Opposition Brief — Voinovich v. Women's Medical Professional Corp.

No. 97-934 ~

FEB

IN THE aan

Supreme Court of the United States

OCTOBER TERM, 1997

>

GEORGE VOINOVICH, Governor, State of Ohio; BETTY D. MONTGOMERY,

Attorney General, State of Ohio; and MATHIAS H. HECK, JR.,

Montgomery County Prosecuting Attorney,

Petitioners,

-—Vi—

WOMEN’S MEDICAL PROFESSIONAL CORPORATION;

and MARTIN HASKELL, M.D.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

JANET BENSHOOF ALPHONSE A. GERHARDSTEIN

SIMON HELLER (Counsel of Record)

JULIE F. KAY 1409 Enquirer Building

The Center for Reproductive 617 Vine Street

Law & Policy Cincinnati, Ohio 45202

120 Wall Street (513) 621-9100

New York, New York 10005

Vv

(212) 514-5534 DAVID GREER

6 North Main Street

Dayton, Ohio 45402

(937) 223-3277

Counsel for Respondents

QUESTIONS PRESENTED

1. Whether the court of appeals was correct in holding

that Ohio’s unique statute banning certain surgical abortions

is unconstitutional because it effectively bans the most

common method of second-trimester abortion?

2. Whether the court of appeals was correct in holding

that Ohio’s criminal statute banning abortions after viability

is unconstitutional because it lacks both a scienter

requirement and an adequate exception for abortions

necessary to protect the woman’s health?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .ccccoscocsocscoreseseorosstesniettensumnnent i

TABLE OF AUTHORITIES. ............:cccssccsssssceseceesseerenseenens Vv

OPINIONS BELOW ....cccsccsccssssessscsssesosssetnsnsinannasunnaaial l

PRELIMINARY STATEMENT ...........cccssssssssseessseeesseeensens |

COUNTERSTATEMENT OF THE CASE ..........cccesseceeeees 2

I. The Scope and Effect of HB 135...........c.csssesssseeeees 2

A. The Method Ban in HB 135 ...........csseeseees 2

B. The Post-Viability Ban in HB 135.............. 4

C. General Description of Abortion

Procedures and Relative Risks .................+. 5

D. The Method Ban in HB 135 Encompasses

the D&E Procedure ...........:ccssccsseessseeseeneees 7

E. The D&X Method Employed by Dr.

Haskell is the Safest, Most Available

Technique for Certain Abortions................. 8

F. The Health Exception to the Post-Viability

Abortion Ban is Limited to Physical

Bee ..nncnicerccnsassinconienpsnbiinsebaiiiiaeadamal 9

II. History of the Litigation. ..............:sssssseseeesseesees 10

A. District Court Opimion..............:ceseseeseeeees 10

B. Court of Appeals Opinion. .............:s0e00e0 11

ill

REASONS FOR DENYING THE WRIT...............0.c0:00000 12

I. THE DECISION OF THE COURT OF APPEALS

PRESENTS NO IMPORTANT QUESTION OF

FEDERAL LAW THAT HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT. ..... 13

A. The Invalidation Of Ohio’s Surgical

Suction Ban By The Court Of Appeals

Was Required Under Well-Settled

Decisions Of This Court.................ccccc00000 13

l. The Ban on D&X Abortions as

Defined in HB 135 is

Unconstitutionally Vague.............. 13

2. The Ban on D&X Abortions

Imposes an Undue Burden on the

Right of Women to Choose

Previability Abortions ................... 14

3. The Ban on D&X Abortions

Unconstitutionally Increases the

Health Risks of Post-Viability

NS 18

B. The Unconstitutionality Of Ohio’s Post-

Viability Abortion Ban Is Well-Settled..... 19

l. The Lack of a Scienter

Requirement Renders the Post-

Il.

