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

‘Supreme Gaur, US [”

EOR ARGUMEN®D PR TLE,D 4

(2% ) (2y apAPR . 6 3892 |

OFFICE OF THE Clink }

_ -

Nos. 91-744 and 91-902 —_|

— -

IN THE

Suprene Court Of Che United States

OCTOBER TERM, 1991

PLANNED PARENTHOOD OF

SOUTHEASTERN PENNSYLVANIA, et al.,

Petitioners,

v.

ROBERT P. CASEY, et al.,

Respondents.

ROBERT P. CASEY, et. al.,

Petitioners,

v.

PLANNED PARENTHOOD OF

SOUTHEASTERN PENNSYLVANIA, et al.,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE SOUTHERN CENTER

FOR LAW & ETHICS AS AMICUS CURIAE

IN SUPPORT OF ROBERT P. CASEY, ET AL.

Tony G. MILLER*

Southern Center for Law & Ethics

P.O. Box 380113

Birmingham, Alabama 35238

(205) 871-6137

Davip M. SMOLIN

Associate Professor of Law

Cumberland Schoo! of Law

Samford University ;

Birmingham, Alabama 35229

(205) 870-2418

*Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................200000005 iii

INTEREST OF AMICUS CURIAE.................--- l

SUMMARY OF ARGUMENT ..............-..020005: 2

ER 4

I. THIS CASE OFFERS THE COURT AN

OPPORTUNITY TO RESTORE THE

LEGITIMACY OF THE CONSTITUTIONAL

EE, Soccccoccucecccessceces 4

Il. THIS COURT PROPERLY PROTECTED

THE REALM OF FAMILY LIFE FOR

APPROXIMATELY ONE-HALF CENTURY

PRIOR TO ROE V. WADE... cc cece csesccese 5

Ill. ROE V. WADE AND ITS PROGENY ARE PART

OF A NEW AND DIFFERENT AUTONOMY

PRIVACY RIGHT WHICH HAS THREATENED

TO DESTROY AND DISPLACE THE COURT'S

PRIOR FIFTY-YEAR HERITAGE OF

PROTECTING FAMILY PRIVACY............. 7

IV. THIS COURT'S PRIOR RECOGNITION OF

THE “INHERENTLY DIFFERENT” AND

INITERENTLY DESTRUCTIVE NATURE OF

ABORTION AFFORDS SUFFICIENT REASON

TO REMOVE ABORTION FROM THE REALM

OF FUNDAMENTAL PRIVACYRICGHITS ....... 12

V. THE OVERRULING OF ROE V. WADE

WOULD NOT REQUIRE THE REVERSAL

OF GRISWOLD V. CONNECTICUT ............ 14

VI. THE OVERRULING OF ROE V. WADE

WOULD NOT REQUIRE THE REVERSAL

OF EJSENSTADT V. BAIRD AND CAREY V.

POPULATION SERVICES, INTERNATIONAL .... 17

TABLE OF CONTENTS — (Continued)

Vil. A CONSTITUTIONAL LINE CAN BE

DRAWN BETWEEN CONTRACEPTION

AND ABORTION ........66 600s eee ener eres 20

VIII. THE OVERRULING OF ROE V. WADE WOULD

NOT SANCTION STATE-COERCED

ABORTION OR CONTRACEPTION .......... 24

CONCLUSION occ cc cccccccccnsevecneceseevccnens 26

TABLE OF AUTHORITIES

Cases: Page

Bartels v. Iowa, 262 U.S. 404 (1923). ........... ccc eee eee, 5

Bowers v. Hardwick, 478 U.S. 186 (1986) ......... 9, 12, 14, 19

Caban v. Mohammed, 441 U.S. 380 (1979)................ 26

Carey v. Population Servs. Int'l,

eee tence cccececcctoeess passim

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

Farrington v. Tohkushige, 273 U.S. 284 (1927) .............4.. 5

Griswold v. Connecticut, 381 U.S. 479 (1965) ........... passim

Hlarmis v. McRae, 448 U.S. 297 (1980) ................ passim

Kovacs v. Cooper, 336 U.S. 77 (1949) ..... 0.6 cee 7

loving v. Virginia, 381 U.S. 1 (1967) ................ 1,7, 13

Margaret S. v. Edwards, 488 F. Supp. 181

EE SESS LOESE CC ETET ETE TE TTT 23

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

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

Peckmann v. Thompson, Nos. 90-3334

eee ecco cecccecccceccecees l

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

Planned Parenthood v. Danforth,

Creech becoecececccccscocess 11,12

Poe v. Ullman, 367 U.S. 497 (1961) ............... 2, 4, 8, 27

Roe v. Wade, 410 U.S. 113 (1973) ...........0.00005. passim

Santosky v. Kramer, 455 U.S. 745 (1982) ........... 11, 13, 26

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

iv

TABLE OF AUTHORITIES — (Continued)

Cases: Page

Thornburgh v. ACOG, 476 U.S. 747 (1986) ............ 10, 13

United States v. Carolene Products Co.,

SOS UE, POO GHD eo cccccccccccccscccccccccceses 5, 6

Webster v. Reproductive Health Services,

GBR, Ga Go cc ce ccnssvccccccsecccccccces passim

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) ......... 5

Other Authonties

Abortion Legislation After Webster v. Reproductive

Health Services: Model Statutes and Commentanes,

David M. Smolin, 20 Cumb. L. Rev. 71, 124,

SFE CD ha cbeecscsbnsabeddasbdcevercccccaces 24

Absence of Chorionic in in Sera of Women

Who Use Intauterine Devices, Segal, 44 Fertility

Grn GOGNE TES GHG cc cccncccvcccccceccccccccces 24

Guam Public Law 20-134, Sec. 2 (9 G.C.A. § 31.20) ....... 23

The Jurisprudence of Privacy in a Conservative Supreme

Court, 75 Marq. L. Rev. (forthcoming 1992) ............ 4

La. Rev. Stat. § 14:87(A)(1) (West Supp. 1992)........... 23

Making Choices 3, Alan Guuumacher Institute (1983) ....... 24

New Insights on the Mode of Action of Intauterine

Contraceptives Devices in Women, Alvarez, 49 Fertility

and Seerificy TER (IDES) .. 2. ccc cece ccscccccccccccce 24

Plato, The Republic bk. v. marginal pagination 461 b-«

(P. Shorey trans.) reprinted in The Collected

Dialogues of Plata 700 (eds. E. Hamilton and

RR Ser PerTTTeTrITT Te 25

ING ER gm ‘

— =

Vv

TABLE OF AUTHORITIES — (Continued)

Other Authorities: Page

Postcoital Contraception, The Lancet,

eee e bn basccccsnccccccccscccess 24

18 Pa. Cons. Stat. Ann. §§ 3203, 3205, 3206,

$207, 3209, $214 (Supp. 1991) ................00.. 4, 22

Utah Code Ann. § 76-7-301(1) (Supp. 1991)

ee

- ae — 3

INTEREST OF AMICUS CURIAE

Amicus curiae, The Southern Center for Law & Ethics (the

“Center”) is a non-profit corporation founded in January 1985

and based in Birmingham, Alabama. The Executive Director

of the Center is J. Scott Houser, and policies are set by a board

of directors consisting of four attorneys and six lay persons.

