# 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%3A19 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1991 ## Text No. 91-744 = No. 91-902 IN THE MAR 6 Supreme Court of the United States OctToser TERM, 199] a U.§ D c OF THE CLER| 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, v. ROBERT P. CASEY, N. MARK RICHARDS, and ERNEST D. PREATE, JR., personally and in their official capacities, Respondents. ON WRIT OF CERTIORARI TO THE COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF OF THE STATES OF NEW YORK, CONNECTICUT, DELAWARE, HAWAII, ILLINOIS, IOWA, MAINE, MARYLAND, MASSACHUSETTS, NEVADA, NEW JERSEY, NEW MEXICO, NORTH CAROLINA, RHODE ISLAND, TEXAS AND VERMONT AND THE DISTRICT OF COLUMBIA, JOINED BY 13 GOVERNORS, 12 LIEU- TENANT GOVERNORS AND 995 STATE LEGISLATORS FROM FIFTY STATES AS AMICUS CURIAE IN SUPPORT OF PETTTIONERS JOHN McKERNAN Rospert ABRAMS Governor of the State | Attorney General of the State of New York Of Maine 120 Broadway New York, New York 10271 DerEK LANGHAUSER = (212) 341-2250 Chief Counsel JERRY BOONE Office of the Governor Solicitor General State House Station # | Augusta, Maine 04333 (207) 289-3531 Mary E.LLen Burns Chief Assistant Attorney General SANFORD M. CoHEN* Assistant Attorney General in Charge. Civil Rights Bureau Donna I. DENNIS MARJORIE Fuyiki SHELLEY B. MAYER Assistant Attorneys General ( “Counsel of Record) (Additional Counsel Listed Inside Cover) RICHARD BLUMENTHAL FRANKIE SUE Det Papa Attorney General of Connecticut Attorney General of Nevada Office of the Attorney General Office of the Attorney General 55 Elm Street Heroes Memorial Building Hartford, Connecticut 06101 Capitol Complex CHARLES M. OBERLY, III Carson City, Nevada 89710 Attorney General of Delaware Rosert J. Det Turo Office of the Attorney General Attorney General of New Jersey 8th Floor Office of the Attorney General 820 North French Street Richard J. Hughes Justice Complex Wilmington, Delaware 19801 25 Market Street WanrrEN Price, III Trenton, New Jersey 08625 Attorney General of Hawaii Tom UDALL Office of the Attorney General Attorney General of New Mexico 425 Queen Street Office of the Attorney General Honolulu, Hawaii 96813 Post Office Drawer 1508 RoLANp W. Burris Santa Fe, New Mexico 87504 Attorney General of Illinois Lacy H. THORNBURG Office of the Attorney General Attorney General of North Carolina 500 South Second Street Office of the Attorney General Springfield, Illinois 62706 Department of Justice BONNIE J. CAMPBELL P.O. Box 629 Attorney General of Iowa Raleigh, North Carolina 27602 Office of the Attorney General JAMeEs E. O’NEIL Hoover State Office Building Attorney General of Rhode Island Des Moines, Iowa 50319 Office of the Attorney General MicHaEL E. CARPENTER 72 Pine Street Attorney General of Maine Providence, Rhode Island 02903 Office of the Attorney General DAN MORALES State House Attorney General of Texas Augusta, Maine 04330 Office of the Attorney General ]. JosepH Curran, Jr. Capitol Station, P.O. Box 12548 Attorney General of Maryland Austin, Texas 78711 Office of the Attorney General Jerrrey L. AMEsSTOY 200 Saint Paul Place Attorney General of Vermont Baltimore, Maryland 21202 Office of the Attorney General Scott HARSHBARGER Pavilion Office Building Attorney General of Massachusetts Montpelier, Vermont 05602 Office of the Attorney General JOHN PAYTON One Ashburton Place Corporation Counsel of the Boston, Massachusetts 02108 District of Columbia Office of the Corporation Counsel District Building Washington, D.C. 20004 | ) | TABLE OF CONTENTS TABLE OF AUTHORITIES................... INTEREST OF AMICI CURIAE............... SUMMARY OF ARGUMENT.................. Cree dicc see esedesecesecccce I. OUR CONSTITUTIONAL STRUCTURE AND THE DOCTRINE OF STARE DECISIS REQUIRE REAFFIRMANCE OF ede ke sos cceccceescce A. The Commands Of Stare Decisis, Always Weighty, Are Especially Compelling In The Case of Roe v. Wade.............. B. No Circumstances Exist That Justify A Departure From Roe.................. 1. Roe v. Wade Is Sound In Principle .. . 2. Changes In Society And In Law Since Roe Was Decided Fortify, Not Weaken, Its Validity ............... 3. Roe Ils Workable In Practice......... Il. THIS COURT'S FAILURE TO REAFFIRM THAT THE CONSTITUTION PROTECTS A FUNDAMENTAL RIGHT TO MAKE CHOICES ABOUT CHILDBEARING WILL JEOPARDIZE THE HEALTH OF THE NATION’S WOMEN ..................... A. Permitting States To Criminalize Abortion Will Inflict Severe Harm On Women Who Seek To Terminate Their EE 12 13 15 15 1. Travel Out-of-State................. i oc cdencukcweccscwen 3. Carrying To Term ............... B. States Where Abortion Remains Legal Can Expect An Influx Of Non-residents, Overburdening Abortion Providers In Those States And Displacing Resident Women From Securing Timely Abortion SEE bo Whennou 60605000040 bb SbS4000 III. THIS COURT’S FAILURE TO PROTECT THE RIGHT TO CHOOSE ABORTION AS A FUNDAMENTAL RIGHT WILL UNDERMINE STATE LAW ENFORCEMENT EFFORTS.............. IE Scien Kienchenunasietetesdcwens SR TABLE OF AUTHORITIES Cases Application of Grand Jury, 143 N.Y.S. 2d 501 ee reer rs ca hG capud 6s 6 Arizona v. Rumsey, 467 U.S. 203 (1984) ........ Bellotti v. Baird, 443 U.S. 622 (1979) ........... Bering v. Share, 721 P.2d 918 (Wash. 1986), cert. dismissed, 479 U.S. 1050 (1987) .............. ' Booth v. Maryland, 482 U.S. 496 (1987) ........ Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872) Brown wv. Board of Education, 347 U.S. 483 Di tichen Atinnedishiedsdsthedeeasesekds Pi cntvdiccavedhstdudnes viees tahenecess Carey v. Population Services International, 431 a cia a wane City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983) ............ Cleveland Board of Education v. La Fleur, 414 es pe cites edie await Colautti v. Franklin, 439 U.S. 379 (1979) ....... CTS Corp. v. Dynamics Corp., 481 U.S. 69 NE re Coe aire es Se re re od ee wed Doe v. Bolton, 410 U.S. 149 (1973)............. Eisenstadt v. Baird, 405 U.S. 438 (1972) ........ Engel v. Vitale, 370 U.S. 421 (1962)............ Page ~“) iv Cases Florida Dep't of Health v. Florida Nursing Homes Mae, GE Ge BEF GE ec oc cece ccccccnses. Frontiero v. Richardson, 411 U.S. 677 (1973) .... Garcia v. San Antonio Metro. Transit Auth., 469 ee a le eh Green v. United States, 355 U.S. 184 (1957) ..... Griswold v. Connecticut, 381 U.S. 479 (1965)... Harris v. McRae, 448 U.S. 297 (1980) .......... Helvering v. Hallock, 309 U.S. 106 (1940)... .... Hilton v. South Carolina Public Railways Comm'n, 112 S.Ct. 560 (1991)............... Hoffart v. State, 686 S.W.2d 259 (Tex. 1985), cert. denied, 479 U.S. 824 (1986)............. Ingram v. Problem Pregnancy of Worcester, Inc., 486 N.E.2d 408 (Mass. 1986)................. Kentucky v. Dennison, 24 How. 66 (1861)....... Loving v. Virginia, 388 U.S. 1 (1967)........... Maher v. Roe, 432 U.S. 464 (1977) ............. Meyer v. Nebraska, 262 U.S. 390 (1923) ........ Mississippi Univ. for Women v. Hogan, 458 U.S. se oe is oa ee ee ea Page 14, 16 ~) 13 Moore v. City of East Cleveland, 431 U.S. 494 se eg te Silesian eR ateeatt, Sh ihe OES N.O.W. v. Operation Rescue, 914 F.2d 582 (4th Cir. 1990), cert. granted, sub. nom. Bray v. Alexandria Women’s Health Clinic, 111 S.Ct. DT ci dnGchudenhelhonesueess oe seo New State Ice Co. v. Liebmann, 285 U.S. 262 SR re ne anne er (eee New York State N.O.W. v. Terry, 886 F.2d 1339 (2d Cir. 1989), cert. denied, 110 S.Ct. 2206 te donned ede eh deed Gbeee Leh oes Orr v. Orr, 440 U.S. 268 (1979) ............... Patterson v. McLean Credit Union, 491 U.S. 164 DP ckiceavadtdekdwashenbaawucenne Ganka People v. Barksdale, 503 P.2d 257 (Ca. 1972) .... People v. Belous, 458 P.2d 194 (Ca. 1969), cert. denied, 397 U.S. 915 (1970) ................. People v. Miller, 45 N.Y.S.2d 789 (App. Div. Pbscctadsbenhtsatehsaksentiadases Ts xs 6 Pierce v. Society of Sisters, 268 U.S. 510 (1925) .. Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476 (1983) Si enwisiaachadskeesdbeenese ess Planned Parenthood League of Mass., Inc. v. Operation Rescue, No. 89-2487-F, 1991 WL 214047 (Mass. Super. 1991).................. Page 28-29 vi Cases Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976)................ Poe v. Ullman, 367 U.S. 497 (1961) ............ Prince v. Massachusetts, 321 U.S. 158 (1944)..... Puerto Rico v. Branstad, 483 U.S. 219 (1987) .... Reeves, Inc. v. Stake, 447 U.S. 429 (1980)....... Roberts v. United States Jaycees, 468 U.S. 609 eae a cee eee Roe v. Wade, 410 U.S. 113 (1973) ............. Runyon v. McCrary, 427 U.S. 160 (1976) ....... Skinner v. Oklahoma, 316 U.S. 535 (1942) ...... South Carolina v. Gathers, 490 U.S. 805 (1989) .. Stanton v. Stanton, 421 U.S. 7 (1975)...... are State v. Evergreen Assoc., No. 41237/87 (N.Y. Sup. Ct. judgment entered 1987)............. State v. Horn, 407 N.W.2d 854 (Wis. 1987) ..... State v. Mother and Child Services, Inc., No. 41236/87 (N.Y. Sup. Ct. judgment entered RS eR ie PaO Pa ee Pee) A State v. Mother and Unborn Baby Love, Inc., No. 412721/87 (N.Y. Sup. Ct. judgment RC Aes dca Nenahoduseeanscikne sacs State v. Scholberg, 412 N.W.2d 339 (Minn. 1987) ~I * 29 vii Cases The Propeller Genesee Chief v. Fitzhugh, 53 U.S. SD GP ED a vec nvereetencveveceses Thornburgh v. Am. College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) ........... United States v. Carolene Prod. Co., 304 U.S. ED ee odd nC hbesUSEENPERESE NSCS eo United States v. Scott, 437 U.S. 81 (1978) ....... Vasquez v. Hillery, 474 U.S. 254 (1986)......... Webster v. Reproductive Health Services, 109 ke hace wi weees es Welch v. Texas Dep't of Highways and Public Transportation, 483 U.S. 468 (1987).......... West Virginia Bd. of Educ. v. Barnette, 319 U.S. ee ee eae eeab is 465s tant Whalen v. Roe, 429 U.S. 589 (1977) ............ Williams v. Florida, 399 U.S. 78 (1970)......... Zablocki v. Redhail, 434 U.S. 374 (1978)........ CONSTITUTIONS, STATUTES AND ATTORNEY GENERAL OPINIONS to eR I ces eeeeeee so? Colo. Rev. Stat. § 18-6-101 (1986 & Supp. 1990) . Page Vili Ind. Code Ann. § 35-1-58.5-2(3)(c) (West 1986) .. SS ee Model Penal Code § 230.3 (Proposed Official ARRAS Bas er ee 18 Pa. Cons. Stat. § 3211 (Supp. 1991) ......... Utah Code Ann. § 76-7-302(3) (Supp. 1991)...... 74 Op. Md. Att’y Gen. No. 89-045 (Md. Nov. 30, CES NNUWEE Cer ed caucus tv deesctul occu es OTHER SOURCES Alan Guttmacher Institute, Safe and Legal : 10 Years’ Experience With Legal Abortion in New PI Sete igo Alan Guttmacher Institute, Teenage Pregnancy: The Problem that Hasn't Gone Away (1981). .. Armstrong, Elizabeth, Center for Population Options, Teenage Pregnancy and Too-Early Childbearing: Public Costs, Personal Consequences (5th ed. 1990). ................ Binken, Nancy, et al., Illegal Abortion Deaths in the United States: Why Are They Still Occurring?, 14 Fam. Plan. Persp. 163 (1982)... Brotman, Barbara, Secret Abortion Group of ‘60s Prepares for Return, Chi. Trib, Aug. 28, 1989 . 27 20, 21 18, 24 18 ix Bureau of Census, U.S. Dept. of Commerce, Current Population Reports Consumer Income, Series P-60, No. 175 in Poverty in the U.S.: Be I ED Bt oa ove necewctecccccss Cartoof, Virginia J. & Lorraine V. Klerman, Parental Consent for Abortion: Impact of the Massachusetts Law, 76 Am. J. Pub. Health 397 ERE Eady Pe dt een, res ee er er eee Cates, Willard, Jr., Legal Abortion: The Public Health Record, 215 Sci. 1586 (1982). ......... Cates, Willard, Jr. et al., Morbidity and Mortality of Abortion in the United States in Abortion and Sterilization: Medical and Social Aspects (Hodgson, ed. 1981). ................ Centers for Disease Control, U.S. Dep't of Health, Educ. and Welfare, Abortion Surveil- lance, Annual Summary 1972 (April, 1974) .... Darney, Philip D., et al., Abortion Training in U.S. Obstetrics and Gynecology Residency Programs, 19 Fam. Plan. Persp. 158 (1987). ... Fetal Extrauterine Survivability, Report to the New York State Task Force on Life and Law (1988). Forrest, Jacqueline & Stanley K. Henshaw, The Harassment of U.S. Abortion Providers, 19 Fam. Plan. Persp. 9 (1987). ..............-.- Gold, Rachel Benson, Alan Guttmacher Institute, Abortion and Women’s Health, A Turning Point for America? (1990). .................. Gorney, Cynthia, Abortion in the Heartland, Page 16 16 26 24 13 29 16, 18, 19, 20 Wee. WME, GEOR, B, Fee oc ccc ccccccccess 18, 23-24 Grimes, David A., Second Trimester Abortions in the United States, 16 Fam. Plan. Persp. 260 aah ee 4 usc Ss cu cuit odes rks ls eee Hack, Maureen & Avroy A. Fanaroff, Outcomes of Extremely Low Birth Weight Infants Between 1982 and 1988, 321 New Eng. J. of Bee re Hall, Mimi, Legal Abortions Tougher To Get. oe SS ee Harlap, Susan, et al., Alan Guttmacher Institute, Preventing Pregnancy, Protecting Health: A New Look at Birth Control Choices in the co Henshaw, Stanley K., et al., Abortion Services in the United States, 1981-1982, 16 Fam. Plan. FREI ee Rae ne ee Henshaw, Stanley K., et al., Abortion Services in the United States, 1984 and 1985, 19 Fam. oe GO ee Henshaw, Stanley K., et al., Characteristics of U.S. Women Having Abortions, 1987, 23 Fam. a GS ee Henshaw, Stanley K., & Jennifer Van Vort, Abortion Services in the United States, 1987 and 1988, 22 Fam. Plan. Persp. 102 (1990). ... Institute of Medicine, Legalized Abortion and the ES ee ae Kaplan, John, Abortion as a Vice Crime: A “What If” Story, 51 Law & Contemp. Probs. SEER IE ay ain 13 19 23 23 16 , 24 26 xi Page Mackinson, Carolyn, Health Consequences of Teenage Fertility, 17 Fam. Plan. Persp. 132 SL Sh abun whundbedaceuthe nous enone ets 21 McFadden, Robert D., Abortion Mills Thriving Behind Secrecy and Fear, N.Y. Times, Nov. 24, | ae rey er errr ry yr re 25 Missouri Dept. of Health, Missouri Monthly Vital Seatiotics (Jam. 1000). .. 2.2.2.2 ccc cece eeeeee: 22 Monaghan, Henry Paul, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. Ne Rs ccc euhndvaunidass 4, 8, 14 NARAL Foundation/NARAL, Who Decides? A State-By State Review of Abortion Rights —_” ar eA eae a PO 29 National Abortion Federation, American College of Obstetricians and Gynecologists, Who Will Provide Abortions? Ensuring the Availability of Qualified Practitioners (1990). .............-. 23, 24 Niswander, Kenneth R., Medical Abortion Practices in the United States in Abortion and the Law (Smith ed. 1967). ............-..-.- 25, 26 Note, Too Close for Comfort: Protesting Outside Medical Facilities, 101 Harv. L. Rev. 1856 | gS a nr Eile lyeos ; 29 Oversight Hearings on Abortion Clinic Violence, Subcomm. on Civil and Constitutional Rights, House Comm. on the Judiciary, 99th Cong., “yf. "arene 28, 29 Page Pakter, Jean, et al., Two Years Experience in New York City With the Liberalized Abortion Law — Progress and Problems, 63 Am. J. Pub. ee wee 20, 22 Pamuk, Elsie R., & W.D. Mosner, National Center for Health Statistics 11 (1988). ........ 