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

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Nos. 91-744, 91-902

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

PtANNED 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,

° Petitioners,

Ropert P. CASEY, N. MARK RICHARDS, and

ERNEST D. PREATE, JR.,

personally and in their official capacities,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF FOR REPRESENTATIVES DON EDWARDS,

PATRICIA SCHROEDER, LES AUCOIN, VIC FAZIO,

BILL GREEN AND CONSTANCE A. MORELLA;

SENATORS ALAN CRANSTON, BOB PACKWOOD,

HOWARD METZENBAUM, JOHN CHAFEE,

TIMOTHY E. WIRTH, WILLIAM 8S. COHEN,

BROCK ADAMS, AND BARBARA MIKULSKI;

AND CERTAIN OTHER MEMBERS OF THE

CONGRESS OF THE UNITED STATES

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

LLOYD N. CUTLER WALTER DELLINGER *

MICHAEL C. SMALL Duke Law School

WILMER, CUTLER & PICKERING Corner of Science Drive

2445 M Street, N.W. and Towerview Road

Washington, D.C. 20037-1420 Durham, NC 27706

(202) 663-6000 (919) 684-3404

Attorneys for the Amici Curiae

March 6, 1992 * Counsel of Record

WILSON - Epes Printinae Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE.......002.......

SUMMARY OF ARGUMENT ...QW000 eee.

__,_ ITE I LD an Te SET RSE TET

I. STARE DECISIS CONCERNS ARE IMPLI-

II.

Ill.

CATED BY THIS CASE BECAUSE THE

CONTINUED VALIDITY OF THE CONSTI-

TUTIONAL PRINCIPLES ESTABLISHED

IN ROE v. WADE ARE DIRECTLY AT

ISSUE ........ seciiliainieininieaabltaibpatnniaaniipeaibanaiagiinieniion sana

STARE DECISIS CONCERNS STRONGLY

COUNSEL ADHERENCE TO THE CONSTI-

TUTIONAL PRINCIPLES ESTABLISHED IN

REE Uh TEE arcateicetusitsecasscetenenenintieshibiistilidishinidnianens

A. Stare Decisis Fosters Respect For The Rule

of Law and Government Institutions, and

Preserves the Settled Expectations and

Practices of Individuals Who Have Relied

on Court Precedent in Ordering Their

Oe a A i EES OR NR

B. Stare Decisis Concerns Apply with Special

Ie Os I i emeiabuas

THERE IS NO JUSTIFICATION FOR DE-

PARTING FROM STARE DECISIS AND

ABANDONING THE CONSTITUTIONAL

PRINCIPLES OF ROE v. WADE ......000000......

A. Roe v. Wade Has Not Been Undermined by

Subsequent Developments ........000000000000000000....

B. Roe is Neither “Unsound In Principle” Nor

“Unworkable In Practice” ..............................

1. The Principles Established in Roe are

Sound, and Cannot be Rejected Without

Imperiling Other Aspects of Privacy and

en Reon Ue EE ae

TABLE OF CONTENTS—Continued

Page

2. Roe Has Proven No Less Workable in

Practice Than Other Constitutional

Precedents ....... ra ; : 24

C. Overruling Roe Would Have Profoundly

Adverse Consequences 2000000000000... oe eeeeeeeeee 25

ee NN 30

iii

TABLE OF AUTHORITIES

CASES Page

Akron v. Akron Center for Reproductive Health,

Ge re Ge CD ceccccrccccccceccccccceccesccsccccccsnccesces passim

Arizona v. Fulminante, 111 S. Ct. 1246 (1991)... 15

Beal v. Doe, 482 U.S. 488 (1977) 2.0.2.0... cccccceeeeeeeeee 5

Bellotti v. Baird, 443 U.S. 622 (1979) .........00000....... 5

Bowers v. Hardwick, 478 U.S. 186 (1986) .............. 19

Brown v. Board of Education, 347 U.S. 483

EL 13, 29

Brown v. Board ‘of Education, 349 U.S. 294

EEE 11

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393

SELLA 14, 17

California v. Acevedo, 111 §. Ct. 1982 (1991) ......... 15

Canada Packers, Ltd. v. Atchison, Topeka & Santa

Fe Railway, 385 U.S. 182 (1966) ......0000000.......... 17, 25

Carey v. Population Services International, 431

EEE EE 19, 22

Colautti v. Franklin, 439 U.S. 379 (1979) ............... 5

Connecticut v. Menillo, 423 U.S. 9 (1975) ............. 5

Cooper v. Aaron, 358 U.S. 1 (1958) -...................... 11

Doe v. Bolton, 410 U.S. 179 (1978) ..........--220..--------- 5, 26

Eisenstadt v. Baird, 405 U.S. 438 (1972) ........... 18, 20, 22

Ferguson v. Skrupa, 372 U.S. 726 (1963) ................... 18

Florida Department of Health v. Florida Nursing

Home Ass’n, 450 U.S. 147 (1981) ......................... 10

Frontiero v. Richardson, 411 U.S. 677 (1973) ......... 14

Garcia v. San Antonio Metropolitan Transit Au-

thority, 469 U.S. 528 (1985) —........00000......... 16, 17, 24

Green v. United States, 355 U.S. 184 (1957) ........... 11

Griswold v. Connecticut, 381 U.S. 479 (1965) ..18, 20, 22

Guam Society of Obstetricians & Gynecologists v.

Ada, 776 F. Supp. 1422 (D. Guam 1990) ............. 28

H.L. v. Matheson, 450 U.S. 398 (1981) ......... on 5

Harmelin v. Michigan, 111 8. Ct. 2680 (1991) ....... 18

Harris v. McRae, 448 U.S. 297 (1980) ..................... 5

Hilton v. South Carolina Public Railway Commis-

sion, 112 S. Ct. 560 (1991) ............-............ceee-eeeee 9

Hodgson v. Minnesota, 110 8. Ct. 2926 (1990) ...... 5, 8

Hudgens v. NLRB, 424 U.S. 507 (1976) ................. 17, 18

TABLE OF AUTHORITIES—Continued

Page

King v. Palmer, 950 F.2d 771 (D.C. Cir. 1991)... 8,9

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

complaint filed April 4, 1991) 0.000. 28

Lochner v. New York, 198 U.S. 45 (1905) 000000... 16, 17

Loving v. Virginia, 388 U.S. 1 (1967) 0.00000... 18, 20, 21

Maher v. Roe, 432 U.S. 464 (1977) .................. 5

Marks v. United States, 430 U.S. 188 (1977) ........ 7

Meyer v. Nebraska, 262 U.S. 390 (1923) ................ 19

Monell v. Department of Social Services, 436 U.S.

i ee ee 12

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

EEE Se aaa een ee Oe 19

Moragne v. States Marine Lines, Inc., 398 U.S.

i a 10, 11

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1

EAE, Mtoe ree ret erence Rs Oe ee 18

National League of Cities v. Usery, 426 U.S. 833

RSA REE Se Oe cera Te eee 16

New York v. Quarles, 467 U.S. 649 (1984) 0.00... 12

Ohio v. Akron Center for Reproductive Health,

) % & { ESE Po een 5

Patterson v. McLean Credit Union, 491 U.S. 164

EEE a enone ae anna Heme er eee 10

Payne v. Tennessee, 111 S. Ct. 2597 (1991)... 12,15

Pennsylvania v. Union Gas Co.,.491 US. 1

SEE ee ee ee an Ae AN ne 12

Pierce v. Society of Sisters, 268 U.S. 510 (1925)... 18, 20

Planned Parenthood v. Casey, 947 F.2d 682 (3d

Cir. 1991), cert. granted in part, 60 U.S.L.W.

$498 (U.S. January 21, 1992) 0... 7,8

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

RS OS A a ee ae ae 5

Planned Parenthood Ass'n v. Ashcroft, 462 U.S.

ER at A c,h A 5

Poe v. Ullman, 367 U.S. 497 (1961)... 25

Poelker v. Doe, 432 U.S. 519 (1977) 0. Peas 5

Rhode Island v. Innis, 446 U.S. 291 (1980)... 11

Rodriguez de Quijas v. Shearson/American Ex-

press, Inc., 490 U.S. 477 (1989) ...00000 7

TABLE OF AUTHORITIES—Continued

Page

Roe v. Wade, 410 U.S. 113 (1978) ........................... 2

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

Rust v. Sullivan, 111 S. Ct. 1759 (1991) —.......... 5

Schloendorff v. Society of New York Hospital, 105

ft 8 0 Ee 18

Screws v. United States, 325 U.S. 91 (1945) _...... 18

Simopolous v. Virginia, 462 U.S. 506 (1983)... 5

Skinner v. Oklahoma, 316 U.S. 535 (1942)... 18, 20

Sojourner, T. v. Roemer, 772 F. Supp. 930 (E.D.

