Opposition Brief — Leavitt v. Jane L.

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IN THE

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Supreme Court of the Hnited States _

OCTOBER TERM, 1995

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MICHAEL O. LEAVITT, as Governor of the State of Utah;

and JAN GRAHAM, as Attorney General of the State of Utah,

Petitioners,

a

JANE L., JANE F., and JULIE S., on behalf of themselves

and all others similarly situated; er. al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

JEFFREY ORITT JANET BENSHOOF

Cohne, Rappaport Counsel of Record

& Segal, P.C. SIMON HELLER

525 East First South/Sth Floor KATHRYN KOLBERT

Salt Lake City, Utah 84102 The Center for Reproductive

(801) 532-2666 Law & Policy

120 Wall St., 18th FI.

New York, New York 10005

(212) 514-5534

A. HOWARD LUNDGREN

Keller & Lundgren

257 Towers, Suite 340

257 East 200 South-10

Salt Lake City, Utah 84111

(801) 532-7282

Counsel for Respondents

QUESTIONS PRESENTED

1. Whether the court of appeals properly refused to rewrite

Utah Code Ann. § 76-7-302, which prohibits virtually all

abortions throughout pregnancy and was intended to provide

a direct challenge to Roe v. Wade.

2. Whether the court of appeals properly applied this

Court’s decision in Thornburgh v. American College of

Obstetricians & Gynecologists in holding unconstitutionai

Utah’s statutes requiring that physicians performing

abortions after viability use the method of abortion most

likely to result in fetal survival, unless that method would

endanger the pregnant woman’s life or cause "grave

damage” to her "medical health."

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ...ccccccscvsccvesers i

TABLE OF AUTHIORIT HGS 2: cccvevcccdssuuuseun iil

COUNTERSTATEMENT OF THE CASE ........... 1

REASONS FOR DENYING THE WRIT ............ 7

I. THE COURT OF APPEALS PROPERLY

REJECTED THE STATE’S PROPOSED

REDRAFTING OF UTAH CODE ANN.

Rh, BP 8

A. Utah Enacted A Single Ban On Abortion ..... 12

B. Subsection (3) Is Inextricably Intertwined

With Subsection (2) And Does Not Serve

A Legitimate Purpose ..........55-5+05: 14

C. Even Under The State's Proposed Revision,

The Utah Abortion Ban Is Unconstitutional

y }. Peers 16

Il. THE COURT OF APPEALS PROPERLY FOLLOWED

THIS COURT'S DECISION

IN THORNBURGH IN HOLDING THAT

UTAH’S "CHOICE OF METHOD"

STATUTES VIOLATE THE RIGHT

OF PRIVACY ...cccsctecneess eee 19

CONCLUSION ow ccccussdeessseee eee 22

TABLE OF AUTHORITIES

CASES PAGE

Berrett v. Purser & Edwards, 876 P.2d 367

EE ELS SSS a 10

Berry v. Beech Aircraft, 717 P.2d 670 (Utah 1985) .... 15

Bridger Coal Co/Pac. Minerals, Inc. v. Office of

Workers’ Compensation Programs,

927 F.2d 1150 (10th Cir. 1991) ............... 18

Califano v. Goldfarb, 430 U.S. 199 (1977) .......... 15

Chapman v. United States, 500 U.S. 453 (1991) ....... )

Chez v. Utah State Bldg. Comm'n,

CL 21

City of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416 (1983) ................. 11

