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

_ Nos. 91-744 and 91-902

IN THE

Supreme Court of the United

OCTOBER TERM, 1991 . @RRIOE OF THE ©

PLANNED PARENTHOOD OF

SOUTHEASTERN PENNSYLVANIA, et al.,

Petitioners and

Cross-Respondents,

4

ROBERT P. CASEY, et al.,

Respondents and

Cross-Petitioners.

On Writs of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF AMICUS CURIAE OF HON. HENRY J. HYDE,

HON. CHRISTOPHER H. SMITH, HON. ALAN B.

MOLLOHAN, HON. HAROLD L. VOLKMER, HON.

ROBERT G. SMITH AND OTHER UNITED STATES

SENATORS AND MEMBERS OF CONGRESS

IN SUPPORT OF RESPONDENTS {

ALBERT P. BLAUSTEIN *

Rutgers University School

of Law

Camden, New Jersey 08102

(609) 757-6373

KEVIN J. TODD

AMERICANS UNITED FOR LIFE

343 S. Dearborn St. #1804

Chicago, Illinois 60604

t Amici Listed inside (312) 786-9494

front cover Counsel for Amici

April 6, 1992 * Counsel of Record

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United States Senators

Hon. JESSE HELMS (R-N.C.)

Hon. Rosert G. SMITH (R-N.H.)

Hon. STEVEN D. SyYMMs (R-Id.),

Members of Congress

Hon. FRANK ANNUNZIO (D. II.)

Hon. RicHarp K. ARMEY (R-Tex.)

Hon. JOSEPH L. BARTON (R-Tex.)

Hon. THOMAS J. BLILEY, JR. (R-Va.)

Hon. JOHN A. BOEHNER (R-Ohio)

Hon. JAMES P. BUNNING (R-Ken.)

Hon. DAN BurTon (R-Ind.)

Hon. PuHIuip M. CRANE (R-IIl.)

Hon. WILLIAM E, DANNEMEYER (R-Cal.)

Hon. THoMas D. DeLay (R-Tex.)

Hon. JOHN T. DooLITTLE (R-Cal.)

Hon. RosBert K. DoRNAN (R-Cal.)

Hon. MICKEY EDWARDS (R-OK.)

Hon. N. WILLIAM EMERSON (R-Mo.)

Hon. FRED GRANDY (R-lowa)

Hon. MEL HANCOCK (R-Mo.)

Hon. CLYDE C. HoLLoway (R-La.)

Hon. DUNCAN L. HUNTER (R-Cal.)

Hon. Ear D. Hutto (D-Fla.)

Hon. HENRY J. HYDE (RB-Iil.)

Hon. JAMES M. INHOFE (R-Ok.)

Hon. ROBERT SAMUEL JOHNSON (R-Tex.)

Hon. NORMAN F. LENT (R-N.Y.)

Hon. WILLIAM D. Lowery (R-Cal.)

Hon. WILLIAM W. McCoLLuM (R-Fla.)

Hon. ALAN B. MOLLOHAN (D-W.YV.)

Hon. JAMES L. OBERSTAR (D-Minn.)

Hon. CARL C. PERKINS (D-Ken.)

Hon. Nick J. RAHALL II (D-W.V.)

Hon. IKE SKELTON (D-Mo.)

Hon. CHRISTOPHER H. SMITH (R-N.J.)

Hon. CHARLES W. STENHOLM (R-Tex.)

Hon. Don SUNDQUIST (R-Tenn. )

Hon. WILLIAM J. TAUZIN (D-La.)

Hon. BARBARA F. VUCANOVICH (R-Nev.)

Hon. HAroup L. VOLKMER (D-Mo.)

Hon. JAMES T. WALSH (R-N.Y.)

Hon. VIN WEBER (R-Minn.)

TABLE OF CONTENTS

TABLE OF AUTHORITIES a

INTEREST OF THE AMICI oscccsssscssccscccsccsssssesssseooeeoee

SUMMARY OF ARGUMENT .

ARGUMENT ..............

I.

Il.

III.

IV.

ROE v. WADE IS A WEAKENED DECISION

WITH LIMITED PRECEDENTIAL VALUE,

AT ODDS WITH RECENT DECISIONS OF

THIS COURT, AND SHOULD BE EX-

PRESSLY OVERRULED sanieprnesseiussemnapsces

THE DOCTRINE OF STARE DECISIS DOES

NOT PRECLUDE RECONSIDERATION OF

ROE v. WADE

DECLINING TO OVERRULE ROE v. WADE

SERVES NONE OF THE INTERESTS OF

STABILITY, PREDICTABILITY, OR CON-

SISTENCY THAT ARE FURTHERED BY

THE DOCTRINE OF STARE DECISIS ..........

OVERRULING ROE v. WADE IS CONSIST-

ENT WITH PRIOR OVERRULINGS OF

CONSTITUTIONAL DECISIONS BY THIS

SET ‘crtlncmnsinstinthabinnsermeantanencemntriocebtednertescenmmemansssece

THE MOST PRUDENT COURSE IN AD-

DRESSING THE PROBLEMS POSED BY

ROE v. WADE IS TO OVERRULE THAT DE-

CISION EXPRESSLY AND RETURN TO THE

POLITICAL BRANCH OF GOVERNMENT

ITS RIGHTFUL AUTHORITY TO REGULATE

THE PRACTICE OF ABORTION .....0..

Te

Page

13

21

27

30

ii

TABLE OF AUTHORITIES

CASES Page

Adkins v. Children’s Hosp., 261 U.S. 525 (1928)... 22

Aguilar v. Texas, 378 U.S. 108 (1964) 26

Amalgamated Food Employees Union v. Logan

Valley Plaza, 391 U.S. 308 (1968) 26

American College of Obstetricians and Gynecolo-

gists v. Thornburgh, 737 F.2d 283 (3d Cir. 1984),

aff'd, 476 U.S. 747 (1986) 16

Arizona v. Ramsey, 467 U.S. 208 (1984) 000. 14

Beal v. Doe, 482 U.S. 488 (1977) 10

Bellotti v. Baird (1), 428 U.S. 182 (1976) -.......... 11

Bellotti v. Baird (11), 443 U.S. 662 (1979) —....0... 11

Booth v. Maryland, 482 U.S. 496 (1987) ............... 25

Bowers v. Hardwick, 478 U.S. 186 (1986) —......... 23

Burnet v. Coronado Oil & Gas Co., 285 U.S. 3938

(1931) —_ 8,9

Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1798).. 9

City of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416 (1983) passim

Coe v. Melahn, No. 90-1552 (8th Cir. Mar. 2, 1992)

RES Ae See ee 14,18

Colautti v. Franklin, 439 U.S. 379 (1979) ............ 10, 15

Connecticut General Co. v. Johnson, 308 U.S. 77

(1988) ........ 9

Daniels v. Williams, 474 U.S. 327 (1986) ............. 22

Diamond v. Charles, 476 U.S. 54 (1986) 000. 11

Doe v. Bolton, 410 U.S. 179 (1978) -...0 6, 7, 16

Dred Scott v. Sanford, 60 U.S. (19 How.) 393

Se a 9

Edwards v. Arizona, 451 U.S. 477 (1981) ............. 6

Employment Div., Dep’t of Human Resources v.

Smith, 494 U.S. 872 (1990) ................................... 26

Erie Ry. Co. v. Tompkins, 304 U.S. 64 (1988) ....... 26, 27

Ferguson v. Skrupa, 372 U.S. 726 (1963) —............ 17

First Nat'l Bank v. Maine, 284 U.S. 312 (1982)... 23

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

eee aA Re 8 eR 18, 26, 27

Gideon v. Wainwright, 372 U.S. 335 (19638) ......... 7

Graves v. New York ex rel. O’Keefe, 306 U.S. 466

GEREN <cinticnictasiensiibetiiaitinitsathidesianith ttiatitiiteah ieiihinaea niacin 9

Griswold v. Connecticut, 381 U.S. 479 (1965) ......... 24, 25

iii

TABLE OF AUTHORITIES—Continued

Page

Guardians Ass’n v. Civil Service Comm’n of New

York City, 463 U.S. 582 (1983) .........................-.. 9

Hammer v. Dagenhart, 247 U.S. 251 (1918) .-......... 6

Harris v. McRae, 448 U.S. 297 (1980) -.................. 19

Hodgson v. Minnesota, 110 S. Ct. 2629 (1990) -...... passim

Hudgens v. NLRB, 424 U.S. 507 (1976) -........... aoe 26

Illinois v. Gates, 462 U.S. 213 (1983) -.............. 26, 28, 29

Kerlin’s Lessee v. Bull, 1 U.S. (1 Dall.) 175 (1786) .. 13

Lambert v. California, 335 U.S. 225 (1957) .......... 7

Liggett Co. v. Baldridge, 278 U.S. 105 (1929) -...... 22

Lincoln Fed. Labor Union v. Northwestern Iron

& Metal Co., 335 U.S. 525 (1949) ........................ 22

Lochner v. New York, 198 U.S. 46 (1905) -.......... 6, 23

Mapp v. Ohio, 367 U.S. 643 (1961) —........................ 29

Margaret S. v. Edwards, 488 F.Supp. 181 (E.D.

NS Ser IOC Ses CEL I ae ee oe eR 16

Michael H. v. Gerald D., 491 U.S. 110 (1989) ....... 23

Miranda v. Arizona, 384 U.S. 486 (1966) —........... 6

Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974) .... 10

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

(ES ne ae 13, 26

North Dakota Pharmacy Board v. Snyder’s Drug

Stores, 414 U.S. 156 (1978) -........-.........--0---000------ 22

Ohio v. Akron Center for Reproductive Health,

EG 8 ee passim

Oregon v. Mitchell, 400 U.S. 112 (1970) -.............. 9

Parratt v. Taylor, 451 U.S. 527 (1981) .................. 22

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

FER oe ae ee. oan ee Ce 28

Payne v. Tennessee, 111 S. Ct. 2597 (1991) _......... passim

Planned Parenthood of Cent. Missouri v. Danforth,

eka iceat cial iaciatiainn 11, 16

Planned Parenthood Ass’n of Kansas City v. Ash-

0 UO OE 11

Planned Parenthood of Southeastern Pennsylvania

v. Casey, 947 F.2d 682 (3d Cir. 1991) —............... passim

Planned Parenthood of Southeastern Pennsylvania

v. Casey, 744 F.Supp. 1323 (E.D. Pa. 1990) —..... 11

Planned Parenthood v. Minnesota, 910 F.2d 479

| 18

iv

TABLE OF AUTHORITIES—Continued

Page

Poelker v. Doe, 482 U.S. 519 (1977) ne ere 1l

Pollack v. Farmers’ Loan & Trust, 157 U.S. 429

(1895) ..... 9

Ragsdale v. Turnock, 841 F.2d 1358 (7th Cir.