20 Placet & Taffel, Recent Patterns in Caesarean Delivery in the United States, 5 Obstet. Gynec. Clin. N.A. 607 (1988)....................... 19 Powell, Lewis F. Jr., Stare Decisis and Judicial Restraint, 1991 Journal of Supreme Court ss ok 5 President’s Comm'n on Law Enforcement and Admin. of Justice, Task Force Report: The ES I ae Ba: 16, Pritchard, J., et al., Williams Obstetrics (17th ed. I pero oh a re a 19 Regan, Leslie J., About to Meet Her Maker: Women, Doctors, Dying Declarations, and the State's Investigation of Abortion, Chicago, 1867-1940, J. of Am. Hist. 1240 (March 1991)... 28 Rosen, Harold, Psychiatric Implications of Abortion: A Case Study in Social Hypocrisy in Abortion and the Law (Smith ed. 1967). ...... 25 Shelton, James D., et al., Abortion Utilization: Does Travel Distance Matter, 8 Fam. Plan. ese 17 Stone, Rebecca, Center for Population Options, Adolescents and Abortion, Choice In Crisis ei, PM eer Be 21, 22 The Federalist No. 78 (H. Lodge ed. 1888) ...... 5 BB St Page Tietze, Christopher & Stanley K. Henshaw, Alan Guttmacher Institute, A World Review 1986 P GG Ga av ensd seen suse beneecvevanesscsces 16, 17, 19 Torres, Aida & Jacqueline Darroch Forrest, Why Do Women Have Abortions?, 20 Fam. Plan. Persp. 169 (1988).........---. eee eee e eens 17, 23 Trussell, James, et al., Impact of Restricting Medicaid Financing for Abortion, 12 Fam. Plan. Persp. 120 (1980)............-----5005: 19 van den Berg, Bea J., & Chin Long Chiang, Maternal Mortality and Differentiation By Cause of Death 239 (1986)..........----.-55. 17 Whalen, Robert P., New York State Dept. of Health, Report of Selected Characteristics of Induced Terminations of Pregnancy Recorded in New York State, January - December 1975 with Five Year Summary. ..........----+++>> 22 Wilson, J., et al., Obstetrics and Gynecology (8th SM cas vavedewosseernnenesesecorcce 23 Ziff, Harvey L., Recent Abortion Law Reforms (Or Much Ado About Nothing), 60 J. Crim. L. and Criminology and Police Sci. 13 (1969). .... = a No. 91-744 No. 91-902 ——— IN THE Supreme Court of the United States Octroser Term, 1991 PLANNED PARENTHOOD OF SOUTHEASTERN PENN- SYLVANIA, 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, Vv ROBERT P. CASEY, N. MARK RICHARDS, and ERNEST D. PREATE, JR., personally and in their official capacities, Respondents. ON WRIT OF CERTIORARI TO THE COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF OF THE STATES OF NEW YORK, CONNECTICUT, DELAWARE, HAWAII, ILLINOIS, IOWA, MAINE, MARYLAND, MASSACHUSETTS, NEVADA, NEW JERSEY, NEW MEXICO, NORTH CAROLINA, RHODE ISLAND, TEXAS AND VER. MONT AND THE DISTRICT OF COLUMBIA, JOINED BY 13 GOVERNORS, 12 LIEUTENANT GOVERNORS AND 995 STATE LEGISLATORS FROM FIFTY STATES AS AMICUS CURIAE IN SUPPORT OF PETITIONERS INTEREST OF AMICI CURIAE' Amici are the chief legal officers of sixteen States and the District of Columbia, thirteen Governors, twelve Lieutenant Governors and 995 legislators from the fifty states,’ who have a direct interest in the ' The parties have consented to the filing of this brief by letters that accompany the brief. A list of the amici appears in the appendix to this brief. continued vitality of Roe v. Wade, 410 U.S. 113 (1973). Amici share a commitment to the preservation of fundamental individual rights and an abiding respect for the judiciary’s constitutional role in securing those rights against infringement by the state and national governments. Our experience and duties provide a unique perspective on governmental regulation of abortion. In our respective states, amici enact legislation, direct executive agencies in implement- ing legislation, and enforce state laws through criminal and civil sanctions. Amici are also obligated to protect the health and well- being of women in our states, which includes their right to safe and appropriate health care and their right to decide whether and when to bear children. Amici have found the standard of review for the constitutional- ity of abortion regulations described in Roe v. Wade to be a workable and fair accommodation of state interests and individual rights. In Roe, this Court correctly held that a state must have a compelling interest to justify its regulation of a woman's fundamen- tal right to choose whether to bear a child. That framework ac- cords to states the necessary authority to regulate abortion in the genuine interest of promoting health and preserving potential life while also respecting the fundamental privacy rights of women. As officials charged with enforcing laws, amici have a special interest in promoting respect for the doctrine of stare decisis. Adherence to stare decisis preserves stability in the law, prevents relitigation of divisive issues, and endows our citizens with con- fidence that laws will be interpreted consistently and fairly. A retreat from the uniform national standard for regulation of abor- tion provided by Roe will turn state legislatures into political battle- grounds, and divert attention from a multitude of critical economic and public policy issues that need to be addressed. The eviscera- tion of a woman's fundamental constitutional right to choose abor- tion after it has been exercised for almost twenty years also threatens to jeopardize public faith in the legitimacy of our system of laws. Because of our roles and responsibilities within the states, amici are uniquely qualified, and in fact compelled, to address the ques- tion of whether the Court should continue to protect a womans deeply personal decision about childbearing as a fundamental constitutional right. An abandonment by this Court of the fun- damental right to choose and of the application of strict scrutiny to state abortion regulations will undermine our interest in pro- tecting the health and well-being of women in our states, and in administering the law fairly and effectively. SUMMARY OF ARGUMENT In Roe v. Wade this Court properly recognized that a woman's decision whether or not to bear a child is encompassed in the fundamental constitutional right to privacy and that state in- terference with that decision is subject to strict scrutiny. For almost two decades, the states and millions of individuals have relied on the framework established by Roe and its progeny in structuring their affairs and lives. Like Brown v. Board of Educa- tion, 347 U.S. 483 (1954), Roe has become part of the political and moral fabric of this country. A decision that turns back the clock on women’s ability to control reproduction and shape their futures would unjustifiably frustrate reasonable reliance upon the Court's judgments. A break from a precedent of such im- portance, particularly when it coincides with a shift in the membership of the Court, also threatens to erode public faith in the impartiality and legitimacy of law. Under the doctrine of stare decisis, reversal of a precedent whose principles are deeply embedded in the national con- sciousness, in the lives of individuals, and in governmental deci- sionmaking can be justified only upon a demonstration that the precedent is harmful. No evidence exists that Roe v. Wade causes harm. But an abandonment of the fundamental right secured by Roe would almost certainly inflict injury — both on individual women and on the states. Retreating from Roe and forcing states to determine the parameters of the right to choose abortion will significantly jeopardize the public health and welfare. Experience shows that women seek abortion in substantial numbers regardless of the state of the law. While women with money will often be able to secure safe and legal abortions by traveling to other states, recriminalization of abortion will drive women without suffi- cient resources to back-alley abortionists, where they risk grave harm to their health and even death. In addition, states that continue to protect abortion will face a dramatic increase in the number of women seeking abortions, which will severely strain already overburdened health care systems and impede the delivery of medical services. A failure by this Court to protect a woman's fundamental right to determine her reproductive destiny will also subvert law enforce- ment efforts. The criminal anti-abortion laws that may arise will be extremely difficult to enforce, and will divert resources from protecting the public from other crimes. History teaches that the attempt to enforce unpopular laws that are widely disobeyed and easily evaded by the affluent undermines the integrity of the criminal justice system and our institutions of government. ARGUMENT I. OUR CONSTITUTIONAL STRUCTURE AND THE DOC- TRINE OF STARE DECISIS REQUIRE REAFFIRMANCE OF ROE cv. WADE A. The Commands Of Stare Decisis, Always Weighty, Are Especially Compelling In The Case Of Roe v. Wade Nineteen years ago, seven Members of this Court recognized that the due process clause of the Fourteenth Amendment secures to women a fundamental right to choose whether or not to con- tinue a pregnancy. Since Roe v. Wade, courts have scrutinized regulation of abortion strictly, demanding that a state's encroach- ment on that right serve a compelling interest and be narrowly drawn. Those who now urge this Court to abandon protection of the right to choose abortion and to thrust the issue back upon the states invite disaster. As chief legal officers, chief executives, and elected representatives of the people of our respective states, amici therefore urge the Court to be steadfast in its application of Roe v. Wade. The doctrine of stare decisis requires strict adherence to past ts “absent a showing of substantial countervailing con- siderations.” Although sometimes accorded less weight in cases > Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication. 85 Colum. L. Rev. 723, 757 (1988). interpreting the Constitution,’ an examination of the doctrine’s underlying purposes makes clear that it is especially compelling in the case of Roe v. Wade. “Perhaps the most important ... argument for stare decisis is one of public legitimacy.” Powell, supra, at 16. It has long been recognized that “[t]he rule of law depends in large part on adherence to the doctrine of stare decisis,” Welch v. Texas Dep't of Highways and Public Transportation, 483 U.S. 468, 478-79 (1987), and that it is the basis of “public faith in the judiciary as a source of impersonal and reasoned judgments.” Moragne v. State Marine Lines, 398 U.S. 375, 403 (1970). By providing a check against arbitrary and partial decisionmaking, stare decisis allows citizens to “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.” Florida Dep't of Health v. Florida Nursing Homes Ass'n, 450 U.S. 147, 154 (1981)(Stevens, J., concurring). Thus, the obliga- tion of judges to be bound by the rules of cases already decided “is a basic self-governing principle within the Judicial Branch, which is entrusted with the sensitive and difficult task of fashion- ing and preserving a jurisprudential system that is not based upon ‘an arbitrary discretion.” Patterson v. McLean Credit Union, 49] U.S. 164, 172 (1989) (quoting The Federalist No. 78, at 490 (H. Lodge ed. 1888) (A. Hamilton)). Adherence to precedent also promotes stability and consistency in the law, “ensur{ing) that the law will not merely change erratical- ly, but will develop in a principled and intelligible fashion.” Vas- quez v. Hillery, 474 U.S. 254, 265-66 (1986). As a result, stare decisis permits citizens and governments alike to rely on the law in struc- turing their activities and affairs. See, e.g., Williams v. Florida, * See, e.g., Payne v. Tennessee, 111 S.Ct. 2597, 2610 (1991). Most Justices and commentators, however, agree that its strictures apply even in constitutional! cases. As former Justice Powell has remarked, “the elimination of constitu- tional stare decisis would represent an explicit endorsement of the idea that the Constitution is nothing more than what five Justices say it is. This would undermine the rule of law.” Lewis F. Powell, Jr., Stare Decisis and Judicial Restraint, 199] Journal of Supreme Court History 13, 16 (1991); see also Payne v. Tennessee, 111 S.Ct. at 2618 (Souter, J., concurring) (“Even in constitutional cases, [stare decisis} carries __ persuasive force”); Green v. United States, 355 U.S. 184, 215 (1957) (Frankfurter, J., dissenting). 399 U.S. 78, 127 (1970) (Harlan, J., dissenting in part and con- curring in part); Helvering v. Hallock, 309 U.S. 106, 119 (1940) (remarking upon “the psychologic need to satisfy reasonable expectations”). The need for stability and legitimacy in the law weighs heavily in favor of abiding by the precedent of Roe v. Wade regardless of individual views on how the case should be decided if it arose res nova today.’ Like Brown v. Board of Education, 347 U.S. 483, Roe has become part of the political and moral fabric of this country. Millions of women who have come of age in the last twenty years have structured their identities, their families, and their pursuits around the possession of a fundamental privacy right to decide whether or not or when to bear a child. Roe has also rooted itself in the practices and expectations of the States as sovereign entities, which have relied on Roe over the last two decades in developing a uniform statutory and regulatory framework within which health planning decisions are made. This Court has consistently held that when individuals and governments have relied on a precedent, as they have on Roe, there should be extreme reluctance to overrule it. Only recently, this Court reaffirmed that “/s]tare decisis has added force when the legislature, in the public sphere, and citizens, in the private realm, have acted in reliance on a previous decision, for in this instance overruling the decision would dislodge settled rights and expec- tations. . ..” Hilton v. South Carolina Public Railways Comm'n, 112 S.Ct. 560, 564 (1991). See also Payne v. Tennessee, 111 S.Ct. at 2610.