Colautti v. Franklin, 439 U.S. 379

EE 17, 18, 19

Doe v. Bolton, 410 U.S. 179 (1973) ........000..... 17

Doe v. Rampton, 366 F. Supp. 189

(D. Utah 1973) (three-judge court)........ 4, 14, 15

Edwards v. Aguillard, 482 U.S. 578 (1987) .......... 16

Eubanks v. Wilkinson, 937 F.2d 1118 (6th Cir. 1991)... . 9

iv

Flemming v. Nestor, 363 U.S. 603 (1960) ........... 15

Hill v. City of Houston, 789 F.2d 1103

(Sth Cir. 1986) (en banc), aff'd,

. Fie fF | rrr rrrrrray sce. 9

Jane L. v. Bangerter, 794 F. Supp. 1528

GR Ge ccoxedeavewéeddivesaseaseus 5

Jane L. v. Bangerter, 794 F. Supp. 1537

Bi Gs GRD. a caseSde ce si Reese ces CC 5

Michael M. v. Superior Ct. of Sonoma County,

MSGS Gee 0 6csebvcdnvecenavat Eee

National Advertising Co. v. Town of Niagara,

O68 P26 065 GB Gs. THGED ccc ccccsecvecess 9

Planned Parenthood v. Casey,

- tte ff error ris ty se passim

Planned Parenthood v. Danforth,

GSES. TRG hc vacesecctcictdeawes 16, 17

Provo City Corp. v. Willden,

$f f .[ | |) rere rere 10

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

State v. Salt Lake City, 445 P.2d 691

ies Ge 6s ccadu sue beeen s eek eenntbes 11

Stewart v. Public Serv. Comm'n,

de b £ | Rea rererne yr 10, 14

Vv

Thornburgh v. American College of

Obstetricians & Gynecologists,

Gap eee POP GONE se be ede steeds. 7, 19, 20, 21

Union Trust Co. v. Simmons,

ee cc cc oabacdaxeet 10

United States v. Jackson, 390 U.S. 570 (1968) ....... 11

United States v. Monsanto, 491 U.S. 600 (1989) ....... 9

Utah Women’s Clinic, Inc. v. Leavitt,

844 F. Supp. 1482 (D. Utah 1994)............. 12

Virginia v. American Booksellers Ass'n,

RR ee ee 7,9

Webster v. Reproductive Health Services,

ER ee rE ee 17

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ....... 16

Women's Medical Professional Corp. v. Voinovich,

No. C-3-95-414, 1995 U.S. Dist. LEXIS 19009,

es Se, GE MD doo b 6b dba wba eet ede 20

Wyoming v. Oklahoma, 112 S. Ct. 789 (1992) ......... 9

STATUTES and RULES

ER A a ee eee a 8

Dan: <swévecevenenuoenu Ce kb ene cewan 8

vi

Ussh Code Amn. § 76-3-B0B03) 2... cece cc ccseeess 2

Utah Code Ann. § 76-3-302(1) ............000005- 2

Utah Code Ann. § 76-3-301(b) .............20008- 2

Use Cade Aan. § 76-S-402 ... cc ccc cece cceees l

Utah Code Ann. § 76-5-402(10) .............0005. 1

Utah Code Ann. § 76-5-402.1 ..........-..20 0 eee: 1

Te PF Se eee 1

Utah Code Ann. § 76-7-302 ................. passim

Utah Code. Ann. § 76-7-302(2) .............. 1, 6, 14

Utah Code Ann. § 76-7-302(2)(d) ..........6-0 005 4

Utah Code Ann. § 76-7-302(2)e) .... 2... 2 eee 13

Utah Code. Ann. § 76-7-302(3) ............4-. passin

Utah Code Ann. § 76-7-304(2) ..... 2... 22-0 ee eens 5

Utah Code Ann. § 76-7-307 .............. 1, 3, 4, 12

Utah Code Ann. § 76-7-308 .............. 1, 3, 4, 12

ST Serpe 5

Ussh Code Amn. § 76-7-31S .........0.2eeee: 1,4, 5

Wet Cts Be, OTD i waco és vac cenacdets 11

Respondents Jane L., et al., respectfully submit the

following brief in opposition to the petition for certiorari

filed by the Governor and the Attorney General of Utah

(hereinafter “petitioners” or "the State"), docketed on

February 5, 1996.

COUNTERSTATEMENT OF THE CASE

On January 25, 1991, the Governor of Utah signed into

law a criminal ban on nearly all abortions ("S.B. 23"). S.B.

23 permits abortions only under four narrow circumstances:

(1) where an abortion is necessary to save the woman’s life;

(2) where the pregnancy is the result of rape, rape of a

child, or incest as defined by Utah Code Ann. §§ 76-5-402,

76-5-402.1, 76-5-402(10) or 76-7-102, that was reported to a

law enforcement agency prior to the abortion; (3) where an

abortion is necessary to prevent "grave damage” to the

woman’s “medical health"; and (4) where the abortion is

necessary to prevent the birth of a child that would be born

with “grave defects." Utah Code. Ann. § 76-7-302(2)."

After 20 weeks gestation, the ban becomes even more

extreme, with the exception for rape and incest phased out.

Utah Code. Ann. § 76-7-302(3).

After plaintiffs filed their original complaint, which

included the allegation that the statute imposed capital

punishment both on the performing physician and the

woman obtaining an abortion, the Utah Legislature met

again in special session on April 17, 1991, to amend the

statute. In addition to clarifying that the death penalty did

not apply to the general ban on abortion, the legislature

amended two 1974 statutes, Utah Code Ann. §§ 76-7-307 &

-308, which plaintiffs had also challenged in their original

complaint. As amended, these choice-of-method provisions

‘S.B. 23 also made a technical amendment to Utah Code Ann. § 76-7-

315.

2

require on pain of criminal penalties’ that a physician

performing a post-viability abortion use that method most

likely to preserve the fetus unless that method would cause

“grave” damage to the woman’s “medical health." See Pet.

4° There was no discussion at the special session on the

reasons for this change; in fact, the session lasted only four

hours. See B-4.*

In enacting a new § 302 and repealing the former

section, the legislature deliberately obliterated the distinction

in prior Utah law between the legality of post- and pre-

viability abortions in order to test the limits of Roe v. Wade,

410 U.S. 113 (1973). Former § 302(3), passed in 1973 and

re-enacted in 1974, had attempted to follow Roe by

prohibiting post-viability abortions except when necessary to

“save the life of the pregnant woman or to prevent serious

and permanent damage to her health."* Section 302, on the

*Performing an abortion in violation of the ban or the choice-of-

method provisions is a third-degree felony, punishable by up to five

years imprisonment, Utah Code Ann. § 76-3-203(3), and a $5,000 fine.

Utah Code Ann. § 76-3-301(b). If a clinic were convicted under the

law, the fine could be up to $20,000. Utah Code Ann. § 76-3-302(1).

*The previous language in the 1974 statute waived the choice-of-

method provision for post-viability abortions in case of “serious and

permanent” health damage to the woman.

‘Citations to the appendix to the petition for certiorari are in the form

“A-_.” "B-_.,” "C-__"; citations to the petition are in the form “Pet.

_."; Citations to the appendix to this brief are in the form "__a.”

‘Former section 302 provided:

An abortion may be performed in this state only under

the following circumstances:

(1) If performed by a physician; and

(continued...)