1988) . 16

Robbins v. California, 453 U.S. 420 (1981) ......... 26

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

Rust v. Sullivan, 111 S. Ct. 1759 (1991) 0000... 5

Schulte v. Douglas, 567 F. Supp. 522 (D. Neb.

1981), aff'd per curiam sub nom. Women’s

Services, P.C. v. Douglas, 710 F.2d 465 (8th Cir.

1983) 16

Singleton v. Wulff, 428 U.S. 106 (1976) 0. 11

Smith v. Allwright, 321 U.S. 649 (1944) 20000... 10

South Carolina v. Gathers, 490 U.S. 805 (1989) ...... 6, 25

State Tax Comm'n v. Aldrich, 316 U.S. 174 (1942) .. 23

Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842) .......... 26

Thornburgh v. American College of Obstetricians

& Gynecologists, 476 U.S. 747 (1986) 000.0... passim

United States v. Darby, 312 U.S. 100 (1941) ........ 6

United States v. Ross, 456 U.S. 798 (1982) ............. 26

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

490 (1989) passim

West Coast Hotel Co. v. Parrish, 300 US. 379

I Re NE ee eee 22

Williams v. Zbaraz, 448 U.S. 358 (1980) ciiesiihiidtadias 11

Constitutional Provisions

FRE a 9

EET se ae emer eee 26

EL EAE RE 26

TITS LEH SD: ST Tee 9

EEE an eee ea 9

6 ee passim

A iin 9

Statutes and Regulations

41 U.S.C.S. Sec. 1396 et seq. (1985 ed. and 1990

Supp.) ......... 19

v

TABLE OF AUTHORITIES—Continued

Legal Ramifications of the Human Life Amend-

ment: Hearings before the Subcomm. on the

Constitution of the Senate Comm. on the Ju-

diciary on S.J. Res. 3, 98th Cong., 1st Sess.

RE Rr

Org. of Amer. Treaty Series No. 36, at 1-21, Offi-

cial Records, OAS/Ser.A/16 ......................----------

Proclamation No. 5761, 53 Fed. Reg. 1464 (1988) ..

$323 102nd Cong., Ist Sess. Cong. Rec. $10113-21,

FF |

The Human Life Bill—S. 158: Report by the

Subcomm. on Separation of Powers, Senate

Comm. on the Judiciary, 97th Cong., 1st Sess.

ae, creaaimtmeenienetntes

Other Authorities

Americans United for Life, Abortion and Moral

Beliefs, a Survey of American Opinion (1991)..

Blake, The Supreme Court’s Abortion Decisions

and Public Opinion in the United States, 3 Pop-

ulation and Dev. Rev. 45 (1977) .......................---

A. Blaustein & G. Flanz, Constitutions of the

Countries of the World 20 vols. (1971-Current) ..

A. Blaustein & C. Willner, Stare Decisis, work in

progress, (1993 publication anticipated) —........

Blaustein & Field, “Overruling” Opinions in the

Supreme Court, 57 Mich. L. Rev. 151 (1958)...

R. Bork, The Tempting of America: The Political

Seduction of the Law (1990) ......................---.-- 12,

Congressional Research Service, The Constitution

of the United States, Analysis and Interpreta-

I ce

Cooper, Stare Decisis: Precedent and Principle

in Constitutional Adjudication, 73 Cornell L.

I ll

A. Cox, The Role of the Supreme Court in Ameri-

TTT LT =

Dellinger & Sperling, Abortion and the Supreme

Court: The Retreat from Roe v. Wade, 138 U.

ey ye 5 Ea

Page

24

19

11

11,12

8, 21

17, 20

vi

TABLE OF AUTHORITIES—Continued

Page

Douglas, Stare Decisis, 49 Colum. L. Rev. 735

RE tele Nin ae Oe 9

Ely, The Wages of Crying Wolf: A Comment on

Roe v. Wade, 82 Yale L.J. 920 (1973) 0.000000... 12, 20

Epstein, Substantive Due Process by Any Other

Name, 1973 Sup. Ct. Rev. 159 .. 12, 21

Ezzard, State Constitutional Privacy Rights Post

Webster: Broader Protection Against Abortion

Retrictions?, 67 Denver U. L. Rev. 401 (1990)... 5, 20

Forsythe & Grant, Two Ships Passing in the Night:

An Interpretivist Review of the White-Stevens

Colloquy on Roe v. Wade, 6 St. Louis Pub. L.

| ene iaieiatiddeiiiess 12

Gerhardt, The Role of Precedent in Constitutional

Decisionmaking and Theory, 60 Geo. Wash. L.

Se oer 15, 20, 23

Henshaw, The Characteristics and Prior Contra-

ceptive Use of U.S. Abortion Patients, 20 Fam.

Planning Perspectives 158 (1988) ......................... 29

Higginbotham, Text and Precedent in Constitu-

tional Adjudication, 73 Cornell, L. Rev. 411

A AE EI oA AA TE 9

D. Horan, E. Grant & P. Cunningham eds., Abor-

tion and the Constitution (1987) 2.00.00... 18

Howard, Garcia and the Values of Federalism: On

the Need for a Recurrence to Fundamental Prin-

ciples, 19 Ga. L. Rev. 789 (1985) ......0000...0.. 27

Maltz, Some Thoughts on the Death of Stare De-

cisis in Constitutional Law, 1980 Wis. L. Rev.

RS SARS SRC a Rr kT a 8

McConnell, The Role of Democratic Politics in

Transforming Moral Convictions into Law, 98

I 20

Mitchell Opposes Proposed Abortion-Rights Legis-

lation, Wash. Post, Feb. 4, 1992 at A138, col. 1... 11

Morgan, Roe v. Wade and the Lessons of Pre-Roe

Case Law, 77 Mich. L. Rev. 1724 (1979) .......... 20°

M. Perry, Morality, Politics and Law (1988)... 20

Reed, Stare Decisis and Constitutional Law, 9 Pa.

Bar A. Q. 181 (April 1988)..................................... 14

vii

TABLE OF AUTHORITIES—Continued

Rehnquist, Js an Expanded Right of Privacy Con-

sistent with Fair and Effective Law Enforce-

ment? Or: Privacy, You’ve Come a Long Way

Baby, 23 Kan. L. Rev. 1 (1974) ..................-.........

J. Thayer, John Marshall (1920) ............................

Torres & Forrest, Why Do Women Have Abor-

tions?, 20 Fam. Planning Perspectives 169

ee ee eee

Transcript of Arguments Before High Court on

Abortion Case, N.Y. Times, April 27, 1989, at

RE LENS SEEN eee

L. Tribe, Abortion: The Clash of Absolutes

EEE ne ee ne

Views on Abortion Remain Divided, N.Y. Times,

en

Wardle, Rethinking Roe v. Wade, 1985 B.Y.U.L.

ee

Wardle, “Time Enough”: Webster v. Reproductive

Health Services and the Prudent Pace of Justice,

41 Fila. L. Rev. 881 (1989) ..............0.........--cc0--0--

Wash. Post, Nov. 13, 1988, at C6, col. 1 ..................

Wechsler, Toward Neutral Principles in Consti-

tutional Adjudication, 73 Harv. L. Rev. 1(1959) ..

Page

19, 20

19

13

BRIEF AMICUS CURIAE OF HON. HENRY J. HYDE,

HON. CHRISTOPHER H. SMITH, HON. ALAN B.

MOLLOHAN, HON. HAROLD L. VOLKMER, HON.

ROBERT G. SMITH AND OTHER UNITED STATES

SENATORS AND MEMBERS OF CONGRESS

IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI

The amici, Members of Congress and Senators, have

substantial interests in the disposition of this case. Con-

gressional debates on legislation with provisions similar

to the challenged sections of the Pennsylvania Abortion

Control Act often center on the constitutionality of such

requirements. See, e.g., 8323 102nd Cong., ist Sess. Cong.

Rec. §10113-21, $10124-25 (July 16, 1991) (parental

notification required for minor who requests abortion).

A decision from this Court upholding all of the challenged

provisions and articulating a clear standard of review

would resolve lingering doubts of constitutional infirmity

that plague much abortion-related legislation and, there-

fore, would directly affect Congress’ continued attempts

to act in this area. More fundamentally, the decision of

the court of appeals, abandoning the standard of review

enunciated in Roe v. Wade, 410 U.. 113 (1973), draws

into question the continuing viability of Roe, a question

only this Court can answer definitively. Congress is

keenly interested in the Court’s answer as it holds

the key to restoring the essential balance between legis-

lative authority and judicial review under the federal

Constitution.

SUMMARY OF ARGUMENT

This Court’s recent decisions have begun the process

of dismantling “the mansion of constitutionalized abor-

tion-law, constructed overnight in Roe v. Wade.” Web-

ster v. Reproductive Health Services, 492 U.S. 490, 537

(Sealia, J., concurring in part, concurring in the judg-

ment). A majority of the Court has questioned or re-

pudiated Roe’s trimester framework; has recognized com-

2

pelling state interests in maternal health and fetal life

throughout pregnancy; and has employed a more relaxed

standard of review in evaluating the constitutionality of

abortion regulations. Roe is an impaired decision. Some

lower federal courts have begun to recognize, and the

country increasingly understands, that Roe has been

limited. Overruling Roe v. Wade would not represent an

abrupt about-face in the Court’s abortion jurisprudence

but rather would be the final step in a journey that began

several years ago.

