# Petition for Writ of Certiorari — Voinovich v. Women's Medical Professional Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1036

## Text

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No.
GARE @ ThE CLERK
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1997

GEORGE VOINOVICH, et al.,
Petitioners,
Vv.

WOMEN’S MEDICAL PROFESSIONAL
CORP., et al.,
Respondents.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

BETTY D. MONTGOMERY
Attorney General
JEFFREY S. SUTTON
State Solicitor

Counsel of Record
STEPHEN P. CARNEY
Assistant Attorney General
30 E. Broad Street, 17th Floor
Columbus, Ohio 43215-3428
(614) 466-8980

Counsel for Petitioners

MATHIAS H. HECK, JR.

Prosecuting Attorney for
Montgomery County

ELISSA D. COHEN

Assistant Prosecuting
Attorney

P.O. Box 972

301 W. Third Street

Dayton, Ohio 45402

(937) 225-4979

Of Counsel:

DIANE R. RICHARDS
Bricker & Eckler LLP

100 S. Third Street
Columbus, Ohio 43215-4291

16 pr:

4

QUESTIONS PRESENTED
L.

WHETHER, IN A VAGUENESS OR SUBSTANTIVE DUE
PROCESS CHALLENGE TO STATE ABORTION
REGULATIONS, CLAIMANTS SEEKING TO
INVALIDATE THE REGULATIONS IN ALL OF THEIR
APPLICATIONS MUST ESTABLISH “NO SET OF
CIRCUMSTANCES” IN WHICH THE REGULATIONS
MAY PERMISSIBLY BE APPLIED OR MUST ESTABLISH
THAT IN A “LARGE FRACTION” OF THEIR
APPLICATIONS THE REGULATIONS WOULD BE
IMPERMISSIBLE?

WHETHER, ON ITS FACE, OHIO’S REGULATION OF
PARTIAL-BIRTH ABORTIONS PLACES AN UNDUE
BURDEN ON A WOMAN’S DUE PROCESS RIGHT TO
TERMINATE A PREGNANCY?

WHETHER, ON ITS FACE, OHIO’S REGULATION OF
POST-VIABILITY ABORTIONS IS IMPERMISSIBLY
VAGUE (BECAUSE IT REQUIRES THAT A PHYSICIAN
EXERCISE “REASONABLE” MEDICAL JUDGMENT
CONCERNING THE VIABILITY OF A FETUS OR THE
MEDICAL NECESSITY FOR AN ABORTION) OR
VIOLATES SUBSTANTIVE DUE PROCESS (BECAUSE IT
CONTAINS A MATERNAL HEALTH EXCEPTION THAT
REQUIRES THE RISK OF PHYSICAL INJURY)?

i
LIST OF PARTIES

Petitioners are George Voinovich, Governor, State of
Ohio, Betty D. Montgomery, Attorney General, State of Ohio
and Mathias H. Heck, Jr., Montgomery County Prosecuting

Attorney.

Respondents are Women’s Medical Professional Corp.
and Martin Haskell, M.D.

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .............. os
LIST OF PARTIES _... Le ea aes vy ii
TABLE OF AUTHORITIES .............. Tees
SS ee ane ery ies
i a tee oe
CONSTITUTIONAL PROVISION INVOLVED ....... 1
STATUTORY PROVISIONS INVOLVED ........... 1
STATEMENT ........ a Patti avs ee ste
I The Partial-Birth Abortion Procedure. ___. at
I. EE ee re “ore 3
A. The Restriction on Partial-Birth

EE iit rs weiss oak oo is

B. The Restriction on Post- yen
ET SS a ai | 4

Ill. Procedural History................ eg

Iv

IV. The Sixth Circuit's Decision .................. 6
A. Standard For Assessing Facial, Pre-
Implementation Challenge | urea es
B Invalidation of Ohio's Partial- Birth
TT ee eee 7
Cc. Invalidation of Ohio's Restriction on
Post-Viability Abortions. .............. 8
D. ER, Gann Sew a'e wo 9 du 68k hades
REASONS FOR GRANTING THE WRIT ........... 10

L. The Sixth Circuit's Decision Exacerbates
Several Conflicts of Authority, ....... Sa, SG n wkd dle haat 13,22
Manning v. Hunt,

119 F.3d 254 (4th Cir. 1997) ........ 0.0... 12
Maynard v. Cartwright,

ee Fre ee 13,21

New England Accessories Trade Assn,
Inc. v. City of Nashua,

jf Fl le 14
New York v. Ferber,

Ec dla sig LUNG 4 ow wR we 19
Ohio v. Akron Ctr. For Reprod. Health,

Eo ond unig Washoe 6,10,11,19
Planned Parenthood v. Casey,

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

ER passim
Planned Parenthood Assn. Of Kansas City v. Ashcroft,

I i oo ae ie we 18

Planned Parenthood, Sioux Falls Clinic v. Miller,
63 F.3d 1452 (8th Cir. 1995),

cert. denied, 116 §. Ct. 1582(1996) .......... ll
Reno v. American Civil Liberties Union,

RR ES ee cae eo 19
Reno v. Flores,

I) SCL BS be es i ness wade 19
Richmond Boro Gun Club, Inc. v. City

Of New York,

fe EE a 14
Roemer v. Bd. Of Public Works,

ao 19
Rust v. Sullivan,

ED 6k oak is he’ awed 6,11,19
Secretary of State of Maryland v.

J.H. Munson Co.,

Se EDs woes be Webel eed sawed 21

Stoianoff v. Montana,

695 F.2d 1214 (9th Cir. 1983) ............... 14
United States v. A Single Family Residence,

803 F.2d 625 (1 Ith Cir. 1986) ............... 14
United States v. Mazurie,

EE. Gucid Use aces be vee ta 13,21
United States v. Powell,

IUD db Seek Gets cewe cosh 13,21
United States v. R.L.C.,

ED, Cc eclicaina dele Suae > ae
United States v. Reed,

114 F.3d 1067 (10th Cir. 1997) .............., 14
United States v. Salerno,

See ee ED, ni Gb dae ses weued ee) passim
Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc.,

Se ED ns coWeecdeive sede 12,13,21
Webster v. Reproductive Health Services,

SP OP el ver vcdveunss cowabe 10,19,22
STATUTORY AUTHORITIES
Se EE VUE C045 os wen ee yeeVE ewsbaced 16
la ee RAS bbe ae 16
Ariz. Rev. Stat. Ann. 13-3603.01................... 16
rr ee ati cweeseeews 16
Arkansas Code Ann. 20-16-705 .................... 17
California Health and Safety Code 123405,

ae 17
Conn. Gen. State Ann. 19a(602)(b) ................. 17
Del. Code Ann. Title 24, 1790(a)(1) & (bl) ......... 17
Fla. Stat. Ann. 390.0111(1) & (4) ©... 00 en, 17
Ga Code Ann. 16-12-141(C) ...................5.. 17
I PE Here err 16

Idaho Code Ann. 18-608(3)...............0. 0000. 17

ix

Illinois Comp. Stat. Ann., Ch. 720510/5 ............. 17
Ind. Code Ann. 16-18-2-267.5,

ES I ES ee ae 16
gn Ek Pe eee 17
Kansas Stat. Ann. 65-6-703 ......................., 17
ey I AU MUD so’. Vid dec 0 o's ce ee wel dew 17
ee U St ee cus Wace’ 17
1997 La. Acts 906, La. R.S. 14:32:9

a ik de wien 16
Maine Rev. Stat. Ann. Title22 1598 ................ 17
Mich. Comp. Laws Ann. 333.16221(1) & (m),

333.16226, 333.17016, 333.17516............ 16
Mien. Stat. Amn. 145.412(3) .......5.... ccc cece eee 17
I als Swale Saabbocee 16
ei oe. eae bbe bap 17
Mont. Code Ann. 50-20-401 ...................... 16
Mont. Code Ann. §0-20-109%(c) ...................., 17
Neb. Rev. Stat. 28-325 and 71-148 ................. 16
we 17
New York Pen. Law 125.00, 125.05, 125.45 .......... 17
De ons elbeib on 17
I ok Bee SW sbi alee wl os 17
ES ne Pe ae ae 17
R.I. Gen. Laws Ann. 11-23-5...................... 17
R.1. Gen. Laws 23-4.12-1, 23-4.12-2,

23-4.12-3, 23-4.12-4, 23-4.12-5

EE SER TEST, I i EG 16
a ee 16
S.D. Codified Laws 34-23A-27 through

es 16, 17
Tenn. Code Ann. 39-15-201(C)(3) .......0..000.... 17
Tenn. Code Ann. 39-15-209 ..................55.. 16
Dee es eve weceseebk une 16
oe oe es welb eta 17
GY od’) St chs wee 6 Ce bwle ceble cont 17

PETITION FOR A WRIT OF CERTIORARI

Ohio Governor George Voinovich, Ohio Attorney
General Betty Montgomery, and Montgomery County, Ohio,
Prosecutor, Mathias Heck, Jr., respectfully petition for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for
the Sixth Circuit (Appendix (“A-”) 1) has not yet been
officially reported but soon will be. 1997 U.S. App. LEXIS
32232; 1997 FED App. 0336P. The opinion of the United
States District Court for the Southern District of Ohio, Eastern
Division (A-73) is reported. 911 F. Supp. 1051.

