# Reply Brief — Casey v. Planned Parenthood of Southeastern Pennsylvania (Nos. 91-902, 91-744) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0220%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1991 ## Text 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. * * * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0220%3A09. Public record. Not legal advice.