Stare decisis, a doctrine of diminished importance in

the field of constitutional law, provides no basis for de-

clining to overrule the multiple errors of Roe v. Wade.

On 214 occasions this Court has overturned previous

decisions. In nearly three-fourths of those cases, the Court

overruled because the earlier decision had wrongly inter-

preted the Constitution.

The reasons for this self-correction—the difficulty of

addressing constitutional error through amendment or

legislation; the primacy of the text of the Constitution

over the interpretations placed upon it; and the inappro-

priateness of the nation’s highest tribunal perpetuating

constitutional error—apply with special force to Roe.

Moreover, the interests furthered by stare decisis are

not served by retaining Roe; indeed, they are at cross-

purposes. The doctrines of Roe have caused great in-

stability and unpredictability in the law. Recent decisions

of this Court exacerbate this uncertainty. Statements

from the lower federal courts, as well as state and fed-

eral elected representatives, amply demonstrate the con-

fusion resulting from attempts to read this Court’s re-

cent abortion decisions against the backdrop of Roe v.

Wade.

Overruling Roe also would be consistent with past

willingness to admit error. This Court has corrected

decisions which, like Roe, have misinterpreted the “lib-

erty” clause of the Fourteenth Amendment by placing

an unwarranted strait-jacket on legislative authority.

3

And it has renounced the role of “super-legislature,” sit-

ting in judgment on the wisdom of state statutes. Doc-

trines on which long-standing social institutions and con-

ventions were established have been overturned, as have

doctrines on which scores of criminal convictions were

predicated. The overturning of such decisions has often

caused change, some of it disruptive. But in appropriate

circumstances it also has returned to the political branches

of government their rightful authority to respond to the

pressing moral and social issues at the root of such

change. Roe, contrary to this tradition, has usurped the

legislative function, and has aggravated the social tur-

moil over abortion.

Finally, although this Court has shown a proper reluc-

tance to overrule constitutional decisions where a less

severe remedy is available, it is appropriate to overrule

Roe v. Wade in this case. Roe is no longer viewed as

stable or fully intact; this uncertainty concerning a deci-

sion so demonstrably unworkable and devoid of consti-

tutional basis divests the decision of any rightful sway

over the Court’s decision here. Roe is constitutional

error of the most radical variety, and the traditions of

this Court call for such error to be dispatched without

ambiguity or equivocation.

ARGUMENT

I. ROE v. WADE IS A WEAKENED DECISION WITH

LIMITED PRECEDENTIAL VALUE, AT ODDS

WITH RECENT DECISIONS OF THIS COURT, AND

SHOULD BE EXPRESSLY OVERRULED.

Unlike the situation presented in Webster v. Repro-

ductive Health Services, 492 U.S. 490 (1989), where the

Court was asked to overrule Roe v. Wade, 410 U.S. 113

(1973), only three years after its expansion and re-

affirmation in Thornburgh v. American College of Obste-

tricians and Gynecologists, 476 U.S. 747 (1986), this

case presents the question three years after a plurality

4

of the Court expressly rejected central tenets of the Roe

doctrine.' Webster, 492 U.S. 490 (1989).

Webster demonstrates that a majority of this Court

finds Roe’s trimester framework “unworkable,” “flawed,”

and “problematic.” 492 U.S. at 518 (Rehnquist, C.J.,

joined by Kennedy, J., and White, J.) ; id. at 529 (O’Con-

nor, J., concurring in part, concurring in the judgment) ;

see also, id. at 532 (Scalia, J., concurring in part, con-

curring in the judgment). A majority also now treats the

state’s interest in unborn human life as compelling

throughout pregnancy. Jd. at 519 (Rehnquist, C.J., joined

by Kennedy, J., and White, J.) ; id. at 529-30 (O’Connor,

J., concurring in part, concurring in the judgment) ; id.

at 532 (Scalia, J., concurring in part, concurring in

judgment). And a majority has also rejected Roe’s

generalized fundamental right to abortion and accord-

ingly Roe’s strict scrutiny standard of review. Jd. at 518

n.15 (Rehnquist, C.J., joined by Kennedy, J., and White,

J.); id. at 530 (O’Connoy, J., concurring in part, con-

curring in the judgment); id. at 532 (Scalia, J., con-

curring in part, concurring in the judgment). In Hodg-

son v. Minnesota, 110 S. Ct. 2629 (1990), and Ohio v.

Akron Center for Reproductive Health, 110 S. Ct. 2972

(1990), the Court likewise employed a relaxed standard

of review. These decisions marked substantial retreats

from Roe. Overruling Roe v. Wade would merely—but

decisively—complete the process begun in Webster, Hodg-

son and Akron Center.

Recognition that the Court is moving away from the

central tenets of Roe is widespread. In his dissent in

1 Whether the Court should overrule Roe is appropriately before

the Court. While the Court “limited” its grant of review to

whether the court of appeals erred in its constitutional determina-

tions regarding the challenged provisions of the Pennsylvania

statutes, 112 S. Ct. 931-32 (1992), the court of appeals’ conclusions

were premised on a determination that the “undue burden stand-

ard” and not Roe’s strict scrutiny test “is the law of the land.”

Planned Parenthood of Southeastern Pennsylvania v. Casey, 947

F.2d 682, 698 (3d Cir. 1991).

5

Webster, Justice Blackmun stated that “[t]he simple

truth is that Roe would not survive the plurality’s analy-

sis.” 492 U.S. at 538.° Legal scholars concur that the

Court’s current abortion jurisprudence departs from Roe

v. Wade.’ Although Professor Dellinger urges this Court

to “reaffirm” Roe,‘ he elsewhere concedes that “the right

to have an abortion is no longer fundamental.” Del-

linger & Sperling, Abortion and the Supreme Court: The

Retreat from Roe v. Wade, 138 U. Pa. L. Rev. 83, 83

(1989).

However, eroding support on the Court for Roe indi-

cates that that decision was seriously weakened even

before Webster; the Court’s decisions in Webster, Hodg-

son, and Akron Center evolved from a growing consensus

on the Court that Roe was wrongly decided.’ Unlike

2 See also, Rust v. Sullivan, 111 S. Ct. 1759, 1786 (1991) (Black-

mun, J., dissenting).

8 See, e.g., L. Tribe, Abortion: The Clash of Absolutes 24 (1990)

(“[A]fter Webster, Roe is not what it once was.”); Ezzard, State

Constitutional Privacy Rights Post Webster: Broader Protection

Against Abortion Restrictions?, 67 Denver U. L. Rev. 401, 40)

(1990) (“Webster sent a message to legislatures around the coun-

try that additional state restrictions on abortion are now acceptable

because of the Court’s new and narrow interpretation of Roe v.

Wade.”’).

4 Brief Amicus Curiae of Representatives Don Edwards, Patricia

Schroeder, et al., in Support of Petitioners at 2.

5 The mounting opposition to Roe from members of the Court

resulted from both later rejection of the decision by those orig-

inally counted in the majority, such as Chief Justice Burger, and

the addition to the Court of new members dubious of Roe’s con-

stitutional grounding. Petitioners and their amici disingenuously

contend that overruling Roe would be—or, at least, would appear

to be—an overtly political act. See Petitioner’s Brief at 22 n.33;

Brief Amicus Curiae of Representatives Don Edwards, Patricia

Schroeder, et al., in Support of Petitioners at 10-11, 18. This

contention neglects, however, that the “goal of constitutional ad-

judication is surely not to remove inexorably ‘political divisive’

issues from the ambit of the legislative process ... [but rather]

to hold true the balance between that which the Constitution puts

beyond the reach of the democratic process and that which it does

not.” Webster, 492 U.S. at 521. Furthermore, as Justice Scalia

6

other controversial decisions of this Court which over

time gained acceptance from the original dissenters,’

Roe’s ever-broadening scope and increasingly detailed

legislative character produced narrowing majorities and

more strongly worded dissents. As this Court noted in

Payne v. Tennessee, 111 S. Ct. 2597 (1991), the relative

strength of precedents is undermined when the rulings

were issued “over spirited dissents challenging the basic

underpinnings of those decisions [and when] ([t]hey

have been questioned by members of the Court in later

decisions, and have defied consistent application by the

lower federal courts.” Payne, 111 S. Ct. at 2611.

At the outset, Roe and Doe v. Bolton, 410 U.S. 179

(1973), were condemned for appropriating the legislative

function.’ Then Associate Justice Rehnquist also criticized

observed in Payne v. Tennessee, 111 S. Ct. 2597 (1991), charges

that an overruling court is “exercising power not reason” have it

backwards. “{W]hat would enshrine power as the governing

principle of this Court is the notion that an important constitu-

tional decision with plainly inadequate rational support must be

left in place for the sole reason that it once attracted [a majority

_ of the Court].” Jd. at 2613 (Scalia, J., concurring) (emphasis in

original). Moreover, the fact is that “[o]verrulings of precedent

rarely occur without a change in the Court’s personnel.” South

Carolina v. Gathers, 109 S. Ct. 2207, 2217 (1989) (Scalia, J., dis-

senting). Petitioners’ argument would have precluded the over-

ruling of Lochner v. New York, 198 U.S. 45 (1905), and its

progeny. It was, after all, majorities largely consisting of Presi-

dent Roosevelt’s appointees that eradicated economic due process

from our constitutional jurisprudence, a result deemed correct

notwithstanding the changed makeup of the Court. See, e.g.,

United States v. Darby, 312 U.S. 100 (1941) (Justice Stone, Black,

Reed, Frankfurter, Douglas, and Murphy all appointed by Presi-

dent Roosevelt, voting to overrule Hammer v. Dagenhart, 247 U.S.

251 (1918) ).

6 See, e.g., Edwards v. Arizona, 451 U.S. 477 (1981) (per White,

J.) (confession constitutionally invalid under Miranda); Miranda

v. Arizona, 384 U.S. 486 (1966) (White, J., dissenting).