JURISDICTION
The opinion of the United States Court of Appeals for
the Sixth Circuit (A-1) was entered on November 18, 1997.
Jurisdiction in this Court exists under 28 U.S.C. 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The Fourteenth Amendment provides in pertinent part:
“Nor shall any State deprive any person of life, liberty, or
property without due process of law.”

STATUTORY PROVISIONS INVOLVED

See Attachment to Petition.

2

STATEMENT
1. The Partial-Birth Abortion Procedure.

Partial-birth abortions represent a recent innovation in
late-term abortion techniques. The first medical literature on
the subject did not appear until 1992, when respondent Dr.
Martin Haskell presented a paper entitled “Dilation and
Extraction for Late Second Trimester Abortion” to the National
Abortion Federation. A resident of Ohio who performs late-
term abortions there, Dr. Haskell described a new method for
performing abortions after the 20th week of gestation, and
usually between the 20th and 24th week.

The three-day procedure works in the following manner.
During the first two days, a doctor inserts laminaria into the

woman's cervix to dilate it. On the third day, after the cervix
has been dilated, the doctor uses forceps to grasp the leg of the
fetus, then pulls the fetus feet-first into the woman’s vagina.
The doctor next removes the feet, legs, torso, and shoulders of
the fetus from the vagina, so that only the upper part of the fetal
head remains in the birth canal. At that point, as the head of the
fetus remains lodged in the pregnant woman’s body, the
surgeon forces scissors into the base of the skull, places a
suction catheter into the scissor hole and evacuates the skull
contents. The suctioning of the brain is customarily what
terminates the life of the fetus. To describe this novel
procedure, Dr. Haskell coined the term “Dilation and
Extraction” or “D&X.” Dr. Haskell also explained that the
D&X procedure differs from the classic dilation and evacuation
(D&E) procedure because it does not rely upon dismemberment
to remove the fetus from the woman’s body.

The record in this case indicates that the D&X (or
partial-birth) procedure is not commonly used by abortion
practitioners. Indeed, the American Medical Association has

3

recently concluded that the partial-birth method for aborting a
fetus “‘is never the only appropriate procedure and has no
history in peer reviewed medical literature or in accepted
medical practice development.” A-59 (Boggs, J., dissenting)
(quoting AMA Board of Trustees Statement of May 19, 1997).

IL. The Ohio Statutes.

In 1995, through their representatives in the legislature,
the citizens of Ohio responded to the use of the D&X procedure
in the State and more generally to the availability of post-
viability abortions in the State. By a cumulative margin of 110-
19, the Ohio General Assembiv passed House Bill 135 (the
“Act’”), which Governor Voinovich promptly signed into law.
The legislative “intent” of the bill, according to the terms of the
enactment, was “ts prevent the unnecessary use of a specific
procedure used in performing abortions . . . based on a state
interest in preventing unnecessary cruelty to the human fetus.”
1995 H. 135, section 3. To that end, the law places limits on
the availability of partial-birth and post-viability abortions.

A. The Restriction on Partial-Birth
Abortions.

In order to “prevent[] unnecessary cruelty to the human
fetus,” 1995 H. 350, section 3, the statute restricts the use of the
D&X procedure, which involves “the termination of a human
pregnancy by purposely inserting a suction device into the skull
of a fetus to remove the brain.” R.C. 2919.15(B). While the
regulation applies to all abortions, whether the fetus is viable or
not, it does not constitute an absolute ban. Individuals violate
the restriction only when they “knowingly” perform the
procedure and only when there is no medical urgency for
performing it -- in other words, only when other procedures for

4

terminating the pregnancy would place the health of the mother
at risk. R.C. 2919.15(B) & (C); R-C. 2307.51(C).

B. The Restriction on Post-Viability
Abortions.

The legislation also limits the availability of abortions
once the fetus has become capable of living outside the
mother’s womb. Under the statute, “[nJo person shall
purposely perform” an abortion “if the unborn human is viable”
unless one of two conditions exist. R.C. 2919.17(A). The first
occurs when the abortion is performed by a physician who
determines “in good faith and in the exercise of reasonable
medical judgment” that the abortion is “necessary to prevent
the death of the pregnant woman or a serious risk of the
substantial and irreversible impairment of a major bodily
function of the pregnant woman.” /d. The second occurs when
the abortion is performed by a physician who determines “in
good faith and in the exercise of reasonable medical judgment”
that the “unborn human is not viable.” /d. In addition, any
post-viability abortions done consistently with these
requirements must also comply with several other procedural
rules. See R.C. 2929.17(B).

For purposes of the post-viability ban, a fetus of at least
24 weeks is rebuttably presumed to be viable. R.C.
2919.17(C)(1). Once a fetus has reached 22 weeks, however,
Ohio requires a physician to “perform a medical examination
of the pregnant woman” to determine whether the fetus is
viable, unless a medical emergency prevents such testing from
being done. R.C. 2919.18(A). The statute defines “medical
emergency” as a “condition that a pregnant woman’s physician
determines, in good faith and in the exercise of reasonable
medical judgment, so complicates the woman’s pregnancy as
to necessitate the immediate performance or inducement of an
abortion in order to prevent the death of the pregnant woman or

5

to avoid a serious risk of the substantial and irreversible
impairment of a major bodily function of the pregnant woman
that delay in the performance or inducement of the abortion
would create.” R.C. 2919.16(F). In turn, R.C. 2919.16(J)
defines a “serious risk of the substantial and irreversible
impairment of a major bodily function” as “any medically
diagnosed condition that so complicates the pregnancy of the
woman as to directly or indirectly cause the substantial and
irreversible impairment of a major bodily function, including,
but not limited to, the following conditions: 1) pre-eclampsia,
2) inevitable abortion; 3) prematurely ruptured membrane, 4)
diabetes; 5) multiple sclerosis.” Attempting to ensure that the
provision complied with federal law, the General Assembly
directed that this definition “be construed according to the
interpretation given to that phrase in Planned Parenthood v.
Casey, 112 §.Ct. 2791, 2822 (1992), and Planned Parenthood
v. Casey, 947 F.2d 682, 699-702 (3rd Cir. 1991).” See Section
4 of HB. 135.

The Act, in each of these réspects, was scheduled to
take effect on November 14, 1995.

Ill. Procedural History

Yet, on October 27, 1995, before the legislation had a
chance to go into operation, respondents filed this action,
seeking both declaratory and injunctive relief. Respondents are
the Women’s Medical Professional Corporation, which
operates clinics and provides abortion services in Ohio, and Dr.
Haskell who originated the D&X abortion procedure and has
used it to perform abortions between 20 and 24 weeks.
Respondents claimed that the Act was unconstitutional on its
face under two primary theories. They asserted that the partial-
birth regulation imposes undue burdens on a woman’s right to

6

terminate a pregnancy under the due process clause. And they
claimed that the Act’s post-viability regulations are
impermissible vague and also violate substantive due process.

The district court (Rice, J.) granted respondents’ request
to restrain the Act from going into effect. He then entered a
preliminary, and later a permanent, injunction prohibiting the
entire Act from becoming law. The State appealed.

IV. The Sixth Circuit’s Decision.

In a 2-1 decision (Brown, Kennedy, Boggs (dissent)),
the Sixth Circuit affirmed.