3

other hand, criminalized nearly all abortions, both before

and after viability. Although the 1991 ban phased out an

exception for women pregnant as a result of rape or incest

after 20 weeks gestation, Utah Code. Ann. § 76-7-302(3),

this dividing line was not intended as a viability cut-off. As

the district court held, abortions will be requested after 20

weeks for both viable and non-viable fetuses. See B-21.°

The 1991 legislation adds intensifying adjectives to

press the Constitution to the breaking point. Instead of

allowing abortions without restriction before viability, and

“Every time the Utah legislature sought to regulate post-viability

abortions from 1973 onward, it used the medical and legal definition of

viability set forth in Roe and subsequent cases, viz., the phrase

“sufficiently developed to have any reasonable possibility of survival

outside of the mother’s womb.” See, ¢.g., Utah Code Ann. §§ 307, 308,

former 302. The failure to use this definition, or any other similar

phrase denoting viability, in $.B. 23 or S.B. 4, taken together with the

context in which the ban was passed, demonstrates that the legislature

did not intend to define 20 weeks as viability. Rather, the 20-week limit

reflected a disapproval of some women, particularly rape and incest

victims, who would seek late abortions. The district court itself appears

to have adopted this view. See B-21 ("Twenty weeks certainly

constitutes fair notice to the woman of the abortion ban to be imposed,

and her consent to abide by the ban except for health reasons fairly can

be implied.").

4

instead of permitting abortions to protect the woman’s life

and health after viability, as required by Roe, the 1991 ban

requires that a physician find "grave damage” to the

woman’s health for all abortions, no matter what the stage

of pregnancy. Utah Code Ann. § 76-7-302(2)(d). Instead

of clearly giving preference to the woman’s health over the

state’s interest in the fetus after viability, the 1991

amendments to the choice-of-method laws require that the

method favor the fetus unless necessary to avert "grave

damage" to the woman’s health. Utah Code Ann. §§ 76-7-

307, -308. A medical emergency, to warrant exemption

from the laws, must be "serious." Utah Code Ann. § 76-7-

315.’

Plaintiffs challenged both the broad criminal ban on

abortion, Utah Code Ann. § 76-7-302, and the two newly

amended choice-of-method statutes, Utah Code Ann. § 76-7-

307 & 308, on the grounds that they violated plaintiffs’

federal constitutional rights, including, inter alia, their nghts

to privacy, due process, equal protection, freedom of

"Like the 1991 Utah legislature, the 1973 and 1974 legislatures were

already making distinctions in Utah criminal abortion statutes by

conditioning the word “health” with one or more different and specific

adjectives. The 1973 law permitted early abortions “if in the attending

physician's best clinical judgment the abortion is necessary to preserve

the life, physical or mental health of the pregnant woman.” Doe v.

Rampton, 366 F. Supp. 189, 194 (D. Utah 1973) (three-judge court)

(quoting statute) (emphasis added). After 91 days, however, the

abortion must be “necessary to preserve the life or physical health of the

pregnant woman.” /d. (emphasis added). Finally, after 180 days, the

abortion must, “as concurred in by two consulting physicians,” be

“necessary to save the life of the pregnant woman or to prevent serious

and permanent damage to her physical health.” Id. (emphasis added).

Thus, the Utah legislature clearly intended “physical health” to be less

restrictive than “serious and permanent damage to . . . physical health.”

5

religion and freedom of speech.* On April 10, 1992, the

district court granted defendants’ motion to dismiss and

‘summary judgment motion in part, holding that the

challenged provisions: were not unconstitutionally vague;

did not violate the religion clauses of the First Amendment;

did not violate the Free Speech Clause of the First

Amendment; did not violate the Thirteenth Amendment; and

did not constitute invidious sex discrimination prohibited by

the Equal Protection Clause. The court also held that the

fetal experimentation restriction neither was vague nor

violated the right to privacy. The court reserved decision

on plaintiffs’ challenges to Utah Code Ann. §§ 76-7-307,

308, 315, and 304(2), as well as on plaintiffs’ privacy cause

of action against § 76-7-302, pending this Court’s decision

in Planned Parenthood v. Casey, 505 U.S. 833 (1992). See

Jane L. v. Bangerter, 794 F. Supp. 1537, 1549 n.18 (D.

Utah 1992); Jane L. v. Bangerter, 794 F. Supp. 1528 (D.

Utah 1992).°

“Besides these statutes, plaintiffs challenged a 1974 requirement that

the physician notify the husband of every woman seeking an abortion “if

possible,” Utah Code Ann. § 76-7-304(2), which the district court

invalidated, see B-30-31; a 1974 ban on fetal experimentation, Utah

Code Ann. § 76-7-310, invalidated by the court of appeals, see A-21;

and a 1974 provision exempting physicians from other restrictions only

in cases of “serious medical emergenc[ies},” Utah Code Ann. § 76-7-

315, which was upheld by the district court, see B-39, and the court of

appeals, see A-14.

*The second opinion, 794 F. Supp. at 1528, held that Utah had waived

its Eleventh Amendment immunity, and that the court therefore had

jurisdiction to adjudicate plaintiffs’ claims under the Utah Constitution

(which plaintiffs had sought to voluntarily dismiss), except those Utah

constitutional claims corresponding to the federal claims reserved for

decision until after Casey. The court proceeded to dismiss with

prejudice all non-reserved Utah constitutional claims.