The Center furnishes legal counsel and files amicus curiae

briefs on a variety of issues, including family and reproductive

issues. The Center has been particularly active, through litiga-

tion and scholarship, in seeking to develop and promote a

proper understanding of the constitutional right of privacy.

Thus, the Center has submitted amicus curiae briefs in past

abortion cases, including Webster v. Reproductive Health Services,

492 U.S. 490 (1989), and in a pending Seventh Circuit case

concerning midwifery. See Peckmann v. Thompson, Nos. 90-3334

& 90-3445, (7th Cir.) (amicus brief filed Aug. 12, 1991 con-

cerning midwifery and privacy). In addition, the Center has

received inquiries from midwives and home-schooling families

concerning appropriate responses to state interference with

the practices of home birth and home schooling.

The Center has been supportive of the overruling of Roe v.

Wade, 410 U.S. 113 (1973), but is particularly concerned that

such overturning might lead to an overall weakening of legiti-

mate privacy interests. Thus, an important purpose of this

Amicus brief is to provide support for a strengthened and

reconceptualized privacy right that can survive the demise of

Roe. Counsel for all parties have consented to the filing of this

brief.

SUMMARY OF ARGUMENT

This Court properly and legitimately protected a fundamen-

tal right of family privacy from its decision in Meyer v. Nebraska

in 1923 through Loving v. Virginia in 1967. This right of family

privacy incorporated into the due process clause certain im-

plicit American traditions and understandings regarding the

primacy of the family, and family relationships, in relation to

the state. The second Justice Harlan and others made it clear

that this realm of family privacy did not extend to traditionally

disfavored conduct such as homosexuality, adultery, and forni-

cation. See Poe v. Ullman, 367 U.S. 497, 545-46 (1961) (Harlan,

J., dissenting).

In dictum in Eisenstadt v. Baird, 405 U.S. 438, 453 (1972),

and in its holding in Roe v. Wade, 410 U.S. 113 (1973), this

Court created an entirely new “privacy” right which has threat-

ened to displace and destroy the Court's prior half-century

heritage of protecting family privacy. This new privacy right

often favors the “p ful termination of a potential life,”

Harris v. McRae, 448 U.S. 297, 325 (1980), above the construc-

tive act of childbirth as a part of its generalized constitutional

preference for the unconventional over the conventional. See

Michael H. v. Gerald D., 491 U.S. 110, 130 (1989) (plurality

opinion). These preferences for the “inherently different,” Roe

v. Wade, 410 U.S. 118, 159 (1973), and destructive act of abor-

tion, over traditionally-protected procreative and parental

rights and interests, “radically departs” from “the balance

which our Nation ... has struck between ... liberty and the

demands of organized »ociety.” See Poe v. Ullman, 367 U.S. 497,

542 (1961) (Harlan, J., dissenting).

Pennsylvania's modest regulations of abortion in the name

of prenatal life, the right of procreation, and parental care

and authority give this Court an opportunity to choose be-

tween two kinds of privacy: the theory of family privacy pro-

tected by this Court for approximately one-half century prior

to Roe v. Wade, and the newer abortion and autonomy privacy

that is less than two decades old. Rejection of the abortion

right in the name of family and procreative interests would

assist the process of restoring the legitimacy of privacy.

The overruling of Roe v. Wade would not affect Griswold v.

Connecticut's holding that marital intimacy and marital contra-

ceptive use are constitutionally protected. Griswold’s protec-

tion of marital intimacy is well within the doctrine of family

privacy, and Griswold’s protection of marital contraceptive use

is a proper corollary of its protection of marital intimacy. By

3

contrast, Roe v. Wade is by its o\n terms, and necessarily, a case

about the “inherently different” and destructive “purposeful

termination of a potential life.”

The overruling of Roe v. Wade would not require the reversal

of Eisenstadt v. Baird, 405 U.S. 438 (1972) and Carey v. Popula-

tion Servs. Int'l, 431 U.S. 678 (1977). Eisenstadt and Carey are

based primarily on the finding that it is irrational to punish

nonmarital sexuality by limiting access to contraceptives. In

addition, this Court can sever abortion from the realm of fun-

damental privacy rights because of its “inherently different”

and inherently destructive effect of “terminat[{ing] a potential

life.” Such a holding would not require any reexamination of

this Court's contraception holdings, because this Court has

already acknowledged that abortion is “inherently different”

from contraception. See Roe, 410 U.S. at 159 (abortion inher-

ently different from situation addressed in Eisenstadt); Hams v.

McRae, 448 U.S. at 325 (abortion inherently different from

other medical procedures).

This Court is perfectly capable of drawing a constitutional

line between contraception and abortion, and such line would

be practically and constitutionally superior to Roe’s reliance on

birth and viability as lines of demarcation. Such a line can be

drawn without subjecting current forms of contraception, such

as the IUD and oral contraceptives, to intrusive state regula-

tion.

The overruling of Roe v. Wade would not permit state-co-

erced abortion or contraception. The fifty years of family pri-

vacy precedents that preceded Roe provide ample protection

against state-coerced abortion or contraception. See, e.g., Meyer

v. Nebraska, 262 U.S. 390, 401-02 (1923) (Constitution rejects

Plato's proposed eugenic infanticide and similar proposals in-

imical to American institutions); Skinner v. Oklahoma, 316 U.S.

535 (1942) (marriage and procreation are fundamental

rights); Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plu-

rality opinion) (due process clause prevents “future genera-

tions from lightly casting aside important traditional values”).

4

ARGUMENT

I. THIS CASE OFFERS THE COURT AN OPPORTUNITY

TO RESTORE THE LEGITIMACY OF THE CONSTITU-

TIONAL RIGHT OF PRIVACY

The constitutional right of privacy is a legitimate and impor-

tant part of “the balance which our Nation ... has struck be-

tween ... liberty and the demands of organized society.” Poe v.

Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting). Un-

fortunately, Roe v. Wade “radically departs” from the balance of

our living constitutional tradition, see id., causing many to

question the very legitimacy of privacy itself. This case offers

the Court an opportunity to restore the legitimacy of privacy,

by properly distinguishing between legitimate and illegitimate

privacy claims.!

This case involves a conflict between the abortion right cre-

ated in Roe and previously recognized privacy rights that the

Roe Court claimed were the foundations of Roe. Thus,

Pennsylvania's efforts to safeguard and recognize the right to

procreate, the right to protect one’s offspring, and parental

rights over decisionmaking by a minor daughter, here collide

with Roe’s abortion right. In addition, Pennsylvania is seeking

to protect prenatal life. Upon examination, it is the rights and

interests Pennsylvania is seeking to safeguard and recognize,

rather than the abortion liberty with which Pennsylvania's stat-

utes® allegedly interfere, that ought to receive greater solici-

tude and protection by this Court.