A. Standard For Assessing Facial, Pre-
Implementation Challenge.

In addressing the appropriate standard for reviewing a
facial challenge to a statute, the court forthrightly
acknowledged a cloud of uncertainty on the issue. On the one
hand, the Sixth Circuit observed, Planned Parenthood v. Casey,
505 U.S. 833 (1992), struck a spousal notification provision in
the context of a facial challenge because the record showed that
“in a large fraction of the cases in which [the provision] is
relevant, it will operate as a substantial obstacle to a woman’s
choice to undergo an abortion.” A-12 (quoting Casey, 505 U.S.
at 895). Yet in several other abortion decisions, the Sixth
Circuit observed, the Court has applied the stringent Salerno
test for assessing a facial challenge, requiring the complainant
to “establish that no set of circumstances exists under which the
Act would be valid.” A-12 (quoting United States v. Salerno,
481 U.S. 739, 745 (1987)) (citing Rust v. Sullivan, 500 U.S.
173, 183 (1991); Ohio v. Akron Ctr. For Reprod. Health, 497
U.S. 502, 514 (1990)).

7

In the end the Sixth Circuit applied the less stringent
standard, concluding that the traditional test for assessing an
across-the-board challenge to a statute does not apply.
“Although Casey does not expressly purport to overrule
Salerno,” the lower court held (A-12), “in effect it does.” The
court also applied this standard (A-18 to A-19, A-39 n.18) in
assessing respondents’ vagueness challenge.

B. Invalidation of Ohio’s Partial-Birth
(D&X) Regulation.

Applying this standard, the Sixth Circuit concluded that
Ohio’s regulation of partial-birth abortions imposes an undue
burden on a woman’s right to terminate a pregnancy. A-28-29,
32. The central flaw in the restriction, from the court’s
perspective, was definitional, namely that the statute's
description of the restricted procedure covers “the most
commonly used second trimester procedure,” the D&E
procedure. A-29. Because Ohio defines the restricted
procedure to involve “the termination of a human pregnancy by
purposely inserting a suction device into the skull of a fetus to
remove the brain,” R.C. 2919.15(A), and because “some
physicians” implement the D&E procedure by “using suction
to remove the intracranial contents” of a dismembered fetus, the
court concluded that the definition applies equally to both types
of abortion procedures. A-22, A-33. The overlap, the court
determined, places an undue burden on a woman’s right to
terminate her pregnancy because the law limits the availability
of the most common method of second trimester abortion. A-
28. Finally, the court chose not to apply its ruling exclusivly to
pre-viability abortions. Taking the view that Ohio’s regulation
of partial-birth abortions does not distinguish between pre- and
post-viability abortions, it concluded that it “essentially would
have to rewrite the Act in order to create a provision which
could stand by itself.” A-32.

Cc, Invalidation of Ohio’s Restriction on
Post-Viability Abortions.

The court next determined that the medical necessity
and medical emergency exceptions to the ban on post-viability
abortions (which require the physician to determine “in good
faith and in the exercise of reasonable medical judgment” that
the exception exists) were unconstitutionally vague because
they lacked an appropriate mens rea requirement. A-34. What
troubled the court was that other physicians could determine
“after the fact” that the performing doctor's medical judgment
was not reasonable, and therefore doctors could be held liable
even when they acted in good faith and according to their own
best medical judgment. A-35.

Lastly, the court invalidated the maternal health
exception because it concluded that it applies only to physical,
and not mental, health risks. Though agreeing that Casey “does
suggest” a maternal health exception limited to physicial health
exceptions “is constitutional,” A-42, it found Casey
distinguishable because it involved a regulation that “only
delayed abortions” while the Ohio regulation “bans post-
viability abortions.” A-44.

D. The Dissent.

Judge Coggs disagreed with the majority’s conclusion
that the entire Act offends due process. As a general matter,
rather than “interpret[ing] statutes so as to avoid difficult
constitutional questions,” he complained that “the majority’s
opinion strains to interpret Ohio’s partial-birth abortion statute
so as to make the burden imposed by Ohio’s ban on dilation-
and-extraction (“D&X”) abortions, and on most post-viability

9

abortions, appear ‘undue.’” A-53-54. He also disagreed with
his colleagues’ extension of the overbreadth doctrine from the
First Amendment into the area of vagueness and substantive
due process challenges. A-67-68.

Moving from the general to the specific, Judge Boggs
took issue with the majority's in a¥dation of the D&X
regulation. In his view, “plaintiffs 2re attempting to create
ambiguity where there is none,” as shown by their refusal at
oral argument to “be pinned down as to any set of words that
would . . . acceptably define the procedure.” A-59-60. Instead,
the dissent remarked, Ohio had authority to regulate such an
unusual procedure, particularly since the American Medical
Assocation has concluded that it “‘is never the only appropriate
procedure and has no history in peer reviewed medical
literature or in accepted medical practice development.” A-59
(quoting AMA Board of Trustees Statement of May 19, 1997).
Nor did the statute, in the dissent’s view, fail to put doctors on
“fair notice as to what is encompassed by the ban,” above all
because the D&E procedure “does not terminate the pregnancy
by purposely inserting a suction device into the fetal skull,” but
is “only a byproduct of the abortion procedure already
performed” and because “(t]he testimony at the hearing in the
district court clearly demonstrates that doctors who perform
abortions have no difficulty discerning the conduct prohibited
by the statute.” A-61. At any rate, even if there were
ambiguity in the statute, he said, the court should have invoked
the rule of lenity to resolve it. A-60 n.2.

Judge Boggs also did not think that Ohio’s restriction on
post-viability abortions was impermissibly vague. The lack of
a scienter requirement for the “medical necessity” and “medical
emergency” provisions, or for that matter any penal statute, the

dissent urged, does not render a statute unconstitutionally
vague. A-62. Even Casey recognized that the “life or health of

the mother” exception may be invoked only when necessary “in

10

appropriate medical judgment.” A-63 (quoting Casey, 505 US.
at 879). And “[iJt is difficult to see how a medical judgment
can be deemed ‘appropriate’ if it is, beyond a reasonable doubt,
not a reasonable judgment.” A-63.

On the question whether the post-viability ban must
accommodate non-physical factors, Judge Boggs believed that
the legislature’s instruction to construe the medical necessity or
emergency instructions in line with Casey revealed an earnest
(and, he thought, accurate) attempt to comply with the
Constitution. A-65. At any rate, he also concluded that the
majority’s requirement that such a law must encompass “severe
risks of mental and emotional harm” was in fact met by the
“broad” language used by the legislature concerning the
“impairment of a major bodily function.” A-65.

REASONS FOR GRANTING THE WRIT

L The Sixth Circuit’s Decision Exacerbates
Several Conflicts Of Authority.

The first reason for reviewing the Sixth Circuit's
decision is the burgeoning conflict of authority on the
appropriate standard for assessing a pre-implementation facial
challenge to an abortion regulation. The initial point of
disagreement stems from Supreme Court precedent. Not just
Salerno, but several abortion decisions as well, see Rust v.
Sullivan, 500 U.S. 173, 183 (1991), Ohio v. Akron Ctr. For
Reprod. Health, 497 U.S. 502, 514 (1990), see also Webster v.
Reproductive Health Services, 492 U.S. 490, 524 (O’Connor,
J., concurring in part and concurring in the judgment), have
applied a “no set of circumstances” test in assessing facial
challenges to a statute. By contrast, Casey appears to permit

Il

relief in such challenges so long as the claimant shows that the
statute creates an undue burden on the right to terminate a
pregnancy in a “large fraction” of the statute’s applications.
505 US. at 895.

In the aftermath of Casey, several Justices have written
separately to express their views on this precedential tension,
some agreeing with the Salerno/RustAkron Ctr.
characterization of the standard, others agreeing with the Casey
characterization of the standard. Compare Janklow v. Planned
Parenthood, Sioux Falls Clinic, 116 S. Ct. 1582, 1583 (1996)
(concluding that “Salerno’s rigid and unwise dictum has been
properly ignored in subsequent cases”) (Stevens, J., concurring
in denial of certiorari), with id at 1584-85 (Casey “did not
purport to change this well-established rule”) (quotation
omitted) (Scalia, J., joined by Rehnquist, C.J., and Thomas, J.,
dissenting from denial of certiorari), and Ada v. Guam Society
of Obstetricians & Gynecologists, 506 U.S. 1011 (1992)
(Scalia, J., joined by Rehnquist, C.J., and White, J., dissenting
from denial of certiorari).

