# Amicus Curiae 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%3A15 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1991 ## Text ae" | 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 12 17 17 19 19 ii 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 iv 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 a Vv 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 vi 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. ES 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. I 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, a Transcript of Oral Arguments Before Court on Abortion Case, New York Times, April 27, SR Brief of United States as Amicus Curiae, Webster v. Reproductive Health Services, 492 U.S. 490 RR SRY a > Ce See eee Page 26 11 27 23-24 10, 25 24 16 11 17 23 27 23 23 22 a 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 2 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). 3 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). d 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). 5 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). 6 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). 7 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 ). 8 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). 9 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). 10 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.”). 11 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 12 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. 13 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). 14 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). © At least one prominent scholar and jurist has questioned its 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). 15 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) ). 16 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- © Differences in the degree and nature of reliance interests also 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 ). 17 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 18 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. 19 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 20 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. 21 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). 23 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 24 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). 25 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 27 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) 2a 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) 3a 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) 4a 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0220%3A15. Public record. Not legal advice.