iv

THE STANDARD OF REVIEW APPLIED BY

THE COURT OF APPEALS IS IN ACCORD

WITH THE DECISIONS OF THE OTHER

UNITED STATES COURTS OF APPEALS AND

OR THIS COURT. ....2-<csccescosccoscsccsccscsnscenssnseoveneess 22

A. The Standard Of Review Employed By the

Court Of Appeals To Determine That

Ohio's Abortion Method Ban Violates The

Right To Privacy Is Consistent With The

Decisions Of This Court And Of The

B. The Standard Of Review Employed By

The Court Of Appeals To Determine That

Ohio’s Post-Viability Ban Is Vague Is

Consistent With The Decisions Of This

Court And Of The Other Courts Of

Vv

TABLE OF AUTHORITIES

Cases

Barnes v. Moore, 970 F.2d 12 (Sth Cir.),

cert. denied, 506 U.S. 1021 (1992) ................. 24, 25

Carhart v. Stenberg, 972 F. Supp. 507

REE Oe ERS | 3,17

Casey v. Planned Parenthood,

i ee a 25

Causeway Medical Suite v. Foster,

No. 97-2211 (E.D. La. July 14, 1997)..................... 3

Causeway Medical Suite v. leyoub,

109 F.3d 1096 (Sth Cir.),

cert. denied, 118 S. Ct. 357 (1997) .............-.-. 24, 25

Chapman v. United States, 500 U.S. 453 (1991) .............. 28

City of Akron v. Akron Center for Reproductive

Health, Inc. 462 U.S. 416 (1983) ...........cccc00000- 5,27

Colautti v. Franklin,

hi I et EEE a passim

Compassion in Dying v. Washington, 79 F.3d 790

Le) ee 25

Doe v. Bolton, 410 U.S. 179 (1973) ........:cccccecceeeeeeeeseeeeeees 22

Evans v. Kelley, 977 F. Supp. 1283 (E.D. Mich., 1997) .....3

Fargo Women’s Health Org. v. Schafer,

18 F.3d 526 (8th Cir. 1994) 0... eccceccceeececeeeeees 20

Grayned v. City of Rockford, 408 U.S. 104 (1972)........... 13

Harris v. McRae, 448 U.S. 297 (1980) ..........ccccceccceeeeeeeee 23

Intermountain Planned Parenthood v. Montana,

No. BDV 97-477 (Mont. Dist. Ct. Oct. 1, 1997) ....3

vi

Jane L. v. Bangerter, 102 F.3d 1116 (10th Cir. 1996),

cert. denied, 117 S. Ct. 2453 (1997) ........cc0000 21, 25

Jane L. v. Bangerter, 61 F.3d 1493 (10th Cir. 1995),

reversed on other grounds sub nom.

Leavitt v. Jane L., 518 U.S. 137 (1996)................. 18

Janklow v. Planned Parenthood,

La: 8. fll ee 23, 25

Karlin v. Foust, 975 F. Supp. 1177 (W.D. Wis. 1997) .....25

Kolender v. Lawson, 461 U.S. 352 (1983) ...........0c00++ 27, 28

Little Rock Family Planning Services v. Jegley,

No. LR-C-97-581 (E.D. Ark. July 31, 1997).......... 3

Maynard v. Cartwright, 486 U.S. 356 (1988)............0000+ 28

Midtown Hospital v. Miller, No. 1:97-CV-1786-JOF

ibe Bo} & Sees eee 3

New Haven Inclusion Cases, 399 U.S. 392 (1970)............ 16

Ohio v. Akron Center for Reproductive Health,

PS es Se i antitidcantinintircninaanidintmmen 24

Planned Parenthood of Alaska v. Alaska,

No. 3AN-97-06019 Civil

(Alaska Sup. Ct. 3rd Dist. July 31, 1997)................ 3

Planned Parenthood of Central New Jersey v. Verniero,

No. 97-6170 (D.N.J. Dec. 24, 1997) .0......cccccceceeeeee 3

Planned Parenthood of Missouri v. Danforth,

GBB UD. SB CBG TD ccccccciestertntnectinvenssens 14, 15, 17, 18

Planned Parenthood of Southern Arizona v. Woods,

No. 97-385-TUC-RMB, 1997 U.S. Dist.