'A more fully developed analysis of privacy law, which forms much of the

basis of this brief, will appear in a forthcoming article, David M. Smolin, The

Junsprudence of Privacy in a Conservative Supreme Court, 75 Marq. L. Rev. (forth-

coming 1992).

* See 18 Pa. Cons. Stat. Ann. §§ 3203, $205, 3206, $209, 3207, $214 (Supp.

1991) (definiuon of medical emergency, informed consent, parent consent,

spousal nouce, reporting requirements).

5

Il. THIS COURT PROPERLY PROTECTED THE REALM

OF FAMILY LIFE FOR APPROXIMATELY ONE-HALF

CENTURY PRIOR TO ROE V. WADE

The legitimate roots of privacy are found in implicit under-

standings about the relationship of families and government.

Thus, in Meyer v. Nebraska, 262 U.S. 390 (1923), this Court for

the first time had the occasion to recognize the primacy of the

family as an explicit part of our Constitutional scheme. The

Court noted that Plato's Republic had suggested state-man-

dated separation of children and parents, and state-mandated

infanticide, but concluded that such practices would do “vio-

lence to both letter and spirit of the [American] Constitu-

tion.” 262 U.S. at 401-02. Meyer thus found that the Constitu-

tion incorporates certain understandings “upon which our in-

stitutions rest,” id at 402, and that these understandings in-

clude the special place of family relations.

Meyer chose to locate the textual protections of these implicit

understandings in its interpretation of the “liberty” protected

by the due process clause. Thus, the Court stated that liberty

denotes “those privileges long recognized at common law as

essential to the orderly pursuit of happiness by free men,”

including “the right of the individual .. . to marry, establish a

home and bring up children.” 262 U.S. at 399.

The legitimacy of Meyer and its progeny® was called into

question by the Court’s subsequent abandonment of eco-

nomic substantive due process, beginning with its 1937 deci-

sion in West Coast Hotel Co. v. Parrish, 300 U.S. 379. One year

later, the Court in the famous footnote 4 of United States v.

Carolene Products Co., 304 U.S. 144, 152 (1938), began to sug-

gest new bases and guideline: for heightened judicial review.

The Carolene Products footnote fowr suggested that Meyer and

its progeny properly protected discrete and insular religious

and ethnic minorities. See 304 U.S. at 152 n.4. Thus, Carolene

* Meyer's immediate progeny include its companion case, Bartels v. lowa,

262 U.S. 404 (1923), and two subsequent decisions: Pierce v. Society of Sisters,

268 U.S. 510 (1925), and Farrington v. Tokushige, 278 U.S. 284 (1927).

6

Products represents the nascent insight that substantive protec-

tion of parental and family rights could facilitate both the

political process and the protection of religious and ethnic

minoriues.

Carolene Producis evidences the Court's determination to

maintain the validity of Meyer and its progeny, despite the

abandonment of economic substantive due process. Four years

later the Court, in Skinner v. Oklahoma, 316 U.S. 535 (1942),

invalidated Oklahoma's sterilization of “habitual criminals.”

Justice Douglas began his opinion by stating that “[t)his case

touches a sensitive and important area of human rights.” 316

U.S. at 536. Later in the opinion he explained the linkage of

this right to the protection of minorities:

We are dealing here with legislation which involves

one of the basic civil rights of man. Marriage and

procreation are fundamental to the very existence

and survival of the race. The power to sterilize, if

exercised, may have subtle, far-reaching and devastat-

ing effects. In evil or reckless hands it can cause races

or types which are inimical to the dominant group to

wither and disappear.

316 U.S. at 541.

In time, it became clear that the Court could distinguish

Meyer and its progeny from Lochner through a direct di-

chotomy of subject matter. Justice White's concurring opinion

in Griswold v. Connecticut, 381 U.S. 479 (1965), exemplifies this

approach:

[T}his is not the first time this Court has had occa-

sion to articulate that the liberty entitled to protec-

tion under the Fourteenth Amendment includes the

right “to marry, establish a home and bring up chil-

dren,” Meyer, and “the liberty ... to direct the up-

bringing and education of children,” Pierce, and that

these are among “the basic civil rights of man.” Skin-

ner. These decisions affirm that there is a “realm of

family life which the state cannot enter” without sub-

stanual justification. Prince. Surely the right invoked

7

in this case, to be free of regulation of the intimacies

of the marriage relationship, “come({s) to this Court

with a momentum for respect lacking when appeal is

made to liberties which derive merely from shifting

economic arrangements.” Kovacs (opinion of Frank-

furter, J.).*

381 U.S. at 502 (case citations shortened).

This Court's opinion in Griswold rhetorically echoed Meyer's

presumption that the family is more basic than the state and

thus deserves judicial and constitutional protection from the

state. 381 U.S. at 486 (privacy predates Bill of Rights). Simi-

larly, in Loving v. Virginia, 381 U.S. 1 (1967), this Court again

reaffirmed that marriage was a fundamental right and held

that miscegenation prohibitions violated both the equal pro-

tection and due process clauses.

III. Roe v. Wade and its Progeny are Part of a New and Differ-

ent Autonomy Privacy Right Which Has Threatened to

Destroy and Displace the Court’s Prior Fifty-Year Heri-

tage of Protecting Family Privacy

The Court's concepts of substantive due process and privacy

from the 1920's through the 1960's rejected the view that con-

senting adults (and mature minors) have a generalized funda-

mental right to make choices, of whatever nature, regarding

human sexuality and procreation. The rejection of such a view

was Clearly stated by Justice Harlan:

[T]he very inclusion of the category of morality

among state concerns indicates that society is not lim-

ited in its objects only to the physical well-being of

the community, but has traditionally concerned itself

with the moral soundness of its people as well. In-

deed to attempt a line between public behavior and

* Jusuce White's quotation of Justice Frankfurter’s Kovacs concurence ap-

pears to imply that protection of the family, like free speech, is essential to

an open society. Cf. Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J,

concurring).

that which is purely consensual or solitary would be

to withdraw from community concern a range of sub-

jects with which every society in civilized times has

found it necessary to deal. The laws regarding mar-

riage which provide both when the sexual powers

may be used and the legal and societal context in

which children are born and brought up, as well as

laws forbidding adultery, fornication and homo-

sexual practices which express the negative of the

proposition, confining sexuality to lawful marriage,

form a pattern so deeply pressed into the substance

of our social life that any Constitutional doctrine in

this area must be built upon that basis.

Poe v. Uliman, 367 U.S. at 545-46; see also Griswold v. Connecticut,

381 U.S. at 498 (1965) (Goldberg, J. concurring, joined by

Warren, C.J., ind Brennan, J.) (statutes prohibiting adultery

and fornication are “beyond doubt” constitutional).

Yet, despite such assurances, and Justice Harlan’s admoni-

tion against judges “roaming at large in the constitutional

field,” Griswold, 381 U.S. at 502, the process of transforming

the privacy right began with Justice Brennan's 1972 dictum in

Eisenstadt v. Baird:

If under Griswold the distribution of contraceptives

to married persons cannot be prohibited, a ban on

distribution to unmarried persons would be equally

impermissible. It is true that in Griswold the right of

privacy in question inhered in the marital relation-

ship. Yet the marital couple is not an independent

entity with a mind and heart of its own, but an asso-

ciation of two individuals each with a separate intel-

lectual and emotional makeup. If the right of privacy

means anything, it is the right of the individual, mar-

ried or single, to be free from unwarranted govern-

mental intrusion into matters so fundamentally af-

fecting a person as the decision whether to bear or

beget a child.