* Stare decisis, after all, rests upon the “principle that the settled practices and expectations of a democratic society should generally not be disturbed by the courts.” Jd. at 2614 (Scalia, J., concurring). Yet if the Court were to abandon Roe now, it would needlessly and unjustifiably frustrate the settled practices and “reasonable expectations,” Helvering v. Hallock, 309 US. at 119, of both vast numbers of women and governmental entities. * See Green v. United States, 355 U.S. at 215 (Frankfurter, J., dissenting). * The fundamental! personal freedom secured by Roe is clearly not a “mere procedural or evidentiary rule,” which the Court views as carrying diminished precedential weight. Payne, LL) S.Ct. at 2610. It is more akin to a “property or contract nght” in that both categories of rights involve “strong reliance interests.” /d. Because Roe v. Wade is so deeply embedded in both individual and governmental decisionmaking, reversal or modification of its holding would also substantially undermine the rule of law. Never before has this Court overruled a case that recognized a fundamental personal freedom. A departure from the guarantee of a fundamental liberty that coincides with a shift in the membership of the Court would run athwart the prin- cipal objective the doctrine of stare decisis is intended to serve: to enable citizens “to presume that bedrock principles are founded in the law rather than the proclivities of individuals. . ..” Vasquez v. Hillery, 474 U.S. at 265-66. It would thereby under- ' mine public confidence in “the wisdom of this Court as an in- stitution transcending the moment,” Green v. United States, 355 U.S. at 215 (Frankfurter, J., dissenting), with resulting damage to citizens’ respect for the law. Roe v. Wade's precedential status is entitled to great weight in another respect. The constitutional terrain it describes is an area which the Court long ago marked out as a “zone of privacy created by several fundamental constitutional guarantees.” Griswold v. Connecticut, 381 U.S. 479, 485 (1965). A series of historic decisions leading up to Roe extended autonomy to in- dividuals in matters relating to childrearing, marriage, and pro- creation.’ Since Roe, this Court not only has repeatedly reaffirmed the existence of that zone of privacy when striking down restric- tive abortion laws but also has relied upon it in reaching a variety of decisions outside the abortion area.* A repudiation of Roe v. Wade would therefore remove the constitutional girders of some ’ See Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Skinner v. Oklahoma, 316 U.S. 535 (1942); Prince v. Massachusetts, 32] U.S. 158 (1944); Griswold v. Connecticut, 381 U.S. 479, Loving v. Virginia, 388 U.S. 1 (1967); Eisenstadt v. Baird, 405 U.S. 438 (1972). * See, e.g., Zablocki v. Redhail, 434 U.S. 374 (1978)(invalidating state laws burdening the right to marry); Carey v. Population Services International, 431 U.S. 678 (1977) (invalidating prohibitions on distribution and advertise- ment of contraceptives); Moore v. City of East Cleveland, 43) U.S. 494 (1977) (invalidating a zoning law that interfered with decisions as to family com- position); Whalen v. Roe, 429 U.S. 589 (1977) (recognizing right to informa- tional privacy); Cleveland Board of Education v. La Fleur, 414 US. 632 (1974) (invalidating an employment rule burdening a woman's decision to bear a child). of the Court’s most important decisions in this century, and call into question an entire field of constitutional law.* Because of the “bedrock” nature of the right it recognizes, the settled practices and expectations it has engendered, and its in- tegral role in a foundational aspect of constitutional law, a reaf- firmation of Roe commands exceptional consideration on stare decisis grounds.” 3 : B. No Circumstances Exist That Justify A Departure From Roe The proponent of overruling a precedent always bears a “heavy burden.” Vasquez v. Hillery, 474 U.S. at 266. “Even in constitu- tional cases, [stare decisis] carries such persuasive force that we have always required a departure from precedent to be supported by some ‘special justification.’ ” Payne v. Tennessee, 11] S.Ct. at 2618 (Souter, J., concurring) (citing Arizona v. Rumsey, 467 U.S. 203, 212 (1984)). In our system of law, a belief that a case was wrongly decided in the first instance is far from a sufficient justification for over- ruling it." Because of the important policies advanced by stare decisis, this Court does not abandon a precedent absent a special showing that “changes in society or in the law dictate that the values served by stare decisis yield in favor of a greater objec- tive,” Vasquez, 474 U.S. at 266, that the precedent is “unsound in principle,” Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546 (1985), that it is “unworkable in practice,” id. at 546, or that “the lessons of experience indicate that [a new rule} ... would significantly advance the public interest.” United States v. Scott, 437 U.S. 81, 101 (1978). * See Hilton v. South Carolina Public Railways Comm'n, 112 S.Ct. at 564 (if overruling precedent would “throw into doubt previous decisions from this Court,” that result weighs “in favor of adhering to stare decisis”). * As one legal scholar has aptly explained, stare decisis serves “to prevent disrup- tion of practices and expectations so settled, or to avoid the revitalization of a public debate so divisive, that departure from the precedent would contribute in some percentible way to a failure of confidence in the lawfulness of fun- damental feacures of the political order.” Monaghan, supra note 3, at 750. “ Under American notions of stare decisis, “[e]ven an ‘overriding conviction’ of prior error is not enough [to justify overruling]: the precedent must have some palpable adverse consequences beyond its existence.” Monaghan, supra note 3, at 758. Roe does not suffer from any of the infirmities that justify the overruling of a precedent. In fact, a reversion to the pre-Roe regime would encourage divisive and inconsistent state regula- tion of a woman's abortion decision, disserving the public interest. See Points II and III, post. A healthy observance of restraint in judging, an interest served by adherence to the doctrine of stare decisis, counsels against overruling Roe v. Wade. 1. Roe v. Wade Is Sound In Principle Almost twenty years ago, this Court held that the right of per- sonal privacy — which finds its doctrinal sources in decisions dating back to the nineteenth century — “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Roe, 410 U.S. at 153. That holding was rooted in a solid line of cases establishing that individuals enjoy a fundamen- tal liberty interest in matters related to childrearing, marriage, and procreation.” and it remains the governing law today.” This Court has already found “especially compelling reasons for adhering to stare decisis in applying the principles of Roe v. Wade.” City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 420 n.1 (1983). Among them were the special consideration afforded the issues in Roe. the solid majority it com- manded.” and the repeated adherence in subsequent cases to the basic principles there announced. Indeed, the Court not only has explicitly reaffirmed Roe, but has repeatedly relied on it to strike down regulations impermissibly interfering with a woman's right to have an abortion." “ See cases cited supra note 7. ” Chief Justice Rehnquist's plurality opinion in Webster v. Reproductive Health Services, 109 S.Ct. 3040 (1989), did not command a majority of the Members of the Court and therefore its reasoning is not binding. See, e.g.. CTS Corp. v. Dynamics Corp., 481 U.S. 69, 81 (1987). Justice O'Connor, along with the four dissenting Justices, refused to question the validity of Roe. 109 S.Ct. at 3060-61 (O'Connor, J., concurring in part and concurring in the judgment). “ Compare Payne, 11) S.Ct. at 2611 (justifying overruling of Booth v. Maryland. 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 US. 805 (1989), in part on the ground that they were “decided by the narrowest of margins”). * See Thornburgh v. Am. College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) (striking down mandatory dissemination of information designed (Footnote continued) 10 No doctrinal development has appeared since Roe v. Wade that diminishes the conclusion of seven Members of the Court that the liberty component of the due process clause of the Fourteenth Am- endment protects as fundamental the right of a woman to choose whether to terminate a pregnancy. On the contrary, Roe’s holding has been relied on not only in abortion cases but in a variety of de- cisions in the privacy area outside the abortion context” Because this Court has repeatedly followed its decision, the right recognized in Roe has become not only a part of our constitutional landscape, but an element widely perceived to be part of the nation’s social fabric. Roe v. Wade falls squarely within the historical and rational traditions of this Court in elaborating the meaning of the due process clause under which liberty is a “continuum which .. . includes a freedom from all substantial arbitrary impositions and purposeless restraints.” Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting). Those who now urge that the issue be remitted to fifty or more legislatures as a proper subject of ma- joritarian rule fail to recognize that the majority, in adopting the Fourteenth Amendment, endorsed the principle that the judiciary is the guarantor of personal freedoms. Under our Constitution, the judiciary is entrusted with the critical task of safeguarding the most fundamental aspects of peo- ple's lives — their personal sovereignty — from interference by legislative bodies. As this Court has declared: to discourage abortion, two-physician requirement for post-viability abortions, and mandatory medical procedures for possibly viable fetuses): Akron, 462 U.S. 416 (1983) (invalidating 24-hour waiting period, mandatory dissemina- tion of information designed to discourage abortions and hospitalization re- quirement for second trimester abortions); Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476 (1983)(striking down requirements unrelated to maternal health for second trimester abortions); Colautti v. Franklin, 439 U.S. 379 (1979) (striking down mandatory medical procedures for possibly viabic fetuses). Bellotti v. Baird, 443 U.S. 622 (1979)(overturning parental consent require- ment); Planned Parenthood of Central Missouri v. Danforth, 428 US. 52 (1976)(overturning parental and spousal consent requirements). * See cases cited supra note 8. Cf. Puerto Rico v. Branstad, 483 US. 219, 227-30 (1987) (overruling Kentucky v. Dennison, 24 How. 66 (1861), because the holding of Dennison “is fundamentally incompatible with more than a cen- tury of constitutional development” and “the basic consitutional principles now point as clearly the other way”) 1] The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political con- troversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's ... fundamental rights may not be submitted to vote; they depend on the outcome of no elections. West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).” That the passions which attend the abortion debate make judicial resolution difficult does not relieve this Court of its constitutional duty. Rather, the Court’s duty reaches its zenith when the issue. as here, is one of a “sensitive and emotional nature.” generating heated public debate and controversy, “with vigorous opposing views” and “deep and seemingly absolute convictions.” Roe, 410 U.S. at 116. For it is precisely then that majoritarian institutions are the least reliable guarantors of individual rights and liber- ties. See, e.g., Brown v. Board of Education, 347 US. 483: United States v. Carolene Prod. Co., 304 U.S. 144, 152 n.4 (1938). The federal structure of our government offers abundant-op- portunities for states to serve as laboratories for new social and economic ideas. See, e.g., Reeves, Inc. v. Stake, 447 US. 429, 441 (1980); New State Ice Co. v. Liebmann, 285 U.S. 262. 31] (1932) (Brandeis, J., dissenting). But there is a critical difference between a state's experimentation within a sphere of power ceded to government by the individual and the state's usurpation of those powers and rights reserved to the individual. A state law in- fringing a fundamental individual liberty protected by the Four- teenth Amendment cannot be upheld on federalism grounds. See New State Ice, 285 U.S. at 279-80. After all, “[t]here are limits to the extent to which a legislatively represented majority may conduct ... experiments at the expense of the dignity and per- sonality” of the individual. Skinner v. Oklahoma, 316 U.S. 535, 546 (1942) (Jackson, J., concurring). Because “[f]ew decisions are more personal and intimate, more properly private, or more basic " See also Garcia, 469 US. at 565 n.8 (“One can hardly imagine this Court saving that because Congress is composed of individuals, individual rights guaranteed by the Bill of Rights are amply protected by the political process.”) (Powell, J.. dissenting, joined by Burger, C.J.. Rehnquist and O'Connor. J).): Engel v. Vitale. 370 U.S. 421, 429-30 (1962). 12 to individual dignity and autonomy, than a woman’s decision ... whether or not to end her pregnancy,” Thornburgh, 476 U.S. at 772, the Court correctly decided in Roe v. Wade that a woman's right to control her reproductive destiny cannot be a candidate for state-by-state experimentation. 2. Changes In Society And In Law Since Roe Was Decided Fortify, Not Weaken, Its Validity In the two decades since Roe was decided, society has witnessed enormous changes in the status of women. Women, who have entered the workforce in staggering numbers, demand and are entitled to participate as equals in the social and economic life of this country. Those changes, however, do not demonstrate that the principles of Roe v. Wade must be rejected as “no longer suited to contemporary life.” Cf. Williams v. Florida, 399 U.S. at 128 (Harlan, J., dissenting in part and concurring in part).* On the contrary, women’s growing independence as citizens depends on freedom from forced childbearing and on the ability to control whether or when to have children. The advances women have made toward equality do not support, let alone justify, reinstating a rule of law that deprives them of reproductive autonomy and consigns them purely to the domestic sphere. Law has evolved to keep pace with the changing role of women. Although at one time a distinguished Member of the Court con- cluded that the Fourteenth Amendment did not prevent a state from denying women admission to the practice of law because the “paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother.” Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1872) (Bradley, J., concurring), such views have fallen into serious disrepute” During the last two decades, the Court has repeatedly recognized that the Constitu- tion will not tolerate state actions that coerce women to fill * Cf. The Propeller Genesee Chief v. Fitzhugh, 53 US. (12 How.) 443, 455-56 (1851) (overruling 1825 precedent limiting admiralty jurisdiction to tida] waters on account of changed boundaries of US. territory and concomitant increase in inland waters). " “No longer is the fernale destined solely for the home and the rearing of the family and only the male for the marketplace and world of ideas.’ “ Orr v. Orr, 440 U.S. 268, 280 (1979) (quoting Stanton v. Stanton, 42] US. 7, 14-15 (1975)). 