T Roe, 410 U.S. at 174 (“judicial legislation”) (Rehnquist, J.,

dissenting) ; Doe, 410 U.S. at 222 (“[The majority decision is]

an exercise of raw judicial power... This issue ... should be

left with the people and to the political processes the people have

devised to govern their affairs.”) (White J., dissenting).

7

the Court for ignoring over a century of American legal

history which criminalized abortion.* The growing ex-

tremity of Roe as revealed in City of Akron v. Akron

Center for Reproductive Health, 462 U.S. 416 (1983),

and Thornburgh v. American College of Obstetricians &

Gynecologists, 476 U.S. 747 (1986), drew increasingly

strong dissents from four justices.’ Most notably in

Thornburgh, Chief Justice Burger, who concurred in Roe

and Doe, called for the reexamination of Roe, 476 U.S.

at 785 (Burger, C.J., dissenting), and “agree{d] with

much of Justice White’s and Justice O’Connor’s dissents,”

which challenged virtually every aspect of Roe v. Wade.

Id. at 782.

The limited deference normally due a constitutional

precedent all but evaporates where the decision has been

undermined by intervening decisions calling the prece-

dent’s basic legitimacy into question. The strong criticism

of the fundamental aspects of Roe, coming from a ma-

jority of the Court’s members, has rendered the prin-

ciples of Roe “no longer a reality” and thus ripe for over-

ruling. Gideon v. Wainwright, 372 U.S. 335, 351 (1963)

(Harlan, J., concurring). Whether termed a “modifica-

tion” or a “dramatic retrenchment in [the Court’s] juris-

prudence,” Webster, 492 U.S. at 544 (Blackmun, J.,

dissenting), the rejection of Roe’s central tenets amounts

to an abandonment of the Roe analysis, as the court of

appeals concluded below. Like so many decisions before

it, Roe has been essentially discarded and now floats as

a “derelict on the waters of the law,” Lambert v. Cali-

fornia, 335 U.S. 225, 232 (1957) (Frankfurter, J., dis-

senting), and should, therefore, be forthrightly abandoned.

410 U.S. at 174-77 (Rehnquist, J., dissenting). See also Brief

Amicus Curiae of Certain American State Legislators in Sup-

port of Respondents.

® City of Akron, 462 U.S. at 452 (O’Connor, J., joined by White,

J., and Rehnquist, J., dissenting); Thornburgh, 476 U.S. at 782

Burger, C.J., dissenting), id. at 785 (White, J., joined by Rehn-

quist, J., dissenting), id. at 814 (O'Connor, J., joined by Rehnquist,

J., dissenting).

Il. THE DOCTRINE OF STARE DECISIS DOES NOT

PRECLUDE RECONSIDERATION OF ROE ov.

WADE.

Stare decisis is usually the wise policy, because in

most matters it is more important that the applicable

rule of law be settled than it be settled right. This

is commonly true even where the error is a matter

of serious concern, provided correction can be had

by legislation. But in cases involving the Federal

Constitution where correction through legislative ac-

tion is practically impossible, this Court has often

overruled its prior decisions. The Court bows to the

lessons of experience and the force of better reason-

ing, recognizing that the process of trial and error,

so fruitful in the physical sciences, is appropriate

also in the judicial function.

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-

410 (1931) (Brandeis, J., dissenting). On more than

120 occasions since Burnet, this Court has exercised its

authority to review and overrule its decisions on consti-

tutional law."’

The overruling cases of the past 60 years, and most

recently this Court’s decision in Payne v. Tennessee, 111

10In Burnet, Justice Brandeis identified 28 instances in which

the Court had overruled or qualified earlier decisions. An exhaus-

tive study of this Court’s decisions by Rutgers University Professor

Emeritus Albert P. Blaustein and Carl Willner has yielded a total

of 214 implicit and explicit overrulings to date. A. Blaustein &

C. Willner, Stare Decisis (work in progress, 1993 publication an-

ticipated (not released for publication) ). Copies of the chart illus-

trating the overruling decision, the overruled precedent, the Court’s

‘rationale, and vote breakdown for each case have been lodged with

the Office of the Clerk simultaneously with the filing of this Brief.

See also Maltz, Some Thoughts on the Death of Stare Decisis in

Constitutional Law, 1980 Wis. L. Rev. 467, 494-496 (listing 47 con-

stitutional decisions overturned 1960-1979); Blaustein & Field,

“Overruling” Opinions in the Supreme Court, 57 Mich. L. Rev. 151,

167, 184-194 (1958) (identifying 60 constitutional law decisions

among 90 overrulings of prior Supreme Court decisions) ; Congres-

sional Research Service, The Constitution of the United States,

Analysis and Interpretation, 2115-2127, & Supp. (1987) (184 over-

rulings through 1986).

9

S. Ct. 2597 (1991), exemplify Justice Brandeis’ criteria

for permitting greater latitude in overruling constitu-

tional decisions.

First is the unique difficulty of amending the Consti-

tution to correct an erroneous decision, particularly

where a legislative reformation of the error is impos-

sible. Payne, 111 S. Ct. at 2610. This difficulty extends

not only to the super-majoritarian requirements of Ar-

ticle V, but to the task of drafting an amendment that

will strike the intended target without unintended effect

on other constitutional provisions."

Second, “precedent that conflicts with [constitutional]

text is not precedent.” '* Justice Frankfurter stated,

“(tlhe ultimate touchstone of constitutionality is the Con-

stitution itself and not what we have said about it.”

Graves v. New York ex rel. O’Keefe, 306 U.S. 466, 491-

92 (Frankfurter, J., concurring.) And Justice Douglas

went so far as to say that the place of stare decisis in

constitutional law is “tenuous” where a prior decision

conflicts with the Constitution itself.'*

A third and related reason is that it is wrong to go

on being wrong. Justice Black wrote “[a] constitutional

interpretation that is wrong should not stand.” Con-

necticut General Co. v. Johnson, 303 U.S. 77, 85 (Black,

J., dissenting). The doctrine of stare decisis is not “an

inexorable command” Burnet, 285 U.S. at 405, nor

should it serve as “an imprisonment of reason.” Guard-

ians Ass’n v. Civil Serv. Comm'n of New York City, 463

U.S. 582, 618 (1983) (Marshal!, J., dissenting). For

"Only four decisions of this Court have been overruled by

amendment to the Constitution. Chisholm v. Georgia, 2 U.S. (2

Dall.) 419 (1793) (11th Amendment); Dred Scott v. Sanford, 60

U.S. (19 How.) 393 (1857) (13th and 14th Amendments) ; Pollack

v. Farmers’ Loan & Trust, 157 ''.S. 429 (1895) (16th Amendment) ;

and Oregon v. Mitchell, 400 U.S. 112 (1970) (26th Amendment).

2 Higginbotham, Tezt and Precedent in Constitutional Adjudica-

tion, 73 Cornell L. Rev. 411, 411 (1988).

48 Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 736 (1949).

10

these reasons, “when governing decisions are unwork-

able or are badly reasoned, ‘this Court has never felt

constrained to follow precedent.’” Payne, 111 8. Ct. at

2609 (1991), quoting Smith v. Allwright, 321 U.S. 649,

665 (1944). Accordingly, “[i]t is . . . not only [the

Court’s prerogative but also [its] duty to re-examine a

precedent where its reasoning is fairly called into ques-

tion.” Mitchell v. W.T. Grant Co., 416 U.S. 600, 627-28

(1974) (Powell, J., concurring). This is particularly

so where the Court’s decision touches upon a concern of

intense moral and political concern. Erroneous removal

of such questions from the democratically controlled

branches of government, and from the states, may

“deaded society’s sense of moral responsibility,” * and

preclude the innovation of more just and satisfactory

legal solutions. This is the salutary effect, noted by

Justice Brandeis, of permitting “trial and error.”

Roe v. Wade is the type of constitutional decision for

which the doctrine of stare decisis holds diminished

importance. First, Roe is demonstrably not the type of

decision where “correction can be had by [state] legis-

lation.” Since Roe, this Court has decided more than

twenty cases involving municipal, state, and federal at-

tempts to regulate abortion or abortion-related activities

consistent with the dictates of Roe; others have been

disposed of summarily; scores more have terminated in the

lower federal courts, usually with decisions invalidating

the challenged statute under some reading of Roe.

As withthe present case, several of these decisions

involved a state’s repeated attempts to implement con-

stitutional regulations, often invalidated because the state

imprecisely divined the next expansion of the Roe doc-

trine.” Roe’s “Prucrustean bed,” Webster, 492 U.S. at

14 J. Thayer, John Marshall 107 (1920).

15 Pennsylvania: Beal v. Doe, 432 U.S. 438 (1977); Coiautti v.

Franklin, 439 U.S. 379 (1979); Thornburgh v. American College of

Obstetricians & Gynecologists, 476 U.S. 747 (1986); Planned

Parenthood v. Casey, Cons. Nos. 91-744, 91-902 (1991); Missouri:

11

517, also invited constitutional challenge if a state de-

viated even slightly from the Court’s most recent pro-

nouncement. State attempts to establish meaningful, yet

constitutional, abortion regulations were treated as “evi-

dence of some sinister conspiracy,” Thornburgh, 476

U.S. at 798 (White, J., dissenting), and apparently have

been used as an independent basis for invalidating abor-

tion legislation. Planned Parenthood v. Casey, 744 F.

Supp. 1323, 1372 (E.D. Pa. 1990). In addition, although

your amici do not concede the point, it appears that

efforts to correct or ameliorate Roe through the Con-

gressional powers of enforcement under the Fourteenth

Amendment would likely be held to run afoul of Roe."®

Second, public opinion polls show consistent majority

support for restrictions on abortions far more stringent

than allowed by Roe." But, the task of organizing public

Planned Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52

(1976) ; Singleton v. Wulff, 428 U.S. 106 (1976); Poelker v. Doe,

432 U.S. 519 (1977) (St. Louis); Planned Parenthood Ass’n of

Kansas City v. Ashcroft, 462 U.S. 476 (1983); Webster v. Repro-

ductive Health Services, 492 U.S. 490 (1989); Massachusetts:

Bellotti v. Baird (1), 428 U.S. 132 (1976); Bellotti v. Baird (11),

443 U.S. 622 (1979); Illinois: Williams v. Zbaraz, 448 U.S. 358

(1980) ; Diamond v. Charles, 476 U.S. 54 (1986).