The federal courts of appeals likewise have not been of
one mind in determining whether Casey modifies the
Salerno Rust Akron Ctr. standard. On one side of the conflict,
three courts of appeals have agreed with the Sixth Circuit's
conclusion that Casey effectively overrules Salerno. See Jane
L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir. 1996), cert.
denied, 117 §. Ct. 2453 (1997); Planned Parenthood, Sioux
Falls Clinic v. Miller, 63 F.3d 1452, 1456-58 (8th Cir. 1995),
cert. denied, 116 S. Ct. 1582 (1996), Casey v. Planned
Parenthood of Southeastern Pennsylvania, 14 F 3d 848, 863
n.21 (3d Cir. 1994) (dicta).

In contrast to these appellate courts, the Fifth Circuit
has concluded that Casey did not overrule the traditional rule
for assessing facial challenges. See Barnes v. Moore, 970 F.2d

12

12, 14 n2 (Sth Cir.) (“we do not interpret Casey as having
overruled, sub silentio, longstanding Supreme Court precedent
governing challenges to the facial constitutionality of statutes”),
cert. denied, 506 U.S. 1021 (1992); accord Causeway Med
Suite v. leyoub, 109 F.3d 1096, 1102-04 (Sth Cir. 1997) (“As
far as we can tell, the Court appears to be divided 3-3 on the
Salerno-Casey debate, and it would be ill-advised for us to
assume that the Court will abandon Salerno because three
members of the Court now desire that result”), cert. denied, 118
S. Ct. 357 (1997). Still another court of appeals, the Fourth
Circuit, appears to be leaning toward the traditional rule, but
has not yet had an opportunity so to hold. See Manning v.
Hunt, 119 F.3d 254, 268-69, n.4 (4th Cir. 1997) (“the reasoning
of the Fifth Circuit [regarding this lower-court conflict of

authority] appears to be most persuasive’).

Whether the reader is partial to one side of this debate
or the other, it is difficult to avoid the conclusion that the
question “cries out for [the Court’s] review.” Janklow v.
Planned Parenthood, Sioux Falls Clinic, 116 §. Ct. 1582, 1584
(1996) (Scalia, J., joined by Rehnquist, C.J., and Thomas, J.,
dissenting from denial of certiorari). Nor can there be any
doubt that this case squarely presents the issue, as the district
court admitted that plaintiffs had “not shown that ‘no set of
SS ee A-
1.

On top of the Salerno/Casey division of authority
presented by this case rests another split, which the Sixth
Circuit has now deepened as well. In assessing facial attacks
on allegedly vague statutes, courts have generally applied the
traditional Salerno rule, which is to say they will reject the
challenge unless the enactment is “impermissibly vague in all
of its applications.” Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 495 (1982). The Sixth
Circuit, however, took a different tack in assessing claimants’

13

vagueness challenge to the restriction on post-viability
abortions. “Since we have already held that Salerno does not
apply in the abortion context,” the court held, “it is enough that
the statute may be unconstitutionally applied to a large fraction
of women for whom the law is relevant.” A-39-40 n.18.

Right or wrong, this interpretation extends the Casey
overbreadth standard to an area of abortion regulations not even
subject to undue-burden review (post-viability regulations) and
applies the principle to a new constititutional claim
(vagueness). In addition to Hoffman Estates, this analysis
diverges from several other Supreme Court precedents. See,
e.g., Chapman v. United States, 500 U.S. 453, 467 (1991)
(“vagueness claims must be evaluated as the statute is applied
to the facts of [the] case” when “First Amendment freedoms are
not infringed by the statute”), Maynard v. Cartwright, 486 U.S.
356, 361 (1988); United States v. Powell, 423 U.S. 87, 92
(1975); United States v. Mazurie, 419 U.S. 544, 550 (1975). To
be fair, however, two precedents from this Court provide
ostensible support for this analysis. In contrast to the Hoffman
Estates Salerno rule, some cases seem to apply an overbreadth
analysis whenever there is any “constitutionally protected
conduct” at issue. See Kolender v. Lawson, 461 U.S. 352, 358-
59 n.8 (1983); Colautti, 439 U.S. at 394-401. Of course, this
approach directly conflicts with Hoffman Estates, as the Sixth
Circuit itself admitted in grappling with the question. See A-19
(“At times the Court has suggested that a statute that does not
run the risk of chilling constitutional freedoms is void on its
face only if it is impermissibly vague in all its applications, but
at other times it has suggested that a criminal statute may be
facially invalid even if it has some conceivable application”).

In addition, several circuits courts have applied a
different standard of review from the one applied by the Sixth
Circuit, some going so far as to suggest that a facial vagueness

14

claim may never be brought. See, e.g., United States v. Reed.
114 F.3d 1067, 1070 (10th Cir. 1997) (“{a] vagueness challenge
.. . Cannot be aimed at the statute on its face but must be
limited to the application of the statute to the particular conduct
charged”), Richmond Boro Gun Club, Inc. v. City of New York,
97 F.3d 681, 684 (2d Cir. 1996) (plaintiffs can only succeed
“on a facial vagueness challenge if they could show that the law
is impermissibly vague in all of its applications”) (quotation
omitted), United States v. A Single Family Residence, 803 F.2d
625, 630 (11th Cir. 1986) (a facial challenge on vagueness
grounds “is a claim that the law is invalid in toto -- and
therefore incapable of any valid application”) (internal
quotation omitted); Stoianoff v. Montana, 695 F.2d 1214, 1220
(9th Cir. 1983) (“All that we must find to sustain the facial
constitutionality of the Act is a single clear application of the
Act to the appellant”). Cf New England Accessories Trade
Assn, Inc. v. City of Nashua, 679 F.2d 1, 5 (ist Cir. 1982)
(“unless the enactment implicates constitutionally protected
conduct, we can invalidate it only if it is impermissibly vague
in all of its applications”).

The Sixth Circuit’s invalidation of the partial-birth and
post-viability abortion regulations also conflicts with this
Court’s landmark decision in Casey. See infra. While this
conflict has not yet spread to the lower courts, that fact surely
does not diminish the certworthiness of at least the first
question presented and in our view the appropriateness of
promptly reviewing all three questions.

Perhaps the most important question in the petition --
the proper constitutional standard for assessing these types of
challenges -- is the one that has most deeply divided the lower
courts and has done all the percolating that any legal issue
needs to become ripe for review. In view of the sizeable
number of partial-birth abortion regulations being challenged
throughout the country, see infra, and in view of the standard

15

of review’s impact on those claims, it would seem odd to
continue to force the lower courts to issue rulings in these cases
in the absence of much-needed guidance from the Court on this
vital point. In the last analysis, the first question presented
calls out for immediate review in light of the substantial
conflict of authority over its resolution; and the second and
third questions merit prompt review to place the standard-of-
review issue in context and resolve the tension between the
Sixth Circuit’s merits decision and Casey.

Il. The Sixth Circuit’s Decision Raises
Important Federal Questions.

Even aside from the conflicts of authority implicated by
the petition, the significance of the questions presented in and
of itself warrants review. By any relevant standard, the
constitutionality of legislation restricting partial-birth and post-
viability abortions, to say nothing of the standard for assessing
such laws, presents important, indeed exceedingly important,
federal questions. The Court has not yet considered the validity
of limitations on partial-birth abortions. Nor has it determined
whether a mental health exception is constitutionally required
when it comes to restrictions on post-viability abortions. And,
for five years now, the lower courts have remained in limbo
over the appropriate standard for reviewing these claims. Add
to this the fact that Ohioans are far from the only interested
participants in these debates, and it becomes clear that the
petition presents several certworthy federal questions.

In enacting these laws, Ohio joined a legion of other
States that have regulated one or the other of these procedures,
and sometimes both. All told, 17 States (including Ohio)
regulate partial-birth abortions. See 1997 Ala. Acts 485;
Alaska Stat. 18.16.050; Ariz. Rev. Stat. Ann. 13-3603.01; 1997
Ark. Acts 984; Ga Code Ann. 16-12-144; Ind. Code Ann. 16-
18-2-267.5, 16-34-2-1(b); 1997 La. Acts 906, La. R.S. 14:32:9

16

and 40:1299.35.3; Mich. Comp. Laws Ann. 333.16221(1) &
(m), 333.16226, 333.17016, 333.17516; Miss. Code Ann. 41-
41-73; Mont. Code Ann. 50-20-401; Neb. Rev. Stat. 28-325,
28-326(9) & 71-148; R.1. Gen. Laws 23-4.12-1, 23-4.12-2, 23-
4.12-3, 23-4.12-4, 23-4.12-5 and 23-4.12-6, S.C. Code Ann.
44-41-85; S.D. Codified Laws 34-23A-27 through 34-23A-32;
Tenn. Code Ann. 39-15-209; Utah Code Ann. 76-7.310.5.