RSE ST Ae RS ee 28

Swift & Co. v. Wickham, 382 U.S. 111 (1965)... 25

Thornburgh v. American College of Obstetricians

& Gynecologists, 476 U.S. 747 (1986) —.............. passim

United States v. Nordic Village, 60 U.S.L.W. 4159

(U.S. February 25, 1992) ..................--......-.---.----+. xs

Vasquez v. Hillery, 474 U.S. 254 (1986) —...... 10

Webster v. Reproductive Health Services, 492 U.S.

RES AE se ee passim

Welch v. Texas Department of Highways & Pub-

lic Transportation, 483 U.S. 468 (1987) 10, 12

Whaleryr. Roe, 429 U.S. 589 (1977) ................. aie 19

Williams v. Florida, 399 U.S. 78 (1970) —........-... 11

Williams v. Zbaraz, 448 U.S. 358 (1980) —................ 5

Winston v. Lee, 470 U.S. 753 (1985) ......................... 24

Zablocki v. Redhail, 434 U.S. 374 (1978) -................ 19

BOOKS, ARTICLES, AND MISCELLANEOUS

Bruce Ackerman, We The People: Foundations

(1991) .......... 18

Berger, et al., Maternal Mortality Associated With

Legal Abortion in New York State: July 1,

1970-June 30, 1972, 43 J. Obstet. & Gynec. 315

ES SES Ree Te ae OR SES 28

Cates, Legal Abortion: The Public Health Record

215 Science 1586 (1982) ...................-........eeeeeeec eee 28

Cates & Rochat, Illegal Abortions in the United

States, 1972-74, 8 Fam. Plan. Persp. 86 (1976) .. 28

Frank Easterbrook, Stability and Reliability in

Judicial Decisions, 73 Cornell L. Rev. 422

TABLE OF AUTHORITIES—Continued

Henshaw et al., Abortion Services in the United

Siutes 1984 and 1985, 19 Fam. Plan. Persp. 63

SSCA Er RS SSS En

Jerold Israel, Gideon v. Wainwright: The “Art”

of Overruling, 1963 Sup. Ct. Rev. 211 —.....

John Kaplan, Abortion as a Vice Crime: A “What

If” Story, 51 Law & Contemp. Probs. No. 1, 151

a a a

LeBolt et al., Mortality from Abortion and Child-

birth: Are the Populations Comparable?, 248

I cia

Henry Monaghan, Stare Decisis and Constitutional

Adjudication, 88 Colum. L. Rev. 723 (1988) ......

Placet & Taffel, Recent Patterns in Caesarean De-

livery in the United States, 15 Obstet. Gynec.

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

EN SE Le

Frederick Schauer, Precedent, 39 Stan. L. Rev.

571 (1987) ........... REIT eA ISIS IS! SE Sena GO Re OD

Note, Constitutional Stare Decisis, 103 Harv. L.

Correction Officials Fined Over Abortions, New

York Times, October 4, 1989, at B2, col.5

Irish Court Says Girl Can Leave to Obtain Abor-

tion in Britain, New York Times, February 27,

I te

7 Contend Correction Dept. Urged Abortions for

Guards, New York Times, May 24, 1989, at B3,

Transcript of Oral Arguments Before Court on

Abortion Case, New York Times, April 27,

Brief of United States as Amicus Curiae, Webster

v. Reproductive Health Services, 492 U.S. 490

RR SRY a > Ce See eee

Page

23-24

10, 25

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

Nos. 91-744, 91-902

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,

. Petitioners,

Ropert P. CASEY, N. MARK RICHARDS, and

ERNEST D. PREATE, JR.,

personally and in their official capacities,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF FOR REPRESENTATIVES DON EDWARDS,

PATRICIA SCHROEDER, LES AUCOIN, VIC FAZIO,

BILL GREEN AND CONSTANCE A. MORELLA;

SENATORS ALAN CRANSTON, BOB PACKWOOD,

HOWARD METZENBAUM, JOHN CHAFEE,

TIMOTHY E. WIRTH, WILLIAM S. COHEN,

BROCK ADAMS, AND BARBARA MIKULSKI;

AND CERTAIN OTHER MEMBERS OF THE

CONGRESS OF THE UNITED STATES

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE'

Amici are a bipartisan group of members of the United

States Congress who share a concern for the stability and

integrity of our system of constitutional government. We

believe that if the system is to work, certain fundamental

rights of individuals must be insulated from the shifting

winds of politics. We also believe that the doctrine of

stare decisis plays a leading role in fostering confidence

in government by reassuring citizens that their funda-

mental rights, once secure, will not lightly be discarded.

Stare decisis concerns are strongly implicated by this case,

as it calls directly into question the continued validity

of the constitutional principles governing a woman’s

decision whether to have an abortion—principles that

were established in Roe v. Wade, applied the same day in

Doe v. Bolton, and have been relied upon by this Court

in more than a dozen cases since. We believe that the

abandonment of those principles would weaken the foun-

dations of other fundamental] rights, and subject intimate

personal decisions of millions of women to government

interference under a patchwork of conflicting state and

local laws. Our concern with the constitutional protection

of individual rights and with the preservation of the rule

of law lead us to urge this Court to reaffirm the principles

of Roe v. Wade,’

SUMMARY OF ARGUMENT

In Roe v. Wade,* this Court established two basic con-

stitutional principles: first, that a woman’s right to de-

cide whether to terminate a pregnancy is a fundamental

liberty; and second, that laws that infringe on that liberty

must be subjected to the most exacting judicial scrutiny.

Applying those principles in previous cases, this Court

! A list of the amici appears in the appendix to this bricf.

2 The parties have consented to the filing of this bricf. Letters

of consent are on file with the Clerk of the Court.

$410 U.S. 113 (1973).

has struck down laws that essentially mirror the Penn-

sylvania statute at issue here. Accordingly, the doctrine

of stare decisis—which counsels adherence to precedent—

should compel the Court to apply Roe’s principles again,

and strike down this statute as well.

The Court of Appeals erroneously concluded that stare

decisis concerns are not implicated here because, in its

view, this Court abandoned the principles of Roe in

Webster v. Reproductive Health Services.* But neither in

Webster nor in any other case has a majority of this

Court joined an opinion rejecting the principles of Roe.

Those principles remain the law of the land today, and

thus are still entitled to respect under stare decisis.

Stare decisis concerns apply with particular force in

this case. A ruling from this Court rejecting the princi-

ples of Roe after a marked transformation in the mem-

bership of the Court would shake confidence in govern-

ment institutions and undermine faith in the rule of law.

More importantly, such a ruling would profoundly disturb

the settled expectations of millions of women who have

come to regard Roe as firmly and properly embedded in

our law. To discard the principles of Roe would be to

embark on a novel adventure in constitutional adjudica-

tion: never before has this Court overruled a precedent

around which so many citizens have built deep-seated

reliance interests that affect the most personal, intimate,

and life-shaping choices that one can ever make.

There are no justifications for ignoring the dictates of

stare decisis in this case, First, Roe did not emanate

from a constitutional void: its principles are entirely

consistent with what preceded and what has followed.

Second, oe has not proven unsound in principle or un-

workable in practice. There is no legitimate basis by

which oe’s principles can be distinguished from the

steady line of precedents recognizing that individuals

have a fundamental constitutional right to make sensitive

4492 U.S. 490 (1989).

decisions for themselves regarding procreation, childrear-

ing, marriage, and family formation. Indeed, to single out

Roe and overrule it would threaten the stability of those

other aspects of liberty and privacy. Finally, the with-

drawal of the uniform constitutional standard of Roe

would have harsh consequences: a myriad of conflicting

state and local laws will continuously subject the health

and lives of women throughout the country to the vagaries

of the political process.

For two decades, Roe v. Wade has been part of the fabric

of our national law, permitting all women to live secure

in the knowledge that difficult and personal reproductive

choices will be theirs to make. And so it should remain:

the freedom to make one’s own decisions about whether to

become pregnant and whether to carry a pregnancy to

term should continue to be a national right secured to

every American woman.

ARGUMENT

I. STARE DECISIS CONCERNS ARE IMPLICATED

BY THIS CASE BECAUSE THE CONTINUED

VALIDITY OF THE CONSTITUTIONAL PRINCI-

PLES ESTABLISHED IN ROE v. WADE ARE

DIRECTLY AT ISSUE

At issue in this case is the continued validity of Roe v.

Wade as a constitutional precedent. At its narrowest

level, Roe stands for the proposition that it is unconstitu-

tional for a state to enforce a statute criminalizing vir-

tually all abortions. If this were all that Roe stood for,

it would not necessarily be called into question by this

case.°

The more profound importance of Roe, however, lies

in the basic constitutional principles it established: first,

that the freedom of a woman to decide for herself whether

5 Cf. Webster v. Reproductive Health Servs., 492 U.S. 490, 521

(1989) (plurality opinion) (Missouri law that did not impose broad

criminalization of abortion afforded “no occasion to revisit the

holding of Roe” striking down a Texas criminal statute).

or not to terminate a pregnancy is a fundamentally im-

portant constitutional liberty; and second, that state laws

that infringe on that liberty prior to fetal viability must

be subjected to “strict scrutiny”’—the most demanding

standard of constitutional review—and are permissible

only if they genuinely promote maternal health.