13 stereotypical domestic or nurturing roles” and has acknowledged the compelling governmental interest in eradicating sex discrimination.” This Court's recognition of women’s right to autonomy and equality under the law strongly support reaffirmance of Roe v. Wade” 3. Roe Is Workable In Practice Roe provides a workable, predictable framework within which states can regulate abortion and courts can review such regula- tions. Although legislative responses have frequently required the Court to delineate the fundamental right to choose and to define the limits on the states’ authority to regulate abortions, the need for the Court to furnish guidance in this area does not argue for a doctrinal retraction of Roe v. Wade. Constitutional adjudica- tion of rights secured by the Bill of Rights often involves com- plicated tasks of definition and line drawing. In comparison to other distinctions articulated by this Court in constitutional cases, however, the Roe framework provides clear guidance to state governments and lower courts. It guarantees that the state may not regulate the abortion procedure prior to viability unless the regulation is necessary to protect a woman’s health, pro- vided that the state may not restrict abortions after viability in a way that harms the woman's life or health.” See Roe, 410 U.S. * See Mississippi University for Women v. Hogan, 458 U.S. 718, 725-26 (1982): Frontiero v. Richardson, 411 U.S. 677, 684-85 (1973). * See Roberts v. United States Jaycees, 468 U.S. 609, 625-26 (1984) (noting “the importance, both to the individual and to society, of removing the bar- riers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women”). * Cf. Patterson v. McLean Credit Union, 491 U.S. at 174 (deep national com- mitment to eradicating race discrimination supports adherence to holding of Runyon v. McCrary, 427 U.S. 160 (1976), that 42 U.S.C. § 1981 applies to private conduct whether holding was “right or wrong as an original matter”). ” Contrary to some predictions, changes in science and technology since Roe was decided have not undermined its validity. No technology has appeared that lowers the threshold during pregnancy at which a fetus can survive separate from the woman. Medical authorities have concluded that viability exists — and is likely to remain fixed — at the 24th week of pregnancy. See Maureen Hack & Avroy A. Fanaroff, Outcomes of Extremely Low Birth Weight Infants Between 1982 and 1988, 321 New Eng. J. of Med. 1642, 1647 (1989): see also Fetal Extrauterine Sur- vivability, Report to the New York State Task Force On Life and Law 10 (1988). 14 at 163-64; Akron, 462 U.S. at 428-30. These basic guidelines have neither proved unduly “confusing” nor “defied consistent applica- tion.” Cf. Payne, 11] S.Ct. at 2611. The results of two decades of their application in the courts have been largely consistent and predictable.” The opposition by some to the principle that a woman has a constitutionally protected right to decide whether or not to con- tinue her pregnancy should not be confused with any doctrinal or practical deficiency of Roe. It “should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.” Brown v. Board of Education, 349 U.S. at 300. Individuals, government, and the medical profession all operate with the benefit of near- ly twenty years of experience under Roe. Far from lessening litiga- tion or dampening the controversy, a new standard would only increase contention. Furthermore, as discussed in Points II and III, post, “the lessons of experience” teach us that overruling Roe would not “significant- ly advance the public interest.” Cf. United States v. Scott, 437 U.S. at 101. On the contrary, modification or abandonment of Roe would inflict harm on women, wreak havoc on public health care systems, and undermine law enforcement efforts in the states. Departure from precedents is rarely if ever defensible when “the effects of the precedents are not harmful, and overruling the precedents would produce exceptionally harmful results. As representatives of state governments that will be deeply affected by any reversal or erosion of Roe, amici submit that a concern for the public interest demands reaffirmation of Roe’s principles. * See cases cited supra note 15. This Court has also upheld certain kinds of restrictive abortion legislation on the ground that they do not interfere with the rights recognized in Roe. See, e.g., Harris v. McRae, 448 U.S. 297 (1980) (upholding ban on public funding of abortions on the ground that ban did not interfere with right recognized in Roe); Maher v. Roe, 432 U.S. 464 (1977) (same). * Monaghan, supra note 3, at 760; ef. Payne, 11) S.Ct. at 2613 (Scalia, J. con- curring) (abandonment of rule excluding victim-impact evidence in sentenc- ing hearings justified when the precedent “significantly harms our criminal justice system”). 15 Il. THIS COURT'S FAILURE TO REAFFIRM THAT THE CONSTITUTION PROTECTS A FUNDAMENTAL RIGHT TO MAKE CHOICES ABOUT CHILDBEARING WILL JEOPARDIZE THE HEALTH OF THE NATION'S WOMEN The consequences for women’s health in this country will be devastating if the Court jettisons Roe v. Wade. American women will not abandon exercise of a right so long enjoyed and so basic to their ability to control their destiny.* Some will seek to cir- cumvent restrictive laws within their own states, increasing the risk of abortion-related death, injury and illness. Others will flee to states where abortion remains legal, taxing heavily burdened health care systems and displacing residents of those states. Ex- perience shows that women of color and poor women will suf- fer the most. Overturning Roe v. Wade thus promises to restore a brutal regime in many states which this Court properly ended two decades ago. A. Permitting States To Criminalize Abortion Will Inflict Severe Harm On Women Who Seek To Terminate Their Pregnancies A return of abortion to a criminal status in some states will not end abortion; women will find ways to circumvent the pro- hibition just as they did before Roe. Women who live in states * Legalization did not significantly increase the numbers of women obtain- ing abortions. Rather it guaranteed that abortions that had been obtained clandestinely could be secured under safe, legal conditions, thus reducing the mortality and morbidity rate of women obtaining them. See Alan Guttmacher Institute, Safe and Legal: 10 Years’ Experience With Legal Abortion in New York State 17, 23 (1980) [hereinafter AGI. Safe and Legal). Statistics from other states are similarly revealing. Jd. at 23; see also People v. Belous, 458 P2d 194, 201 (Ca. 1969), cert. denied, 397 U.S. 915 (1970) (prior to Californie’s passage of Therapeutic Abortion Act of 1967, between 35,000 and 100,000 criminal abortions were performed annually in California); People v. Barksdale, 503 P.2d 257, 265 nn. 7 & 8 (Ca. 1972) (by 1970, approximately 116,749 legal abortions were performed in California - a slight increase in the number of abortions. adjusted for population growth, that occurred before legalization) Similarly, only a 10% rise was reported for Oregon. AGI. Safe and Legal. supra. at 23. The annual number of 1.6 million women obtaining abortions remained relatively unchanged between 1980 and 1989 Stanle, K Henshaw & Jennifer Van Vort, Abortion Services in the United States. 1987 and 1988. 22 Fam. Plan. Persp. 102 (1990) that criminalize abortion and wish to terminate their pregnan- cies will have three alternatives. First, if they have the financial means, they can travel to a state that offers legal abortion. Se- cond, they can attempt to obtain an illegal or self-induced abor- tion in their own state. Third, they can carry the pregnancy to term. Each option dramatically increases the risks to women’s health. As there continues to exist a two-tiered health care system, particularly with regard to abortion services,” poor women, a disproportionate number of whom are women of color, will suf- fer the greatest burdens of the recriminalization of abortion.” 1. Travel Out-of-State Requiring a woman to travel out of state for an abortion causes delay, and significantly increases the risk to her health. After the first eight weeks of pregnancy, the risk of major complications from abortion increases about 15 to 30 percent for each week of delay.” A woman forced to travel faces not only the costs of ” Legitimate physicians willing to certify a medica! indication for abortion wil! frequently be available to women with financial resources. Rachel Benson Gold. Alan Guttmacher Institute, Abortion and Women’s Health. A Turning Point for America? 3 (1990): President s Comm'n on Law Enforcement and Admin of Justice, Task Force Report: Tie Courts 105 (1967) (hereinafter Task Force Report). See also Harris v. McRae, 448 U.S. 297, 330 n.4 (Brennan, J., dissenting) * Women of olor are disproportionately affected because they constitute « disproportionate percentage of the poor In 1990, 35.5% of Black women. 29.9% of Hispanic women, and 12% of white women lived in poverty. although Blacks constituted |2 4% of the general population. Hispamics § 6% and whites 83.9% (Hispanics can be of any race, tut for purposes of this discus. sion they are included a “women of cofor” or ~nomwhite women”) Bureau of Census, US Dept of Commerce, Current Population Reports Consumer Income, Series P-60, No. 175 in Poverty tm the US 1990, (1990) (tables 1.5). Because abortion rates are negatively associated with income. restriction on abortion will disproportionately affect the poor. and thus. women of color Stanley K Henshaw et al. Characteristics of () S Women Having Abortions. 1987, 23 Fam. Pian. Persp. 75, 77 (1991). Gold. supra note 27, at 19 (non- white women are twice as likely as white women to utilize abortion services, ” Willard Cates, jr et al . Morbidity and Mortality of Abortion in the United States in Abortion and Sterilization’ Medical and Social Aspects 155. 158 (Hodgson. ed 1981) However. the nsks of legal abortion never exceed the risks of childbirth. Christopher Tietze & Stanley K Henshaw. Alan Guttmacher Institute, A World Review 1996 110 (1986) 17 the abortion but the costs of travel, food and accommodations.” Delays may be caused by difficulties in raising the funds necessary to secure an abortion, in locating an out-of-state provider and in arranging transportation." Women of color will be least like- ly to be able to afford an out-of-state abortion.” 2. Illegal Abortions Women intent on terminating their pregnancies but unable to afford out-of-state abortions will be forced to back-alley abor- tionists or to attempt self-abortion. Although the risk of death from legal abortion is never higher than the risk of death from childbirth, the mortality rate for illegal abortion is much higher than that for legal abortion.” The mortality ratio for legal abor- tions in 1981 was .4 deaths per 100,000 abortions and for child- birth was 7.2 per 100,000 births; the ratio for illegal abortion has been estimated to reach or exceed 1,000 deaths per 100,000 illegal abortions.” * Almost 50% of women who obtained abortions after 16 weeks of preg nancy attributed their delay to difficulty in making arrangements. the major problem being raising the momev meeded Aida Torres & Jacqueline Darroch Forrest, Why Do Women Have Abortions? 2) Fam. Plan. Persp. 169, 174 (1988) “ Id. at 174-75. See infra note SB ™ The farther 2 woman has to travel for an wbortvon. the less likely she is to obtain one Black women. and espewially Black teenagers. are least able to surmount the barners imposed by travel requirements james D Shelton et al. Abortion Utilization. Does Travel Distance Matter 8 Fam Plan Persp 260, 262 (1976) ” Tietze, supra note 29. at 109-10 " id at LL) (estimate for illegal abortions performed internationally) In Romana. after restnctive aborbon legsistion was adopted in 1966. the numbe: of deaths attributed to illegal abortion increased almost three-fold betwee: 1966 and 1968. in 197] there were more than four times as mam deaths a in 1966 Institute of Medicine. Legalized Abortion and the Public Health 44 (1975) In 1980, 84% of maternal deaths in Romania were due to illegal abor tion Beal van den Berg & Chin Long Chiang. Maternal Mortality and Dy/ ferentiation By Cause of Death 239. 250 (1986) In the United States, “the number of reported deaths from [il- legal or self-induced] abortions declined steadily as less restric- tive abortion legislation was passed and implemented throughout the country.”™ Before the legalization of abortion, twenty per- cent of all deaths related to childbirth and pregnancy occurred because of illegal abortion,” and complications from illegal abor- tion were a major cause of hospital admission.” Just as was the case before abortion was legalized, it is likely that women of color will die or suffer health complications from illegal abortions at a disproportionate rate.” Some women not able to obtain an out-of-state abortion will attempt self-abortion. Literature discussing illegal abortion op- tions for women commonly cite examples of women dying from attempts to self-abort using coat hangers or ingesting poisons.” * Institute of Medicine. supra note 34, at 85. Legalization of abortion significant. lv reduced abortion-related deaths and illness. Studies in California and New York showed that criminal abortion was the leading cause of deaths related to pregnancy. the most common victims were marned women with several children who attempted to self-abort. Harvey L. Ziff, Recent Abortion Law Reforms (Or Much Ado About Nothing), 60 |. Crim. L. and Criminology and Police Sei. 13 (1969). * Willard Cates, Jr. Legal Abortion: The Public Health Record, 215 Sci. 1586 (1982) ” Gold. supre note 27, at 6 * More than two-thirds of women who died from illegal abortions between 1972 and 1974 were women of color. the mortality rate from illegal abortions for nonwhite women was 12 times the rate for white women. Jd. at 5 * See Nancy Bonken et al. Illegal Abortion Deaths in the United States Why Are They Still Occwrring?, 14 Fam. Plan. Persp. 163, 164 (1982) (methods in- cluded intrautenne inserbon of coat hangers. glass thermometers or meta! ob- \ects. installabon of cleanung solutions into the uterine cavity). Cynthia Gorney Abortion wm the Heartland. Wash Post. Oct. 2. 1990 at 13 (Health, A Weekly | of Med. Se and Soc'y) (before legalization, a New York City woman tried t unduee her aborbon by eating rat powon that irreversibly destroved al! her orgar evttems “She dad abort” the phvecian attending her at the time recalled. ug tetor she deed” Barbara Brotmarn. Servet Abornon Croup of Gla Prepares tor Return Che Teh Aug 28 1989. at | Following the passage of the Hyde Amenamen Mecicasd eugbie women unabie to afford aborvons smuar!y lost ‘Footnote continued 3. Carrying To Term Women forced to carry unwanted pregnancies to term will face a higher risk of death or pregnancy-related complications than those able to obtain legal abortions.