6

On December 17, 1992, the district court held that

Utah’s husband notice requirement was unconstitutional,

but, rather than invalidate the entire criminal ban (Utah

Code Ann. § 76-7-302), the district court substantially

rewrote the statute to criminalize abortions performed after

20 weeks gestation. See B-13-20. To "save" the post-20

week ban, which could not stand independently (§ 76-7-

302(3)), the district court grafted exceptions to the invalid

pre-20-week ban (§ 76-7-302(2)) onto the subsection

regulating post-20 weeks abortions. B-13-15. While

recognizing that the statute as rewritten'® would apply to

abortions of both “non-viable [and] viable" fetuses, the

district court nevertheless asserted that prohibition “of such

late, non-therapeutic abortions does not impose an undue

burden on a woman’s liberty interest.". B-21. The district

court also upheld the choice of method provisions and the

“serious medical emergency" section as consistent with

Casey. Judgment was entered by the district court on

January 14, 1993.

The Court of Appeals reversed the district court on

almost all claims, holding in particular that Utah’s criminal

ban on abortions was not severable, and that Utah's

restrictions on the method of abortion to be used after

viability required an impermissible trade-off of the woman's

health. See A-5-14 (severability); A-21-28 (choice-of-

method). By order dated November 6, 1995, the Court of

Appeals denied the State’s petition for rehearing by the

panel as well as the State’s suggestion for rehearing en

banc. See C-2-3.

"The court found that the 20-week cut-off meant that the criminal ban

applied only for abortions in or after the 21st week gestation or in or

after the 23rd week as measured from the last menstrual period (imp)

because the statute used the words “[a}fter 20 weeks.” See B-9.

—— —e iets ee

7

REASONS FOR DENYING THE WRIT

In seeking review by this Court, the State has failed to

establish any of the factors that weigh in favor of a grant of

certiorari. On the contrary, the decision of the court below

is consistent with the decisions of other federal courts of

appeals and with the decisions of this Court.

The State attacks two holdings of the court of appeals.

Mirst, the state claims that the Tenth Circuit’s refusal to

sever Utah’s ban on abortions is inconsistent with its

obligations under the Eleventh Amendment and is incorrect

under Utah severability law. However, because the abortion

ban’s two subsections are inextricably intertwined, severance

of the second subsection from the first requires rewriting of

the statute. Such rewriting of a state statute by a federal

court not only constitutes positive legislation, but also

violates federalism. See Virginia v. American Booksellers

Ass'n, 484 U.S. 383, 397 (1988) ("we will not rewrite a

State law to conform it to constitutional requirements").

Moreover, such rewriting is especially inappropriate where,

as the court of appeals here found, the revision "would

undermine legislative intent." A-13.

Second, the State claims that the court of appeals erred

when it relied on this Court’s opinion in Thornburgh v.

American College of Obstetricians & Gynecologists, 476

U.S. 747 (1986), in invalidating Utah’s choice-of-method

Statutes, arguing that Thornburgh’s analysis was effectively

overruled by Planned Parenthood v. Casey, 505 U.S. 833

(1992). Pet. 19-20. Contrary to the State’s argument, those

portions of Thornburgh on which the court of appeals relied

were implicitly re-affirmed by Casey, which narrowly

limited its overruling of Thornburgh. The court of appeals

then correctly held that Thornburgh dictates the invalidation

8

of Utah’s statutes, because they require an impermissible

trade-off of the woman's health.

I. THE COURT OF APPEALS PROPERLY

REJECTED THE STATE’S PROPOSED

REDRAFTING OF UTAH CODE ANN. § 76-7-302.

The State argues that the court of appeals erred in its

application of Utah severability law in rejecting the district

court’s redrafting of section 302, the abortion ban. First,

this claim is not worthy of review by this Court because it

involves no “important federal question,” see Sup. Ct. R. 10.

Each of the applicable reasons described in Supreme Court

Rule 10 which this Court considers in deciding whether to

grant certiorari requires the presence of "an important

federal question."'' Far from being an important federal

question, the State’s severability argument chiefly raises

issues of Utah state law.”

Second, the only even colorable "federal" issue at stake

is not an issue of federal law at all, but an issue of

federalism; as shown below, however, federalism concerns

strongly support the Tenth Circuit’s refusal to usurp the

authority of the Utah Legislature by redrafting its statutes.

"Only Rule 1({a) describes a factor not necessarily involving an

important federal question, viz., a conflict in the circuits or a departure

by a court of appeals “from the accepted and usual course of judicial

proceedings” so extreme as to justify the “exercise of this Court's

supervisory power.” Sup. Ct. R. 10(a). Petitioners claim no conflict in

the circuits whatsoever and do not invoke this Court’s “supervisory

power.”

"Indeed, this is conceded by the State. See Pet. 9 ("The question of

severability is a question of state law.”).

9

Finally, as also set forth below, the refusal of the court

below to redraft Utah’s abortion ban was well-grounded in

Utah severability law and raises no extraordinary legal

issues worthy of this Court’s attention. Indeed, because the

State’s proposed revision of Utah’s statute is itself

unconstitutional, review of the appellate court’s routine

application of Utah law would not alter the final result:

Utah’s abortion ban is unconstitutional in its entirety.

When, as here, state severability doctrine lends no

support to saving an invalid law, the federal courts will not

hesitate to strike the statute as a whole. Wyoming v.

Oklahoma, 502 U.S. 437, 460 (1992) ("Nothing remains to

be saved once [the challenged] provision is stricken.

Accordingly, the Act must stand or fall as a whole."); see

also Chapman v. United States, 500 U.S. 453, 464 (1991)

("The canon of construction that a court should strive to

interpret a statute in a way that will avoid an

unconstitutional construction is useful in close cases, but it

is ‘not a license for the judiciary to rewrite language

enacted by the legislature.’") (quoting United States v.

