identify, and exempt from the strictures of the

law, those cases in which the minor is mature or in

which notification of the minor’s parents is not in the

minor's best interests.

41 Contrary to the claims of Nat’! Legal Found. Br. 17-18, the undis-

puted testimony at trial showed that face-to-face counseling was indeed

required. See 248a n.38. Petitioners’ witnesses, see J.A. 133-34, 151, 163-64,

as well as the Commonwealth’s expert testified that a face-to-face meeting is

necessary. See J.A. 354; see also 170a-17 1a.

42 =A the evidence in Hodgson demonstrated, where the second parent

has no interest in nor relationship with his daughter or where there is a his-

tory of abuse between the parents, compelling the involvement of the second

parent can have disastrous effects. Hodgson, 110 S. Ct. at 2945.

24

Id. at 2970 (Kennedy, J., concurring in part and dissenting in

part) (plurality opinion).

In contrast, both the purpose of the Pennsylvania law and

its constitutional defect are entirely different. Pennsylvania's

purpose is not solely to encourage parental involvement and

approval—that purpose could be accomplished by a simple

parental/judicial consent provision. Rather, Pennsylvania

mandates that a parent obtain the information designed to

discourage abortion in a face-to-face meeting with the physi-

cian. If a parent consents to her daughter’s abortion but

refuses to accompany her to the doctor’s office, or if the par-

ent cannot change work or family commitments to meet the

physician in person, P.B. 11-12, 56-57, the daughter is forced

to obtain judicial authorization for the abortion. But in this

instance, the judicial bypass procedure is simply not designed

to cure the constitutional defect. The bypass judge cannot

ensure that the parent will obtain the information. In most

instances, unless subpoenaed, the parent will not even attend

the hearing.

Moreover, acceptance of this odious proposition may

enable a state to place any restriction on a young woman's

right to abortion, however irrational, so long as there was a

judicial bypass that could exempt them from the mandate.

For example, a state could require young women to obtain

consent from complete strangers or require them to have the

abortion in a hospital under general anesthesia. If a judicial

bypass procedure will cure absolutely anything, then the right

to abortion, whether viewed as a “‘fundamental”’ right, or as

“‘a component of”’ the “‘liberty”’ guaranteed by the Constitu-

tion, Hodgson, 110 S. Ct. at 2951 (Marshall, J., concurring

in part and dissenting in part); id. at 2936 (opinion of

Stevens, J.); id. at 2949 (O’Connor, J., concurring), would

be completely repudiated.

CONCLUSION

In the days before Roe, thousands of women lost their

lives, and even more were subjected to physical and emo-

25

tional scars from back-alley and self-induced abortions

directly resulting from criminal prohibitions on abortion.

Understanding the severe restraints on women imposed by

these laws, this Court in Roe recognized that the right to

make childbearing decisions was a protected liberty of funda-

mental dimension. Mindful that abandonment of these princi-

ples may again subject women to these horrors, petitioners

urge this Court to reaffirm Roe, Akron, and Thornburgh,

reverse the judgment of the court of appeals in No. 91-744

and affirm the judgment of the court of appeals in No. 91-

902.

Respectfully submitted,

LINDA J. WHARTON KATHRYN KOLBERT

CAROL E. TRACY (Counsel of Record)

Women’s Law Project JANET BENSHOOF

125 South Ninth Street LYNN M. PALTROW

Suite 401 RACHAEL N. PINE

Philadelphia, PA 19107 ANDREW DWYER

(215) 928-9801 ELLEN K. GOETZ

STEVEN R. SHAPIRO

SETH KREIMER JOHN A. POWELL

University of Pennsylvania son Ciel Lientios

Law School a A wcttarhee

3400 Chestnut Street nion Foundation

i : 132 W. 43rd Street

Philadelphia, PA 19104

(215) 898-7447 New York, NY 10036

(212) 944-9800

ROGER K. EVANS

Eve W. PAUL

DARA KLASSEL

Planned Parenthood Action

Fund, Inc.

810 Seventh Avenue

New York, NY 10019

(212) 541-7800

Attorneys for Petitioners and Cross-Respondents

—

APPENDIX

A-l

TRANSCRIPT OF ORAL ARGUMENT

BEFORE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

February 25, 1991

7. * 7

By MS. KOLBERT:

[63] Let me quickly just turn to the 24-hour doctor-only

requirements in 3205 and say that our argument is extremely

straightforward, Akron, Thornburgh apply, the Court has

not changed that standard and; therefore, this Court is

bound by those precedents.

[64] The Commonwealth has tried a couple of times to dis-

tinguish this case from Thornburgh. We believe that their

efforts are without merit. They argue that Thornburgh can’t

control because the Commonwealth didn’t have a chance to

put on its facts on Thornburgh, but the Supreme Court

answered that argument when it rendered its decision and

said that facts would make no difference to their ruling.

The second thing they said is, but the Judge didn’t listen to

the facts the way we wanted him to listen to it, again the

clearly erroneous standard is what is applicable and the

Judge’s findings in our view, and I’m hoping yours, whether

they were not clearly erroneous.

THE COURT: They also say this was in the era of compel-

ling state interest. The least restrictive means, don’t they?

MS. KOLBERT: That’s right. But we contend that it is still

that era; and therefore, this Court is bound by that prece-

dent.

Lastly, as Judge Stapelton, as you noted, the court made

pains to distinguish in the discussion in Hodgson about the

48-hour waiting period, that for the women, the Court sided

with the approval and this was an opinion by Justice O’Con-

nor and Justice Stevens, [65] they sided with the approval the

majority opinion in Akron so clearly they had to have viewed

A-2

that the situation as applied to adult women was still being

judged under that more stringent standard.

* * *