In addition, a host of States (again including Ohio) and
the District of Columbia regulate post-viability abortions. Of
these laws, three contain maternal health exceptions that
parallel Ohio’s. See 1997 Ala. Acts 442; Ind. Stat. Ann. 16-34-
2-1(3) and 16-34-2-3; 18 Pa. C.S.A. 3211. Several of the
statutes contain maternal health exceptions, yet do not define
“health.” See Ariz. Rev. Stat. Ann. 36-2301.01(A); Ark. Code
Ann. 20-16-705; Cal. Health and Safety Code 123405, 123410,
123415, 123435; Conn. Gen. Stat. Ann. 19a-602(b); D.C. Code
22-201; Fla. Stat. Ann. 390.0111(1) & (4); Ga. Code Ann. 16-
12-141(C); Ill. Comp. Stat. Ann., Ch. 720, 510/5; lowa Code
Ann. 707.7; Ky. Rev. Stat. Ann. 311.780; La. Stat. Ann.
1299.35.4; Maine Rev. Stat. Ann. Title 22, 1598; Minn. Stat.
Ann. 145.412(3); Mo. Stat. Ann. 188.030(1); Mont. Code Ann.
50-20-109(c); Neb. Rev. Stat. 28-329; N.C. Gen. Stat. 14-45.1;
Okla. Stat. Ann. 1-732; §.D. Cod. Laws 34-23A-5; Tenn. Code
Ann. 39-15-201(C)(3); Wis Stat. Ann. 940.15; Wyo. Stat. 35-6-
102. And several of the statutes contain a “life of the mother”
exception. See Del. Code Ann., Title 24, 1790(a)(1) & (b)(1);
Idaho Code Ann. 18-608(3); Kansas Stat. Ann. 65-6-703; New
York Pen. Law 125.00, 125.05, 125.45; R.I. Gen. Laws Ann.
11-23-S.

It ought to be enough to show the substance of a
constitutional question that the decision below nullifies the
democratic efforts of an overwhelming majority of Ohioans to
express their collective concerns about partial-birth and post-
viability abortions. But here there is more. Sixteen other States

17

have enacted partial-birth abortion laws, with most of them
already under judicial attack, and all of them vulnerable under
the analysis adopted by the Sixth Circuit. Similar problems
plague the other State laws that limit post-viability abortions
and employ the Casey-approved “substantial and irreversible
impairment of a major bodily function” language to protect the
pregnant woman’s health. Moreover, the multitude of States
that have enacted post-viability laws -- including those that do
not contain explicit mental health exceptions for the mother --
need this Court’s guidance on the meaning of the required
“health” exception in the context of a ban on post-viability
abortions.

Nor has the medical community had insufficient time to
study these issues. The American Medical Association, for
example, recently took a vigorous public stand against use of
the partial-birth procedure, and in doing so advocated a federal
ban on partial-birth abortions. Its Board of Trustees issued a
statement explaining that it “is a procedure which is never the
only appropriate procedure and has no history in peer reviewed
medical literature or in accepted medical practice
development.” A-59. The position later received the
endorsement of the entire AMA House of Delegates. /d.

A final word deserves consideration. The Court has
said that the States have an interest in the potential life that
comes with all pregnancies, and a special right to safeguard that
interest once the prospects for life outside the womb move from
hope to relative certainty. At the same time, the Court has
made clear that the States must honor a woman’s right to
terminate a pregnancy pre-viability and must not shortchange
her health interests when restricting abortions after viability. A
law designed to regulate an abortion procedure that to many
seems gratuitously cruel and offensive, or one that limits the
availability of any procedure once a fetus has developed to the
point where it can become a child by the act of delivery, surely

18

advances these interests, and does so in a way that respects due
process. But whether we are right or wrong at this stage is (at
least partly) beside the point: The critical issue is that no one
can tenably dispute that these issues have irreversible
consequences for women and potential children, and those
consequences Ought to satisfy any and all calibrations of federal
importance.

Il. The Sixth Circuit Erred In Striking The
Ohio Law.

The Sixth Circuit, we believe, also erred in invalidating
the Act in its entirety. This, too, favors review.

A. The Court of Appeals Applied The
Wrong Standard For Assessing
Facial Challenges to an Abortion
Statute.

Undue burden. In assessing the appropriate standard
for reviewing an undue burden challenge to a partial-birth
abortion regulation, the Sixth Circuit overlooked the core
premise for distinguishing between facial and as-applied
challenges. Federal courts have a duty to try to save, not
destroy, State legislation. Planned Parenthood Assn. of Kansas
City v. Ashcroft, 462 U.S. 476, 493 (1983); see also Adams
Fruit Co. v. Barrett, 494 U.S. 638, 647 (1990). And a standard
of review that allows entire statutes to be nullified before the
State has had a chance to implement them and before the
presumption of constitutionality has been countered with
respect to each prospective application of the statute turns the
passive virtue of this age-old limitation on judicial review into
an active vice. Outside the context of the First Amendment
where litigants may overcome the presumption of
constitutionality of an entire statute by demonstrating
substantial problems in its application, the Court has long held

19

that a facial challenge may succeed only after the claimants
have met their burden of showing “no set of circumstances” in
which the law may be constitutionally applied. Salerno, 481
U.S. at 745.

Nor is it clear why this “traditional rule” (New York v.
Ferber, 458 U.S. 747, 767 (1982)) ought suddenly to be
interred. No studies have been done showing that the rule leads
to unfair consequences. Nor have any great hardships arisen
through the Court’s frequent application of the rule in the
abortion context, see Rust v. Sullivan, 500 U.S. 173, 183
(1991), Ohio v. Akron Ctr. For Reprod.Health, 497 U.S. 502,
$14 (1990), see also Webster v. Reproductive Health Services,
492 U.S. 490, 524 (1989) (O’Connor, J., concurring in part and
concurring in the judgment), and in other settings, see Anderson
v. Edwards, 514 U.S. 143, 155 n.6 (1995), Reno v. Flores, 507
U.S. 292, 301, 309 (1993), cf Reno v. American Civil Liberties
Union, 117 §. Ct. 2329, 2355 (1997) (O'Connor, J., concurring
in part and dissenting in part, joined by Rehnquist, C.J ). The
distinction between facial and as-applied challenges is as time
honored as it is widespread, and ultimately reflects the benefit
of the doubt that federal courts customarily give State officials,
namely that they presumably will obey, not offend, their duty
to uphold the Constitution in implementing a statute. For the
same reason, the Court has resisted invitations to invalidate
statutes based upon a “hypothetical possibility” of
unconstitutional application in the future. General Motors v.
Tracy, 117 S. Ct. 811, 830 (1997), Bowen v. Kendrick, 487 U.S.
$89, 601 (1988); Roemer v. Bd. of Public Works, 426 U.S. 736,

760-61 (1976).

Even on the facts of this case, it remains unclear what
harm the traditional rule would engender. In the court of
appeals’ view, the State’s definition of a partial-birth abortion
impermissibly covered the more traditional D&E procedure.
Taking that for granted, who suffers if the court identifies this

20

constitutional defect, then rejects the facial challenge on the
ground that the flaw does not infect the entire statute -- for
example, because the statute still may be applied to the D& X
procedure itself or to the D&E procedure in the context of post-
viability abortions? What State would not get the message?
Surely no State would start regulating pre-viability D&E
abortions after such a decision, least of all Ohio, which had no
intention of banning this customary procedure in the first place,
which would have no objection to a limiting interpretation of
the law, and whose Attorney General has never suggested that
the statute may be construed in this unusual way. What is
more, State officials who continued to apply the statute in
unconstitutional ways would soon feel the deterrent sting of
section 1988 attorney fees, not to mention civil rights actions
brought against the officials in their individual capacity and
with little likelihood of a qualified immunity shield.

Nor, for like reasons, will this approach imperil the
availability of constitutionally-permitted abortions. If anything,
these considerations will likely prompt State officials to under-
enforce, not over-enforce, laws that have been invalidated in
certain applications. But either way, wary physicians may still
bring declaratory judgment actions to determine whether the
law applies in a given setting and if so whether that application
withstands constitutional scrutiny. Or, if worst comes to worst,
they may still bring an as-applied challenge to the law if it is
unfairly used against them, at which time the rule of lenity will
govern (and limit) any ambiguous applications of the law.