Monsanto, 491 U.S. 600, 611 (1989)). The principle that

federal courts must be especially careful in severing state

statutes, lest the result be a dramatic federal revision of state

law that is opposed to the legislature’s intent, is uniformly

followed both by this Court and the courts of appeals. See

Virginia v. American Booksellers Ass'n, 484 U.S. 383, 397

(1988) ("we will not rewrite a state law to conform it to

constitutional requirements"); Eubanks v. Wilkinson, 937

F.2d 1118, 1125 (6th Cir. 1991) ("When a federal court

deals not with a federal statute but with a state statute, its

task is further complicated. A federal court must always be

aware of the federalism concerns that arise whenever it

deals with state statutes."); National Advertising Co. v.

Town of Niagara, 942 F.2d 145, 151 (2d Cir. 1991)

(refusing to revise ordinance because "interests of

10

federalism and comity dictate conservatism in imposing our

interpretive views on state statutes"); Hill v. City of

Houston, 789 F.2d 1103, 1112 (Sth Cir. 1986) (en banc)

("The principles of federalism forbid a federal appellate

court to arrogate the power to rewrite a municipal

ordinance."), aff'd, 482 U.S. 451 (1987). The court of

appeals faithfully adhered to these principles in declining to

rewrite Utah’s abortion ban statute.

Under Utah law, "[{w]hether a part of a statute that is

held unconstitutional is severable from the remainder of the

statute depends on legislative intent." Stewart v. Public

Serv. Comm'n, 885 P.2d 759, 779 (Utah 1994). The two-

part Utah standard for severability as outlined in Stewart is:

[W]hether the legislature would have passed the

statute without the objectionable part, and whether

or not the parts are so dependent upon each other

that the court should conclude the intention was

that the statute be effective only in its entirety.

Id. (quoting Union Trust Co. v. Simmons, 211 P.2d 190, 193

(Utah 1949)). Because the law fails both Stewart tests, the

"The federal principle counseling against judicial revision of state law

is echoed in Utah law. Recently, the Utah Supreme Court wrote:

A cardinal rule of statutory construction is that courts are not

to infer substantive terms into the text that are not already

there. Rather, the interpretation must be based on the

language used, and the court has no power to rewrite the

statute to conform to an intention not expressed.

Berrett v. Purser & Edwards, 876 P.2d 367, 370 (Utah 1994) (citation

omitted). Even “in seeking a constitutional construction, [the Utah

Supreme Court] will not rewrite a state statute or ignore its plain intent.”

Prove City Corp. v. Willden, 768 P.2d 455, 458 (Utah 1989).

court of appeals correctly held that the entire ban (Utah

Code Ann. § 76-7-302) must fall.

Moreover, a “savings clause," such as is found in Utah

Code Ann. § 76-7-317 and relied upon by the State, is not

decisive. The Utah Supreme Court has “held that even

where a savings clause existed, where the provisions of the

statute are interrelated, it is not within the scope of [the]

court's function to select the valid portions of the act and

conjecture that they should stand independently of the

portions which are invalid." State v. Salt Lake City, 445

P.2d 691, 696 (Utah 1968). See also United States v.

Jackson, 390 U.S. 570, 585 n.27 (1968) ("the ultimate

determination of severability will rarely turn on the presence

or absence of [a severability clause]"); City of Akron v.

Akron Ctr. for Reproductive Health, 462 U.S. 416, 445 n.37

(1983) (declining to sever statute despite savings clause); id.

at 425 & n.8 (savings clause); A-13 ("The Utah Supreme

Court has repeatedly ignored [severability] clauses in the

name of legislative intent.").

The State contends -- citing no evidence whatsoever --

that the Utah Legislature intended that § 76-7-302 embody

“two separate provisions restricting abortion,” Pet. 5: one to

regulate pre-viability abortions (subsection (2)), and another

to regulate post-viability abortions (subsection (3)). This

contention is not only unsupported by the 1991 legislative

history, but is in fact antithetical to the true legislative

purpose: to reject the entire legal construct established by

Roe, including the viability demarcation line.

12

A. Utah Enacted A Single Ban On Abortion.

Utah's legislative intent in passing the 1991 abortion

amendments is undisputed: to pass a restrictive criminal

abortion statute that could be used as the vehicle to overturn

Roe v. Wade. See Utah Women's Clinic, Inc. v. Leavitt, 844

F. Supp. 1482, 1484 (D. Utah 1994) (the 1991 legislation

“was passed with the hope that Roe would be overturned”).

Indeed, the Legislature passed a special appropriations

measure to finance the legal fees for defending the statute

and overturning Roe. The 1991 criminal ban on abortions

contained only a few, narrow exceptions, and two of these

exceptions -- for abortions in cases of reported rape and

incest -- were completely eliminated "[a}fter 20 weeks

gestational age, measured from the date of conception.”

Utah Code Ann. § 76-7-302(3). The 20-week limit (22

weeks Imp) on abortions in cases of rape and incest was not

a viability line; rather, the legislature wanted to limit the

obtain abortions. The district court itself appears to have

adopted this view. See B-21 ("Twenty weeks certainly

constitutes fair notice to the woman of the abortion ban to

be imposed, and her consent to abide by the ban except for

health reasons fairly can be implied.").