16 Congressional efforts to alter the central holdings of Roe have

been rendered exceedingly difficult by the widely held legal opinion

that Congress lacks the authority to so act. See, e.g., The Human

Life Bill—S. 158: Report by the Subcomm. on Separation of

Powers, Senate Comm. on the Judiciary, 97th Cong. 1st Sess. (1981)

(testimony of Robert H. Bork). See also, Mitchell Opposes Pro-

posed Abortion-Rights Legislation, Wash. Post, Feb. 4, 1992, at

Al3, col. 1 (constitutional issues appropriately addressed through

Constitutional amendment and not by a vote of Congress).

17 In 1990, the Gallup Organization conducted the most extensive

polling to date on the views of the American people on abortion.

See Americans United for Life, Abortion and Moral Beliefs, a

Survey of American Opinion (Executive Summary) (1991). Copies

of the Executive Summary and the complete tabulations have been

lodged with the Office of the Clerk simultaneously with the filing of

this Brief. When asked under what, if any, circumstances abortion

should be permitted, 74% would limit abortion to cases where the

12

opinion behind a constitutional amendment is greatly com-

plicated by Roe’s multiple and confusing holdings."* The

range and detail of these holdings are more characteristic

of legislation than of constitutional law.’ The resulting

task of drafting a constitutional amendment that fairly

meets the errors of Roe is daunting, if not impossible.

Third, a majority of this Court has abandoned as

error central tenets of Roe. Unless a majority of this

Court finds under renewed scrutiny that Roe with-

stands the arguments made against it and that the deci-

sions in Webster, Hodgson and Akron Center wrongly

mother’s health is threatened, the pregnancy resulted from rape or

incest, or there is a substantial likelihood of grave fetal deformity.

Id. at 56. As revealed in a study conducted by the Alan Guttmacher

Institute, women seeking abortions are rarely motivated by such

concerns. Maternal or fetal health concerns, or the pregnancy re-

sulting from rape or incest account for at most 7% of the 1.6

million abortions performed annually in the United States. Torres

& Forrest, Why Do Women Have Abortions?, 20 Fam. Planning

Perspectives 169 (1988). The National Opinion Research Center

reports that 60 percent of those surveyed oppose the expansive

abortion right created in Roe. Views on Abortion Remain Divided,

N.Y. Times, Jan, 22, 1989, at 17, col. 1. Popular support for elective

abortion has remained a minority position, approximately 40 per-

cent, since 1973. See Id.; Blake, The Supreme Court’s Abortion

Decisions and Public Opinion in the United States, 3 Population

and Dev. Rev. 45 (1977).

18 See Forsythe & Grant, Two Ships Passing in the Night: An

Interpretivist Review of the White-Stevens Colloquy on Roe v.

Wade, 6 St. Louis Pub. L. Rev. 43 (1987) (identifying 12 constitu-

tional holdings). Thus, not surprisingly, 89% of the American pub-

lic fundamentally misunderstands Roe. Not only does this make

mobilizing public opinion difficult, but it also demonstrates that

polls indicating that a majority “supports Roe v. Wade,” provide

no helpful insight. Americans United for Life, Executive Sum-

mary, supra note 18, at 13-16.

19 Webster, 492 U.S. at 518. See also, Ely, The Wages of Crying

Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973); A.

Cox, The Role of the Supreme Court in American Government 113-

114 (1973) ; Epstein, Substantive Due Process by Any Other Name,

1973 Sup. Ct. Rev. 159; R. Bork, The Tempting of America: The

Political Seduction of the Law 111-i7 (1990).

13

departed from Roe, the Court should overrule Roe. This

Court show'd not prop up an ailing decision that it is

convinced incorrectly interprets the Constitution.*° Unless

independent grounds exist for rehabilitating Roe, stare

decisis alone stands as no impediment to overruling.”

III. DECLINING TO OVERRULE ROE v. WADE SERVES

NONE OF THE INTERESTS OF STABILITY, PRE-

DICTABILITY, OR CONSISTENCY THAT ARE

FURTHERED BY THE DOCTRINE OF STARE

DECISIS. |

The protection of the stare decisis doctrine is limited

by definition.“ As the full title of the doctrine—stare

20“ The long tradition of the Court [is] that previous decisions

must be subject to re-examination when a case against their reason-

ing is made.” Wechsler, Toward Neutral Principles of Constitu-

tional Law, 73 Harv. L. Rev. 1, 31 (1959). It is no violation of

the doctrine of stare decisis, therefore, to consider and act upon a

better-reasoned argument that the precedent in question was in

error. See also, Cooper, Stare Decisis: Precedent and Principle in

Constitutional Adjudication, 73 Cornell L. Rev. 401, 408 (1988),

citing, Kerlin’s Lessee v. Bull, 1 U.S. (1 Dall.) 175, 178 (1786)

(“[Ijf a Judge conceives, that a judgment given by a former

Court is erroneous, he ought not in conscience to give the like

judgment, he being sworn to judge according to the law.’’).

21 Roe has been defended by this Court almost exclusively on

grounds of stare decisis. See, Webster, 492 U.S. at 458-60 (Black-

mun, J., dissenting) ; City of Akron v. Akron Center for Reproduc-

tive Health, 462 U.S. 416, 420 (1983); Thornburgh v. American

College of Obstetricians and Gynecologists, 476 U.S. 747, 779-781

(1986). This is in marked contrast to the debate occasioned by the

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

(1976) by Garcia v. San Antonio Metro. Transit Auth., 469 U.S.

528 (1985). The Garcia dissents did not rest on stare decisis, but

on the fundamental principle of federalism, and the specific dictates

of the Tenth Amendment. See id. at 560-589. Roe, however, rests

on no such fundamental principle, or textual mandate.

22 Petitioners and their amici concede that this Court could over-

rule Roe if the Court found the decision “‘unsound in principle’

for] ‘unworkable in practice.’” Petitioner’s Brief at 22; see also,

Brief Amicus Curiae for Representatives Don Edwards, Patricia

Schroeder, et al., in Support of Petitioners at 17. Overruling

Roe in this case is appropriate if any of these conditions is met.

14

decisis et non quieta movere (“stand by the precedents

and do not disturb the calm”)**—implies, respect for

past decisions extends properly only to those doctrines

that are “at rest.” Roe v. Wade, however, is an unsettled

doctrine with an unsettling effect. As the court of appeals

found, this Court’s decisions in Webster and Hodgson

have rendered Roe’s central holdings no longer the law of

the land, Planned Parenthood v. Casey, 947 F.2d 682, 698

(3rd Cir. 1991), thereby further unsettling Roe.”

1. Roe v. Wade ostensibly intended to settle the issue

of abortion in American law.** However, Roe has proven

to be inherently difficult to apply in any consistent and

principled manner. Webster, 492 U.S. at 518-19; City of

Akron, 462 U.S. at 459. This is highlighted by Roe’s

progeny, which have produced a growing body of intri-

cate, arbitrary regulations surrounding the abortion de-

cision. Far from settling the debate, these decisions

Counsel for Petitioner’s amici acknowledges that the Webster plu-

rality has already made the requisite finding for the overruling of

Roe: that the trimester framework is “‘unsound in principle and

unworkable in practice.’” Dellinger & Sperling, supra at 85.

23 Reed, Stare Decisis and Constitutional Law, 9 Pa. Bar A.

Q. 131, 131 (April 1938).

24 Accord, Coe v. Melahn, No. 90-1551 (8th Cir. Mar. 2, 1992)

(WL 87328).

25 Thus, Roe “promises more than it can deliver.” Payne, 111

S. Ct. at 2618 (Souter, J., concurring). If, as Petitioners and their

amici claim, there is a need to establish some “special justification”

to overrule erroneous precedent, id. (Souter J., concurring), citing

Arizona v. Rumsey, 467 U.S. 208, 212 (1984), such justification

abounds here.

26 For example, the Court has held that a State may require

that certain information be given to a woman by a physician

or his assistant, Akron v. Akron Center for Reproductive

Health, Inc., 462 U.S. at 448, but that it may not require that

such information be furnished to her by the physician himself.

Id. at 449. Likewise, a State may require that abortions in

the second trimester be performed in clinics, Simopolous v.

Virginia, 462 U.S, 506 (1983), but it may not require that

such abortions be performed in hospitals. Akron, supra, at

437-439.

Webster, 492 U.S. at 518 n.15.

- cil

15

have multiplied confusion and spawned further unan-

swered questions.*’

Although the Webster plurality expressly repudiated

Roe’s trimester-based analysis, earlier decisions had al-

ready departed from it where necessary to invalidate

abortion regulations. Thus, in Colautti v. Franklin, 489

U.S. 379 (1979), the Court rejected Pennsylvania’s at-

tempt to tie fetal “viability” to Roe’s structure. 439

U.S. at 388-89. Similarly, in City of Akron, the majority

ignored Roe’s assurance that the state interest in ma-

ternal health became compelling at “approximately the

end of the first trimester,” 410 U.S. at 163, invalidating

a hospitalization requirement for second-trimester abor-

tions.** City of Akron, 462 U.S. at 433-39.

Instead of seeking guidance in Roe’s trimester scheme,

the majority in City of Akron looked to recently changed

ACOG standards, finding that the hospitalization require-

ment was no longer “reasonable” because it departed

from “accepted medical practice,” as defined by ACOG.

462 U.S. at 436-38. With ACOG guidelines elevated to

constitutional writ, Akron’s ordinance was constitutional

when enacted in 1978, when reviewed by the district

court in 1979, and when reviewed by the court of appeals

in 1981. But, it suddenly became unconstitutional in

1982 when ACOG changed its standards.