“ The risk of incurring ma- jor surgery as a result of carrying a pregnancy to term is almost 100 times the risk of surgery due to a legal abortion.“ Many them more likely to experience complications giving birth.” Pregnancy can seriously endanger a woman's health by exacer- batumg medical conditions such as lupus, multiple sclerosis, asthma, diabetes, high blood pressure and AIDS.“ The risk of complications is stil] greater when the pregnancy is unwanted.“ Women with unwanted pregnancies are also less likely to receive early prenatal care. In a 1988 study, 73 percent of wanted births received first-trimester prenatal care, whereas only half ice nen meeting t alicia, In Georgia, a Mecbcaid-eligible wornan 12 previous to induce her abortion with a glass thermometer Po a am efforts, she died of a pulmonary embolism following a hysterectomy In Ohio. 4 pregnant teenage mother shot herself in the stomach, reportedly after being demed an abortion by « public hospital because she lacked $600 in cash James Trussell et al.. Jmpact of Restricting Medicaid Financing for Abortion, 12 Fam. Plan. Persp. 120, 129 (1980). * Susan Harlap eval. Alan Guttmacher Institute, Preventing Pregnancy. Protect- ing Health: A New |.ook at Birth Control Choices in the United States 96 (1991). see Tietze, supra note 29, at 110. “ Cates, supra note 36, at 1587. Nearly 25% of term births occur by caesarean section, a major surgical! procedure that subjects women to substantial nsks to life and health. whereas 07% of first trimester aborbons entail intra-abdominal operations, and second trimester abortions lead to major surgery in only | to 2% of cases. Id.; Placet & Taffel, Recent Patterns in Caesarean Delivery in the United States, 5 Obstet. Gynec. Clin. N.A. 607 (1988). * Gold, supra note 27, at 36. * See |. Pritchard et al. Williams Obstetrics 597, 600, G09, 619-20 (17th ed. 1985). ~ Cates, supra note 36, at 1587 (women with unwanted pregnancies have higher postpartum infecton and hemorrhage rates than women with favorable attitudes toward their pregnancies) i a an 20 of all unwanted births received such care. Numerous studies show that women receiving prenatal care have better birth outcomes, including fewer low birth weight babies, than women receiving no care.“ It is likely that infant mortality rates and low birth weight will increase in those states that re-criminalize abortion, resulting in an increased need for neonatal intensive care, and higher hospital costs. Because on average they have less money and poorer health,” women of color will be less able than other women to obtain legal abortions, more frequently required to carry unintended pregnancies to term, and thus subject to the greatest health risks for themselves and their infants.“ The implications of forcing teenagers to bear children are par- ticularly disturbing. Of more than one million pregnancies to teenagers every year, eighty-four percent are unintended. The half who carry their pregnancies to term face detrimental health, social and economic consequences.“ “ Elsie R. Pamuk & W.D. Mosner, National Center for Health Statistics 11 (1988). Prenatal care during the first trimester is important because it is at that stage that counseling about nutrition, smoking, and alcohol and drug consumption during pregnancy can make the greatest difference. The first trimester is also the best stage to identify medical conditions that may com- plicate pregnancy or endanger the woman's health. /d. “ Id., Alan Guttmacher Institute, Teenage Pregnancy: The Problem that Hasn't Gone Away 29 (1981) [hereinafter ACI, Teenage Pregnancy|. Low birth weight is a major cause of infant mortality and a host of serious childhood illnesses. birth injuries and neurological defects, including mental retardation. /d After legalization of abortion in New York State, infant mortality rates declined to record lows. Jean Pakter et al., Two Years Experience in New York City With the Liberalized Abortion Law — Progress and Problems, 63 Am. J. Pub. Health 524 (1973). “ See Gold, supra note 27, at 32. “ See, e.g., AGI, Teenage Pregnancy, supra note 46, at 29 (health risks of pregnancy, maternal mortality and other complications of giving birth are Black infants are higher than among whites). “ Elizabeth Armstrong, Center for Population Options, Teenage Pregnancy and Too-Early Childbearing: Public Costs, Personal Consequences 2, 26, 29 (Sth ed. 1990). 21 Adolescents aged 15 to 19 are more than 24 times more likely to die from childbirth than from an early legal abortion.” Dur- ing pregnancy, teenagers are at a much higher risk of suffering from serious medical complications, including anemia, pregnancy-induced hypertension (toxemia), cervical trauma and premature delivery, than older women. For those under 15 years, the maternal mortality rate is 60 percent greater than it is for women in their twenties." Children born to teenage mothers are nearly twice as likely to die in their first year of life as those born to mothers in their twenties.” Teenage mothers are more likely than teenagers who delay childbearing to have low-status, low-paying jobs or to be unemployed. Children of teen parents are also more likely to continue the cycle of poverty and early childbearing and to become teen parents themselves.” * Rebecca Stone, Center for Population Options, Adolescents and Abortion, Choice In Crisis 7 (1990). “ Armstrong, supra note 49, at 27. Medical complications frequently arise from late or no prenatal care in teenage pregnancy. Carolyn Mackinson, Health Consequences of Teenage Fertility, 17 Fam. Plan. Persp. 132, 134 (1985). In 1978, two-thirds of mothers under 15, and half of mothers aged 15-17, received no prenatal care during the first three months of pregnancy, compared to 85% of older women. AGI, Teenage Pregnancy, supra note 46, at 59. One-fifth of those under 15 and one-eighth of those 15-17 received no prenatal care un- til the last trimester of pregnancy. Mothers aged 15 and younger are twice as likely as those aged 20-24 to have low birth weight babies. Among all teenage mothers, the risk of having low birth weight babies is 39% higher than for those aged 20-24. Id. at 29. " AGI, Teenage Pregnancy, supra note 46, at 27. “ Id. at 30. A national study that controlled for race, socioeconomic status. academic achievement, and educational expectations found that mothers who had given birth before they were 18 were only half as likely to graduate from high school as those who postponed childbearing until after age 20 Id “Id. at 35. In 1975, about half of the $9.4 billion invested in the federal Aid to Families with Dependent Children programs went to families in which the mother had given birth as @ teenager. Id. at 32. 22 B. States Where Abortion Remains Legal Can Expect An Influx Of Non-residents, Overburdening Abortion Pro- viders In Those States And Displacing Resident Women From Securing Timely Abortion Services Restriction of abortion services in a state will cause women who can muster the resources to flee to states that continue to sateguard a woman's right to choose. The increased demand for abortion services in states that permit abortions will impose additional burdens on the health care systems and residents of those states. New York State, for example, was flooded with non-resident women seeking abortion services after July 1, 1970, when it per- mitted abortions for consenting women less than 24 weeks preg- nant. In New York City, from July 1970 to June 1972, 65.7 per- cent of abortions were provided to non-residents.“ Throughout New York State, 61 percent of those obtaining abortions in 197] and 1972 were non-residents.” After Roe, the proportion dropped precipitately; by 1979 non-resident women obtained only about 7 percent of all abortions in New York State.’ The experiences of other states demonstrate that the events in New York were not aberrant.” * Pakter, supra note 46, at 524. “ Robert P- Whalen, New York State Department of Health, Report of Selected Characteristics of Induced Terminations of Pregnancy Recorded in New York State, January - December 1975 with Five Year Summary 37 (Table 27). *" AGI, Safe and Legal, supra note 26, at 9. * An exodus of minors to other states occurred in 1981] after Massachusetts passed a parental consent law. At least 1,800 more Massachusetts minors traveled to five surrounding states without parental consent laws during the 20 months after enactment than had done so previously. Virginia G. Cartoof & Lorraine V. Klerman, Parental Consent for Abortion: Impact of the Massachusetts Law, 76 Am. J. Pub. Health 397, 398 (1986). Nevertheless, Massachusetts minors con- tinued to conceive, abort, and give birth in the same proportions as before the law was implemented. /d. at 400. After Rhode Island passed its parental con- sent law in 1982, 49% of minors who contacted clinics in their state obtained abortions out of state. Stone, supra note 50, at 13. In 1988, three years after Missouri began enforcing its parental consent law, there were 300 fewer teenage abortions performed in the state, and almost half that number of teenagers went to Kansas for abortions. Missouri Dept. of Health, Missouri Monthly Vital Statistics (Jan. 1990). 23 The increased numbers of non-resident women seeking abor- tions or related medical services in states where abortion remains legal will strain already overburdened health care systems. Many non-resident women will be delayed in obtaining abortions due to their inability to obtain proper counseling in their home states or a lack of resources.” As a result, abortion providers will be faced with an increased number of late, more complicated and more dangerous abortions, which tend to result in more frequent hospitalizations.” It is likely that women who must travel to states where abortion remains legal will compete with and displace a number of residents of the states who also must be hospitalized. This Court's failure to protect the right to choose abortion will also increase the barriers to legal abortion that exist for resident women by exacerbating the scarcity of physicians able and will- ing to perform them. Many physicians able to provide abortion services do not do so because they and their families will be harassed by anti-abortion groups." If this Court were to permit “ Non-residents obtaining abortions in New York, for example, have been more likely to obtain abortions after twelve weeks than New Yorkers. AGI, Safe and Legal, supra note 26, at 19. Inability to locate a provider and make ar- rangements to obtain an abortion are significant factors le#ng to delay. Torres, supra note 30, at 174-75. Delay also increases costs, thereby resulting in even further delay. AGI, Safe and Legal, supra note 26, at 14; see also Stanley K. Henshaw et al., Abortion Services in the United States, 1981-1982, 16 Fam. Plan. Persp. 119, 126 (1984) (abortion fees are significantly higher for pregnan- cies past 12 to 14 weeks); Stanley K. Henshaw et al., Abortion Services in the United States, 1984 and 1985, 19 Fam. Plan. Persp. 63, 69 (1987). ” See generally J. Wilson et al., Obstetrics and Gynecology 207 (8th ed. 1987); David A. Grimes, Second Trimester Abortions in the United States, 16 Fam. Plan. Persp. 260, 263 (1984) (the risk of death from abortions performed at 16 or more weeks is 24 times greater than from abortions performed at 8 weeks or earlier). This Court has recognized that “time, of course, is critical in abor- tion.” Doe v. Bolton, 410 U.S. 179, 198 (1973); see also Akron, 462 U.S. at 450-51. “ National Abortion Federation, American College of Obstetricians and Gynecologists, Who Will Provide Abortions? Ensuring the Availability of Qualified Practitioners 8 (1990) [hereinafter NAF, ACOG). One doctor who has had rocks thrown through the windows of his clinic and shots fired through the waiting room walls characterizes his practice as “working in a war zone.” Mimi Hall, Legal Abortions Tougher To Get, USA Today, May 1, 1991, at 7A. Other harassment includes the use of picketers at physicians’ homes who (Footnote continued) 24 states to enforce laws criminalizing abortion, anti-abortion harass- ment will concentrate on states where abortion services remain legal. That will serve further to discourage physicians from pro- viding such services. At the same time, abortion training oppor- tunities in residencies for obstetrics and gynecology are declin- ing.” Although rural areas have been particularly affected by the scarcity of physicians who perform abortions,” the shortage also impairs access to abortion services in cities.” A certain result of the heightened demand for abortion ser- vices in states where abortion remains legal will be an increase in illegal, health-endangering practices. Although abortion has been legal in this country for almost twenty years, illegal abor- tion mills continue to exist for a certain population of women.” A dwindling in the number of legitimate physicians who per- form abortions, together with an increased demand for their ser- vices from out-of-state women, will likely result in a prolifera- tion of abortion mills.” The inaccessibility of legal abortion will force resident women, especially those who are poor, non-English speaking, least educated, and least able to navigate bureaucracies, distribute pictures of aborted fetuses, and physicians’ children being told at school that their parents kill babies. Gorney, supra note 39, at 15. ® Philip D. Darney et al., Abortion Training in U.S. Obstetrics and Gynecology Residency Programs, 19 Fam. Plan. Persp. 158, 161 (1987) (the proportion of programs offering training declined 22% from 1976 to 1985); NAF, ACOG, supra, note 61, at 8. © See Henshaw, supra note 26, at 104. Some states, such as North Dakota and South Dakota, have only one abortion provider. /d. “ NAF, ACOG, supra note 61, at 4. * In 1978, investigations in Detroit, Los Angeles, Chicago, and New York un- covered illegal clinics! practices where “abortion” procedures were performed on non-pregnant women, operations were performed by unlicensed person. nel, and facilities operated without licenses. Cates, supra note 36, at 1588-89. Women of color vastly outnumber white women among those who die as a result of illegal abortions. Between 1975 and 1979, 82% of the women who died following illegal abortions were Black and Hispanic. Binken, supra note 39, at 166. * See infra text accompanying note 80. 