From 1973 until 1991, the Utah Legislature consistently

used language drawn from Roe, to define and regulate post-

viability abortion, viz., “sufficiently developed to have any

reasonable possibility of survival outside of the mother’s

womb.” See Utah Code Ann. §§ 76-7-307, -308 (choice of

method statutes); former Utah Code Ann. § 76-7-302(3)

(1990) (restricting post-viability abortions). The 1991

Legislature eliminated this language and any reference to

viability precisely because it was seeking to overturn Roe,

and especially its trimester framework, which allows for

severe limits on abortion only after viability. Thus, the

13

State’s contention that the post-20-week restrictions

constitute a post-viability restriction is not only unsupported

by, but antithetical to, legislative intent, which was to

obliterate the significance of viability and to protect a

fertilized egg throughout pregnancy.

As further proof that the Utah Legislature did not intend

to enact a post-viability ban on abortions, even the district

court recognized that subsection (3), if allowed to stand

alone as rewritten, regulates both pre- and post-viability

abortions. See B-21 (ban on “late, nontherapeutic abortions”

valid "whether the fetus is non-viable or viable after the 20

week period"). Subsection (3)’s application to post-

viability abortions, if upheld, would, strangely enough, make

the 1991 law more liberal as to post-viability abortion than

the previous Utah law which was repealed explicitly so that

the regulation of abortion could be made more restrictive

throughout pregnancy. Moreover, if allowed to stand as

rewritten by the court below, subsection (3) will be even

less restrictive than Roe, a result antithetical to legislative

intent. Roe allows the state to assert its interest in the fetus

by prohibiting abortion after viability, so long as the

prohibition contains exceptions for abortions necessary to

protect the woman's “life or health.” 410 U.S. at 164-65.

This aspect of Roe was specifically re-affirmed by this

Court in Casey, 505 U.S. at 846. Utah's ban, however,

permits abortions after 20 weeks from conception -- and

hence also after viability -- "to prevent the birth of a child

that would be born with grave defects,” Utah Code Ann. §

76-7-302(2)(e). The State claims that subsection (3)'s other

exceptions satisfy Roe’s requirement of post-viability

exceptions for life and health. Given the clear legislative

intent to have the most restrictive abortion law permitted by

law, preserving one subset of the ban which actually is more

liberal than the minimal standards of federal law is contrary

14

to legislative intent. Thus, under Stewart, the ban cannot be

severed to uphold its post-20-week applications.

B. Subsection (3) Is Inextricably Intertwined With

Subsection (2) And Does Not Serve A Legitimate

Purpose.

Subsection (3) of Utah Code Ann. § 76-7-302 also fails

the second Stewart test because it is inextricably intertwined

with the invalidated portion of the statute, § 76-7-302(2).

Subsection (3) states:

After 20 weeks gestational age, measured from the

date of conception, a *bortion may be performed

only for those purposes and circumstances

described in Subsections (2a), (d), and (e).

Utah Code Ann. § 76-7-302(3). Thus, subsections (2) and

(3) are "so dependent upon each other that the court should

conclude the intention was that the statute be effective only

in its entirety.” Stewart, 885 P.2d at 779; see also Doe v.

Rampton, 366 F. Supp. 189, 193-94 (D. Utah 1973) (three-

judge court). As the court of appeals correctly stated:

With the nullification of the abortion ban in section

302(2), the statute was gutted, and section 302(3)

was left purposeless without an abortion ban to

modify. It is not our role to rewrite the general

abortion ban by elevating section 302(3), which

simply modified a now-defunct statute, to the

general rule.

A-10.

Finally, the purpose of the 1991 amendments to the

Utah Abortion Control Act is one deemed illegitimate by

15

the Supreme Court: to place "a substantial obstacle in the

path of a woman seeking an abortion of a nonviable fetus,"

Casey, 50S U.S. at 877. Under Utah severability law, for a

provision to be severable, it must both be capable of

standing alone and must also “serve a legitimate legislative

purpose.” Berry v. Beech Aircraft, 717 P.2d 670, 686 (Utah

1985). Here, the Legislature's purpose was illegitimate,'*

and Casey specifically held that a statute regulating abortion

must be invalidated if it has an improper “purpose or

effect.” Jd., 505 U.S. at 878.

Nor can the State now invent a post hoc legitimate

purpose.'* In analyzing the purpose of legislation subject

to heightened scrutiny, the Supreme Court has consistently

refused to accept legislative purposes not supported by

legislative history. See, e.g., Califano v. Goldfarb, 430 U.S.

199, 224 (1977) (Stevens, J., concurring in the judgment)

(court will reject recitation of a legitimate purpose for a

Statute actually based on illegitimate purpose); Michael M.

“As the court wrote in Doe v. Rampton, 366 F. Supp. at 193-94:

[T]}he overnding purpose and dominant effect of these statutes

is the wholly improper one of making the obtaining or

performing of an abortion in Utah extremely burdensome or

impossible in every case. Each and every part of these

Statutes was intended to and does contribute, when each

Statute is read as a whole, to that improper purpose and effect.

"Were the State permitted to manufacture a legitimate purpose for

abortion restrictions, Casey's prohibition on statutes that have an illegal

purpose (or effect) would be rendered meaningless, for the State could

simply assert some other purpose, regardless of “whether this reasoning

in fact underlay the legislative decision.” Flemming v. Nestor, 363 U.S.

603, 612 (1960). Of course, had the court of appeals adopted the State's

manufactured purpose, it would have failed to adhere to the legislative

purpose of the law, but would instead be supplying it with a judicial

Purpose.