405 U.S. at 453.

9

Justice Brennan's reference to “the decision whether to bear

or beget a child,” written at a time when Roe was before the

Court, appears to include the abortion decision. This dicum

implied a constitutional equivalency between childbirth and

abortion and between marital and nonmarital sexuality. Thus,

in a few words Justice Brennan signaled the creation of a

broad new right that protected as a fundamental right abor-

tion, fornication, and sodomy. This new individualistic, purport-

edly value-neutral right of choice was in actuality a different right

than thai recognized by the Court during the preceding fifty years.

The Court’s privacy decisions since the early 1970's have

been confused. This confusion has been caused by the inabil-

ity of any single theory of privacy to completely dominate the

Court's decisions. Thus, Justice Brennan's view that fornica-

tion and sodomy are included as fundamental privacy rights

has been rejected, see Bowers v. Hardwick, 478 U.S. 186, 195-96

(1986) (refusing to protect adult consensual sodomy in part

because such a holding would necessarily extend to other con-

sensual adult conduct), even as his view that abortion is in-

cluded was accepted. Similarly, the Court rejected Justice

Brennan's view that the abortion right requires equal funding

of abortion and childbirth. See, ¢.g., Harris v. McRae, 448 U.S.

297 (1980); id at 329 (Brennan, J., joined by Marshall and

Blackmun, |jJ., dissenting). This precedential confusion is a

product of the varying views of Chief Justice Burger and Jus-

tices Powell and Stewart, who sometimes sided with, and some-

times against, the new theory of privacy-as-autonomy. Thus,

Justices Brennan, Blackmun, Marshall, and Stevens were un-

able fully to translate their new vision of privacy into binding

authority. Overall, however, it is clear that Justice Brennan’s

individualistic privacy, which this brief shall label privacy-as-au-

tonomy, has overshadowed the preexisting theory of marital

and family privacy, particularly in the area of abortion.

Privacy-as-autonomy has purported to protect all choices

concerning certain subjects equally, thus rejecting Justice

Harlan’s teaching that the Constitution must reflect deeply

rooted American moral traditions regarding sexuality and pro-

10

creation. In practice, however, privacy-as-autonomy has failed

to achieve value neutrality. Thus, privacy-as-autonomy has in

practice demonstrated a marked preference for protecting tra-

ditionally immoral or destructive conduct such as abortion

over traditionally protected conduct such as childbirth and

parental rights. This preference can be seen in three ways.

First, since privacy-as-autonomy appeared in the early

1970's, the Court’s development of family privacy as a doctrine

has atrophied. Thus, the Court has ignored significant con-

flicts in the last two decades over issues such as midwife-as-

sisted home birth and home-schooling. The Court’s activism

in the area of abortion has corresponded to disinterest in

childbirth and parental authority.

Second, the Court's decisions on abortion have betrayed a

preference for abortion over childbirth. This preference is

well illustrated in the Court's holding in Thornburgh regarding

Pennsylvania's prior informed consent law. Roe purported to

take a morally-neutral position and protect both the abortion

decision and the traditionally-protected decision to give birth.

This moral neutrality was supposedly consonant with a consti-

tutionally-enforced relativism regarding the moral status of the

fetus. Presumably the individual woman, rather than the state,

was to evaluate the worth of the fetus. Yet when Pennsylvania

tried to ensure that women make this decision with access to

the facts of fetal development, the Court characterized the

information as “inflammatory,” 476 U.S. at 762 n.10, and re-

jected the attempt, stating that the information “may serve

only to confuse and punish her and to heighten her anxiety.”

476 U.S. at 762. The Court complained that the information

“is designed not to inform the woman's consent but rather to

persuade her to withhold it altogether.” Jd Yet Thornburgh’s

author, Justice Blackmun, personally views fetal characteristics

as highly relevant to the valuation of the fetus. See Webster v.

Reproductive Health Serv., 492 U.S. 490, 552-53 (1989)

(Blackmun, J., dissenting) (quoting Thornburgh, 476 U.S. at

778-79 (Steven, J., concurring)) (state’s interest in fetus grows

as fetus develops capacities to respond, feel pleasure and pain,

ll

and survive). Thornburgh’s holding that accurate and relevant

information is constitutionally suspect because it discourages

women from choosing abortion indicates that Roe is a pro-

abortion, rather than a pro-choice, decision.

Third, privacy-as-autonomy’s preference for unconventional

and destructive rights, over traditional family and marital!

rights has appeared in cases where the interests and rights

represented by the two theories of privacy collide. This occurs

in parental involvement statutes. Parental involvement statutes

are a way of facilitating and protecting several interests under

the traditional family sphere theory of privacy. Such interests

include the parent's authority over their minor daughter's

decisionmaking, parental involvement in the important events

of their children’s lives, the parental right to raise and instruct

their offspring within a particular culture and belief system,

and the integrity of the family unit. These rights and interests

are inherent in this Court's acknowledgment of the primacy of

the family over the state in Meyer and Pierce. Yet when this well-

established parental right conflicted with the newly invented

abortion autonomy right, Justice Blackmun’s majority opinion

broadly concluded that:

Any independent interest the parent may have in the

termination of the minor daughter's pregnancy is no

more weighty than the right of privacy of the compe-

tent minor mature enough to have become preg-

nant.

Planned Parenthood v. Danforth, 428 U.S. 52, 75 (1976).

Similarly, spousal involvement statues facilitate, recognize

and protect several interests under the traditional family

sphere theory of privacy. Thus, Meyer recognized the liberty

interest of men and women “to marry, establish a home and

bring up children.” 262 U.S. at 399. Skinner v. Oklahoma recog-

nized that “marriage and procreation” are fundamental rights

while invalidating a program of male sterilization. Thus, the

Court has recognized that men possess a fundamental right to

procreate within marriage. Similarly, men possess, like women,

12

a fundamental right to the care and custody of their children,

see, ¢.g., Santosky v. Kramer, 455 U.S. 745 (1982), which includes

a fundamental right to preserve the life and health of their

children, both born and unborn. Yet, when these traditional

rights and interests collided with the newly-created abortion

right, Justice Blackmun’s majority opinion clearly chose the

new form of autonomy privacy over the fifty-year-old right

of marital and family privacy. See Danforth, 428 U.S. at 69-71.

Justice White's dissent aptly protested this choice:

It is truly surprising that the majority finds in the

United States Constitution ... a rule that the State

must assign a greater value to a mother's decision to

cut off a potential human life by abortion than to a

father’s decision to let it mature into a live child.

428 U.S. at 93.

Thus, abortion autonomy theory has gone beyond Justice

Blackmun’s call, in his dissenting opinion in Bowers v.