25 to utilize abortion mills.” Although many women will be attracted to such abortionists because of the promise of short-term savings, they and society will pay considerably more in the long term for the illegal services they are forced to obtain. Ill. THIS COURTS FAILURE TO PROTECT THE RIGHT TO CHOOSE ABORTION AS A FUNDAMENTAL RIGHT WILL UNDERMINE STATE LAW ENFORCEMENT EFFORTS If this Court should eviscerate a woman's fundamental constitu- tional right to make decisions about childbearing, a patchwork of inconsistent state laws will replace the uniform system of laws now in place. Experience demonstrates that laws criminalizing abortion are unenforceable. Readopting them will breed cynicism toward institutions of government and engender contempt for law enforcement efforts. At the same time, new burdens will be imposed on law enforcement authorities, diverting their limited resources from the apprehension and prosecution of other criminals. History teaches that citizens will engage in wide-scale disregard of laws that prohibit abortion.” During the 1960's, between 300,000 and a million criminal abortions were performed each year in the United States,” but an arrest was made at most in one case in a thousand,” and conviction rates were extraordinarily low.” The * See Robert D. McFadden, Abortion Mills Thriving Behind Secrecy and Fear, N.Y. Times, Nov. 24, 1991, at Al (reporting the case of a 29-year-old Dominican woman who went to a doctor whose name she obtained from a Spanish language newspaper, largely because of his low fee; an incomplete abortion resulted and four days later she was hospitalized with a high fever and parts of the fetus that remained in her uterus had to be removed). “ Ziff, supra note 35, at 5; Kenneth R. Niswander, Medical Abortion Practices in the United States in Abortion and the Law 37 (Smith ed. 1967). Ks Ziff, supra note 35, at 5; Harold Rosen, Psychiatric Implications of Abor- - A Case Study in Social Hypocrisy in Abortion and the Law 72, 90 (Smith . 1967). ” Task Force Report, supra note 27, at 105; Ziff, supra note 35, at 8 (“The abor- tion statutes have been as unsuccessful in prohibiting abortions as the eighteenth amendment was in eradicating drinking”). " John Kaplan, Abortion as a Vice Crime; A “What If” Story, 51 Law & Con- temp. Probs. 151, 165-67 (1988); Ziff, supra note 35, at 8. " A ; 26 sheer number of illegal abortions, the ambiguity of out-dated statutes, difficulties of proof, widespread opposition to the law, and the absence of complainants made prosecutions of those who violated anti-abortion laws the exception rather than the rule.” A principal reason for the failure of enforcement efforts was the vagueness of the “justifiable abortion” exceptions to laws criminalizing abortion.” When prosecutors, physicians and women can discern in such provisions little to guide their con- duct, inconsistency results.” For example, when thirteen states adopted the identical provisions of the Model Abortion Code,” the rates of legal abortion for women aged 15 to 44 varied mar- kedly — from 1.5 percent in South Carolina to 26.7 percent in New Mexico.” If this Court restores to states the pre-Roe ” Kaplan, supra note 71, at 165-67; Ziff, supra note 35, at 8. See also Applica- tion of Grand Jury, 143 N.Y.S.2d 501 (App. Div. 1955) (court rejected efforts of the Brooklyn District Attorney, who surmised that “doctors have been repor- ting only a small percentage of the cases in which the abortion or miscar- riage has been induced by ‘criminal practice’”, to subpoena all hospital records for persons treated for abortion or miscarriage (other than therapeutic) at Kings County Medical Center in New York). ” See, e.g., People v. Barksdale, 503 P.2d 257, 263-66 (Ca. 1969) (that portion of California statute which justified abortion where “continuation of pregnancy would gravely impair” mother's health was void for vagueness, and language establishing medical criteria failed to provide due process). See also People v. Belous, 458 P.2d 194 (Ca. 1969), cert. denied, 397 U.S. 915 (1970). " See Niswander, supra note 68, at 56 (citing study where 1] hypothetical cases, considered typical applications for therapeutic abortion, were submitted in a survey to 29 hospitals. In response to those applications clearly failing to meet the statutory provisions for therapeutic abortion, 59% of the hospitals participating in the survey would have agreed to abort). ”™ Model Penal Code § 230.3 (Proposed Official Draft 1962) (“A licensed physi- cian is justified in terminating a pregnancy if he believes there is substantia! risk that continuance of the pregnancy would gravely impai: the physical or mental health of the mother or that the child would be born with grave physical or mental defect, or that the pregnancy resulted from rape. incest or other felonious intercourse”). ™ Centers for Disease Control, U.S. Dep't of Health, Educ. and Welfare, Abor- tion Surveillance, Annual Summary 1972 (April, 1974) (Table 22); Institute of Medicine, supra note 34, at 28. 27 authority to prohibit abortion, states that criminalize abortions will adopt different exceptions with varying degrees of vagueness.” As a consequence, inconsistent applications will abound within and among states, leading to selective prosecutions, inconsistent jury verdicts and an impairment of amici’s efforts to foster uniform law enforcement.” A return of abortion to criminal status in some states wil] result in even more prevalent flouting of the law than existed two decades ago. Women will turn to sympathetic physicians, or worse, to criminal enterprises, such as abortion rings. A reversal of Roe will not deter abortion; it will instead transform millions of law-abiding women and physicians into criminals. Furthermore, as before Roe, women with financial resources will travel to other states or coun- tries to circumvent the restrictions in their home states, leaving only those of limited means to face criminal prosecutions. Avoidance of restrictions by the affluent will breed cynicism about the law among those less fortunate, and have a corrosive effect on institutions of self-government. In states that recriminalize abortion, the reallocation of resources necessary to enforce such laws will divert the resources of the police ” Existing statutes indicate some of the possible variations and difficulties of interpretation. See, ¢.g., Utah Code Ann. § 76-7-302(3) (Supp. 1991) (post- viability abortion prohibited unless necessary to save the woman's life or to pre- vent grave damage to her medical health); Ind. Code Ann. § 35-1-58.5-2(3)(c) (West 1986) (post-viability abortion prohibited unless “necessary to prevent a substantial permanent impairment of the life or physical health” of the mother); Colo. Rev. Stat. § 18-6-101 (1986 & Supp. 1990) (enacted 1963) (abortion pro- hibited unless hospital board certifies that continuation of pregnancy is likely to result in the woman's death or “serious permanent impairment” of the mother's physical or mental health); 18 Pa. Cons. Stat. § 3211 (Supp. 1991) (abortion after 24 weeks prohibited unless necessary to preserve the womans life or to “prevent a substantial and irreversible impairment of a major bodily function”). ” A retreat from Roe v. Wade would create particularly serious problems for law enforcement in states that have abortion statutes stil! in place that are ur. constitutional under the principles of Roe. In Maryland, for example, the law repealing Maryland's pre-Roe restrictive statutes, 199] Md. Laws, ch.l, has been petitioned to referendum. If Roe is overruled, Maryland's repealed pre-Roe statutes will be effective at least until the Maryland General Assembly re-repeals them as an emergency measure or until at least 30 days after the vote on the referendum in November. Md. Const. art. XVI, §2: 74 Op. Att'y Gen. No. 89-045, at 271-72 (Md. Nov. 30, 1989). 28 from protecting the public from other crimes, and cause a “loss of morale and self-esteem among police who are obligated to engage in tasks which must seem to them demeaning or degrading or of little relevance to the mission of law enforcement.”” Even in those states that continue to permit abortion, officials will be pressed to deal with a growing number of illegal abortion pro- viders, The attraction of quick profits inevitably will cause some unscrupulous abortion practitioners to emerge; preying on those desperate for an affordable abortion, they will use advertisements in newspapers and in phone books to lure women into unsafe and illegal settings. Even where abortion remains legal, state con- sumer protection agencies will need to step up enforcement of deceptive advertising laws against those who would make fraudulent promises.” In states where abortion remains legal, law enforcement authorities will also face an increase in illegal anti-abortion ac- tivities. Some zealots, such as those in Operation Rescue, have undertaken a national campaign of lawlessness aimed at abor- tion providers.” See N.O.W. v. Operation Rescue, 914 F.2d 582 ” Task Force Report, supra note 27, at 107. See also Leslie J. Reagan, About to Meet Her Maker: Women, Doctors, Dying Declarations, and the Stoie’s Investigation of Abortion, Chicago, 1867-1940, |. of Am. Hist. 1240 (March 1991) (describing efforts of law enforcement officials and some medica! per- sonnel to force women who were dying from abortion-related complications to provide the name of the person who performed the abortion because such statements were admissable at trial as dying declarations). Police also frequently used female decoys to gain incriminating evidence against illegal abortionists. See, e.g., People v. Miller, 45 N.Y.S.2d 789 (App. Div. 1944). ” Ziff, supra note 35, at 5-6 (describing the operation of illegal abortion “mills” and “rings” in New York); Kaplan, supra note 71, at 163-65; Task Force Report, supra note 66, at 105 (describing a “black market” of abortions). “ The New York Attorney General, for example, has vigorously prosecuted clinics that advertise as providing “abortion services” but only provide anti- abortion counseling. See, e.g., State v. Evergreen Assoc., No. 41237/87 (N.Y. Sup. Ct. judgment entered 1987); State v. Mother and Unborn Baby Love, Inc., No. 412721/87 (N.Y. Sup. Ct. judgment entered 1987); State v. Mother and Child Services, Inc., No. 41236/87 (N.Y. Sup. Ct. judgment entered 1987). “ Oversight Hearings on Abortion Clinic Violence, Subcomm. on Civil and Constitutional Rights, House Comm. on the Judiciary, 99th Cong., Ist & 2nd Sess. (1985) [hereinafter Oversight Hearings). 29 (4th Cir. 1990), cert. granted, sub. nom. Bray v. Alexandria Women’s Health Clinic, 111 S.Ct. 1070 (1991). Federal and state courts have enjoined their activities under civil rights, trespass and public nuisance laws, but the campaign persists.” Some states and cities have been forced to commence their own in- junctive actions”; other jurisdictions have passed legislation to secure access to health facilities blocked by anti-abortion op- ponents.” Those states will need to commit even greater enforcement resources to ensure that their citizens continue to have access to lawful medical services.” It is estimated that forty-seven per- cent of the nation’s abortion providers experienced some form of anti-abortion harassment in 1985.” Nineteen percent of abor- tion clinics reported death threats against their staffs, and forty- eight percent reported bomb threats.” If Roe v. Wade is over- ruled, it is virtually certain that illegal anti-abortion activity will increase in states where abortion remains legal. ® See State v. Horn, 407 N.W.2d 854 (Wis. 1987); State v. Scholberg, 412 N.W.2d 339 (Minn. 1987); Ingram v. Problem Pregnancy of Worcester, Inc., 486 N.E.2d 408 (Mass. 1986); Hoffart v. State, 686 S.\W.2d 259 (Tex. 1985), cert. denied. 479 U.S. 824 (1986). See also Bering v. Share, 721 P-2d 918 (Wash. 1986), cert. dismissed, 479 U.S. 1050 (1987). See also Note. Too Close for Comfort: Pro- testing Outside Medical Facilities, 101 Harv. L. Rev. 1856 (1988) [hereinafter Too Close For Comfort). “ Planned Parenthood League of Mass., Inc. v. Operation Rescue, No. 89-2487-F, 1991 WL 214047 (Mass. Super. 1991) (sustaining state's standing as plaintiff); New York State N.O.W. v. Terry, 886 F.2d 1339, 1349 (2d Cir. 1989) (granting City of New York's motion to intervene), cert. denied. 110 S.Ct. 2206 (1990). “ States with laws protecting access to medical facilities include Maryland, Nevada, Oregon, and Wisconsin. See NARAL Foundation/NARAL. Who Decides? A State-By-State Review of Abortion Rights, 52, 77, 101, 136 (1991). See also Too Close For Comfort, supra note 83, at 1857-59 (describing ordinance adopted by Boulder, Colorado). “ Oversight Hearings, supra note 82. * Jacqueline Forrest & Stanley K. Henshaw, The Harassment of U.S. Abor- tion Providers, 19 Fam. Plan. Persp. 9, 13 (1987). “ Id. at 10. 