The unworkability of constitutional standards tied to

ever-changing medical technology is manifest.** The near

*7 Gerhardt, The Role of Precedent in Constitutional Decision-

making and Theory, 60 Geo. Wash. L. Rev. 68, 105-06 (1991)

(“Whatever the merits of Roe, it has never stabilized; from the

beginning it has been criticized by a wide spectrum of politicians

and scholars, and has been the subject of constant challenges . . .

It is difficult to see much of an upside to Roe’s prolonged insta-

bility.”)

*8 Roe had cited such a requirement as a regulation constitu-

tionally advancing maternal health. 410 U.S. at 163.

2° See City of Akron, 462 at 456 (O’Connor, J., dissenting).

16

impossibility of drafting statutes according to such a

measure of constitutionality is compounded by require-

ments that abortion regulations accommodate the skill

level of each abortion-performing physician.” The Roe-

based medical technology-as-constitutional-diagnostic un-

acceptably places this Court in the position of acting

as “an ex officio medical board with powers to approve

or disapprove medical and operative practices and stand-

ards throughout the United States.” Planned Parenthood

of Cent. Missouri v. Danforth, 428 U.S. 52, 99 (1976)

(White, J., concurring in part, dissenting in part).

In addition to the Court departing from Roe’s tri-

mester scheme for first- and second-trimester regulations,

the ability of states to restrict abortions in the final

trimester of pregnancy has proven illusory. According

to Roe, in the third trimester, states could “restrict, or

even prohibit abortions,” unless the woman’s “health” ®

would be served by an abortion, because the state’s

interest in protecting the life of the unborn child be-

came “compelling” at viability. 410 U.S. at 163. How-

ever, the lower federal courts have shown a uniform

hostility to virtually any attempt to limit post-viability

abortions.** Thus, Roe’s promise that the states remain

free to protect their compelling interest in near-term

fetal life remains unfulfilled. Because Doe v. Bolton

requires the subordination of the state’s compelling in-

terest to any factor related to the woman’s emotional

% In Ragsdale v. Turnock, 841 F.2d 1358 (7th Cir. 1988), the

court invalidated outpatient clinic regulations based on the testi-

mony of highly skilled abortion providers that such regulations

- were not medically necessary to their practice of medicine.

31 Doe v. Bolton, 410 U.S. 179, 192 (1973) (health includes “all

factors—physical, emotional, psychological, familial, and the wom-

an’s age.”’).

82 See American College of Obstetricians and Gynecologists v.

Thornburgh, 737 F.2d 283, 299 (3rd Cir. 1984), aff'd, 476 U.S. 747

(1986); Margaret S. v. Edwards, 488 F.Supp. 181, 196 (E.D. La.

1980) ; Schulte v. Douglas, 567 F.Supp. 522 (D. Neb. 1981), aff’d per

curiam sub nom. Women’s Services, P.C. v. Douglas, 710 F.2d 465

(8th Cir. 1983).

17

well-being, a “balancing of interests” in the third tri-

mester is not only unworkable but impossible.

2. Retaining Roe requires this Court to continue to

“sit as a superlegislature to weigh the wisdom of legis-

lation,” Ferguson v. Skrupa, 372 U.S. 726, 731 (1963),

and thus to perpetuate a case-by-case disclosure of per-

missible abortion regulation. Such progressive revela-

tion forecloses the predictability that the law requires.

Although recent decisions have discarded much of

Roe’s discredited jurisprudence, questions over the de-

gree to which Roe remains hang spectre-like over every

attempt to provide meaningful protection for maternal

health and unborn human life. The task of dismantling

Roe “doorjamb by doorjamb,” Webster, 492 U.S. at 537

(Scalia, J., concurring in part, concurring in the judg-

ment), exacerbates the instability inherent in Roe. Until

Roe is expressly and wholly overruled, this Court can

continue to expect Roe-based challenges to every abor-

tion regulation that fails to follow to the letter the stat-

ute most recently addressed by this Court.*

3. The unsettled status of Roe is further demonstrated

by the divergent analyses of the lower federal courts.

Despite this Court’s decisions caliing into question the

basic tenets of Roe, most lower federal courts continue to

apply in a wooden fashion an unmodified Roe-based

analysis.** Only three federal decisions since Webster

53 R. Bork, supra, note 19; at 116:

Attempts to overturn Roe will continue as long as the Court

adheres to it. And, just so long as the decision remains, the

Court will be perceived, correctly, as political and will continue

to be the target of demonstrations, marches, television adver-

tisements, mass mailinys, and the like.

See also, Webster, 492 U.S. at 533, 535 (Scalia, J., concurring in

part, concurring in the judgment).

4 See, Brief Amicus Curiae of William J. Guste, Louisiana Attor-

ney General, et al., in Support of Petition for certiorari in Robert

P. Casey, et al. v. Planned Parenthood of Southeastern Pennsyl-

vania, et al., No. 91-902, at 9 n.8.

18

admit of any modification of Roe. This continued re-

liance on Roe works yet another distortion in federal

abortion jurisprudence—a distortion Webster was in-

tended, but proved unable, to correct. A clear repudia-

tion of Roe v. Wade is therefore necessary to bring the

lower federal courts into compliance with this Court’s

standards.

4. Further indication that a doctrine is not “settled”

is its effect on legal principles of more general applica-

tion. In this regard, Roe has proven the judicial equiva-

lent of a runaway freight train. As Justice O’Connor

has observed, the Court’s abortion decisions “have[|

worked a major distortion in the Court’s constitutional

jurisprudence,” such that “[n]Jo legal rule or doctrine is

safe from ad hoc nullification by this Court when an

occasion arises in a case involving state regulation of

abortion.” ** Thornburgh, 476 U.S. at 814 (O’Connor,

J., dissenting). Because Roe arrived on the legal land-

scape full-grown but without parentage and with no

guidance as to the generalizability of its rules, courts

have applied it indiscriminately in entirely unrelated

areas of the law, often disturbing well-settled principles

and preventing the law’s natural evolution.”

5. Political activity, scholarly analysis, and public

opinion also reject the hypothesis that Roe is settled law.

In the first thirteen years after Roe was decided, nearly

85 Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991);

Planned Parenthood v. Minnesota, 910 F.2d 479 (8th Cir. 1990) ;

Coe v. Melahn, No. 90-1552 (8th Cir. Mar. 2, 1992 (WL 27328).

36 In Thornburgh, the dissenters identify the Court’s abandonment

of constitutional doctrine in the following areas: plenary review of

preliminary injunctions and standards of appellate review, 476 U.S.

at 815-25 (O’Connor, J., dissenting); abstention, id. at 830-31;

informed consent, id. at 798-802 (White, J., dissenting); state

regulation of the professions, id. at 802-04; statutory construction,

id. at 810-12. See generally, D. Horan, E. Grant & P. Cunningham,

eds., Abortion and the Constitution 245, 253-255 (1987).

37 See Brief Amicus Curiae of National Right to Life, Inc. in

support of Respondents.

19

600 separately numbered resolutions relating to abortion

have been introduced into Congress.** Of these, 270 were

joint resolutions seeking Constitutional amendments that

would overturn Roe.*® Congress has also acted broadly,

and successfully, to remove direct federal financial sup-

port for abortion.*” Moreover, a 1988 Presidential procla-

mation declared the unborn to be protected under the

Constitution, and directed the executive branch to carry

out actions and programs consistent with that declara-

tion.”

The strongest evidence of a popular rejection of the

abortion right created in Roe is seen in the vast number

of state legislative actions and public referenda designed

to limit or regulate the performance of abortions. During

the 1988 elections, a public referendum in Arkansas

granted rights to the unborn under the state consti-

tution; Michigan voters eliminated public funding for

abortion; and voters in Colorado rejected an attempt to

repeal an amendment to their state constitution, prohibit-

ing virtually all public funding of abortions.“ During

the years since Roe, state legislatures from all regions

have enacted hundreds of laws regulating abortion.** In

addition, at least 23 state legislatures have sent memo-

rials requesting Congress to propose an anti-abortion

amendment to the Constitution, and at least 19 state

88 Wardle, Rethinking Roe v. Wade, 185 B.Y.U. L. Rev. 231,

247, citing, Legal Ramifications of the Human Life Amendment:

Hearings before the Subcomm. on the Constitution of the Senate

Comm. on the Judiciary on S.J. Res. 3, 98th Cong. 1st Sess. 47,

73-74, App. B (1983) (prepared statement of Lynn D. Wardle).

3° See, Wardle, supra note 38 at 247-248, n. 86.

* Harris v. McRae, 448 U.S. 297 (1980). See also, 42 U.S.C.S.

Sec. 1396 et seq. (1985 ed. and 1990 Supp.); Wardle, “Time

Enough”: Webster v. Reproductive Health Services and the Pru-

dent Pace of Justive, 41 Fla. L. Rev. 881, 981 (1989).

*! Proclamation No. 5761, 53 Fed. Reg. 1464 (1988).

*2 Wash. Post, Nov. 13, 1988,-at C6, col. 1.

*8 Wardle, supra note 40 at 958-980 (comprehensive listing by

state of abortion regulations) ; Wardle, supra note 38, at 247, n. 83.

20

legislatures have passed petitions to convene a consti-

tutional convention to propose a human life amendment

to the Constitution.“ This strong public interest is fur-

ther borne out in the accelerated legislative activity

after Webster. More than 1000 pieces of abortion-related

legislation have been introduced since 1989, the over-

whelming majority seeking to establish greater protection

for unborn human life. Several of these measures have

been enacted.*® The democratic branches of government,

therefore, have not accepted or endorsed Roe.

In academic circles, few, if any, opinions of this Court

have attracted Roe’s barrage of criticism.

Rarely does the Supreme Court invite critical out-

rage 4 it did in Roe by offering so little explanation

for a decision that requires so much. The stark in-

adequacy of the Court’s attempt to justify its con-

clusions . . . suggests to some scholars that the Court,

finding no justification at all in the Constitution,

unabashedly usurped the legislative function. . . .

Even some who approve of Roe’s form of judicial re-

view concede that the opinion itself is inscrutable.