Hardwick, for a morally-neutral privacy right, see 478 U.S. at

205-06, to a deliberate preference for the unconventional over

the conventional. See Michael H. v. Gerald D., 491 U.S. 110, 130

(1989) (plurality opinion of Scalia, J.). Thus, privacy-as-au-

tonomy has illegitimately incorporated the arbitrary value preferences

of the Justices into the Constitution, while denigrating the deeply-rooted

traditions of the American people. Most disturbingly, this prefer-

ence for the “unconventional” has included elevating to a su-

per-protected status the inherently destructive act of destroy-

ing fetal life.

IV. THIS COURT’S PRIOR RECOGNITION OF THE “IN-

HERENTLY DIFFERENT” AND INHERENTLY DE-

STRUCTIVE NATURE OF ABORTION AFFORDS SUF-

FICIENT REASON TO REMOVE ABORTION FROM

THE REALM OF FUNDAMENTAL PRIVACY RIGHTS

This Court has been aware, from the beginning, of the in-

herently destructive nature of abortion. Thus, in Roe Justice

Blackmun noted that

13

[t]he pregnant woman cannot be isolated in her pri-

vacy. She carries an embryo and, later, a fetus, if one

accepts the medical definitions of the developing

young in the human uterus. See Dorland’s Illustrated

Medical Dictionary 478-79, 547 (24th ed. 1965). The

situation therefore is inherently different from marital

intimacy, or bedroom possession of obscene mate-

rial, or marriage, or procreation, or education, with

which Eisenstadt and Griswold, Stanley, Loving, Skinner,

and Pierce and Meyer were respectively concerned.

410 U.S. at 159 (emphasis added).

Similarly, the Court majority in Harris v. McRae specified

that “[a]bortion is inherently different from other medical

procedures, because no other procedure involves the purpose-

ful termination of a potential life.” 448 U.S. 297, 325 (1980).

Thus, this Court has specified that abortion is “inherently dif-

ferent” from previously accepted privacy claims, end from

other medical procedures. One would have thought that this

inherent difference would have been sufficient, at the very

outset, to lead to a rejection of the claim that the abortion

“liberty” was a fundamental right. Thus, although it is clear

that parents have a right to the care and custody of their

children, see, ¢.g., Santosky v. Kramer, 455 U.S. 745 (1982), it has

never been stated that parents possess a fundamental right to

kill, torture, or abuse their children. See Thornburgh v. ACOC,

476 U.S. 747, 793 & n.2 (1986) (White, J., dissenting) (funda-

mental right of parents to make decisions regarding upbring-

ing of children does not extend to assaults committed upon

child). Similarly, although marital partners possess a funda-

mental right to marital intimacy, see Griswold v. Connecticut, 381

U.S. 479 (1965), it has never been suggested that a husband

possesses a fundamental right to rape his wife. Cf, Michael H. v.

Gerald D., 491 U.S. 110, 124 n.4 (1989) (implying that rapist

lacks fundamental right to the care and custody of child begot-

ten through the rape).

One would have hoped that even a morally-neutral, indi-

vidualistic theory of privacy would have recognized that inher-

14

ently destructive acts cannot be considered fundamental

rights. Unfortunately, however, the current abortion

doctrine has not only recognized the abortion choice as a

fundamental right, but has also elevated it above the more

constructive choices. There is simply no credible explanation

for why the “inherently different” act of abortion, see Roe, 410

U.S. at 159, — “inherently different” because it “involves the

purposeful termination of a potential life,” Harris, 448 U.S. at

$25 — should be constitutionally elevated above more tradi-

tional privacy rights such as procreation and parental care and

authority. The inherent difference, in logic and in law, be-

tween abortion and procreation, between destroying depen-

dent life and protecting and preserving it, must, in accordance

with the history and traditions of this people, cut against,

rather than for, recognition of abortion as a fundamental

right.

V. THE OVERRULING OF ROE V. WADE WOULD NOT

REQUIRE THE REVERSAL OF GRISWOLD V. CONNEC

TICUT

The overruling of Roe v. Wade, including the exclusion of

the abortion choice from the fundamental privacy right,

would merely eliminate the worst excess of privacy-as-au-

tonomy. Indeed, reversing Roe v. Wade on the ground of the

“inherently different” and destructive nature of abortion

would not even preclude reversal of Bowers v. Hardwick, since

consensual adult sodomy, even if immoral, cannot be as inher-

ently destructive as “the purposeful termination” of an inno

cent, biologically human life. Moreover, even if the reversal of

Roe is combined with Bowers v. Hardwick to represent the repu-

diation of privacy-asautonomy, such should not constitute the

end of privacy itself. Privacy-as-autonomy began with Justice

Brennan's dictum in Eisenstadt in 1972, or the holding of Roe in

1973, and thus is entirely severable from the older family

sphere privacy which dominated the Court's decisions from

1923 to 1967. Indeed, the elimination of privacy-as-autonomy

could strengthen the older family privacy, by restoring the

15

legitimacy of privacy as a doctrine, and by eliminating privacy-

as-autonomy’s tendency to disfavor traditional family rights.

Griswold illustrates the divisibility of family privacy from pri-

vacy-as-autonomy. Griswold’s holding and language is squarely

based on the special place of marriage within American soci-

ety. See 381 U.S. at 485-86. Griswold, in other words, is a case

about the fundamental right of consensual manial intimacy.

The Court's holding that marital intimacy is a fundamental

right is, of course, firmly in line with the line of family privacy

cases beginning with Meyer, and thus is supportable without

any reference to privacy-as-autonomy.

One can ask why the Court in Griswold was justified in focus-

ing on the general issue of consensual marital intimacy, rather

than the more specific issue of marital use of contraception.

See, e.g., Michael H. v. Gerald D., 491 U.S. 110 (1989) (plurality,

concurring and dissenting opinions discussing level of gener-

ality for privacy analysis). There are several reasons. First, in

Gnswold the State of Connecticut failed to argue that its statute

was based on the moral judgment that marital contraception

was immoral, and instead claimed that a ban on marital con-

traception was necessary to discourage extra-marital relations.

381 U.S. at 498 (Goldberg, J., concurring); id. at 505 (Harlan,

J., concurring). Since the state did not morally or otherwise

object to the very act it was prohibiting — the use of contracep-

live articles within marriage — there was no need to restrict

the constitutional analysis to the greatest level of specificity

represented by the prohibition. Second, even if the State had

supported its statute with a moral objection to marital contra-

ception, there were obvious dangers that enforcing a ban on

marital contraceptive use would interfere more broadly with

marital intimacy. See Gnswold, 381 U.S. at 485. This threat to

marital intimacy made it appropriate to evaluate the statute in

terms of American traditions regarding such intimacy. Fhird,

even those who view consensual marital contraception as in-

herently immoral would acknowledge that such an immoral

act does not cause the destruction of an innocent other. Mari-

tal contraception therefore is not an inherently destructive

16

act, in the same sense that assault, homicide, or rape are in-

herently destructive acts. The absence of an innocent victim

lessens the need to evaluate American traditions at the great-

est possible level of specificity.