On the same day that this Court decided Roe, it applied

those same constitutional principles in the companion case

of Doe v. Bolton,® and invalidated pre-viability abortion

restrictions in Georgia that were based on a model penal

code used nationwide. Those restrictions, which included

a provision that a woman’s decision to have an abortion

was subject to review by a “hospital committee,” were

not as severe as the criminal prohibitions of the Texas-

Statute in Roe. But this Court held them unlawful under

the principles announced in Roe.

In the two decades since Roe and Doe, this Court has

addressed the constitutionality of a wide variety of abor-

tion restrictions in more than a dozen cases.’ In some of

these cases, the restrictions were struck down; in others,

they were upheld. But in every case, a majority of this

Court stated that it was applying the principles of Roe

in arriving at the ultimate result.

® 410 U.S. 179 (1973).

* Connecticut v. Menillo, 423 U.S. 9 (1975); Planned Parenthood

v. Danforth, 428 U.S. 52 (1976); Beal v. Doe, 432 U.S. 438 (1977) ;

Maher v. Roe, 432 U.S. 464 (1977); Poelker v. Doe, 482 U.S. 519

(1977); Colautti v. Franklin, 489 U.S. 879 (1979); Bellotti v.

Baird, 443 U.S. 622 (1979); Harris v. McRae, 448 U.S. 297

(1980); Williams v. Zbaraz, 448 U.S. 358 (1980): H.L. v. Mathe-

son, 450 U.S. 398 (1981); Akron v. Akron Center for Reproductive

Health, 462 U.S. 416 (1983); Planned Parenthood Ass’n v. Ash-

croft, 462 U.S. 476 (1983); Simopolous v. Virginia, 462 U.S. 506

(1983); Thornhurgh v. American College of Obstetricians and

Gynecologists, 476 U.S. 747 (1986); Webster v. Reproductive Health

Servs., 492 U.S. 490 (1989) ; Hodgson v. Minnesota, 110 8. Ct. 2926

(1990); Ohio v. Akron Center for Reproductive Health, 110 S. Ct.

2972 (1990) ; Rust v. Sullivan, 111 S. Ct. 1759 (1991).

The Pennsylvania statute challenged in this case is re-

markably similar to another Pennsylvania statute that the

Court has already held unconstitutional under the prin-

ciples of Roe in Thornburgh v. American College of Ob-

stetricians and Gynecologists.’ Indeed, the law at issue

here is a virtual copy of that earlier Pennsylvania law.’

Because there is no way to distinguish one from the other,

the new statute can stand only if Roe and its progeny fall.

Thus, the continued validity of the core constitutional

principles of Roe is very much in question here, and the

doctrine of stare decisis necessarily bears on the resolu-

tion of this case."

The Court of Appeals nonetheless claimed that it was

not constrained by stare decisis because, in its view, Roe

had been implicitly overruled in Webster v. Reproductive

Health Services,’ even though no single opinion in that

8476 U.S. 747 (1986). Thornburgh is not the only case in which

this Court has invalidated restrictions that parallel those of the

current Pennsylvania law. Even before Thornburgh, this Court

had struck down an Ohio law that, like the Pennsylvania laws at

issue in Thornburgh and in this case, forced a woman to be sub-

jected to a battery of government-scripted information about abor-

tion before she was allowed to exercise her constitutional right to

terminate her pregnancy. See Akron, 462 U.S. at 442-49.

* Of the parts of the Pennsylvania law that have been challenged

in this case, the only one not at issue when this Court struck down

the earlier Pennsylvania law was the “husband notification” pro-

vision.

10 To uphold the current Pennsylvania law without rejecting the

principles of Roe itself, this-€ourt would have to assert that

Thornburgh and Akron were wrongly decided, and overrule them

as misapplications of Roe. But to do so would fail to give the re-

spect that is due Roe’s progeny under the doctrine of stare decisis.

Moreover, it would, in effect, entail a rejection of Roe. As a prac-

tical matter, to overrule precedents that have applied Roe in strik-

ing down abortion restrictions that mirror those at issue in this

case would be to read Roe at its narrowest: a case that involved

only the constitutionality of near-blanket criminal laws, rather

than a case that established a set of core constitutional principles.

11 492 U.S. 490 (1989).

case commanded five votes, and even though a majority

of the Court in that case did not assert that Roe had been

or should be overruled. In reaching its conclusion, the

Court of Appeals purported to apply to Webster the rules

of Marks v. United States* for identifying the “controll-

ing opinion” of this Court when no one opinion “enjoys

the assent of five Justices.” * According to the Court of

Appeals, the teachings of Marks pointed to Justice O’Con-

nor’s concurrence as the controlling opinion in Webster.

Moreover, the Court of Appeals concluded, this concur-

rence had the effect of reversing Roe."

The Court of Appeals’ conclusion reflects a misreading

of Webster and a misapplication of Marks."* Roe is still

standing, even after the recent assault on its foundations.

Only four Justices in Webster advocated abandoning the

principles of Roe. The fifth vote to sustain the Missouri

law at issue in Webster was supplied by Justice O’Connor,

who found it unnecessary to reexamine the validity of

Roe’s principles because she perceived “no conflict” be-

tween them and the Missouri law.’* For Justice O’Con-

nor, Webster could be decided simply by applying Roe.

To be sure, in dissenting opinions in cases prior to Web-

ster, Justice O’Connor had articulated the “undue burden”

test for assessing pre-viability restrictions on abortion.

Under that test, strict scrutiny is triggered only after a

threshold showing of a burden on the exercise of a

12 430 U.S. 188 (1977).

13 Id. at 1938.

™ See Planned Parenthood v. Casey, 947 F.2d 682, 698 (3d Cir.

1991), cert. granted in part, 60 U.S.L.W. 3498 (U.S. Jan. 21. 1992).

It also contradicts the cardinal tenet that it is not for a lower

court to declare that a Supreme Court decision has been overruled

until this Court has expressly said so. See, e.g., Ro Triguez de

Quijas v. Shearson’American Express, Inc., 490 U.S. 477, 484

(1989).

See Webster, 492 U.S. at 525, 530 (O’Connor, J., concurring ).

woman’s right to choose to have an abortion.” In Web-

ster, however, Justice O’Connor referred only in passing

to the “undue burden” inquiry, and stated that it was

“more to the point” that the Missouri law satisfied “he

strict scrutiny standard of Roe, regardless of whether

the law satisfied the “undue burden” standard as well.’

Even if the Court of Appeals was right to read Justice

O’Connor’s Webster concurrence as having abandoned

Roe, its application of Marks and elevation of the concur-

rence to the “law of the land” was wrong. The Marks

rule for locating the controlling opinion of this Court

when the majority is split can work “only when one opin-

ion is a logical subset of other, broader opinions. In es-

sence, the narrowest opinion must represent a common

denominator of the Court’s reasoning... .” *° That does

not describe the relationship between Justice O’Connor’s

opinion in Webster, even as misread by the Court of Ap-

17 See Thornhburgh, 467 U.S. at 828 (O’Connor, J., dissenting) ;

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

18 Nor did Justice O’Connor’s opinion in Hedgson—or any of the

other Justices’ opinions in Hodgson—reshape the constitutional ter-

rain charted by Roe. In Hodgson, Justice O’Connor said only that

she found one part of the law at issue to be unconstitutional be-

cause it amounted to an “undue burden” on a woman’s right to

choose abortion. See Hodgson, 110 S. Ct. at 2949-50 (O’Connor, J.,

concurring). The Court of Appeals construed this to mean that

Justice O'Connor had definitively rejected Roe. See 947 F.2d at

696-97. But te conclude from a brief reference in a concurring

opinion that Justice O’Connor intended to make new law is at odds

with her firm statement in Webster that when it is time to reex-

amine Roe, it must be done “carefully.” Webster, 492 U.S. at 526

(O’Connor, J., concurring).

19947 F.2d at 698.

20 King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc).

This Court held just last week that a prior decision was not con-

trolling in a subsequent case because in the earlier decision, the

“lurality and dissent were evenly divided with respect to a particu-

lar issue, and the concurring Justice—-who cast the fifth vote in

support of the judgment—had not addressed that issue at all. See

United States v. Nordic Village, 60 U.S.L.W. 4159 (U.S. February

25, 1992).

peals, and the opinions of the other four Justices who

voted to uphold the Missouri law: based on the views they

expressed in Webster, the other Justices would not agree

that a test at least as rigorous as the “undue burden”

test should be applied to laws that limit a woman’s deci-

sion whether to have an abortion. In fact, in Webster they

signaled their belief that all abortion restrictions should

be assessed under the lenient “rational basis” test. Under

that test, any law will generally pass muster, regardless

of the derree of burden imposed on constitutional rights.

Simply put, even if the “undue burden” approach had

been employed by Justice O’Connor in Webster, it would

not represent a position upon which the Justices who

formed the Webster majority agree. Thus, Marks is in-

apposite here.*!