16 ae

v. Superior Ct. of Sonoma County, 450 U.S. 464, 470 (1981)

("State’s asserted reason for the enactment of a statute may

be rejected, if it ‘could not have been a goal of the

legislation’") (quoting Weinberger v. Wiesenfeld, 420 U.S.

636, 648 n.16 (1975)); see also Edwards v. Aguillard, 482

U.S. 578, 586-87 (1987) (under Establishment Clause, Court

requires that State’s articulation of legislative purpose be

sincere). Thus, the court of appeals correctly held that

subsection (3) must fall with subsection (2).

C. Even Under The State’s Proposed Revision, The

Utah Abortion Ban Is Unconstitutional In Its

Entirety.

Further, even assuming arguendo that the court of

appeals should have found that subsection (3) of § 76-7-302

is severable from subsection (2), subsection (3) is itself

constitutionally defective. First, in Casey, the Supreme

Court reaffirmed that "viability marks the earliest point at

which the State’s interest in fetal life is constitutionally

adequate to justify a legislative ban on non-therapeutic

abortions.” /d., 505 U.S. at 860. Thus, "/wJhenever it may

occur, the attainment of viability . . . serve[s] as the critical

fact." Id. (emphasis added). In recognizing that viability

does not occur at the same point in every pregnancy, Casey

is consistent with a line of prior Supreme Court precedents.

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

(1976), this Court rejected the position that "a specified

number of weeks must be fixed by statute as the point of

viability." Jd. at 65. Indeed, this Court found that:

it is not the proper function of the legislature or the

courts to place viability . . . at a specific point in

the gestation period. The time when viability is

ee I ee ee ee

17

achieved may vary with each pregnancy, and the

determination of whether a particular fetus is viable

is, and must be, a matter for the judgment of the

responsible attending physician.

Id. at 64. In Colautti v. Franklin, 439 U.S. 379 (1979), the

Court reaffirmed this holding, id. at 388-89, 396, making

clear that "[s}tate regulation that impinges upon this

determination . . . must allow the attending physician ‘the

room he needs to make itis best medical judgment.’" /d. at

397 (quoting Doe v. Bolton, 410 U.S. 179, 192 (1973))."°

The Utah statute, as the State proposes to rewrite it,

does exactly what is prohibited under Casey and the prior

holdings of this Court. It bans abortions after 20 weeks

even if, in the physician’s medical judgment, the fetus is not

viable. The ban wrests from the physician all discretion to

make the viability determination and will ban a significant

percentage of late but nonetheless pre-viable abortions.

Under Casey and earlier decisions, this is unconstitutional.

Casey, 505 U.S. at 878.

Second, the ban on abortions after 20 weeks also fails

to provide an adequate exception for women who need a

late abortion to safeguard their health. In Casey, the

Supreme Court reaffirmed that, even after viability, the state

"Nothing in Webster v. Reproductive Health Services, 492 U.S. 490

(1989), compeis a different conclusion. In Webster, the Court upheld a

Missouri law that required physicians to perform tests necessary to make

a determination of viability at 20 weeks. Justice O'Connor, who

provided the key vote to uphold the statute, found that this provision did

not “conflict with any of the Court’s past decisions concerning state

regulation of abortion.” Jd at 525 (O'Connor, J., concurring in part and

concurring in the judgment). Therefore, Webster in no way casts doubt

on either Danforth or Colautti.

18

may not prohibit a woman from having an abortion to

protect her life or health. 505 U.S. at 846; see also id. at

880 ("the essential holding of Roe forbids a State from

interfering with a woman’s choice to undergo an abortion

procedure if continuing her pregnancy would constitute a

threat to her health"). Section 76-7-302(3) ignores this

command. Instead, it prohibits a woman who will suffer

damage to her health to have an abortion unless she will

face "grave damage" to her "medical" health. This language

is more restrictive than the health exception required by Roe

and Casey.’ Neither Casey nor Roe differentiates between

different degrees of damage to health, but leaves these

difficult judgments to physicians who must render this

necessary medical care.

Thus, this Court should decline to review the decision

of the court below refusing to rewrite Utah's abortion ban,

both because that decision is well-grounded in severability

principles, and because the subsection of the law which the

State seeks to preserve is itself unconstitutional.

It is elementary “that a statute should be interpreted so as not to

render one part inoperative” or unnecessary. Colautti, 439 U.S. at 392;

see also Bridger Coal Co/Pac. Minerals, Inc. v. Office of Workers’

Compensation Programs, 927 F.2d 1150, 1153 (10th Cir. 1991) ("We

will not construe a statute in a way that renders words or phrases

meaningless, redundant, or superfluous.”). Equating "grave damage to

the pregnant woman’s medical health" with “health,” as the State seeks

to do, violates this canon of construction.

19

Il. THE COURT OF APPEALS PROPERLY

FOLLOWED THIS COURT’S DECISION IN

THORNBURGH IN HOLDING THAT UTAH’S

“CHOICE OF METHOD" STATUTES VIOLATE

THE RIGHT OF PRIVACY.

The State asks this Court to find that Thornburgh v.

American College of Obstetricians & Gynecologists, 476

U.S. 747 (1986), was overruled by Planned Parenthood v.

Casey, 505 U.S. 833 (1992), insofar as Thornburgh held

that maternal health must "be the physician’s paramount

consideration,” 476 U.S. at 769, even after viability. This

argument is meritless.