That leaves the Court’s decision in Casey, which as
interpreted by the court of appeals silently abandoned not just
Salerno but a long tradition of decisions requiring claimants to
establish no set of circumstances in which the law may

21

permissibly be applied before striking the provision in its
entirety. No doubt, as the courts of appeals and several
members of this Court have recognized, there seems to be
tension between the two cases, at least at first blush.

But, in truth, Casey and Salerno are compatible. The
traditional Salerno requirement has long been met when a
statute “operates on a fundamentally mistaken premise.”
Secretary of State of Maryland v. J.H. Munson Co., 467 U.S.
947, 966 (1984). Just such a “mistaken premise” infected the
spousal-notification provision in Casey: The requirement that
a woman notify her husband before seeking an abortion rested
on the flawed assumption that “a husband’s interest in the
potential life of the [unborn] child outweighs a wife’s interest
[to choose to have an abortion].” Casey, 505 U.S. at 898.
Because the whole spousal-notification provision rested on this
mistaken premise, the statute was indeed unconstitutional in all
of its applications. The Munson principle thus reconciles Casey
and Salerno.

Vagueness. No less erroneous was the court of appeals’
extension of its Casey interpretation to facial vagueness claims.
Of course, Casey was not a vagueness case. And, in the
Court’s vagueness decisions, it has followed an essentially
unbroken tradition in concluding that such challenges cannot
succeed unless the enactment is “impermissibly vague in all of
its applications.” Village of Hoffman Estates, 455 U.S. at 495.
Unless the legislation is so vague as to “proscribe[] no
comprehensible course of conduct at all,” Powell, 423 U.S. at
92, which plainly was not the case with Ohio’s requirement that
the physician act in good faith and exercise reasonable medical
judgment in determining viability or medical necessity, the
traditional test applies. See Chapman, 500 U.S. at 467,
Maynard, 486 U.S. at 361; Powell, 423 U.S. at 92; Matzurie,
419 US. at 550.

22

True, some cases have loosely suggested that the
overbréadth rule applies when the statute implicates
“constitutional,” as distinct from First Amendment, freedoms.
See, e.g., Kolender v. Lawson, 461 U.S. 352, 358-59 (1983)
But virtually all of these cases, including Kolender itself.
involved First Amendment rights, suggesting that the term
“constitutional” was simply shorthand for First Amendment
rights. The one exception is Colautti v. Franklin, a pre-Casey
abortion decision whose broad sweep has since been questioned
by several members of the Court. See Webster, 492 U.S. 490
am of Rehnquist, C.J., joined by White, J., and Kennedy,

B. The Court of Appeals Erred in
Striking Ohio’s Partial-Birth (D&X)
Abortion Regulation.

In addition to applying the wrong standard of review,
the court of appeals committed reversible error in finding that
Ohio’s regulation of partial-birth abortions unduly burdens a
woman's right to terminate a pregnancy. The court did not
rule, as indeed it could not have ruled, that the Constitution
forbids States from restricting the availability of this unusual
procedure. Instead, the court construed Ohio’s definition of the
D&X procedure to encompass the more common (and
constitutionally legitimate) D&E procedure. But the Act
simply cannot sustain this analysis, as it contains a series of
unmistakeable inferences (if not outright directions) that the
statute bans the one procedure but not the other

First, two of the statutes created by the Act label the
proscribed procedure in no uncertain terms, one titled “Dilation
and Extraction Procedure,” 2919.15, the other titled “Civil

23

Action for Dilation and Extraction Procedure,” 2307.51. The
relevant text of the statutes proceeds to identify the D&X
procedure by name more than a dozen times, while the D&E
procedure is nowhere mentioned and nowhere banned.

Second, by its terms, Ohio’s definition of the D&X
procedure cannot plausibly cover the distinct D&E procedure.
The statute describes the D& X procedure as covering (1) “the
termination of a human pregnancy” by (2) “purposely inserting
a suction device into the skull of a fetus to remove the brain.”
Yet the late-term D&E procedure does not end a pregnancy by
using a suction device, it ends the pregnancy by dismembering
the fetus and then using a suction device to remove the
scattered remains. Nor does the D&E procedure involve a
“purpose[ful]” insertion of a suction device into the fetal skull.
It involves dismemberment of the fetus followed by anything
but purposeful suctioning of the fetal remains. The D&X
procedure, by contrast, is designed precisely to deliver most of
the body of the fetus in order to have access to the head so that
the physician may “purposely” insert a suction device into the
brain.

Third, the goal of the statute removes any doubt as to
what was proscribed: The legislators designed the D&X
regulation “to prevent the unnecessary use of a specific
procedure used in performing abortions . . . based on a state
interest in preventing unnecessary cruelty to the human fetus.”
1995 H. 350, section 3 (emphasis added). The D&X procedure
plainly is “unnecessary,” as suggested by its infrequent use, its
undistinguished pedigree, and its disapproval by the AMA. Yet
the D&E is constitutionally necessary because (as the court of
appeals itself found) it is the most common form of second
trimester abortion. And a regulation concerning “a specific
procedure” surely means just one procedure, not two, and most
assuredly the one repeatedly mentioned by name throughout the
Act. Finally, and perhaps most paradoxically, the very person

24

who challenges the overlap between the D&E and D&X
procedures, respondent Dr. Haskell, is precisely the person who
coined the term D&X in order to distinguish between the two
procedures. In using Dr. Haskell’s definition, Ohio came closer
to establishing a bill of attainder (a law that suffers from too
much specificity) than to establishing an overly-broad statute
that unduly burdens a woman’s due process rights.

But even if each of these pieces of statutory and record
evidence do not support the Ohio Attorney General’s, the Ohio
Governor's, and the relevant Ohio County Prosecutor’s
interpretat.on of the statute, which is that the law does not
restrict D&E abortions, the most one can say is that the statute
is ambiguous. Yet under those circumstances, the court’s job
is not to invalidate the law, but to adopt the narrower
interpretation of it under the rule of lenity. United States v.
RL.C., 503 U.S. 291, 305-13 (1992).

Cc. The Court of Appeals Erred in
Concluding that the Good-Faith and
Reasonable- Medical-Judgment
Exceptions to the Post-Viability Ban
Were Impermissibly Vague.

The court of appeals also erred in reviewing Ohio’s
requirement that physicians act in good faith and exercise
reasonable medical judgment in determining the viability of a
fetus and in making a finding of medical necessity before
aborting a fetus who could live outside the womb. In
court focused on the fact that they did not have a mens rea

requirement.

First, and most conspicuously, the statute does contain

a mens rea requirement. Section 2919.17 explicitly provides
that one must act “purposely” in order to break the law. This

25

fact by itself distinguishes the Ohio law from the one at issue
in Colautti v. Franklin, 439 U.S. 379 (1979), which lacked any
state-of-mind element. /d. at 381 n.1.

But, en aes Oe ee
requirement (which it does not), that alone does not a
law unconstitutionally vague. Laws frequently proscribe
unreasonable conduct, and permissibly so. “The mere fact that
a penal statute is so framed as to require a jury upon occasion
to determine a question of reasonableness is not sufficient to
make it too vague to afford a practical guide to permissible
conduct.” United States v. Ragen, 314 U.S. 513, 523 (1942).
Nor in a criminal setting is unreasonableness by itself enough
to obtain a conviction; the jury must find that the individual's
medical judgment was unreasonable “beyond a reasonable
doubt,” a daunting standard for any prosecutor to meet. Even
Casey recognized that the “life or health of the mother”
exception be invoked only when necessary “in appropriate
noted beta Casey, 505 U.S. at 879, a similar standard
of care but one that is necessary if laws of this sort are to have
any effect.

Nor does the pre-Casey decision in Colautti v. Franklin,
439 U.S. 379 (1979), support the lower court decision. Colautti
specifically reserved the question whether “under a properly
drafted statute, a finding of bad faith or some other type of
erens oeryacndan 9 gy ata a I ee ag
criminally responsible for an erroneous determination of
viability.” Jd. at 396.

Finally, it seems unfair to criticize States for using
unreasonable medical judgment as a touchstone for liability in
this area. The Court’s judgments about State regulations in this
setting after all each turn on reasonableness balancing, what
necessarily comes down to difficult distinctions between
“undue” burdens on a women’s ability to terminate a pregnancy

26

and permissible burdens on that right prompted by the State’s
interest in protecting potential life. When States follow suit in
earnestly trying to regulate in a constitutional manner in this
area, it is not because they are trying to trap the unwary. It is
because clear lines are hard to find and because the price for
complete certainty is invariably overprotection of one of these
interests and neglect for the other.