30 In sum, this Court's failure to protect a fundamental right to choose abortion and to apply strict scrutiny to abortion regula- tions will undermine amici’s interest in uniform, effective law enforcement, diminish the states’ ability to maintain public con- fidence in the law and divert resources and attention from the prosecution of other criminal conduct. CONCLUSION For the foregoing reasons, amici respectfully request this Court to continue to protect a woman’s decision whether or not to bear a child as a fundamental constitutional right and to apply strict scrutiny to state regulation of abortion under the uniform guidelines of Roe v. Wade. JOHN MCKERNAN ROBERT ABRAMS Governor of the State Attorney General of the of Maine State of New York 120 Broadway DEREK LANGHAUSER New York, New York 10271 Chief Counsel (212) 341-2250 Office of the Governor State House Station # | JERRY BOONE Augusta, Maine 04333 Solicitor General (207) 289-3531 MARY ELLEN BURNS Chief Assistant Attorney General SANFORD M. COHEN* Assistant Attorney General In Charge Civil Rights Bureau DONNA I. DENNIS MARJORIE FUJIKI SHELLEY B. MAYER Assistant Attorneys General (*Counsel of Record) APPENDIX A-l APPENDIX The following amici, including 13 Governors, 12 Lieutenant Governors, 16 Attorneys General, 995 State Legislators and the Mayor and Corporation Counsel for the District of Columbia, submit this brief on behalf of petitioners. ALABAMA State Representative Demetrius C. Newton ALASKA State Senator Virginia M. Collins State Senator Drue Pearce State Senator Pat Pourchot State Senator Patrick M. Rodey State Senator Arliss Sturgulewski Speaker of the House Ben F. Grussendorf State Representative Mark Boyer State Representative Kay Brown State Representative Betty Bruckman State Representative Shirley Craft State Representative Bettye Davis State Representative Dave Donley State Representative Johnny Ellis State Representative David Finkelstein State Representative Max F. Gruenberg, Jr. State Representative Niilo Koponen State Representative Eugene Kubina State Representative Georgianna Lincoln State Representative Tom Moyer State Representative Mike Navarre State Representative Fran Ulmer ARIZONA State Senator Lela Alston State Senator Gus Arzberger A-2 State Senator Chuck Blanchard State Senator John Dougherty State Senator Karan English State Senator Stan Furman State Senator John Greene State Senator Jaime P. Gutierrez State Senator Nancy Hill State Senator Cindy Resnick State Senator Carol Springer Senate Minority Leader Alan J. Stephens State Representative Linda Beezley State Representative George Brooks State Representative Carmen F. Cajero State Representative Chris Cummiskey State Representative Catherine Eden State Representative Ruth E. Eskesen State Representative Susan Gerard State Representative Peter Goudinoff State Representative Sue Grace State Representative Lisa Graham State Representative Herb Guenther State Representative Benjamin Hanley State Representative Bev Hermon State Representative Roger Hooper State Representative Herschella Horton State Representative Phillip Hubbard State Representative Jack B. Jewett State Representative Sandra Kennedy State Representative John Kromko State Representative Jo Eddie Lopez State Representative Patricia Noland State Representative Ruben F. Ortega State Representative Mike Palmer State Representative Marion Pickens State Representative Eleanor Schorr State Representative Ruth Solornon A-3 ARKANSAS Governor Bill Clinton State Senator Jay Bradford State Representative Jim Argue, Jr. State Representative Myra Jones CALIFORNIA Lieutenant Governor Leo T. McCarthy State Senator Alfred E. Alquist State Senator Leroy F. Greene State Senator Gary K. Hart State Senator Patrick Johnston Senate Majority Leader Barry Keene State Senator Lucy Killea State Senator Bill Lockyer State Senator Milton Marks State Senator Dan McCorquodale State Senator Becky Morgan State Senator Nicholas C. Petris State Senator Herschel Rosenthal State Senator Mike Thompson State Senator Art Torres State Senator Diane Watson Speaker of the Assembly Willie L. Brown, Jr. State Assemblywoman Dierdre Alpert State Assemblywoman Marguerite Archie-Hudson State Assemblyman Rusty Areias State Assemblyman Tom Bane State Assemblyman Tom Bates State Assemblyman Xavier Becerra State Assemblyman Bruce Bronzan State Assemblyman John L. Burton State Assemblyman Robert Campbell State Assemblyman Sal Cannella A-4 State Assemblyman Jim Costa State Assemblywoman Delaine Eastin State Assemblyman Dave Elder State Assemblyman Sam Farr State Assemblyman Richard E. Floyd State Assemblyman Terry Friedman State Assemblywoman Barbara Friedman State Assemblyman Mike Gotch Assembly Majority Leader Thomas M. Hannigan State Assemblyman Dan Hauser State Assemblyman Tom Hayden State Assemblywoman Teresa P. Hughes State Assemblywoman Tricia Hunter State Assemblyman Phillip Isenberg State Assemblyman Richard Katz State Assemblyman Johan Klehs State Assemblywoman Barbara Lee State Assemblyman Ted Lempert State Assemblyman Burt M. Margolin State Assemblywoman Gwen Moore State Assemblyman Willard Murray Jr. State Assernblyman Jack O'Connell State Assemblyman J. Stephen Peace State Assemblyman Richard Polanco State Assemblyman Charles Quackenbush State Assemblywoman Lucille Roybal-Allard State Assemblywoman Jackie Speier State Assemblyman Curtis R. Tucker State Assemblyman Tom Umberg COLORADO Governor Roy Romer Lieutenant Governor C. Michael Callihan State Senator Bonnie Allison State Senator Donald J. Mares State Senator Jana Wells Mendez State Senator Ray E. Peterson State Senator Dottie Wham A-5 State Representative Celina Benavidez State Representative Ken Chlouber State Representative Lewis Entz State Representative Renny Fagan State Representative Faye Fleming State Representative Daphne Greenwood State Representative Tony Hernandez State Representative Matt Jones State Representative Peggy Kerus State Representative Wayne N. Knox State Representative Gerald Kopel State Representative Michelle Lawrence State Representative Dorothy Rupert House Minority Leader Ruth Wright CONNECTICUT Governor Lowell Weicker Lieutenant Governor Eunice Groark Attorney General Richard Blumenthal Senate President Pro Tem John Barry Larson State Senator Charles Allen III State Senator W. Aniskovich State Senator Lawrence Bettencourt State Senator M. Adela Eads State Senator Judith G. Freedman State Senator George L. Gunther State Senator Gary A. Hale State Senator George C. Jepsen State Senator Cynthia A. Matthews State Senator William H. Nickerson Senate Majority Leader Cornelius P. O'Leary State Senator Lee Scarpetti State Senator Kevin B. Sullivan State Representative Joseph A. Adamo State Representative George P. Avitabile State Representative Reginald G. Beamon State Representative Sally Bolster A-6 State Representative Naomi K. Cohen State Representative Joseph D. Courtney State Representative Jefferson Davis State Representative Doreen M. DelBianco State Representative William R. Dyson State Representative Juan Figueroa House Majority Leader Robert F. Frankel State Representative Josephine S. Fuchs State Representative Margaret S. Gill State Representative Robert Godfrey State Representative Joseph Grabarz State Representative Norma Gyle State Representative Barbara M. Ireland State Representative Alex A. Knopp State Representative Geri W. Langlois State Representative David Lavine State Representative Michael P. Lawlor State Representative Gary Le Beau State Representative Peter M. Lerner State Representative Janet K. Lockton State Representative Vincent Loffredo State Representative John G. Metsopoulos State Representative Douglas C. Mintz State Representative Paul Munns State Representative Edna Negron State Representative Ernest Newton II State Representative James O'Rourke State Representative Jonathan W. Pelto State Representative Janet Polinsky State Representative Janet Poss State Representative David Pudlin State Representative Miles Rapoport State Representative Lee A. Samowitz State Representative Americo Santiago State Representative Pete Smith State Representative Lydia Stevens State Representative Irving J. Stolberg State Representative Jessie Stratton State Representative Lynn H. Taborsak State Representative Craig P. Taylor A-7 State Representative David O. Thorp State Representative John S. Tiffany, III State Representative Elinor F. Wilber State Representative Lenny Winkler State Representative Nancy S. Wyman DELAWARE Attorney General Charles M. Oberly, III Senate Minority Leader Myrna L. Bair State Senator James P. Neal State Representative Marybeth T. Boykin State Representative Ada Leigh Soles DISTRICT OF COLUMBIA Mayor Sharon Pratt Kelly Corporation Counsel John Payton FLORIDA Senate President Gwen Margolis State Senator Helen Gordon Davis State Senator Jack D. Gordon State Senator Carrie P. Meek State Senator Eleanor Weinstock State Representative Elaine Bloom State Representative Mary Brennan State Representative Susan Guber House Majority Leader Anne Mackenzie State Representative Philip Mishkin State Representative Steve Press State Representative Frank Stone GEONGIA State Senator Arthur Langford, Jr. State Senator Cathey Steinberg A-8 State Representative Kathy B. Ashe State Representative Tom Bordeaux State Representative Tom Cauthorn State Representative Grace W. Davis State Representative John Hammond State Representative Michele Henson State Representative Glynda B. King State Representative Jim Martin State Representative Cynthia McKinney State Representative James E. McKinney State Representative Mary Margaret Oliver State Representative Nancy Orrock State Representative Dorothy B. Pelote State Representative William C. Randall State Representative Frank L. Redding, Jr. State Representative Douglas Teper State Representative Mable “Able” Thomas State Representative Nadine Thomas State Representative Kiliaen V.R. Townsend State Representative Henrietta Turnquest State Representative Rita Valenti HAWAII Governor John Waihee Lieutenant Governor Benjamin J. Cayetano Attorney General Warren Price, III State Senator Steve Cobb State Senator Andrew Levin State Senator Mamoru Yamasaki State Representative Annelle C. Amaral State Representative Duke Bainum State Representative Clarice Y. Hashimoto State Representative Barbara Marumoto State Representative Wayne Metcalf State Representative Michael O’Kieffe IDAHO State Senator Ron Beitelspacher A-9 State Senator Michael Blackbird State Senator Karl Brooks State Senator Terry A. Haun State Senator Mary Lou Reed State Senator Cynthia Scanlin State Senator Sally Snodgrass State Representative Barbara Chamberlin State Representative Janet Jenkins State Representative Pattie Nafziger ILLINOIS Attorney General Roland W. Burris State Senator Arthur L. Berman State Senator Howard W. Carroll State Senator John Cullerton State Senator Penny L. Severns State Senator Ann Stepan State Representative Clement Balanoff State Representative Barbara Flynn Currie State Representative Mary E. Flowers State Representative Lovana “Lou” Jones State Representative James M. Kirkland State Representative Louis Lang State Representative Robert LeFlore, Jr. State Representative Ellis B. Levin State Representative Gary Marinaro State Representative David B. McAfee State Representative Geoffrey S$. Obrzut State Representative Lee S. Preston State Representative Alfred G. Ronan State Representative Michael Rotello State Representative Helen Satterthwaite State Representative Janice D. Schakowsky State Representative Jeffrey Schoenberg . State Representative Terry A. Steczo State Representative Grace M. Stern State Representative Donne E. Trotter A-10 INDIANA State Senator Betty Lawson State Senator Louis J. Mahern State Representative Brad Bayliff State Representative M. Tracy Boatwright State Representative Anita Bowser State Representative Rolland L. Webber IOWA Lieutenant Governor Joy Corning Attorney General Bonnie J. Campbell State Senator Florence Buhr State Senator Beverly A. Hannon State Senator Jean Lloyd-Jones State Senator Ralph Rosenberg State Senator Elaine Szymoniak Speaker of the House Robert C. Arnould State Representative Linda L. Beatty State Representative Eugene Blanshan State Representative Philip E. Brammer State Representative Joel Brown State Representative Dorothy F. Carpenter State Representative Kay Chapman State Representative John H. Connors State Representative Minnette Doderer State Representative Robert E. Dvorsky State Representative John Groninga State Representative Josephine Gruhn State Representative James F. Hahn State Representative Johnie Hammond State Representative Jack Hatch State Representative Daniel J. Jay State Representative Glen Jesse State Representative Ray Lageschulte State Representative Janet Metcalf All State Representative Mary C. Neuhauser State Representative Joyce Nielsen State Representative Mark Shearer State Representative Don Shoultz State Representative Jane Teaford State Representative Philip Wise KANSAS State Senator Bill Morris State Representative Nancy Brown State Representative Arthur W. Douville State Representative Kathleen Sebelius State Representative Joan Wagnon State Representative Gwen Welshimer KENTUCKY State Representative Thomas J. Burch State Representative Susan Stokes State Representative Mike Ward LOUISIANA State Senator Dennis Bagneris State Senator Marc Morial State Representative Melissa Flournoy State Representative Suzanne Mayfield Krieger MAINE Governor John McKernan Attorney General Michael E. Carpenter State Senator John Baldacci State Senator Stephen M. Bost State Senator Joseph C. Brannigan State Senator Beverly Minor Bustin A-12 State Senator Pamela Lee Cahill Senate Majority Leader Nancy Randall Clark State Senator John Cleveland State Senator Gerald Conley Jr. State Senator Stephen C. Estes State Senator Paul Gauvreau State Senator Muriel D. Holloway State Senator Dale McCormick State Senator Bonnie L. Titcomb State Representative Herbert C. Adams State Representative Rose Aikman State Representative Cushman D. Anthony State Representative Priscilla Attean State Representative Wendy L. Ault State Representative Alvin Barth State Representative Bradford Boutilier State Representative Joseph Carleton State Representative Donnell P. Carroll State Representative Mary R. Cathcart State Representative Margaret Pruitt Clark State Representative James Reed Coles State Representative Virginia Constantine State Representative Constance D. Cote State Representative Beverly C. Daggett State Representative Susan E. Dore State Representative Susan Dubay Duplessis State Representative Phyllis R. Erwin State Representative Susan Farnsworth State Representative Donald Gean State Representative Tracy Goodridge State Representative Nason S. Graham State Representative Glenith Gray State Representative Christopher S. Gurney House Majority Leader Dan A. Gwadosky State Representative Mona Walker Hale State Representative James R. Handy State Representative Peter G. Hastings State Representative Conrad Heeschen State Representative Annette M. Hoglund A-13 State Representative Maria Glen Holt State Representative Ruth Joseph State Representative Harriet Ketover State Representative Marge L. Kilkelly State Representative Carol Kontos State Representative Leslie Kutasi, Jr. State Representative Anne M. Larrivee State Representative Sumner H. Lipman State Representative Harold M. Macomber State Representative B. Carolyne T. Mahany State Representative Francis C. Marsano House Majority Whip Joseph W. Mayo State Representative Elden McKeen State Representative John M. Michael State Representative James B. Mitchell State Representative Elizabeth Mitchell State Representative Hugh Morrison State Representative Guy R. Nadeau State Representative John M. Nutting State Representative John O’Dea State Representative James V. Oliver State Representative David Ott State Representative Joan Pendexter State Representative Peggy A. Pendleton State Representative Sophia D. Pfeiffer State Representative Basil Powers State Representative Anne M. Rand State Representative Fred Richardson State Representative Charlene B. Rydell State Representative Richard Simonds State Representative Madonna Soctomah State Representative Patricia Stevens State Representative George A. Townsend State Representative Richard H. C. Tracy State Representative Sharon Anglin Treat State Representative Jason Wentworth MARYLAND Lieutenant Governor Melvin A. Steinberg A-14 Attorney General J. Joseph Curran, Jr. State Senator Barbara A. Hoffman