In the final analysis, Webster is analogous to cases in

which a divided 4-4 Court affirms a lower court judgment

and maintains the status quo. Therefore, the constitu-

tional principles of Roe remain the law of the land. And

as such, those principles will continue to be entitled to

respect under the doctrine of stare decisis unless and until

a majority of that Court expressly rejects them.

Il. STARE DECISIS CONCERNS STRONGLY COUN-

SEL ADHERENCE TO THE CONSTITUTIONAL

PRINCIPLES ESTABLISHED IN ROE v. WADE

A. Stare Decisis Fosters Respect For The Rule of Law

and Government Institutions, and Preserves the

Settled Expectations and Practices of Individuals

Who Have Relied on Court Precedent in Ordering

Their Lives

As this Court has recognized “time and time again,” ~

the doctrine of stare decisis has earned a special niche in

*1 Even if it could be said that Justice O’Connor’s Webster con-

currence is a subset of the dissenting opinions in Webster, the

Marks rule would still be of no utility in this case, because this

Court has never used Marks to manufacture a controlling opinion

out of dissents. See King v. Palmer, 950 F.2d at 783.

*2 Hilton v. South Carolina Pub. Ry. Comm'n, 112 S. Ct. 560, 563

(1991).

the American system of government. By mandating re-

spect for established judicial precedents, stare decisis

helps to ensure that our society is governed by the steady

rule of law, rather than by “arbitrary discretion.” ** In

that role, stare decisis serves two vital functions.

First, stare decisis helps to promote the legitimacy of

governmental institutions. As this Court has repeatedly

acknowledged, the evenhanded and consistent application

of the rule of law “contributes to the integrity of our con-

stitutional system of government, both in appearance and

in fact.” ** Public confidence in the system is shaken

when the law is seen as fluctuating on the basis of vagary

and whim. In Justice Harlan’s words, stare decisis is

critical to the maintenance of “public faith in the judici-

ary as a source of impersonal and reasoned judgments.” *

This trust-building function of stare decisis looms even

larger in cases that invite the reconsideration of a long-

standing precedent after a marked transformation in the

composition of the Court. As Justice Frankfurter ob-

served, the respect for precedent that is mandated by

stare decisis demonstrates “the wisdom of this Court as

23 Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989)

(quoting The Federalist No. 78, at 490 (H. Lodge ed. 1888) (A.

Hamilton) ). See Welch v. Texas Dep’t of Highways & Public

Transp., 483 U.S. 468, 478-79 (1987) (plurality opinion) (“[t]he

rule of law depends in large part on adherence to the doctrine of

stare decisis.”’).

*4 Vasquez v. Hillery, 474 U.S. 254, 265-66 (1986).

25 Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403 (1970).

See Florida Dep't of Health v. Florida Nursing Home Ass'n, 450

U.S. 147, 154 (1981) (Stevens, J., concurring) (“Citizens must

have confidence that the rules on which they rely in ordering their

affairs ... are rules of law and not merely the opinions of a small

group of men who temporarily occupy high office.”); see also

Henry Monaghan, Stare Decisis and Constitutional Adjudication,

88 Colum. L. Rev. 723, 752 (1988) (“A general judicial adherence

to constitutional precedent supports a consensus about the rule of

law, specifically the belief that all organs of government, including

the Court are bound by the law.”).

an institution transcending the moment.” ** Accordingly,

departure from precedent after the membership of the

Court has been dramatically altered can only “raise

doubts both as to the Court’s impersonality and as to the

principled foundations of its decisions.” *" The institu-

tional authority and legitimacy of the Court may actually

be enhanced in the long run if, at a critical juncture, it

stands behind such a precedent, and is ultimately vindi-

cated when the once controversial decision becomes widely

regarded as firmly and properly embedded in our law.**

The second function of stare decisis is to foster reliance

on judicial decisions. The stable and predictable applica-

tion of precedent helps guide the conduct of everyday life

throughout the country: citizens can plot their affairs

“with assurance against untoward surprise,” ” and other

*6Green v. United States, 355 U.S. 184, 215 (1957) (Frank-

furter, J., dissenting).

27 Jerold Israel, Gideon v. Wainwright: The “Art” of Overruling,

1963 Sup. Ct. Rev. 211, 218.

*8 See Brown v. Board of Educ., 349 U.S. 294, 300 (1955) (“[T]}he

vitality of . . . constitutional principles cannot be allowed to yield

simply because of disagreement with them.”) ; Cooper v. Aaron, 358

U.S. 1, 19 (1958) (stressing importance of adhering to Brown in

light of appointment of “three new Justices” all of whom were “at

one with the Justices still on the Court who participated in

[Brown)”); see also Rhode Island v. Innis, 446 U.S. 291, 304

(1980) (Burger, C.J., concurring) (noting that after initial contro-

versy, “|t)}he meaning” of Miranda v. Arizona, 384 U.S. 436 (1966),

[had] “become reasonably clear and law enforcement practices

|had] adjusted to its strictures”); Runyon v. McCrary, 427 U.S.

160, 190 (1976) (Stevens, J., concurring) (acknowledging that

principles articulated in the controversial civil rights decision,

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), had become

“part of the fabric of our law” during the intervening years, and

thus were entitled to respect under stare decisis).

*® Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403

(1970). See Williams v. Florida, 399 U.S. 78, 127 (1970) (Harlan,

J., concurring in part and dissenting in part) (stare decisis pro-

motes the “predictability required for the ordering of human af-

fairs over the course of time”); Frederick Schauer, Precedent, 39

Stan, L. Rev. 571, 597 (1987) (stare decisis “helps us plan our

branches of government—at all levels—can chart the

nation’s agenda “against the background of known

rules.” * Stare decisis thus reflects a common sense

notion that the judiciary should not be in the habit of

disturbing “the settled practices and expectations of a

democratic society.”*' Prudence and caution are the

watchwords that stare decisis impresses upon this Court

when the reversal of a precedent will uproot the moorings

around which “individuals may have arranged their

affairs.” *

B. Stare Decisis Concerns Apply with Special Force

to Roe v. Wade

However one might have initially approached the con-

stitutionality of government restrictions on abortion, the

Court no longer “write({s] on a clean slate.” * The ques-

tion in this case, therefore, is not reducible to whether

Roe and the decisions applying it were wrongly decided.

Instead, when looking at Roe and its progeny now, this

Court must do so against the backdrop of stare decisis—

which this Court has already found to provide “especially

compelling reasons” for continued adherence to Roe.”

lives, have some degree of repose, and avoid the paralysis of fore-

_ seeing only the unknown”).

*° Frank Easterbrook, Stability and Reliability in Judicial Deci-

sions, 73 Cornell L. Rev. 422, 430 (1988). See Pennsylvania v.

Union Gas Co., 491 U.S. 1, 35 (1989) (Sealia, J., concurring in part

and dissenting in part) (Supreme Court precedent can have a

“pervasive effect on statutory law,” and governmental bodies “leg-

islate [] under [the] assurance” that develops around precedent).

31 Payne v. Tennessee, 111 S. Ct. 2597, 2614 (1991) (Sealia, J.,

concurring ).

52 Monell v. Department of Social Servs., 436 U.S. 658, 700

(1978) (quoting Monroe v. Pape, 365 U.S. 167, 221-22 (1961)

(Frankfurter, J., dissenting) ).

33 Welch, 483 U.S. at 493; see also New York v. Quarles, 467 U.S.

649, 660 (1984) (O'Connor, J., concurring in part and dissenting in

part) (Because Miranda is “now the law,” the Court no longer is

“writing from a clean slate”).

54 Akron, 462 U.S. at 420 n.1.

As a matter of institutional legitimacy, this Court

should be reluctant to overturn Roe. A concern for the

Court’s integrity resonates in Justice’s Powell’s majority

opinion in Akron—a case in which the Court was asked,

but refused, to abandon Roe. Stressing the “special care”

with which the Court originally decided Roe, Justice

Powell noted that the case “was first argued during the

1971 Term, and reargued—with extensive briefing—the

following Term.” Justice Powell also thought it salient

that “the decision was joined by THE CHIEF JUSTICE

and six other Justices.” * Finally Justice Powell empha-

sized that the Court had continuously applied Roe for over

a decade, thus creating an imposing legacy of case law “—

a legacy that obviously has only grown in the decade since

Akron,

At the same time, the years since Akron have been a

period of flux on the Court. The strong Roe majority to

which Justice Powell referred has contracted. In the past

six years alone, four of the Justices who were part of

the Roe majority have left the Court; only one Justice

from that majority remains on the Court today. To re-

nounce Roe in the wake of this change in the composition

of the Court would be to undermine faith in this Court

as an impartial arbiter of constitutional rights.

The second function of stare decisis—its role in safe-

guarding settled expectations and practices—weighs even

more powerfully in favor of continued fidelity to Roe.

Few opinions of this Court have had such a profound

impact on the lives of so many.’ Millions of women have

come to count on Roe. Because of Roe, they are secure in

the knowledge that if they should ever be confronted with

one of the most difficult and intimate choices that a

woman can ever make—whether or not to have an abor-

tion—the choice is theirs to make, free from the shifting

38 Id.

% See id. (citing decisions applying Roe).