D. The Court of Appeals Erred In
Concluding That the Ohio Post-
Viability Abortion Regulations
Violate Substantive Due Process
Because They Do Not Contain a
Mental Health Exception For the
Mother.

The final error committed by the court of appeals stems
from its review of Ohio’s maternal health exception to the ban
on post-viability abortions. In holding that such exceptions
must cover the mental health of the woman in order to comply
with substantive due process, the court not only made new law
but also failed to follow several pertinent teachings of Casey.

Casey specifically upheld a maternal health exception
to an abortion regulation that was substantively identical to
Ohio’s, and indeed was the source for it. See 505 U.S. at 879-
81. By upholding the Pennsylvania formulation of the
maternal-health exception (“substantial and _ irreversible
impairment of a major bodily function”), the Court plainly was
blessing an identically-worded provision for exempting women
from other abortion regulations. In order to remove any doubt
on this score, the Ohio legislature expressly provided in the
terms of the Act that it wanted the phrase to obtain the same
construction as the Pennsylvania statute. In using the phrase
“serious risk of the substantial and irreversible impairment of
a major bodily function,” “it is the intent of the General

27

Assembly that the phrase be construed according to the
interpretation given to that phrase in Planned Parenthood v.
Casey, 112 §. Ct. 2791, 2822 (1992), and Planned Parenthood
v. Casey, 947 F.2d 682, 699-702 (3d Cir. 1991).” H. 135,
section 4, 121st Gen. Ass. (Ohio 1995). What more, in short,
could the State have done to ensure that it was acting
constitutionally in this area?

Nor does Doe v. Bolton, 410 U.S. 179 (1973), another
pre-Casey decision relied upon by the court of appeals, change
matters. Doe addressed a statute that barred abortions unless a
doctor determined “an abortion is necessary.” /d. at 183. In
doing so, it rejected a vagueness challenge to the law because
the broad wording of the statute expanded the choices of
pregnant women by authorizing an abortion for a whole host of
reasons, including emotional health. That conclusion has little
application here.

In the last analysis, the court of appeal’s mistaken
application of this Court’s precedents also supports the writ.

For the foregoing reasons, we respectfully urge the

28
CONCLUSION

Court to grant the writ.

Of Counsel:

Respectfully submitted,
BETTY D. MONTGOMERY
Attorney General of Ohio
JEFFREY S. SUTTON
State Solicitor

Counsel of Record
STEPHEN P. CARNEY
Assistant Attorney General
30 E. Broad Street, 17th Floor
Columbus, Ohio 43215-3428
(614) 466-8980

MATHIAS H. HECK, JR.

Prosecuting Attorney for
Montgomery County

ELISSA D. COHEN

Assistant Prosecuting Attorney

P.O. Box 972

301 W. Third Street

Dayton, Ohio 45402

(937) 225-4979

COUNSEL FOR PETITIONERS

DIANE R. RICHARDS

Bricker & Eckler LLP
100 S. Third Street

Columbus, Ohio 43215

ATTACHMENT -- OHIO STATUTORY PROVISIONS
2919.15 Dilation and extraction procedure

(A) As used in this section, “dilation and extraction
procedure” means the termination of a human pregnancy by
purposely inserting a suction device into the skull of a fetus to
remove the brain. “Dilation and extraction procedure” does not
include either the suction curettage procedure of abortion or the
suction aspiration procedure of abortion.

(B) No person shall knowingly perform or attempt to
perform a dilation and extraction procedure upon a pregnant
woman.

(C)(1) It is an affirmative defense to a charge under
division (B) of this section that all other available abortion
procedures would pose a greater risk to the health of a pregnant
woman than the risk posed by the dilation and extraction
procedure.

(2) Notwithstanding section 2901.05 of the Revised
Code, if a person charged with a violation of division (B) of
this section presents prima facie evidence relative to the
affirmative defense set forth in division (C)(1) of this section,
the prosecution, in addition to proving all elements of the
violation by proof beyond a reasonable doubt, has the burden
of proving by proof beyond a reasonable doubt that at least one
other available abortion procedure would not pose a greater risk
to the health of the pregnant woman than the risk posed by the
dilation and extraction procedure performed or attempted to be
performed by the person charged with the violation of division
(B) of this section.

(D) Whoever, violates division (B) of this section is
guilty of performing an unlawful abortion procedure, a felony
of the fourth degree.

(E) A pregnant woman upon whom a dilation and
extraction procedure is performed or attempted to be performed
in violation of division (B) of this section is not guilty of an
attempt to commit, complicity in the commission of, or
conspiracy in the commission of a violation of that division.

2919.16 Definitions

As used in sections 2919.16 to 2919.18 of the Revised
Code:

(A) “Fertilization” means the fusion of a human
spermatozoon with a human ovum.

(B) “Gestational age” means the age of an unborn
human as calculated from the first day of the last menstrual
period of a pregnant woman.

(C) “Health care facility’ means a hospital, clinic,
ambulatory surgical treatment center, other center, medical
school, office of a physician, infirmary, dispensary, medical
training institution, or other institution or location in or at
which medical care, treatment, or diagnosis is provided to a
person.

(D) “Hospital” has the same meanings as in section
2108.01, 3701.01 and 5122.01 of the Revised Code.

(E) “Live birth” has the same meaning as in division (A)
of section 3705.01 of the Revised Code.

(F) “Medical emergency” means a condition that a
pregnant woman’s physician determines, in good faith and in
the exercise of reasonable medical judgement, so complicates
the woman’s pregnancy as to necessitate the immediate
performance or inducement of an abortion in order to prevent
the death of the pregnant woman or to avoid a serious risk of
the substantial and irreversible impairment of a major bodily
function of the pregnant woman that delay in the performance
or inducement of the abortion would create.

(G) “Physician” has the same meaning as in section
2305.11 of the Revised Code.

(H) “Pregnant” means the human female reproductive
condition, that commences with fertilization, of having a
developing fetus.

(1) “Premature infant” means a human whose live birth
occurs prior to thirty-eight weeks of gestational age.

(J) “Serious risk of the substantial and irreversible

impairment of a major bodily function” means any medically
diagnosed condition that so complicates the pregnancy of the
woman as to directly or indirectly cause the substantial and
irreversible impairment of a major bodily function, including,
but not limited to, the following conditions:

(1) Pre-eclampsia;

(2) Inevitable abortion;

(3) Prematurely ruptured membrane,

(4) Diabetes;

(5) Multiple sclerosis.

(K) “Unborn human” means an individual organism of
the species homo sapiens from fertilization until live birth.

(L) “Viable” means the stage of development of a
human fetus at which in the determination of a physician, based
on the particular facts of a woman’s pregnancy that are known
to the physician and in light of medical technology and
information reasonably available to the physician, there is a
realistic possibility of the maintaining and nourishing of a life
outside of the womb with or without temporary artificial life-
sustaining support.

291917 Terminating a human pregnancy
after viability.

(A) No person shall purposely perform or induce or
attempt to perform or induce an abortion upon a pregnant
woman if the unborn human is viable, unless either of the
following applies:

(1) The abortion is performed or induced or attempted
to be performed or induced by a physician, and that physician
determines, in good faith and in the exercise of reasonable
medical judgment, that the abortion is necessary to prevent the
death of the pregnant woman or a serious risk of the substantial
and irreversible impairment of a major bodily function of the
pregnant woman.

(2) The abortion is performed or induced or attempted
to be performed or induced by a physician and that physician

determines, in good faith and in the exercise of reasonable
medical judgment, after making a determination relative to the
viability of the unborn human in conformity with division (a)
of section 2919.18 of the Revised Code, that the unborn human
is not viable.

(B)(1) Except as provided in division (B)(2) of this
section, no physician shall purposely perform or induce or
attempt to perform or induce an abortion upon a pregnant
woman when the unborn human is viable and when the
physician has determined, in good faith and in the exercise of
reasonable medical judgement, that the abortion is necessary to
prevent the death of the pregnant woman or a serious risk of the
substantial and irreversible impairment of a major bodily
function of the pregnant woman, unless each of the following
conditions is satisfied:

(a) The physician who performs or induces or attempts
to perform or induce the abortion certifies in writing that that
physician has determined, in gocd faith and in the exercise of
reasonable medical judgment, that the abortion is necessary to
prevent the death of the pregnant woman or a serious risk of the
substantial and irreversible impairment of a major bodily
function of the pregnant woman.