State Senator Paula C. Hollinger State Senator Julian L. Lapides State Senator Gloria G. Lawlah State Senator Frederick C. Malkus, Jr. State Senator Janice Piccinini State Senator Ida G. Ruben State Delegate Michael Arrington State Delegate Rosa Lee Blumenthal State Delegate Gerry L. Brewster State Delegate James W Campbell State Delegate Dana Lee Dembrow State Delegate Peter Franchot State Delegate Leslie Hutchinson State Delegate Delores J. Kelley State Delegate Nancy K. Kopp State Delegate Pauline H. Menes State Delegate Kenneth C. Montague, Jr. State Delegate Anne Perkins State Delegate Paul Pinsky State Delegate Samuel I. Rosenberg State Delegate Christopher Van Hollen, Jr. MASSACHUSETTS Governor William Weld 7 Lieutenant Governor Argeo Paul Cellucci Attorney General L. Scott Harshburger State Senator Michael J. Barrett State Senator Bill Owens State Senator Lois G. Pines State Senator Stanley C. Rosenberg State Senator Nancy Achin Sullivan State Senator Jane Swift State Representative John A. Businger State Representative Paul E. Caron State Representative Forrester A. Clark, Jr A-15 State Representative Carol C. Cleven State Representative David B. Cohen State Representative Marc Draisen State Representative Hasty Evans State Representative Barbara Gardner State Representative Mary Jane Gibson State Representative Leonard Gonsalves State Representative Barbara E. Gray State Representative James Henry State Representative Patricia Jehlen State Representative Sally Kerans State Representative David Lionett State Representative J. James Marzilli State Representative John E. McDonough State Representative Nelson Merced State Representative Mary Rogeness State Representative Susan D. Schur State Representative Warren Tolman MICHIGAN State Senator Jack Faxon State Senator John F. Kelly State Senator Lana Pollack State Senator Debbie Stabenow State Representative Lyn Bankes State Representative Justine Barns State Representative Maxine Berman State Representative Mary C. Brown State Representative Perry Bullard State Representative Barbara Dobb State Representative Agnes Dobronski State Representative Jan Dolan State Representative Robert L. Emerson State Representative Sharon L. Gire State Representative David M. Gubow State Representative Charlie J. Harrison State Representative David C. Hollister State Representative Shirley Johnson A-16 State Representative Lynn Jondahl State Representative Carolyn Kilpatrick State Representative Mickey Knight State Representative Susan Grimes Munsell State Representative Nelson W. Saunders State Representative Alma G. Stallworth MINNESOTA State Senator Linda Berglin State Senator Richard J. Cohen State Senator Carol Flynn State Senator John J. Marty State Senator Sandra L. Pappas State Senator Jane Ranum State Senator Allan H. Spear State Senator Judy Traub Speaker of the House Dee Long State Representative Andrew Dawkins State Representative Lee Greenfield State Representative Howard Orenstein State Representative Myron Orfield State Representative Gloria M. Segal State Representative Wesley J. Skoglund State Representative Kathleen Vellenga State Representative Linda Wejcman MISSISSIPPI State Senator Alice Harden State Representative Edward Blackmon, Jr. State Representative Alyce Clarke State Representative Linda F. Coleman State Representative Leslie D. King MISSOURI Lieutenant Governor Mel Carnahan A-l7 State Senator William Clay Jr. State Representative Chet Boeke State Representative Paula J. Carter State Representative Kenneth B. Jacob State Representative Joseph S. Kenton State Representative Sheila Lumpe State Representative Karen McCarthy State Representative Jacqueline T. McGee State Representative Annette N. Morgan State Representative Sandra Reeves State Representative O. L. Shelton State Representative Charles Shields State Representative Beth M. Wheeler State Representative Connie Wible MONTANA State Senator Don Bianchi State Senator Chet Blaylock State Senator Judy H. Jacobson State Senator Thomas Towe State Senator Eleanor L. Vaughn State Representative Arlene Becker State Representative Jan Brown State Representative Mary Ellen Connelly State Representative Gary Forrester State Representative Mike Kadas State Representative Ed McCaffree State Representative Scott McCulloch State Representative Linda J. Nelson State Representative Angela Russell State Representative Ted E. Schye State Representative Jessica Stickney State Representative William S. Strizich A-18 NEBRASKA Lieutenant Governor Maxine Moul State Senator Brad Ashford State Senator David Landis State Senator Spencer W. Morrissey State Senator Arlene Neslon State Senator Jessie Rasmussen State Senator DiAnna R. Schimek State Senator William R. Wickersham State Senator Eric Will NEVADA Lieutenant Governor Sue Wagner Attorney General Frankie Sue Del Papa State Senator Diana M. Glomb State Assemblyman Bernie Anderson State Assemblyman Rick Bennett State Assemblywoman Vivian L. Freeman State Assemblyman Jim ‘Gibbons , State Assemblywoman Christina R. Giunchigliani State Assemblyman Joseph Johnson State Assemblyman John L. Norton State Assemblyman Robert M. Sader NEW HAMPSHIRE State Senator Burt Cohen State Senator Wayne D. King State Senator Susan McLane State Senator Richard Russman State Representative Eleanor H. Amidon State Representative Eleanor M. Anderson State Representative Frederick Andrews State Representative Lowell D. Apple A-19 State Representative James E. Appleby State Representative Deborah A. Arnesen State Representative Pamela B. Bean State Representative Juanita L. Bell State Representative Thea G. Braiterman State Representative Channing T. Brown State Representative Julie M. Brown State Representative Patricia B. Brown State Representative Raymond C. Buckley I] State Representative Dan Burnham State Representative Albert Caswell, Jr. House Minority Leader Mary P. Chambers State Representative Richard L. Champagne State Representative Eugene W. Clark State Representative Martha Fuller Clark State Representative Jane Clemons State Representative Marion L. Copenhaver State Representative Arthur B. Corte Asst. Majority Leader Garret P. Cowenhoven State Representative Art Ferlan State Representative Joseph N. Feuer State Representative Martin Feuerstein State Representative Paul R. Fillion State Representative John W. Flanders, Sr. State Representative Edward J. Flynn State Representative Patricia H. Foss State Representative Katherine D. Foster State Representative Robert W. Foster State Representative Scott E. Green State Representative Robert H. Guest State Representative Elizabeth Hager State Representative Betty B. Hall State Representative Douglas E. Hall State Representative Patricia Hambrick State Representative Jane A. Harland State Representative Robert S. Hawkins State Representative John B. Hunt State Representative Karen K. Hutchinson State Representative Peter M. Jankowski State Representative Lionel W. Johnson A-20 State Representative Mary Jordan State Representative William W. Joscelyn State Representative Sandra B. Keans State Representative Paula J. Kinney State Representative Ervin R. Lachut State Representative Mary Ann Lewis State Representative Elizabeth D. Lown State Representative Joseph A. MacDonald State Representative W. Kent Martling State Representative William F. McCain State Representative Bonnie Lou McCann State Representative Cynthia Ann McGovern State Representative Deborah McIlwaine State Representative Amanda A. Merrill State Representative Elizabeth Millard State Representative Mary Molner State Representative Elizabeth A. Moore State Representative Avis B. Nichols State Representative Sharon L. Nordgren State Representative Joe B. Parks State Representative Robert H. Porter State Representative Irene A Pratt Asst. Majority Whip Alice Record State Representative William A. Riley State Representative James R. Rosencrantz State Representative George R. Rubin State Representative Roland A. Sallada State Representative Merle W. Schotanus State Representative Merilyn P. Senter State Representative Leonard A. Smith State Representative Lee Anne S. Steiner State Representative Charles L. Vaughn State Representative Karen O. Wadsworth State Representative Mary Jane Wallner State Representative Robert R. Walsh State Representative John F. Weeks State Representative Katherine W. Wheeler State Representative Paul R. White State Representative Allen R. Wiggin State Representative Deborah Woods A-21 State Representative Charles B. Yeaton State Representative Alice S. Ziegra NEW JERSEY Governor James Florio Attorney General Robert J. Del Tufo State Senator John H. Adler State Senator John O. Bennett State Assemblywoman Maureen Ogden State Assemblyman George F. Geist State Assemblyman David Kronick NEW MEXICO Attorney General Tom Udall State Senator Ken Kamerman State Senator Victor R. Marshal] State Senator Janice Paster State Senator Thomas T. Rutherford State Representative Thomas Atcitty State Representative E. Shirley Baca State Representative Max Coll State Representative Robert M. Hawk State Representative Ramon Huerta State Representative Gary King State Representative Marty Lambert State Representative Cisco McSorley State Representative Rick Miera State Representative Kip Nicely State Representative Danice Picraux State Representative William E. Porter State Representative Shannon Robinson NEW YORK Lieutenant Governor Stan Lundine Attorney General Robert Abrams A-22 State Senator Roy M. Goodman State Senator Donald M. Halperin State Senator Franz S. Leichter State Senator Martin Markowitz Senate Minority Leader Manfred Ohrenstein State Senator Suzi Oppenheimer State Senator David A. Paterson State Senator Ada L. Smith State Senator Martin M. Solomon State Senator Jeremy S. Weinstein State Assemblyman Frank J. Barbaro State Asseblyman Richard Brodsky State Assemblyman Thomas Catapano State Assemblyman John C. Cochrane State Assemblywoman Vivian E. Cook State Assemblyman Thomas P. DiNapoli State Assemblywoman Eileen C. Dugan State Assemblyman Ralph J. Eannace, Jr. State Assemblyman Anthony J. Genovesi State Assemblymember Deborah Glick State Assemblyman Richard N. Gottfried State Assemblyman Alexander Gromack State Assemblyman Alan G. Hevesi State Assemblyman Morton C, Hillman State Assemblyman William B. Hoyt State Assemblywoman Susan John State Assemblyman G. Oliver Koppell State Assemblyman Martin A. Luster State Assemblywoman Nettie Mayersohn State Assemblyman John Brian Murtaugh State Assemblyman Jerrold Nadler State Assemblywoman Audrey I. Pheffer State Assemblyman John Ravitz State Assemblywoman Cecile D. Singer State Assemblyman Robert Sweeney State Assemblyman David R. Townsend State Assemblywoman Helene E. Weinstein State Assemblyman Gregory P. Young State Assemblyman Vivian E. Cook A-23 NORTH CAROLINA Attorney General Lacy H. Thornburg State Senator William N. Martin State Senator Helen R. Marvin State Senator Kenneth C. Royall State Senator Russell Walker State Representative Marie W. Colton State Representative Peggy Stamey NORTH DAKOTA State Senator Barbara Evanson State Senator Jay Lindgren State Representative Sarah A. Carlson State Representative Judy L. DeMers State Representative Henning Jacobson State Representative August Ritter OHIO State Senator Eric Fingerhut State Senator Linda J. Furney State Senator Jeffrey D. Johnson State R-presentative Jane L. Campbell State Representative Dean Conley State Representative Robert L. Corbin State Representative Robert H. Doyle State Representative Robert F. Hagan State Representative David Hartley State Representative William J. Healy State Representative Joan W. Lawrence State Representative C.]. Prentiss State Representative Helen Rankin State Representative Judy Sheerer A-24 OKLAHOMA State Senator Cal Hobson OREGON Governor Barbara Roberts Senate Majority Leader Bill Bradbury State Senator Ron Cease State Senator Joyce Cohen State Senator Wayne Fawbush State Senator Shirley Gold State Senator Jeannette Hamby State Senator Jim Hill State Senator Grattan Kerans State Senator Frank Roberts State Senator Bob Shoemaker State Senator Tricia Smith State Senator Dick Springer State Senator Clifford Trow State Representative Lee L. Beyer State Representative Tom Brian State Representative Kate Brown State Representative Mike Burton State Representative Ted Calouri State Representative Margaret L. Carter State Representative Jim Edmunson State Representative Mary Alice Ford State Representative Avel L. Gordley State Representative Carl Hosticka State Representative Bruce Hugo State Representative Delna Jones State Representative Tim Josi State Representative Vera Katz State Representative Tom Mason State Representative Dave McTeague State Representative Lisa Naito State Representative Tom Novick A-25 State Representative Bob Pickard State Representative Hedy Rijken State Representative Gail R. Shibley State Representative Robert Shiprack State Representative Beverly Stein State Representative Jackie Taylor State Representative Antone Van Vliet PENNSYLVANIA State Senator Roy C. Afflerbach State Senator James C. Greenwood State Senator Roxanne H. Jones State Senator H. Craig Lewis State Senator Jeanette F. Reibman State Senator Allyson Schwartz Speaker of the House Robert W. O'Donnell State Representative Ralph Acosta State Representative Louise Williams Bishop State Representative Alan Butkovitz State Representative Andrew J. Carn State Representative Pat Carone State Representative Roy W. Cornell State Representative William DeWeese State Representative Dwight Evans State Representative Robert Freeman State Representative Ellen Harley State Representative Ruth B. Harper State Representative David W. Heckler State Representative Ivan Itkin State Representative Harold James State Representative Babette Josephs State Representative Allen G. Kukovich State Representative Gordon J. Linton State Representative Frank L. Oliver State Representative David P. Richardson State Representative Karen A. Ritter State Representative James R. Roebuck State Representative Ruth C. Rudy A-26 State Repesentative Stephen Stetler State Representative Mike Sturla State Representative W. Curtis Thomas RHODE ISLAND Governor Bruce Sundlun Attorney General James E. O'Neil State Senator James M. Donelan State Senator June N. Gibbs State Senator Ann H. Hanson State Senator Paul S. Kelly State Senator John Lyle, Jr. State Senator Rhoda Perry State Senator Charles D. Walton State Senator Myrth York State Representative Sandy Barone State Representative Christine H. Callahan State Representative Sandra Campbell State Representative David W. Dumas [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0220%3A19. Public record. Not legal advice.