By contrast, it is clear that in Roe the Court quite properly

looked to the issue of abortion itself, rather than focusing

more broadly on childbirth or procreation. First, in Roe v.

Wade the state directly objected, in strong terms, to abortion

itself, claiming that it constituted the wrongful taking of hu-

man life. See 410 U.S. at 159. In response, the Roe Court fo

cused specifically on the history of abortion, rather than focus-

ing more broadly on childbirth, procreation, or pregnancy. See

410 U.S. at 129-52. Second, the enforcement of abortion re-

strictions does not practically or otherwise endanger the free-

dom to carry a child to term, or any other freedom tradition-

ally protected under family privacy. Thus, abortion is severable

from childbirth and other family privacy rights far more easily

than marital contraception can be severed from marital inti-

macy. This easy severability again suggests the importance of

focusing abortion cases specifically on abortion. Third, inher-

ently destructive acts logically must be constitutionally evalu-

ated at a high level of specificity, even when those acts occur

within a traditionally protected relationship. The Roe Court

thus implicitly acknowledged its necessary focus on abortion,

rather than broader privacy interests, when it stated that:

The pregnant woman cannot be isolated in her

privacy. She carries an embryo and, later, a fetus.

... The situation therefore is inherently different

from marital intimacy, or bedroom possession of ob-

scene material, or marriage, or procreation, or edu-

cation. ...

410 U.S. at 159.

Thus, a claim that infanticide is constitutionally protected

would necessarily be evaluated in regard to American tradi-

tions regarding infanticide, rather than American traditions

more broadly focused on parental authority. Similarly, a claim

17

that marital rape is constitutionally protected would be evalu-

ated in regard to American traditions regarding rape, rather

than American traditions regarding marital intimacy. Abor-

tion, since it almost always involves feticide (“the purposeful

termination of” fetal life), similarly should be evaluated in

terms of American traditions regarding abortion, without re-

gard to broader traditions that are “inherently different,” id.,

such as “procreation.” Jd Acts that are inherently destructive

necessarily must be constitutionally evaluated in terms of

American traditions regarding those specific, and destructive,

acts.

Thus, Griswold quite properly should be viewed as a case

about manial intimacy, while Roe necessarily stands or falls as a

case about abortion.

VI. THE OVERRULING OF ROE V. WADE WOULD NOT

REQUIRE THE REVERSAL OF EISENSTADT V. BAIRD

AND CAREY V. POPULATION SERVICES INTERNA-

TIONAL

This Court's holding in Eisenstadt v. Baird, 405 U.S. 438

(1972), is simply that Massachusetts’s limitations on the diswi-

bution of contraception violates the equal protection clause of

the Fourteenth Amendment. The Court’s four member major-

ity refused to reach the question of whether the statute in-

fringed a fundamental privacy right, see 405 U.S. at 453, and

therefore applied the rational basis test. See 405 U.S. at 447.

Thus, Eisenstadt is not, by its own terms, a privacy decision. The

overruling of Roe, and application of the rational basis stan-

dard of review to abortion, therefore would have no affect on

the Court's holding in Eisenstadt. The broad dictum in

Eisenstadt implying that the right of privacy includes, as a fun-

damental right, the decision whether “to bear ... a child,” is

completely gratuitous to the Court's holding. This dictum's

apparent attempt to suggest the result in Roe, rendered when

Roe was before this Court, is entirely severable from Eisenstadt’s

holding.

Carey v. Populations Servs. Int'l, 431 U.S. 678 (1977), invali-

dated a Massachusetts law prohibiting the distribution of con-

traceptives to minors, and forbidding anyone other than a

licensed pharmacist from distributing contraceptives to

adults. The majority of Justices rejected the application of

heightened judicial scrutiny to the provision affecting minors;

the holding therefore is dependent on the view that the re-

strictions applicable to minors are irrational. Thus, this ratio-

nal basis holding, like the rational basis holding in Eisenstadt,

would not be affected by an overruling of Roe However, a

majority of Justices applied a form of strict scrutiny to the

statute requiring a pharmacist to distribute contraceptives to

adults. This majority concluded that this limitation on distri-

bution infringed the privacy rights of individual adults to ac-

cess contraceptives.

Overruling Roe would not require overruling of Carey's hold-

ing regarding the access of adults to contraceptives. First, this

Court could sever abortion from the realm of fundamental

privacy rights because of its “inherently different” and inher-

ently destructivé effect of “terminat[ing] a potential life.” See

Roe, 410 U.S. at 159; Harnis v. McRae, 448 U.S. at $25; section

IV, supra. Such a holding would not require any reexamina-

tion of this Court’s contraception holdings because abortion is

“inherently different” from contraception. See, eg. Roe, 410

U.S. at 159 (abortion inherently different from situation ad-

dressed in Eisenstadt); Harvis, 448 U.S. at $325 (abortion inher-

ently different from other medical procedures).

Second, the core holding of Carey, invalidating the limita-

tion of contraceptive distributors to pharmacists, is sustainable

*The New York statute specifically permiued pharmacists to distribute

contraceptives to those 16 and over. The Court's discussion viewed this as a

limitauon upon distribution to “adults.” See 431 U.S. at 686. The Court also

invalidated a limitauon on contraceptive advertising on free speech

grounds.

* See 431 US. at 70203 (White, J., concurring); id at 705-07 (Powell, j.

concurring); td. at 713-16 (Stevens, J., concurring); id at 717-19 (Rehnquist,

J., dissenting) ; id at 702 (Burger, C_]., dissenting without opinion).

19

under rational basis analysis, or under Griswold, insofar as the

pharmacist requirement lacked any rational relation to health

concerns and applied to both married and unmarried per-

sons. Cf. Eisenstadt, 405 U.S. at 460-65 (White, J. concurring)

(state failed to demonstrate health need for forbidding

nonpharmacist from distributing vaginal foam to woman of

unknown marital status), cited with approval, Carey, 431 U.S. at

687, 688, 690.

Third, Carey clearly rejected the view that recognizing the

right to access or use contraceptives necessarily implied a rec-

ognition of a right “to put contraceptives to their intended

use” by engaging in a sexual act. See Carey, 431 U.S. at 678

(Stevens, J., concurring); id. at 688 n.5 (majority opinion); id.

at 694 n.17 (plurality opinion); id. at 702 (White, J., concur-

ring); see also Bowers v. Hardwick, 478 U.S. at 195-96 (rejecting

claim that all voluntary sexual conduct between consenting

adults is within fundamental privacy right). Thus, Carey, even if

broadly interpreted, granted a right for the unmarried to “use”

contraceptives in only a very attenuated sense, in that the

states were still free to prohibit the act of putting the contra-

ceptive articles “to their intended use” by engaging in

nonmarital sexual acts. One does not normally speak of hav-

ing a right to “use” something if the state may prohibit its only

intended “use.” This paradox of permitting the prohibition of

nonmarital sexual acts, while invalidating limitations on

nonmarital contraceptive use and access, illustrates that even

Carey does not depend on acceptance of a full-fledged au-

tonomy right in the area of consensual sexuality. Rather, Carey

stands for the proposition that it is irrational to punish

nonmarital sexuality by limiting access to contraceptives, par-

ticularly given the negative personal and social consequences

of single parenthood and sexually-transmitted diseases. See

Carey, 431 U.S. at 695 (quoting Eisenstadt, 405 U.S. at 448);

Carey, 431 U.S. at 715 (Stevens, J., concurring) (state cannot

dramatize its disapproval of motorcycles by forbidding use of

safety helmets).