(b) The determination of the physician who performs or
induces or attempts to perform or induce the abortion that is
described in division (B)(1)(a) of this section is concurred in by
at least one other physician who certifies in writing that the
concurring physician has determined in good faith, in the
exercise of reasonable medical judgment, and following a
review of the available medical records of and any available
tests results pertaining to the pregnant woman, that the abortion
is necessary to prevent the death of the pregnant woman or a
serious risk of the substantial and irreversible impairment of a
major bodily function of the pregnant woman.

(c) The abortion is performed or induced to attempted
to be performed or induced in a health care facility that has or
has access to appropriate neonatal services for premature
infants.

(d) The physician who performs or induces or attempts

to perform or induce the abortion terminates or attempts to
terminate the pregnancy in the manner that provides the best
opportunity for the unborn human to survive, unless that
physician determines, in good faith and in the exercise of
reasonable medical judgment, that the termination of the
pregnancy in that manner poses a significantly greater risk of
the death of the pregnant woman or a serious risk of the
substantial and irreversible impairment of a major bodily
function of the pregnant woman than would other available
methods of abortion.

(e) The physician who performs or induces or attempts
to perform or induce the abortion has arranged for the
attendance in the same room in which the abortion is to be
performed or induced or attempted to be performed or induced
of at least one other physician who is to take control of, provide
immediate medical care for, and take all reasonable steps
necessary to preserve the life and health of the unborn human
immediately upon the unborn human’s complete expulsion or
extraction from the pregnant woman.

(2) Division (B)(1) of this section does not prohibit the
performance or inducement or an attempted performance or
inducement of an abortion without prior satisfaction of each of
the conditions described in divisions (B)(1)(a) to (e) of this
section if the physician who performs or induces or attempts to
perform or induce the abortion determines, in good faith and in
the exercise of reasonable medical judgment, that a medical
emergency exists that prevents compliance with one or more of
those conditions.

(C) For purposes of this section, it shall be rebuttably
presumed that an unborn child of a least twenty-four weeks of
gestational age is viable.

(D) Whoever violates this section is guilty of
terminating or attempting to terminate a human pregnancy after
viability, a felony of the fourth degree.

(E) A pregnant woman upon whom an abortion is
performed or induced or attempted to be performed or induced
in violation of division (A) or (B) of this section is not guilty of
an attempt to commit, complicity in the commission of, or

conspiracy in the commission of a violation of either of those
divisions.

2919.18 Failure to perform viability testing on
fetus.

(A)(1) Except as provided in division (A)(3) of this
section, no physician shall perform or induce or attempt to
perform or induce an abortion upon a pregnant woman after the
beginning of her twenty-second week of pregnancy unless,
prior to the performance or inducement of the abortion or the
attempt to perform or induce the abortion, the physician
determines, in good faith and in the exercise of reasonable
medical judgment, that the unborn human is not viable, and the
physician makes that determination after performing a medical
examination of the pregnant woman and after performing or
causing the performing of gestational age, weight, lung
maturity, or other tests of the unborn human that a reasonable
physician making a determination as to whether an unborn
human is or is not viable would perform or cause to be
performed.

(2) Except as provided in division (A)(3) of this section,
no physician shall perform or induce or attempt to perform or
induce an abortion upon a pregnant woman after the beginning
of her twenty-second week of pregnancy without first entering
the determination described in division (A)(1) of this section
and the associated findings of the medical examination and
tests described in that division in the medical record of the
pregnant woman.

(3) Divisions (A)(1) and (2) of this section do not
prohibit a physician from performing or inducing or attempting
to perform or induce an abortion upon a pregnant woman after
the beginning of her twenty-second week of pregnancy without
making the determination described in division (A)(1) of this
section or without making the entry described in division (A)(2)
of this section if a medical emergency exists.

(B) Whoever violates this section is guilty of failure to

perform viability testing, a misdemeanor of the fourth degree.

2307.51 Civil action for dilation and
extraction procedure.

(A) As used in this section:

(1) “Dilation and extraction procedure” has the same
meaning as in section 2919.15 of the Revised Code.

(2) “Frivolous conduct” has the same meaning as in
section 2323.51 of the Revised Code.

(B)(1) A woman upon whom a dilation and extraction
procedure is performed in violation of division (B) of section
2919.15 of the Revised Code has and may commence a civil
action for compensatory damages, punitive or exemplary
damages if authorized by section 2315.21 of the Revised Code,
and court costs and reasonable attorney’s fees against the
person who performed the dilation and extraction procedure.

(2) A woman upon whom a dilation and extraction
procedure is attempted in violation of division (B) of section
2919.15 of the Revised Code has and may commence a civil
action for compensatory damages, punitive or exemplary
damages if authorized by section 2315.21 of the Revised Code,
and court costs and reasonable attorneys [sic] fees against the
person who attempted to perform the dilation and extraction
procedure.

(C) It is an affirmative defense in a civil action
commenced pursuant to division (B)(1) or (2) of this section
that all other available abortion procedures would pose a
greater risk to the health of the woman upon whom the dilation
and extraction procedure was performed or attempted to be
performed than the risk posed by the dilation and extraction
procedure that was performed or attempted to be performed.

(D) If a judgment is rendered in favor of the defendant
in a civil action commenced pursuant to division (B)(1) or (2)
of this section and the court finds, upon the filing of a motion
under section 2323.51 of the Revised Code, that the
commencement of the civil action constitutes frivolous conduct
and that the defendant was adversely affected by the frivolous

conduct, the court shall award in accordance with section
2323.51 of the Revised Code reasonable attorney’s fees to the
defendant.

2307.52 Civil action for terminating a human
pregnancy after viability

(A) As used in this section:

(1) “Frivolous conduct” has the same meaning as in
section 2323.51 of the Revised Code.

(2) “Viable” has the same meaning as in section
2919.16 of the Revised Code.

(B)(1) A woman upon whom an abortion is purposely
performed or induced or attempted to be performed or induced
in violation of division (A) of section 2919.17 of the Revised
Code has and may commence a civil action for compensatory
damages, punitive or exemplary damages if authorized by
section 2315.21 of the Revised Code, and court costs and
reasonable attorney's fees against the person who purposely
performed or induced or attempted to perform or induce the
abortion in violation of division (A) of section 2919.17 of the
Revised Code.

(2) A woman upon whom an abortion is purposely
performed or induced or attempted to be performed or induced
in violation of division (B) of section 2919.17 of the Revised
Code has and may commence a civil action for compensatory
damages, punitive or exemplary damages if authorized by
section 2315.21 of the Revised Code, and court costs and
reasonable attorney’s fees against the person who purposely
performed or induced or attempted to perform or include the
abortion in violation of division (B) of section 2919.17 of the
Revised Code.

(C) If a judgment is rendered in favor the defendant in
a civil action commenced pursuant to division (B)(1) or (2) of
this section and the court finds, upon the filing of a motion
under section 2323.51 of the Revised Code, that the
commencement of the civil action constitutes frivolous conduct

and that the defendant was adversely affected by the frivolous
conduct, the court shall award in accordance with section
2323.51 of the Revised Code reasonable attorney’s fees to the
defendant.

2305.11 Time limitations for bringing certain
actions; extensions; effect of legal
disability.

(C) A civil action for unlawful abortion pursuant to
section 2919.12 of the Revised Code, a civil action authorized
by division (H) of section 2317.56 of the Revised Code, a civil
action pursuant to division (B)(1) or (2) of section 2307.51 of
the Revised Code for performing a dilation and extraction
procedure or attempting to perform a dilation and extraction
procedure in violation of section 2919.15 of the Revised Code,
and a civil action pursuant to division (B)(1) or (2) of section
2307.52 of the Revised Code for terminating or attempting to
terminate a human pregnancy after viability in violation of
division (A) or (B) of section 2919.17 of the Revised Code
shall be commenced within one year after the performance or
inducement of the abortion, within one year after the attempt to
perform or induce the abortion of division (A) or (B) of section
2919.17 of the Revised Code, within one year after the
performance of the dilation and extraction procedure, or, in the
case of a civil action pursuant to division (B)(2) of section
2307.51 of the Revised Code, within one year after the attempt
to perform the dilation and extraction procedure.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0143%3A02. Public record. Not legal advice.