“In that regard, Roe may be matched only by Brown v. Board

of Education, 347 U.S. 483 (1954).

proclivities of government. Because of Roe, they are

secure in the knowledge that if they do choose to have

an abortion, the procedure will generally be safe and

legal. And because of Roe, they have been better able

to shape their lives and futures, and to participate equally

in our society.**

It is said that stare decisis is not “an inexorable com-

mand” in constitutional cases, and that the doctrine has

more potency in cases involving statutory construction.”

Whatever force that axiom carries,“ this Court has al-

ready considered its application to Roe and concluded that

Roe is fully entitled to stare decisis respect. Justice

Stevens put it succinctly in Thornburgh:

[t}he fact that the doctrine of stare decisis is not an

absolute bar to the reexamination of past interpreta-

tions of the Constitution [does not] mean that the

values oo doctrine may be summarily

put to one side. is a strong public interest in

stability, and in the orderly conduct of our affairs,

38 With the freedoms that Roe granted has come a moral obliga-

tion to take responsibility for the choices made. Arguments for

restrictions on abortion frequently reflect, implicitly or explicitly,

the view that women are not fully capable of making such ethical

decisions. That stereotyped assumption, which is a product of a

“long and unfortunate history of sex discrimination,” Frontiero v.

Richardson, 411 U.S. 677, 684 (1973) (plurality opinion), no longer

has a place in this Court’s jurisprudence or in any of our nation’s

laws.

39 See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405 (1932)

(Brandeis, J., dissenting).

validity :

I doubt that judges should be any more ready to unravel long-

standing constitutional doctrines than they should be to revise

long-standing statutory interpretations. Indeed, things should

work the other way. Precisely because constitutional rules es-

tablish governmental structures, because they are the frame-

work for all political interactions, it ought to be harder to

‘revise them than to change statutory rules.

Easterbrook, supra, at 431 (emphasis in original).

that is served by a consistent course of constitutional

adjudication."

Justice Stevens’ admonition reflects an understanding

that where individuals have built firm and legitimate re-

liance interests around a constitutional precedent, stare

decisis deserves to be applied with at least as much vigor

as in the non-constitutional setting. Accordingly, for pur-

poses of evaluating the relative strength of stare decisis

concerns, a distinction can be drawn between types of con-

stitutional precedents.

This Court stated only last Term that constitutional

precedents involving “procedural and evidentiary rules”

may more readily be abandoned than other constitutional

precedents, because it is harder to identify any wide-

spread reliance interests that have developed around

them.*? Thus, the Court felt less inhibited when overrul-

ing its opinions that had prohibited the introduction of

“victim impact” statements in murder trials. The Court

determined that reversal of those rulings did not impli-

cate any serious reliance interest concerns: those affected

by the Court’s decision could not legitimately be heard to

complain that they had ordered their affairs—or to put

it more bluntly, had chosen a particular course of crimi-

nal conduct—on the expectation that evidence concerning

the victims of their crimes would not be introduced at

their trials.“ Similarly, the recent overruling of this

Court’s “coerced confession” “ and “car search” “ prece-

dents did not, in the Court’s view, directly affect any set-

tled expectations and practices in the country at large.

It would be difficult indeed to show that citizens made

*! Thornburgh, 476 U.S. at 780-81 (Stevens, J., concurring).

*2 Payne, 111 S. Ct. at 2610.

“Id. (overruling Booth v. Maryland, 482 U.S. 496 (1987), and

South Carolina v. Gathers, 490 U.S. 805 (1989) ).

** Arizona v. Fulminante, 111 8. Ct. 1246 (1991) (overruling in

part Chapman v. California, 386 U.S. 18 (1967) ).

* California v. Acevedo, 111 8. Ct. 1982 (1991) (overruling

United States v. Ross, 456 U.S. 798 (1982) ).

basic, day-to-day and life-shaping decisions based on those

precedents.*” The same could not be said, however, if this

Court were to reverse Roe, and no longer protect as fun-

damental the right upon which women have relied in

making “decisions that have a profound effect on their

destin |ies].” *

The reliance interests that evolve from rulings of this

Court recognizing fundamental, personal rights may ex-

plain an important historical phenomenon in the area of

stare decisis: this Court has never overruled a precedent

that recognized a constitutional liberty of the type that

was established in Roe. It is one thing for this Court

to find a constitutional right where one did not previously

exist, or to refuse to recognize a right in the first in-

stance, or to decline to expand the contours of a right.

But it is another thing for the Court to take away a

right wholesale, defeating the expectations and practices

of millions of citizens who have come to rely on the prece-

distinguish Roe from the series of opinions in which this Court

overruled one Tenth Amendment precedent and subsequently re-

stored it. In those cases, the Court was not directly affecting the

everyday conduct of individuals, but merely adjusting the relation-

ship between governmental units in specific types of regulatory

matters. See National League of Cities v. Usery, 426 U.S. 833

(1976) (overruling Maryland v. Wirtz, 392 U.S. 183 (1968));

Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985)

(overruling National League of Cities).

47 Thornburgh, 476 U.S. at 781 (Stevens, J., concurring).

*® This Court’s eventual repudiation of Lochner v. New York,

198 U.S. 45 (1905), is not to the contrary. Lochner involved the

rights of individuals to run their businesses as they saw fit. True,

overruling Lochner upset certain expectations. But taking away

the right to make one’s employees labor for more than 60 hours a

week is just not the same as taking away the right to make basic

life choices about intimate personal relationships, which the over-

ruling of Roe would entail. See Jed Rubenfeld, The Right of Pri-

vacy, 102 Harv. L, Rev. 737, 806 (1989) (minimum wage and hour

laws that were upheld after Lochner was overruled did not “posi-

tively take over and redirect {the} lives” of those whose rights

were circumscribed ).

dent establishing the right, and of other branches of gov-

ernment—such as Congress—that have acted or refrained

from acting in reliance on that precedent as well. The

Court would, in sum, be embarking on a novel adventure

in constitutional adjudication if it overruled Roe.”

III. THERE IS NO JUSTIFICATION FOR DEPARTING

FROM STARE DECISIS AND ABANDONING THE

CONSTITUTIONAL PRINCIPLES OF ROE v. WADE

Notwithstanding the institutional legitimacy and reli-

ance interest considerations that make stare decisis con-

cerns so compelling in this case, this Court could discard

the principles of Roe if it could be shown that they (a)

have been undermined by subsequent developments; ® (b)

have proven “unsound in principle and unworkable in

practice;”' or (c) have been attended by “particularly

unfortunate consequences,” and their abandonment would

have beneficial results. No such showing can be made.

A. Roe v. Wade Has Not Been Undermined by Sub-

sequent Developments

Koe has not been undermined by developments in the

law.’ That justification for overruling a precedent exists

*” Moreover, the evisceration of one fundamental personal liberty

would degrade \»e entire concept of “fundamental rights,” and cast

doubt on the stavility of all such rights. See Note, Constitutional

Stare Decisis, 103 Harv. L. Rev. 1344, 1361 (1990).

"See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405

(1932) (Brandeis, J., dissenting); Hudgens v. NLRB

507 (1976), suche prey

"' Garcia v. San Antonio Metro. Transit Auth., 469

546 (1985). ” U.S. 528,

®2 Canada Packers, Ltd. v. Atchison, T. & S.F. Ry., 385 US

184 (1966) (per curiam). ~ ny

*’ Nor have there been any changes in social conditions that

would undermine Roe. The prime example of changed social condi-

tions justifying the reversal of precedent is the repudiation of

Lochner v. New York, 198 U.S. 45 (1905). No one can dispute

that Lochner—and the whole era of jurisprudence which it repre-

sented—became outmoded over time. When the nation adjusted to

when the precedent has become a “sport in the law ae

inconsistent with what preceded and what followed.

Last Term’s decision in Harmelin v. Michigan ™ reflected

the most recent variation on this theme. There, the

Court said that it was not bound to follow a precedent

that “was scarcely the expression of clear and well ac-

cepted constitutional law,” and was in “apparent tension

with other decisions.” °°

Roe, however, followed from a long line of decisions of

this Court recognizing fundamental rights in procrea-

tion,’ childrearing,* marriage, and contraceptive

choice.” Roe also was rooted in a venerable common law

tradition that “every human being of adult years and

sound mind has a right to determine what shall be done

with his own body.” ® Moreover, Roe has stood the test

of time: this Court “repeatedly and consistently has ac-

cepted and applied” Roe’s principles in its subsequent

abortion cases.“ For years, this Court has _ asked

a ‘hanged world, so too did this Court. See Bruce Ackerman, We

tht People: Foundations 63-66 (1991); see also NLRB v. Jones &

Latghlin Steel Corp., 301 U.S. 1 (1987) (modifying construction

of Commerce Clause in light of changed economic conditions ).

54 Screws v. United States, 325 U.S. 91, 112 (1945) (plurality

opinion). See also Hudgens v. NLRB, 424 U.S, 507 (1976); Fer-

guson v. Skrupa, 372 U.S. 726 (1963).