Nor has Roe exhausted its critics; the stream of pub-

lished criticism continues from supporters and opponents

of legalized abortion.“ Roe was inherently flawed from

the outset;** its errors have compounded themselves.

Most importantly, this Court’s recent abortion decisions

44 Wardle, supra note 38 at 247.

45 See Wardle, supra note 40 at 958-980; Ezzard, supra note 3,

at 401-02 nn. 6, 7.

46 Morgan, Roe v. Wade and the Lessons of Pre-Roe Case Law,

17 Mich. L. Rev. 1724, 1724 (1979) (footnotes omitted).

47 Gerhardt, supra note 27 at 105 n. 155 (citing “critics on the

right include” R. Bork, supra note 19 at 111-17; McConnell, The

Role of Democratic Politics in Transforming Moral Convictions

into Law, 98 Yale L.J. 1501, 1539-41 (1989); and “critics on the

left include” M. Perry, Mortality, Politics and Law 172-78 (1988) ;

A. Cox, supra note 19 at 113-14; Ely, supra note 19.

48 Ely, supra note 19, at 932, 935-936.

21

depart from Roe’s central holdings. Roe should, there-

fore, be expressly overruled.

IV. OVERRULING ROE v. WADE IS CONSISTENT

WITH PRIOR OVERRULINGS OF CONSTITU-

TIONAL DECISIONS BY THIS COURT.

Roe not only exemplifies the type of constitutional de-

cision for which stare decisis has limited application, it

also fits the criteria previously established by this Court

for a decision whose overruling is either justified or nec-

essary.” Furthermore, overruling the specific doctrines

of Roe is completely consonant with this Court’s history

of overturning constitutional decisions involving: (1) sub-

stantive due process; (2) individual rights; and (3) fed-

eralism. The Court has repeatedly addressed the ques-

tions posed by overruling Roe; such considerations have

not prevented this Court from abandoning its perceived

errors.

1. Roe v. Wade is the modern archetype of substantive

due process.” Its predecessors, likewise founded on the

Fourteenth Amendment’s protections of “liberty” and

“due process,” have generated numerous overruling de-

cisions by this Court. The rationale of these latter deci-

sions applies squarely to Roe.

[The Constitution] speaks of liberty and prohibits

the deprivation of liberty without due process of law.

In prohibiting that deprivation the Constitution does

not recognize an absolute and uncontrollable liberty.

Liberty in each of its phases has its history and

connotation. But the liberty safeguarded is liberty

in a social organization which requires the protection

of law against the evils which menace the health,

safety, morals and welfare of the people. Liberty

under the Constitution is thus necessarily subject to

the restraints of due process, and regulation which

* Blaustein & Field, supra 57 Mich L. Rev. at 168-177.

% Rehnquist, Js an Expanded Right of Privacy Consistent with

Fair and Effective Law Enforcement? Or: Privacy, You've Come

a Long Way, Baby, 23 Kan. L. Rev. 1, 4-6 (1974) ; Epstein, supra

note 19.

22

is reasonable in relation to its subject and is adopted

in the interests of the community is due process.

West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391

(1937), overruling, Adkins v. Children’s Hosp., 261 US.

525 (1923). The determination of those evils which

require restraint is, in the absence of a clear constitu-

tional mandate to the contrary, the province of the legis-

lature. “The courts are incompetent to judge the wis-

dom of state legislatures and may only preempt such

wisdom where an act . . . violates an express provision

of the Constitution.” Jd. at 398.

Echoing this holding, this Court in North Dakota

Pharmacy Board v. Snyder’s Drug Stores, 414 U.S. 156

(1973), rejected a due process argument against a state

law restricting the ownership of drug stores to licensed

pharmacists or their corporations. The Fourteenth

Amendment “does not make it a condition of preventive

legislation that it should work a perfect cure. It is enough

that the questioned act has a manifest tendency to cure

or at least to make the evil less. [T]wo opposed views

of public policy are considerations for the legislative

choice.” Id. at 147, overruling Liggett Co. v. Baldridge,

278 U.S. 105 (1929). See also, Lincoln Federal Labor

Union v. Northwestern Iron & Metal Co., 335 U.S. 525,

536-37 (1949).

That such cases concerned an improper expansion of

Fourteenth Amendment “liberty” in the economic sphere

makes them no less applicable to this case." The point

of these decisions is that “liberty” and “due process” can-

not be employed to graft onto the Constitution a particular

51 Moreover, this Court’s overruling precedents as overbroad in-

terpretations of Fourteenth Amendment rights is not limited to

economic rights. In Deniels v. Williams, 474 U.S. 327 (1986),

overruling, Parratt v. Taylor, 451 U.S. 527 (1981), this Court over-

ruled a decision that held that the Fourteenth Amendment provides

no basis for a statutory civil rights action alleging negligence on

the part of prison officials. “Whatever other provisions of state

law or general jurisprudence he may rightly invoke, the Fourteenth

Amendment .. . does not afford [plaintiff] a remedy.” Jd. at 336.

23

view of wise public policy on subjects where the Con-

stitution is otherwise silent. “To do so would be to

indulge in the dangerous assumption that the Fourteenth

Amendment was intended to give us carte blanche to

embody our economic or moral beliefs in its prohibitions.”

State Tax Comm’n v. Aldrich, 316 U.S. 174, 181 (1942)

(emphasis supplied), overruling, First Nat'l Bank v.

Maine, 284 U.S. 312 (1932).

The extensive reliance placed on the “fundamental” ™

status of abortion under the Constitution as a bar to

overruling Roe is misplaced. The “implied fundamental

right to contract” * recognized in Lochner and its progeny

is no less “fundamental” than the putative right to abort.

If anything, the economic due process cases warranted

greater protection from overruling than Roe’s free-float-

ing penumbral abortion right because “considerations in

favor of stare decisis are at their acme in cases involving

property and contract rights.” Payne, 111 S. Ct. at 2610.

Petitioners and their amici offer this Court no consti-

tutionally sound basis for distinguishing between the

Court’s appropriate repudiation of economic due process

and the purported inviolability of Roe v. Wade. Argu-

ments that Roe’s exercise of substantive due process is

different because Roe involves reproductive freedom is

virtually indistinguishable from the value-based defenses

of “laissez-faire” economics which sustained the ascend-

ancy of Lochner v. New York, 198 U.S. 45 (1905), for

more than a generation. And the cloaking of it in con-

stitutional law is even more pernicious where, as in Roe,

the countervailing interest is in life itself.™

52 Roe’s holding that abortion is fundamentally protected is tenu-

ous in light of current substantive due process analysis. See Bow-

res v. Hardwick, 479 U.S. 186 (1986); Michael H. v. Gerald D.,

491 U.S. 110 (1989).

*8 Gerhardt, supra note 27 at 106 n.158.

See Brief Amicus Curiae of Catholics United for Life, et al,

in support of Respondents (unborn have protectable right to life

under the Fourteenth Amendment). The only international docu-

Moreover, as Roe itself recognized, abortion is “in-

herently different” from any other circumstance in which

this Court has recognized privacy interests.

The regnant woman cannot be isolated in her pri-

aan, .. The situation therefore is inherently differ-

ent from marital intimacy, or bedroom possession of

obscene material, or marriage, or procreation, or

education, with which Eisenstadt and Griswold, Stan-

ley, Loving, Skinner, and Pierce and Meyer were

respectively concerned.

410 U.S. at 159. Roe itself effectively disposes of the

claim that its retention is integral to protection for other,

less controversial aspects of the Court’s privacy jurispru-

dence. In particular, arguments that distinctions between

contraception and abortion are constitutionally insignifi-

cant, and therefore arguments that Griswold v. Connecti-

ment to address the issue, the American aon as ton a

Rights, vides: “Every person has the right to have ife

meen Ys law and, in general, from the moment of conception.”

Org. of Amer. Treaty Series No. 36, at 1-21. Official Record, OAS/

Ser.A/16. Similarly, with the exception of the former Yugoslavia,

not one of the world’s 180 constitutions expressly protects a right

to abortion. The constitutions of five nations, Venezuela, Ireland,

Ecuador, Peru, and Chile, provide explicit protection for the un-

born. See A. Blaustein & G. Flanz, Constitutions of the Countries

of the World 20 vols. (1971-current).

55 See also, Thornburgh, 476 U.S. at 792 (White J., dissenting)

(The decision to abort “must be recognized as swi generis, different

in kind from the others that the Court has protected under the

rubric of personal or family privacy or autonomy.”’).

That the abortion decision, like the decisions protected in

Griswold, Eisenstadt and Carey, concerns childbearing (or,

more generally, family life) in no sense necessitates a holding

that the liberty to choose abortion is “fundamental.” That the

decision involves the destruction of the fetus renders it dif-

ferent in kind from the decision not to conceive in the first

place. This difference does not go merely to the weight of the

state interest in regulating abortion; it affects as well the

characterization of the liberty interest itself.

Id. at 792 n.2 (White, J., dissenting).

|

|

)

)

;

|

25

eut, 381 U.S. 479 (1965), cannot stand if Roe falls are in

error.” Justice White’s dissent in Roe and his repeated

statements that Griswold—in which he concurred—“in no

sense necessitates a holding that the liberty to choose

abortion is ‘fundamental,’” Thornburgh, 476 U.S. at 792

n.2, demonstrates that the two interests are different. In-

stead of an inseparable thread in the fabric of our con-

stitutional law, Roe more closely resembles a_ poorly

matched and tattered applique that can be easily re-

moved without causing any harm to the integrity of the

underlying constitutional material.

2. This Court’s overrulings have also limited the scope

of protection afforded under prior case law by certain

explicit rights under the Constitution. For example, in

Payne v. Tennessee, 111 S. Ct. 2597 (1991), the Court

overruled Booth v. Maryland, 482 U.S. 496 (1987) and

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

barred admission of “victim impact” testimony during

the sentencing phase of a capital trial. To illustrate the

limited role stare decisis plays in constitutional cases, in

a footnote, the Court listed 33 instances in the past 20

terms in which it had overruled constitutional cases.