Thornburgh’s holding on Pennsylvania’s post-viability

restriction was based on the Court’s earlier decision in

Colautti v. Franklin, 439 U.S. 379, 397-401 (1979), see

Thornburgh, 476 U.S. at 769; Colautti, in turn, was based

on Roe’s holding that, even after viability, abortion must be

permitted "where it is necessary, in appropriate medical

judgment, for the preservation of the life or health of the

mother." Roe, 410 U.S. at 165; see Colautti, 439 U.S. at

400 ("woman’s life and health must always prevail over the

fetus’ life and health when they conflict"). Casey

specifically reaffirmed this holding of Roe:

We also reaffirm Roe’s holding that “subsequent to

viability, the State in promoting its interest in the

potentiality of human life may, if it chooses,

regulate, and even proscribe, abortion except where

it is necessary, in appropriate medical judgment, for

the preservation of the life or health of the mother."

505 U.S. at 879. Thus, the premise from Roe upon which

Thornburgh’s holding was based was not overruled, but

20

reaffirmed by Casey."* See A-25-26 (Casey reaffirmed

Roe, and Casey, Roe, and Thornburgh are all part of a

"consistent strain of abortion jurisprudence” regarding post-

viability abortions); see also Women's Medical Professional

Corp. v. Voinovich, No. C-3-95-414, 1995 U.S. Dist. LEXIS

19009, at *113-16 (S.D. Ohio Dec. 13, 1995) (relying on

Thornburgh and Colautti to find likelihood of success on

the merits of challenge to Ohio choice-of-method

requirement)."°

The State, realizing that this Court is unlikely to

overrule Thornburgh’s direct holding, then argues that "the

Utah statute does not require the mother to bear any

increased medical risk in order to save her viable fetus.”

Pet. 21. But this claim is contrary to the text of the post-

viability restrictions, which require the woman to endure

"grave damage to her health” before her health becomes the

paramount concern. Thus, unless the court of appeals were

To be sure, Casey does overrule Thornburgh in part, but the partial

overruling is extremely narrow, and does not touch Thornburgh's post-

viability holding:

[We depart from the holding{] of ... Thornburgh to the

extent that we permit a State to further its legitimate goal of

protecting the life of the unborn by enacting legislation aimed

at ensuring a decision that is mature and informed, even when

in so doing the State expresses a preference for childbirth

over aboruon.

Casey, 505 U.S. at 883 (emphasis added).

'*The Voinovich opinion holds that a state "may not take away a

pregnant woman's right, as recognized in Casey, to have a post-viability

abortion which is necessary to preserve her life or health,” id at *16,

and that even a strict scrutiny analysis might impermissibly narrow this

exception by allowing the state, if it could show a compelling interest, to

restrict a woman's right to a health-based abortion after viability.

21

to hold that "grave damage” is equivalent to “damage” --

and that "grave" is a meaningless intensifier” -- the Utah

choice-of-method statutes must fall under Thornburgh.’'

As the court of appeals held, “sections 307 and 308 clearly

demand that a woman bear an ‘increased medical risk’ in

Utah law adheres to the canon of statutory construction that “(e}ffect

should be given to every word, phrase, clause, and sentence of the

statute where reasonably possible.” Chez v. Utah State Bldg. Comm'n,

74 P.2d 687, 690 (Utah 1937). Clearly, equating “grave damage to the

woman's medical health” with “health” violates this basic ule.

Moreover, the construction, adopted by the court of appeals, that the

Utah choice-of-method statutes “demand that a woman bear an

‘increased medical risk,” is not only a “reasonably possible”

construction, but the construction most consistent with the Legislature’ s

intention to elevate fetal life and health above the woman's health

wherever it could.

"Thornburgh specifically rejected a construction, similar to that

proposed by the State, of a statute requiring the physician to use the

method of abortion most likely to result in fetal survival unless “that

technique ‘would present a significantly greater medical risk to the life

or health of the pregnant woman." /d at 768 (quoting Pennsylvania

statute). The district court had held that “the statute’s words

‘significantly greater medical risk’ do not mean some additional risk (in

which case unconstitutionality is apparently conceded) but only a

‘meaningfully increased’ risk." Jd. at 769. In a holding directly

applicable to this case, the Supreme Court agreed with the Court of

Appeals’ reversai of the district court: .

The Court of Appeals . . . point{ed] out that such a reading is

inconsistent with the statutory language and with the

legislative intent reflected in that language; that the adverb

“significantly” modifies the risk imposed on the woman; that

the adverb is “patently not surplusage”; and that the language

of the statute “is not susceptible to a construction that does

not require the mother to bear an increased medical risk in

order to save her viable fetus.”

Id. at 769 (quoting Court of Appeals decision).

order to save the life of a viable fetus." A-28. Accordingly,

the court of appeals properly held that these provisions are

unconstitutional.

CONCLUSION

For all the foregoing reasons, the petition for a writ of

certiorari should be denied.

Dated: March 6, 1996.

JEFFREY ORITT

Cohne, Rappaport &

Segal, P.C.

525 E. First South/Sth Fl.

Salt Lake City, UT 84102

(801) 532-2666

A. HOWARD LUNDGREN

Keller & Lundgren

257 Towers, Suite 340

257 East 200 South - 10

Salt Lake City, UT 84111

(801) 532-7282

Respectfully submitted,

JANET BENSHOOF

(Counsel of Record)

' SIMON HELLER

KATHRYN KOLBERT

The Center for

Reproductive Law &

Policy

120 Wall St., 18th FI.

New York, NY 10005

(212) 514-5534

Counsel for Respondents