55 111 S. Ct. 2680 (1991).

58 Jd. at 2686 (opinion of Scalia, J.) ; see id. at 2703 (Kennedy,

J.. concurring) (Eighth Amendment precedent that was overruled

in Harmelin had“appeared to apply a different analysis” than the

analysis employed in all other Eighth Amendment cases).

57 See Skinner v. Oklahoma, 316 U.S. 535 (1942).

58 See Pierce v. Society of Sisters, 268 U.S. 510 (1925).

5° See Loving v. Virginia, 388 U.S. 1 (1967).

60 See Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v.

Connecticut, 381 U.S. 479 (1965).

©! Schloendorff v. Society of New York Hosp., 105 N.E. 92, (N.Y.

1914) (Cardozo, J.).

62 Akron, 462 U.S. at 420 n.1.

to jettison those principles, but has yet to do so. Finally,

Roe has influenced constitutional developments beyond the

abortion context. The principles of Roe inhere in this

Court’s later rulings supporting the fundamental rights

of individuals to make other sensitive decisions regarding

contraception,” and personal living arrangements and

family life.“ Roe has also provided support for the right

of individuals to withhold certain personal information

from the government.” In short, it cannot be claimed that

Roe is “inconsistent with what preceded and what fol-

lowed.”

B. Roe is Neither “Unsound In Principle” Nor “Un-

workable In Practice”

1. The Principles Established in Roe are Sound,

and Cannot be Rejected Without Imperiling

Other Aspects of Privacy and Liberty

The soundness of Roe as a matter of principle can be

demonstrated in two ways. First, as already emphasized,

Roe flowed from a steady stream of precedents recogniz-

ing that the Due Process Clause of the Fourteenth

Amendment protects certain fundamentally important

liberties.“ The freedom that enables individuals to make

their own choices about matters of reproduction and fam-

ily formation is soundly grounded in this constitutional

protection of liberty. Dating back to Meyer v. Nebraska ™

*3 Carey v. Population Servs. Int’l., 431 U.S. 678 (1977).

* See Zablocki v. Redhail, 434 U.S. 374 (1978): Moore v. City

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

®5 See Whalen v. Roe, 429 U.S. 589 (1977).

“The idea that the Due Process Clause should be limited to

guaranteeing procedural fairness has long since been rejected:

“the cases are legion in which [the Due Process Clauses of the

Fifth and Fourteenth Amendments] have been interpreted to have

substantive content, subsuming rights that to a great extent are

immune from federal or state regulation or proscription.” Bowers

v. Hardwick, 478 U.S. 186, 191 (1986) (emphasis added).

*? 262 U.S. 390 (1923).

SS a

in 1923 and Pierce v. Society of Sisters® in 1925, this

Court has recognized that a couple’s decision about how

to raise and educate their children is a fundamental lib-

erty. From the time of Skinner v. Oklahoma in 1942,

this Court has recognized that a state needs an extraor-

dinary justification for its acts to control a person’s repro-

ductive functions. In Loving v. Virgina™ in 1967, this

Court recognized that these principles protect the liberty

of individuals to decide whether and whom to marry. In

Griswold v. Connecticut ™ in 1965, this Court recognized

that the freedom to decide whether or not to conceive

children was a fundamental right. And in Fisenstadt v.

Baird ™ in 1972, this Court held that fundamental liber-

ties in matters of conception precluded the government

from imposing barriers to access to contraceptives.

Second, this Court is presumably not prepared to over-

turn six decades of precedent recognizing that the Consti-

tution guarantees the right of individuals to make choices

about reproduction and family formation. If that is true,

then the burden is on those who would single Roe out for

reversal—while maintaining those other precedents—to

show that a woman’s decision whether to have an abortion

is not of the same magnitude as the other decisions that

individuals have a fundamental right to make. Efforts by

members of this Court even to begin to meet that burden

have been scattered.” The four Justices in Webster who

advocated the abandonment of Roe’s principles offered no

——

*8 268 U.S. 510 (1925).

*® 316 U.S. 535 (1942).

7° 388 U.S. 1 (1967).

7 381 U.S. 479 (1965).

72 405 U.S. 438 (1972).

13 The dissents of Justice White in Roe and Thornburgh, and of

then-Justice Rehnquist in Roe, represent the only real effort to

articulate distinctions between the principles of Roe and the prin-

ciples of this Court’s other fundamental rights precedents.

basis for distinguishing the right to choose to have an

abortion from other fundamental rights in matters of

reproduction and family formation. We submit that there

is no principled basis for making any such distinction.

As a threshold matter, none of the other liberties which

the Court has held to be fundamental is explicitly men-

tioned in the text of the Constitution. Indeed, since the

Fourteenth Amendment does not specify any particular-

ized liberties, protecting only those aspects of liberty that

are specifically described would not preserve any of this

Court’s fundamental liberty precedents.* Thus, the fact

that the Constitution does not mention abortion fails to

distinguish Roe from this Court’s other fundamental lib-

erties precedents.

More importantly, all of the fundamental liberties in

matters of reproduction and family formation are inter-

connected, and all go to the heart of personal freedom. If,

for example, the right to make sensitive decisions with re-

spect to conception established in Griswold means any-

thing, it must mean that women have the right to make

the most critical of decisions regarding their reproductive

capacities—the decision whether to terminate a preg-

nancy. Indeed, as Justice Stevens has forcefully stated,

it is difficult “to see how a decision on childbearing be-

comes Jess important the day after conception than the

day before.” *

™ Any attempt to limit fundamental liberties to those for which

there is a historical tradition of protection at the “most specific

level” would be contrary to the Court’s decisions in cases such as

Loving v. Virginia, which struck down state laws forbidding inter-

racial marriage. Before Loving, there had unquestionably been a

long and intensely emotional tradition of not allowing interracial

marriages. See Loving, 388 U.S. at 9-10. It was the Court’s under-

standing of more general constitutional principles—the right to

form a family and racial equality—that enabled the Court to find

anti-miscegenation laws both a violation of the Equal Protection

Clause and a violation of the fundamental liberty to marry pro-

tected by the Due Process Clause.

* Thornburgh, 476 U.S. at 776 (Stevens, J., concurring) (em-

phasis in original). Concerns for potential human life that are

‘ 22

In an effort to convince the Court that Griswold could

be saved if Roe were discarded, the United States argued

in Webster that the reference in Justice Douglas’ opinion

to “police search{es] of marital bedrooms for tell-tale

signs of the use of contraceptives” “ means that Griswold

can be read as a narrow Fourth Amendment search and

_ seizure case. But that bare-bones interpretation of Gris-

wold would reduce it to a largely inconsequential decision :

if Griswold only protects couples from police searches of

marital bedrooms, the government would be free to ban

the marketing of birth control devices, thereby denying

citizens access to birth control—as long as the ban was

enforced by means other than searching marital bedrooms.

Furthermore, that interpretation of Griswold does not

square with landmark precedents of this Court recogniz-

ing that the right to privacy in matters of conception pre-

cludes the government from restricting access to birth

control through wide-scale limitations on the sale, manu-

facture, and distribution of contraceptives.”

The inability to decouple Roe from Griswold and this

Court’s other precedents curbing government encroach-

ment on reproductive freedom is further amplified by the

“forced abortion” question, which was raised in the Web-

ster oral argument, and which Justice Stevens touched

necessarily implicated in the abortion question do not make pre-

conception decisions any less fundamental than post-conception de-

cisions. Those concerns relate only to the question of whether and

when a state’s assertion of an interest in potential life should con-

strain or override the right to make post-conception decisions—a

question that Roe resolved through the proposition that the state’s

interest becomes more compelling after the point of fetal viability.

See id. at 776 (Stevens, J. concurring) (concerns for potential life

relate to the “difference in the strength of the countervailing state

interest”).

76 Griswold, 381 U.S. at 485.

™ Webster, Brief of the United States as Amicus Curiae at 12

n.9.

™ See Carey v. Population Serva. Int'l, 431 U.S. 678 (1977);

Eisenstadt v. Baird, 405 U.S. 438 (1972).

upon in Thornburgh. If the right to choose abortion is

anything less than fundamental, states (and perhaps

14,000 local governments) would need only a minimal jus-

tification to require women to undergo abortions as a

matter of the routine exercise of the police power.” And

if only a rational basis is required to justify such laws,

the government could defend them on the grounds that

they “rationally” advance objectives such aS reducing

housing shortages and public school overcrowding.” By

the same token, “rational” grounds could also be proffered

to justify laws that force women to become pregnant in

the first place. In both instances, the government would

be running roughshod over the right recognized in Gris-

wold."