These arguments evidence a fundamental insecurity over

whether abortion itself is constitutionally protected. By linking

abortion to less controversial aspects of privacy theory, Petitioners

and their amici attempt to bootstrap constitutional protection for

the abortion right. (“[{T)here no longer exists any bright line

between the fundamental right that was established in Griswold and

the fundamental right of abortion that was established in Roe.”

Transcript of Arguments Before High Court on Abortion Case,

N.Y. Times, April 27, 1989, at Y15 (Argument of Frank Susman,

for Reproductive Health Services, in Webster v. Reproductive Health

Services, No. 88-605). In like manner, in an attempt to persuade

the Court to retain Roe as the “lesser evil,” see Thornburgh, 476

U.S. at 797 (White, J., dissenting), Petitioners’ amici concoct

Orwellian fantasies in which women, having lost the right to

“choose,” would be compelled to abort desired pregnancies. For a

more developed response to such arguments, see Brief Amicus Curiae

of the Southern Center for Law & Ethics in Support of Respondents.

26

Likewise, in United States v. Ross, 456 U.S. 798

(1982), the Court held that its decision in Robbins v.

California, 453 U.S. 420 (1981), excluding evidence ob-

tained in a warrantless search despite the existence of

probable cause that incriminating evidence would be

found, was an overbroad interpretation of privacy rights

under the Fourth Amendment. “|T)he doctrine of stare

decisis does not preclude this action. Of greatest im-

portance, we are convinced that the rule we apply in

this case is faithful to the interpretation of the Fourth

Amendment that the Court has followed with substantial

consistency throughout our history.” 456 U.S. at 824.

Also, in Illinois v. Gates, 462 U.S. 213 (1983), the ex-

clusionary rule was modified by replacing the rigid “two-

pronged” test of Aguilar v. Texas, 378 U.S. 108 (1964),

with a more flexible rule based upon the totality of the

circumstances under which a warrant is obtained and

a search conducted.

Previously esteemed fundamentally protected free

speech guarantees were likewise limited in Hudgens v.

NLRB, 424 U.S. 507 (1976), which abandoned the holding

in Amalgamated Food Employees Union v. Logan Valley

Plaza, 391 U.S. 308 (1968), granting “public forum”

status to certain forms of private property.”

3. The Court has also overruled decisions implicating

the core constitutional value of federalism. Over vigor-

ous dissent that its decision “emasculat[es]” the rights

of the states under the Tenth Amendment, 469 LULS. at

572 (Powell, J., dissenting), the Garcia opinion over-

ruled National League of Cities. And in Erie Ry. Co. v.

Tompkins, 304 U.S. 64 (1938), this Court, also by a 5-4

vote, overruled the doctrine of Swift v. Tyson, 41 U.S.

(16 Pet.) 1 (1842), regarding the existence of a body

of federal common law. These two cases demonstrate

57 See also, Employment Div., Dep't of Human Resources v.

Smith, 494 U.S. 872 (1990). Writing for the dissent, Justice

Blackmun stated that the decision resulted in a “wholesale over-

turning of settled law concerning the Religion Clauses of our

Constitution.” Jd. at 908 (Blackmun, J., dissenting).

27

that a bare majority of this Court will correct a decision

it believes to be erroneous, even where the decision ar-

guably implicates fundamental constitutional values.

Again, any argument that Roe is more “fundamental”

than the interests at stake in Erie and Garcia is unavail-

ing. The federal structure of government is, in reality,

the most basic assurance of individual liberty and pro-

tection from excessive governmental power. “Federalism

is linked with individual liberty and with the health of

the body politic,” and thus, “i]t is no less legitimate

and proper for the Supreme Court to concern itself with

assuring the health of federalism as it is for the Court

to uphold individual! liberties as such. In neither case

is abdication of the Court’s proper role consistent with

the principles inhering in the Constitution.” ™

Roe’s ongoing breach of the principle of federalism

should not be allowed to persist. As Erie and Garcia

demonstrate, such decisions are often controversial. And

controversy is certain to ensue no matter what path is

taken regarding Roe v. Wade. However, perpetuating

the erroneous and unworkable holdings of Roe cannot be

justified for reasons of avoiding political strife. The

highest traditions of this Court teach that in such cir-

cumstances, the proper resolution is faithfulness to the

text and the fundamental values of the Constitution.

That text, and those values, determine that Roe’s com-

plete curtailment of the states’ authority to protect un-

born children should be overruled.

V. THE MOST PRUDENT COURSE IN ADDRESSING

THE PROBLEMS POSED BY ROE v. WADE IS TO

OVERRULE THAT DECISION EXPRESSLY AND

RETURN TO THE POLITICAL BRANCH OF GOV-

ERNMENT ITS RIGHTFUL AUTHORITY TO REG-

ULATE THE PRACTICE OF ABORTION.

A “wise exercise of the powers confided in this Court”

dictates that where prudent, this Court withhold decision

*§ Howard, Garcia and the Values of Federalism: On the Need

for a Recurrence to Fundamental Principles, 19 Ga. L. Rev. 789,

795, 797 (1985).

28

on overruling challenged precedent, provided it is pos-

sible to resolve the case before it by distinguishing or

modifying that precedent. Jllinois v. Gates, 462 U.S.

213, 224 (1983). However, “the Court’s precedents are

not sacrosanct, for [it] ha[{s] overruled prior decisions

where the necessity and propriety of doing so has been

established.” Patterson v. McLean Credit Corp., 491 US.

164, 172 (1989). Accordingly, the traditions of this

Court require that where constitutional error is palpable,

where such error has caused lega! instability and fomented

social strife, correction by “gradual erosion” will not

suffice. Webster’s incrementalist approach has exacer-

bated, not relieved, the tension in the law and society.

More diréct action to cure the error is called for. Roe v.

Wade should be overruled.

1. One prudential reason for a gradualist approach

is the citation of the challenged precedent in other cases.

This argument, which presumes that outright overruling

will be disruptive to the affected body of case law, is not

applicable to Roe. Although Roe has been extensively

cited by this Court, as well as by other federal and state

courts, these citations, outside the context of abortion

regulation, have been largely superfluous to the issues

decided in those cases. To the extent courts have placed

reliance on Roe in the non-abortion context, the result

has usually been distorting.” Overruling Roe would re-

move an impediment to reasoned decisionmaking and the

natural progression of the law, both of which have been

severely truncated by the superimposition of Roe.

2. Roe has not been integrated into American law.

And although the practice of abortion on demand is now

legal, it has remained intensely controversial, and tainted.

The fact that a majority of abortions are performed in

free-standing clinics created primarily for that purpose,

and often by physicians who specialize in that practice,

suggests that abortion on demand has not been accepted,

either by the medical profession or by society, for what

% See Brief Amicus Curiae of National Right to Life, Inc. in

Support of Respondents.

29

it has become: a substitute for birth control, which

almost never relates to a woman’s health.”

3. The reconsideration of Roe, therefore, does not pose

the problems which caused this Court to defer reconsid-

eration of the exclusionary rule in Illinois v. Gates. The

exclusionary rule enjoyed a long history of acceptance

by state courts before it was applied to the states through

the Fourteenth Amendment in Mapp v. Ohio, 367 U.S.

643 (1961). Moreover, the rule is tied to an explicit

provision of the Constitution, the Fourth Amendment.

And it functions as a rule of evidence—the type of rule

peculiarly within the competence of the Courts to pro-

nounce upon. These factors, plus the acceptance of the

rule by law enforcement officials and the criminal justice

system, provided reason for deferring reconsideration of

Mapp. None of these factors, however, applies to Roe,

which abruptly preempted a field of law left to the com-

mon law and state statute from the outset of the na-

tion’s history. Moreover, Roe adopted a rule of legal toler-

ance for abortion far more liberal than any of the abor-

tion “reform” laws of modern vintage. Roe was out of

step with the legal system and public opinion when first

written, and it remains so today.

4. Finally, as Webster demonstrates, if this Court

does not speak decisively, by rejecting Roe, the contro-

versy over that decision will continue, unabated. The

nation will still look to this Court—as it does now—

for a resolution of the problems created by Roe v. Wade.

If the history of conflict over Roe has proven anything,

* Henshaw, The Characteristics and Prior Contraceptive Use of

U.S. Abortion Patients, 20 Fam. Planning Perspectives 158 (1988)

(more than 43% of the 1.6 million abortions performed annually

were performed on women who had received at least one prior

abortion).

*' Torres & Forrest, Why Do Women Have Abortions?, 20 Fam.

Planning Perspectives 169, 170 (1988) (93% of abortions per-

formed primarily motivated by reasons unrelated to any maternal

or fetal health concern, or because pregnancy resulted from rape

or incest).

30

it is that this Court is ill-positioned to resolve the myriad

legal, moral, medical, and social issues that are elements

of the abortion debate. Yet, this Court is in a unique

position to repair the damage done to this debate, by

overruling Roe v. Wade. Until this is done, the other

branches of government, including Congress, are vir-

tually powerless to act in the protection of unborn life,

and to resolve other pressing aspects of this controversy.

CONCLUSION

By its nature, Roe v. Wade is a decision meriting a

lowered deference under stare decisis. And because of

its erroneous holdings and adverse impact upon constitu-

tional law and society, Roe deserves to join the two

hundred-plus constitutional decisions overruled by this

Court. Your amici conclude with a plea that this Court

act decisively in the matter of Roe v. Wade, and to speak

definitively, rather than allow the discredited and out-

moded doctrines of this decision to survive.

Respectfully submitted,

ALBERT P. BLAUSTEIN *

Rutgers University School

of Law

Camden, New Jersey 08102

it ea (609) 757-6373

KEVIN J. Topp

AMERICANS UNITED FOR LIFE

343 S. Dearborn St. +1804

Chicago, Illinois 60604

(312) 786-9494

Counsel for Amici @

April 6, 1992 * Counsel of Record

=

“>

*2 The authors gratefully acknowledge the research assistance of

Lee Ciccotelli.