20

This view of Carey as granting unmarried individuals the

right to ameliorate the negative consequences of illegal, im-

moral, or dangerous sexual activity through the use of contra-

ceptives, also readily distinguishes the Court's contraceptive

cases from Roe and its progeny. Avoiding the negative personal

and social consequences of unwanted pregnancy through the

“purposeful termination of a potential life,” Harris, 448 U.S. at

$25, an act which this Court acknowledged to be “inherently

different” from con see Roe, 410 U.S. at 159 (distin-

guishing Eisenstadt), is unjustifiable because it permits one per-

son to displace the negative consequences of their own behav-

ior upon an innocent, developing human life. By contrast,

Carey permits avoidance of the negative consequences of one’s

behavior through a means — the use of contraception — that

in itself has no effect upon innocent life. Similarly, the state's

compelling interest in fetal life is directly served by abortion-

restrictive legislation, whereas the state interest in protecting

the health and life of contraception users is hindered, rather

than served, by laws limiting access to nonmarital use of con-

traception.

Thus, there are ample and multiple approaches by which

this Court could retain its holdings in Eisenstadt and Carey

while overruling Roe v. Wade

Vil. A CONSTITUTIONAL LINE CAN BE DRAWN BE-

TWEEN CONTRACEPTION AND ABORTION

- The Roe Court implicitly criticized the view that life begins

at conception, claiming that

[s)ubstantial problems ... are posed ... by new em-

bryological data that to indicate that concep-

tion is a ” over time, rather than an event,

and by new medical techniques such as menstrual

extraction, the “morning-after” pill, implantation of

embryos, artificial insemination, and even artificial

wombs.

410 US. at 161 (footnote omitted).

21

More recently, Justice Stevens has claimed that a declaration

that life begins at conception “implies regulation not only of

previability abortions, but also of common forms of contracep-

tion such as the IUD and the morning-after pill.” Webster, 492

U.S. at 563 (footnote omitted). Justice O’Connor has sug-

gested that “[i]t may be correct that the use of postfertilization

contraceptive devices is constitutionally protected by Griswold... :

and its progeny.” 492 U.S. at 523.

Despite these claims and concerns, this Court is quite ca-

pable of drawing a constitutional line between contraception

and abortion. Indeed, drawing a constitutional line by refer-

ence to the biological event of conception would be easier

than, or as easy as, reliance on the biological demarcations of

birth and viability which the Roe Court employed.

The Roe Court clearly drew a constitutional line at birth,

holding that the unborn are not constitutional persons for

purposes of the due process clause. 410 U.S. at 156-59. Yet

birth, like fertilization, is clearly a “process over time.” Is a

fetus a constitutional person during the second stage of labor,

as the woman pushes the fetus through the birth canal? Must

the cord be cut before the fetus attains constitutional person-

hood? These questions are no easier than the question of

whether one chooses the beginning point of fertilization,

when the sperm enters the ovum, or the point, approximately

24 hours later, when the process of the sperm and ovum ge-

netically uniting has been completed. Certainly, there is noth-

ing particularly problematic about the fact that the fertiliza-

tion process takes 24 hours, given the fact that birth itself,

beginning with the first stage of labor, can take several days. If

this Court can draw a constitutional line by reference to the

biological process of birth, it can surely also do so by reference

to the biological process of fertilization.

Similarly, the Roe Court employed the biological concept of

“viability” to determine when the State’s interest in fetal life

became “compelling.” 410 U.S. at 163. Viability is a far less

precise biological concept than fertilization. First, viability is

not an inherent characteristic of the fetus, but rather is a con-

22

sequence of the relationship between the fetus and changing

medical technology. Second, different fetuses’ achieve viability

at different stages, making it difficult to draw a generalized

line. Third, the determination of viability requires a difficult

medical determination in which physicians can easily err by as

much as four weeks. See Webster, 109 S.Ct. at 3055 (citing find-

ing by District Court). Even the Roe Court could do no more

than generalize that “[vjiability is usually placed at about

seven months (28 weeks) but may occur earlier, even at 24

weeks.” 410 U.S. at 160 (footnote omitted). Clearly, a constitu-

tional line can be drawn far more easily at fertilization or

concepton, than could be done at viability.

The purpose of comparing a fertilization line to a birth or

viability line, is not to support the Court's prior uses of birth

or viability, but merely to demonstrate the specious nature of a

claim that fertilization cannot serve as a constitutional line. It

can also be asked, however, whether fertilization should serve

as a constitutional dividing point. The primary argument

against the use of such a line has been that it would interfere

with “common forms of contraception such as the IUD and

the morning-after pill.” 492 U.S. at 563 (Stevens, J. dissenting).

This fear is largely illusory. First, there is no indication that

any State wishes to prohibit any currently legal forms of con-

traception. Pennsylvania's current effort to regulate abortion

incorporates that State’s 1982 definition of abortion, which

limits abortion to:

[t}he use of any means to terminate the clinically

diagnosable pregnancy of a woman with knowledge

that the termination by those means will, with reason-

able likelihood, cause the death of the unborn child

except that, for the purposes of this chapter, abor-

tion shall not mean the use of an intrauterine device

or birth control pill to inhibit or prevent ovulation,

fertilization or the implantation of a fertilized ovum

within the uterus.

18 Pa. Cons. Stat. Ann. § 3203 (Purdon 1983).

23

Similarly, Guam’s post-Webster prohibition of abortion,

which is currently pending before the Ninth Circuit, defines

abortion as “the purposeful termination of a human preg-

nancy after implantation of a fertilized ovum...” Guam Public

Law 20-134, Sec. 2 (9 G.C.A. § 31.20). Utah’s post- Webster pro-

hibition also only applies “after implantation of a fertilized

ovum.” Utah Code Ann. § 76-7-301(1) (Supp. 1991). Thus,

Pennsylvania, Guam and Utah by their definitions of abortion

have excluded from coverage the period prior to implanta-

tion, with the obvious intent of avoiding possible applications

to contraceptives; Pennsylvania has made this intent most ex-

plicit by expressly excluding application to the IUD and birth

control pill.

Louisiana's post-Webster prohibition defines abortion to in-

clude certain acts performed with “the specific intent of termi-

nating a pregnancy.” La. Rev. Stat. § 14:87(A)(1) (West Supp.