79 “Uf federal judges must allow the State to make the abor-

tion decision, presumably the State is free to decide that a woman

may never abort, may sometimes abort, or, as in the People’s Re-

public of China, must always abort if her family is already too

large.” Thornburgh, 476 U.S. at 778 n.G (Stevens, J., concurring)

(emphasis in original). )

“ The possibility that some government officials would coerce

women into having abortions if Roe were overturned is not neces-

sarily farfetched. See 7 Contend Correction Dept. Urged Abor-

tions for Guards, New York Times, May 24, 1989, at B3, col. 1

(“Seven present and former New York City Correction officers con-

tended yesterday that the Correction Department regularly told

pregnant officers to have abortions or resign.”); see also Correc-

tion Officials Fined Over Abortions, New York Times, October 4,

1989, at B2, col. 5 (“A senior official of New York City’s Depart-

ment of Correction has resigned and four others have been penal-

ized in an investigation into charges that the department has told

pregnant correction officers to have abortions or resign.” ).

*' The United States argued in Webster that even if this Court

held that the right to choose an abortion is not a fundamental lib-

erty, it could still strike down a compulsory abortion law as an

unconstitutional seizure, because the state would be “violently ...

laying hands on a woman and submitting her to an operation

...." Transcript of Oral Arguments Before Court on Abortion

Case, New York Times, April 27, 1989, at B12, col. 5. This at-

tempt to distinguish between forced abortion and forced child-

birth—a far more painful and dangerous procedure than first tri-

mester abortion—is wholly inadequate. See LeBolt et al., Mortality

2. Roe Has Proven No Less Workable in Practice

Than Other Constitutional Precedents

A review of post-Roe litigation would show that Roe’s

principles have been at least as “workable” as other con-

stitutional doctrines. Neither this Court nor the lower

courts have encountered any particular problem in apply-

ing the common sense principle that prior to fetal viabil-

ity, a state may regulate abortions to protect a woman’s

health only when her health interests are genuinely impli-

cated, and not otherwise. That principle has not proven

especially difficult to apply, even in the face of regulations

that are deliberately near to the edge of constitutionality.

All areas of constitutional law require courts to make

close calls. But the existence of inevitable distinctions at

the margin of a constitutional doctrine does not in any

way suggest that its underlying principles are unwork-

able. The constitutional principles of freedom of speech

and of the press, for example, are still considered to be

workable, notwithstanding cases drawing fine lines be-

tween the traditional public forum, the designated public

forum, and the non-public forum. Like Roe’s viability

benchmark, these lines are not themselves “found in text

of the Constitution,” * but no one advocates abandoning

them as “unworkable.”

from Abortion and Childbirth: Are the Propulations Comparable?,

248 JAMA 188, 190 (1982). Moreover, in nearly one in four cases,

childbirth is by caesarean section. Thus, as a result-of restrictive

abortion laws, the government would be “submitting” many women

to a major surgical procedure. See Placet & Taffel, Recent Pat-

terns in Caesarean Delivery in the United States, 15 Obstet. Gynec.

Clin. N.A. 607 (1988). Compare Winston v. Lee, 470 U.S. 753

(1985) (holding unconstitutional a state-compelled surgical pro-

cedure to remove a bullet from a criminal suspect).

82 Compare Garcia, 469 U.S. at 539 (“We find it difficult, if not

impossible, to identify an organizing principle that places each of

the cases [applying National League of Cities) in [one| group on

one side of a line and each of the cases in the [other] group on the

other side.”).

83 Webster, 492 U.S. at 518 (plurality opinion).

C. Overruling Roe Would Have Profound

C ly Adverse

It has been argued that restrictive abortio

vance the asserted government interest in o Reapde

tial life from the moment of conception. As Justice Har-

lan admonished, however, “{t]he mere assertion that the

action of the State finds justification in the controversial

realm of morals cannot justify alone any and every re-

striction it imposes.”** In any event, it has not been

shown that a return to the pre-Roe era would materially

serve any such goal. If governments are free to criminal-

ize abortion, or to promulgate regulations placing abor-

tion beyond the reach of most women, the principal conse-

quence will be not the “protection of all potential human

life, but rather the substitution of delayed, dangerous

and illegal abortions for safe and legal ones. When harm.

ful, rather than beneficial, consequences would attend the

overruling of a constitutional precedent, this Court is

— cet ~ to rely on stare decisis and maintain

. The pernicious consequences of overruli

ily apparent. Most dramatically, in ren ees

by enacting unyielding criminal statutes, the conduct of

scores of law-abiding citizens—pregnant women, doctors

and nurses—could be criminalized overnight. This would

lead to widespread disobedience, undermine the effective-

ness of the criminal justice system, and promote a general

disrespect for the law unprecedented in our two centuries

of constitutional jurisprudence.

“ Poe v. Ull ,

uit. man, 367 U.S. 497, 545 (1961) (Harlan, J., dis-

“* See Monaghan, swpra, at 752-60; se ]

- han, q *-O0; see also Swift & .

Wickham, 382 U.S. 111, 116 (1965) (Court will pon ld lg

dent in light of its “mischievous consequences”); Canada Pack

Ltd. v. Atchison, T. & SF. Ry., 385 U.S. at 184 (Court will “er

reconsider precedent that has not “

fortunate consequences” ). - produced any particularly un-

Laws that fall short of broad criminal bans could

also have severe and harmful ramifications. For example,

restricting the reasons for which women may terminate a

pregnancy would inevitably lead to the establishment

of enforcement mechanisms that would make every woman

submit herself to those who would be empowered te

ascertain whether her reasons met with official state

approval. Even where a state might “approve” a wom-

an’s decision, the very process of subjecting her decision

to state review could impose an unacceptable barrier to

the exercise of her rights. A rape victim’s right to abort

is by no means fully protected by a statute that prohibits

abortion generally, but makes an exception for pregnancy

by rape. A rape victim is in a far worse position under

such a statute than she is under Roe, where a woman who

has been raped can make her own decision to abort the

resulting pregnancy. If Roe is overturned, and a rape

victim must rely on a “rape exception” in a statute, she

will not have the right to choose abortion, but only the

quite different “right” to prove to some government offi-

cials that she was “in fact” raped—often a difficult and

traumatic task. Moreover, even proving that she was

raped might not be enough. To come within a rape ex-

ception, a woman could also be required to prove that her

pregnancy actually resulted from the rape and not from

some other act of sexual] intercourse. Choice would thus

be replaced by cross-examination.

Other burdensome restrictions on access to pre-viability

abortions, short of an outright ban, would have the prac-

tical effect of withdrawing the right recognized in Roe

from millions of poor and rural women.” And for all

** See, e.g., Doe v. Bolton, 410 U.S. 179, 195-98 (1973).

*? For example, almost 80° of rural Americans live in counties

with no abortion services. See Henshaw et al, Abortion Services

in the United States 1984 and 1985, 19 Fam. Plan. Persp. 63, 64-65

(1987). The prospect of a long journey to a distant facility—or,

indeed, being forced to undertake such a trip twice to satisfy

waiting period requirements—would effectively deny many preg-

nant women access to abortion services. See Akron, 462 U.S. at

women, medically unnecessary restrictions would tend to

delay abortions to a later point in pregnancy when the

procedure is more complicated and dangerous. In such cir-

cumstances, states would, ironically, be subjecting women

to an enforced reproductive code at great cost to their

well-being, while attempting to justify the code “under

the guise of protecting maternal health.” *

In addition, abortion is particularly unsuited to a multi-

plicity of inconsistent state and local laws. The conflict-

ing regulations that would result from subjecting abortion

to the raw political process would not promote any cog-

nizable federalism concern, but would only lead to an in-

terstate traffic of women seeking to terminate their preg-

nancies.” The simple fact is that coercive abortion laws

are unenforceable against the state’s more affluent citi-

zens. Those women who can afford it will travel to other

states, while any “marginal reduction in abortions will

come from among the very poor who are unable to afford

transportation to states where the practice is permitted.” ”

In the end, there will not be separate policies on abortion

for women living in different states as much as there will

be separate policies for women of different social and eco-

nomic status. Women who are unable to travel elsewhere

will be returned to the darkmess of the pre-Roe era:

whiskey aS un anesthetic; doctors who are sometimes

marginal or unlicensed practitioners, sometimes alcoholic,

sometimes sexually abusive; unsanitary conditions: ineom-

434-35 (hospitalization requirement “may force women to travel te

find available facil'ties, resulting in both financial expense and addi-

tional health risk . . . /and therefore! may significantly limit o

woman's ability to obtain an abortion” ).

“ Thornburgh, 476 U.S. at 759.

“’ Some states or localities might attempt to make it a crime for

women to travel elsewhere to seek an abortion. but such laws would

be.#irtually unenforceable in a nation of open interstate borders.

Cf. Irish Court Says Girl Can Leave to Obtain Abortion in Britain

New York Times, February 27, 1992, at Al. col. 1 ;

” John Kaplan, Abortion as a Vice Crime: A “What If” Story,

51 Law & Contemp. Probs. No. 1, 151. 159 (1988).

petent treatment; infection, hemorrhage, disfigurement

and even death.”

As members of Congress, we are concerned that a patch-

work of conflicting abortion laws will both produce fric-

tion among states and increase the burdens on already

overtaxed health care systems in states that continue to

maintain access to safe and legal abortions.” At the

same time, health care facilities in those states and locali-

ties that curtail access to abortion will face a substantial

increase in the number of women experiencing serious

medical complications as a result of self-induced or back-

alley abortions.