1992). This specific intent requirement would limit the act of

performing an abortion to those instances where the woman

was specifically known to be pregnant when the drug was pre-

scribed or the device inserted. Thus, this specific intent re-

quirement alone would exclude any application to currently

used contraceptives. Cf. Op. La. Att'y Gen. No. 91-419 (August

29, 1991) (current Louisiana abortion prohibition does not

apply to IUD, oral contraceptives, or morning-after pill); Marg-

aret S. v. Edwards, 488 F. Supp. 181, 190-91 (E.D. La. 1980)

(holding that prior Louisiana definition of abortion does

NOT include the IUD, morning-after pill, and birth control

pills).

Thus, Pennsylvania's regulations, along with the post-Webster

abortion prohibitions, do not implicate currently-used contra-

ceptives, and usually exclude from coverage the period prior

to implantation.

In addition, there are in fact no commonly used forms of

contraceptives whose primary mechanism is that of an aborti-

facient. Thus, the prior belief that the IUD works primarily by

preventing implantation has since been superseded by new

research indicating that its primary mechanism is to prevent

24

fertilization.’ Similarly, current research demonstrates that the

primary mechanism of oral contraceptives, including low-dose

oral contraceptives, is to prevent fertilization.* The

of a constitutional fertilization line would presumably classify

contraceptives according to their primary and known anti-fer-

tilization effects. Thus, the existence of low or speculative

back-up abortifacient effects would not subject contraceptives

to state regulation, even under a fertilization standard.

The morning-after pill also poses no true dilemma. First,

this treatment currently has too many side-effects to recom-

mend its regular use in place of true contraceptives.® Thus, its

only real use is with rape victims. Generally, such use with rape

victims would not be classified as an abortion, because defini-

tions of abortion generally either exclude the period prior to

implantation, or at least require (sometimes through an intent

requirement) that the woman be known to be pregnant. Thus,

early treatment of the rape victim, when it is not known

whether she has been impregnated, could not be classified as

an abortion. In addition, the abortion prohibitions passed in a

post-Roe era are likely to contain express or implied rape and

incest exceptions. Under these circumstances, it is extremely

unlikely that any state would bar the only practical use of the

morning-after pill.

This Court need not resolve the question of whether the

constitutional line between abortion and contraception

"See Alvarez, New Insights on the Mode of Action of Intrauterine Contraceptive

Devices in Women, 49 Fertility and Sterility 768 (1988); Segal, Absence of Chon

onc Gonadotropin in Sera of Women Who Use Intrauterine Devices, 44 Fertility and

Sterility 214 (1985). The abortion rights brief in Webster submited on behalf

of the Association of Reproductive Health Professionals agreed, based on

the Alvarez study cited supra, that “(t]he most likely working mechanism of

an IUD is wo prevent fertilization.” ARHP Amicus Brief at 34, Webster, (No.

88-605).

* See, e.g., Alan Guumacher Institute, Making Choices $ (1983); David M.

Smolin, Abortion Legislation After Webster v. Reproductive Health Services

Model Statutes and Commentaries, 20 Cumb. L. Rev. 71, 124 n.153 (1989)

(ciung studies on oral (including low-dose) conwaceptives).

* See, e.g., Postcoital Contraception, The Lancet, Apr. 16, 1983, at 855.

|

|

|

25

should be drawn at fertilization, or at implantation, until a real

controversy implicating this distinction comes before the

Court. It is unlikely that any such dispute would come before

this Court, at least in the context of contraception and abor-

tion. Speculative conflicts between a fertilization and implan-

tauion standard, or anfounded and speculative claims regard-

ing threats to contraceptive rights, should not distract from

the conclusion that either a fertilization or an implantation stan-

dard would be preferable to Roe’s viability/birth standard.

VII. THE OVERRULING OF ROE V. WADE WOULD NOT

SANCTION STATE-COERCED ABORTION OR CON-

TRACEPTION

The fifty years of family privacy precedents that preceded

Roe v. Wade provide ample protection against state-coerced

abortion or conwaception. Thus, the Meyer Court, at the very

outset of the family privacy doctrine, concluded that state-

mandated infanticide would violate the “letter and spirit of the

Constitution,” 262 U.S. at 402, despite the apparent endorse

ment of a policy of eugenic infanticide by Plato in Book V of

The Republic. Plato's eugenic proposals in Book V also ex-

tended to state-mandated abortion.’ Meyer requires this Court

to protect women, whether married or single, from state-co-

erced practices that are inimical to the “ideas touching the

relation between individual and State .. . upon which our in-

stitutions rest.” 262 U.S. at 402. Thus, Meyer in itself provides

an ample basis for invalidating state-mandated abortion and

contraception.

“ “But when ... the men and the women have passed the age of lawful

procreation, we shal! leave the men free to form such relations with whom.

soever they please . .. first admonishing them preferably not even to bring

to hight anything whatever thus conceived, but if they are unable to prevent

a birth wo dispose of it... .* Plato, The Republic, bk. v, marginal pagination

461 be (P. Shorey wans.), reprinied in The Collected Dialogues of Plato 700

(eds. E. Hamilton & H. Cairns, 1961).

In addition, a pregnant woman, whether single or married,

represents a family dyad of mother and unborn child, and

under this Court's family privacy precedents the State cannot

arbitrarily interfere with a constructive, nurturing parent-child

relationship. See Caban v. Mohammed, 441 U.S. 380, 405 n.10

(1979) (Stevens, J., dissenting) (psychological bond between

mother and child develops during pregnancy); see, e.g.,

Santosky v. Kramer, 455 U.S. 745 (1982). Finally, cases such as

Skinner v. Oklahoma, protecting individuals, whether single or

married, from state-mandated sterilization, afford an ample

basis to reject state-coerced abortion or contraception.

Thus, the reversal of Roe v. Wade would not sanction state-

coerced abortion or contraception, or any other state man-

dates affecting procreation or the family that are inimical to

the “ideas ... upon which our institutions rest.” Given the

history and traditions of this people, which place a high value

on unborn life and the right to procreate and bear children,

statecoerced abortion and contraception would be unconsti-

tutional. Cf Michael H. v. Gerald D., 491 U.S. 110, 123 (1989)

(plurality opinion) (due process clause prevents “future gen-

erations from lightly casting aside important traditional val-

ues”).

CONCLUSION

Pennsylvania in this case has attempted to regulate abortion

in a modest way, in the service of interests and rights that have

been central to the development of the doctrine of privacy.

Pennsylvania's modest incursions into the abortion “liberty” in

the name of prenatal life, the right of procreation, and paren-

tal care and authority give this Court an opportunity to choose

between two kinds of privacy: the theory of family privacy pro-

tected by this Court from 1923 to 1967 and the newer abortion

and autonomy privacy that is less than two decades old. Amicus

cunae submits that the abortion right invented by this Court in

Roe represents a radical departure from “the balance struck by

this country,” while the family privacy right represents a sound

27

interpretation of our living constitutional traditions. Cf. Poe v.

Uliman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting). This

radical departure has exacerbated deep divisions within this

ion is not within the right of privacy.

Respectfully submitted,

Tony G. Miter

Southern Center for Law & Ethics

P.O. Box 380113

Birmingham, Alabama 35238

Davip M. Smoun

Associate Professor of Law

Cumberland Schoo! of Law

Samford University

Birmingham, Alabama 35229