Some Justices have suggested that withdrawal by this

Court of the right of women to choose to have an abortion

would not necessarily result in the enactment of draconian

anti-abortion laws." We now know, however, that some

legislatures will indeed enact very severe restrictions.”

*“'As a consequence of Roe, abortion-related deaths dropped

sharply. See Cates & Rochat, [gal Abortions in the United States:

1972-74, 8 Fam. Plan. Persp. 86, 87, 91-92 (1976); see also Cates,

Legal Abortion: The Public Health Record, 215 Science 1586

(1982).

“In the two years following New York's decision to permit

licensed physicians to provide abortions to women less than 24 weeks

pregnant, 60° of the approximately 440,000 abortions performed —

in New York City were performed on nonresidents. Berger et al.,

Maternal Mortality Associated with Legal Abortion in New York

State: July 1, 1970—June 30, 1972, 43 J. Obstet. & Gynec. 315

(1974). A return now to the pre-Roe regime, when metropolitan

hospitals are already overwhelmed with AIDS cases, would be a

disaster.

% See Webster, 492 U.S. at 521 (plurality opinion).

™ Louisiana, Guam, and Utah have all recently passed the strict-

est possible criminal prohibitions on abortion. These laws track the

criminal statute struck down in Roe, and in certain respects, are

even more stringent. Sojourner, T. v. Roemer, 772 F. Supp. 930

(E.D. La. 1991);Guam Society of Obstetricians & Gynecologists

v. Ada, T76 F. Supp. 1422 (D. Guam. 1990); Jane L. v. Bangerter,

No. 91-C-345-G (D. Utah complaint filed April 4, 1991).

While it is also true that some state legislatures would

respond to a reversal of Roe by retaining access to safe

and legal abortions, that freedom could be ephemeral :

each future legislature could consider whether to reverse

an earlier legislature’s decision. Thus, in many—perhaps

most—states, a woman’s right to choose to have an abor-

tion would be subject to the shifting winds of state and

local legislative polities in never-ending struggles, session

after session, year after year.

Even assuming that some state legislatures would con-

sistently retain for their own residents the freedom to

choose safe and legal abortions, there is nonetheless a

compelling need for a national constitutional standard.

During the “Jim Crow” era, only a minority of the states

imposed de jure racial segregation in public schools and

other publie facilities. This Court nonetheless concluded

that it was essential that freedom from state-imposed

segregation be enjoyed by every American as a basic con-

stitutional right.” The freedom to make one’s own deter-

minations about whether to become pregnant and whether

to continue a pregnancy should similarly be a national

right secured to every American woman, no matter what

state she calls home.

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

90 la

APPEND

CONCLUSION —

For the foregoing reasons, we urge the Court to re- LIST OF AMICI

affirm the principles of Roe v. Wade, and reverse the Amici are members of the Congress of the United

judgment below in 91-744 and affirm the judgment below States as follows:

in 91-902. ,

Respectfully submitted, Members of the United States House of Representatives

; Neil Abercrombie (D-H])

WALTER DELLINGER * Gary L. Ackerman (D-N Y)

Duke Law School Glenn M. Anderson (D-CA)

Corner of Science Drive Michael A. Andrews (D-TX)

and Towerview Road Robert E. Andrews (D-NJ)

Durham, NC 27706 Thomas H. Andrews (D-ME)

(919) 684-3404 Chester G. Atkins (D-MA)

LLoyp N. CUTLER Les AuCoin (D-OR)

MICHAEL C. SMALL Jim Bacchus (D-FL)

WILMER, CUTLER & PICKERING Anthony C. Beilenson (D-CA)

2445 M Street, ates _ Howard L. Berman (D-CA)

Washington, D.C. 20087- Sherwood L. Boehlert (R-NY)

(202) 663-6000 Rick Boucher (D-VA)

Attorneys for the Amici Curiae Barbara Boxer (D-CA)

March 6, 1992 * Counsel of Record George E. Brown, Jr. (D-CA)

Albert G. Bustamante (D-TX )

Ben Nighthorse Campbell (D-CO)

Benjamin L. Cardin (D-MD)

Thomas R. Carper (D-DE)

William L. Clay (D-MO)

Cardiss Collins (D-IL)

John Conyers, Jr. (D-MI)

John W. Cox, Jr. (D-IL)

Peter A. DeFazio (D-OR)

Rosa DeLauro (D-CT)

Ronald V. Dellums (D-CA)

Butler Derrick (D-SC)

Norman D. Dicks (D-WA)

Julian C. Dixon (D-CA)

Calvin Dooley (D-CA)

Thomas J. Downey (D-NY)

Mervyn Dymally (D-CA)

Don Edwards (D-CA)

Eliot L. Engel (D-NY)

Lane Evans (D-IL)

Dante B. Fascel] (D-FL)

Vie Fazio (D-CA)

Edward Feighan ‘D-OH)

Harold E. Ford (D-TN)

Barney Frank (D-MA)

Gary Franks (R-CT)

Martin Frost (D-TX)

Sam Gejdenson ( D-CT)

Bill Green (R-NY)

Charles A. Hayes (D-IL)

Joan Kelly Horn (D-MO)

Nancy L. Johnson (R-CT)

Harry A. Johnston (D-FL)

Ben Jones (D-GA)

Walter B. Jones (D-NC)

Jim Jontz (D-IN)

Joseph P. Kennedy II (D-MA)

Barbara B. Kennelly (D-CT)

Michael J. Kopetski (D-OR)

Peter H. Kostmayer (D-PA)

Tom Lantos (D-CA)

Richard Lehman (D-CA)

William Lehman (D-FL)

Sander M. Levin (D-MI)

Mel Levine (D-CA)

John Lewis (D-GA)

Nita M. Lowey (D-NY)

Ronald K. Machtley (R-RI)

Edward J. Markey (D-MA)

Matthew G. Martinez (D-CA)

Robert T. Matsui (D-CA)

Jim McDermott (D-WA)

Kweisi Mfume (D-MD)

George Miller (D-CA)

Nurman Y. Mineta (D-CA)

Patsy Mink (D-HI)

Jim Moody (D-WI)

James P. Moran (D-VA)

Constance A. Morella (R-MD)

Robert J. Mrazek (D-NY)

Stephen L. Neal (D-NC)

Eleanor Holmes Norton (D-DC)

James R. Olin (D-VA)

John W. Olver (D-MA)

Major Owens (D-NY)

Frank Pallone (D-NJ)

Leon E. Panetta (D-CA)

Ed Pastor (D-AZ)

Donald M. Payne (D-NJ)

Nancy Pelosi (D-CA)

Pete Peterson (D-FL)

David Price (D-NC)

Jack Reed (D-RI)

Bill Richardson (D-NM)

Edward R. Roybal (D-CA)

Martin Olav Sabo (D-MN)

Bernard Sanders (I-VT)

James H. Scheuer (D-NY)

Patricia Schroeder (D-CO)

Charles Schumer (D-NY)

Christopher Shays (R-CT)

David E. Skaggs (D-CO)

Louis M. Slaughter (D-NY)

Lawrence J. Smith (D-FL)

Olympia J. Snowe (R-ME)

Stephen J. Solarz (D-NY)

Fortney Pete Stark (D-CA)

Louis Stokes (D-OH)

Gerry E. Studds (D-MA)

Al Swift (D-WA)

Esteban Torres (D-CA) —

Edolphus Towns (D-NY)

Jolene Unsoeld (D-WA)

Craig Washington (D-TX)

Maxine Waters (D-CA)

Henry A. Waxman (D-CA)

Ted Weiss (D-NY)

Alan Wheat (D-MO)

Pat Williams (D-MT)

Howard Wolpe (D-MI)

Ron Wyden (D-OR)

Sidney R. Yates (D-IL)

Dick Zimmer (R-NJ)

Members of the United States Senate

Brock Adams (D. WA)

Daniel Akaka (D. HI)

Max Baucus (D. MT)

Bill Bradley (D. NJ)

Quentin N. Burdick (D. ND)

John Chafee (R. RI)

William S. Cohen (R. ME)

Alan Cranston (D. CA)

Christopher J. Dodd (D. CT)

John Glenn (D. OH)

Tom Harkin (D. IA)

James M. Jeffords (R. VT)

Edward M. Kennedy (D. MA)

J. Robert Kerrey (D. NE)

John F. Kerry (D. MA)

Herb Kohl (D. WI)

Frank R. Lautenberg (D. NJ)

Patrick J. Leahy (D. VT)

Carl Levin (D. MI)

Howard Metzenbaum (D. OH)

Barbara Mikulski (D. MD)

Bob Packwood (R. OR)

Claiborne Pell (D. RI)

Donald W. Riegle (D. MI)

John D. Rockefeller, TV (D. WV)

John Seymour (R. CA)

Paul Simon (D. IL)

Paul Wellstone (D. MN)

Timothy E. Wirth (D. CO)

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