LEXIS 17226 (D. Ariz. 1997) ............ccccccccesseeeeeeeees 3

Planned Parenthood v. Casey,

SD ey ee atctnietntenmcnnbiertsnnnanenen passim

Vii

Planned Parenthood v. Miller,

63 F.3d 1452 (8th Cir. 1995) cert. denied,

BIG BS. Ce, 1SB2 (1DDG) .nccccccocecccccccccsscocscesscesees 20, 25

Rhode Island Medical Soc'y v. Pine,

No. 97-416L (D.R.L. July 11, 1997) 200.00... cccccceeeeee 3

Richmond Boro Gun Club, Inc. v. City of New York,

97 F.2d 681 (2d Cir. 1996).............ccccccccceeerecereeeees 28

Roe v. Wade, 410 U.S. 113 (1973) ..............0000 5, 18,21, 22

Russell v. Southard, 12 How. 139 (1851))...........cccccseeeeeeee 16

Rust v. Sullivan, 500 U.S. 173 (1991) ......cccccccceeseeeeeseeeeeees 23

Secretary of State of Maryland v. J.H. Munson Co.,

SF TA Fe Ce hetrthcwittitincnitllininecinitttinannatinsi 25

Stoianoff v. Montana, 695 F.2d 1214 (9th Cir. 1983)....... 28

Summit Med. Assocs. v. James, No. 97-T-1149N,

1998 U.S. Dist. LEXIS 737

SR UN I BE, OPED ccrnessicnsecscnsmsnsnpecapeniiasenvies 3

Thornburgh v. American College of

Obstetricians & Gynecologists,

475 U.S. 747 (1986) ..........:ccccccceeeceeeeee 15, 17, 18, 21

United States v. A Single Family Residence,

803 F.2d 625 (11th Cir. 1986) 0000.0... eee eceeeeeeeeee 28

United States v. Mazurie, 419 U.S. 544 (1975)........cc0000 28

United States v. Powell, 423 U.S. 87 (1975) .....ccccccecceeevees 28

United States v. Reed,

114 F.3d 1067 (10th Cir. 1997) 0000... ccc ccceeeeeeeees 28

United States v. Salerno,

481 U.S. 739 (1987) .........:cccccccceeceeeeres 23, 24, 25, 26

United States v. Vuitch, 402 U.S. 62 (1971)...........000+. 21, 22

vill

Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc.,

455 U.S. 489 (1982) .........ccccecccssseeeeeenseees 26, 27, 28

Washington v. Glucksberg,

BSP &. Ch, BRI CaP ccctinesccicnttscavisticbendeviiionnn 24, 25

Webster v. Reproductive Health Services,

GBB UB. SED CIGD crocecinsicticocneecisstcinmnvecmscsntniins 24

Constitutional Provisions, Statutes & Rules

Mich. Comp. Laws Ann. §§ 333.17016

aah it CN i is 2

Mich. Comp. Laws Ann. §§ 333.17516

ET AERIS CRONE 2

a tne ce A RR 13

ORC. SDA iis i ae 2

ORE. SINAN foe a ae 4

Ont ee ee 19

OR NE cnencsntinne ke os 10

ORL. OMA iiiiieisderiieb dati iecintitisl wads -10

LE RI niatannsdctiietcencenen tiation, 4

One Swe 4,19

Chan 6 ae 4

Pe yk MAORI eke skein cam 4

ORE A WE icsiks tacit, 4

ORG WEN ici Nidal hii dhs 5

OUR. ANN iii ii shi ncn eatiais 4

OR: CREE vei 5

a Be aiececnatilticnctetbninidcintahateiidinnsiibiadintidedacsinanintie 12

STII Titi IN eit ticieeclehinsthesonetendietnabingnnbetiateminsenindhoes 12

Miscellaneous

Statement on Intact Dilatation and Extraction, ACOG

Statement of Policy (Jan. 12, 1997) 2.0... 16

Council of Scientific Affairs, AMA,

Induced Termination of Pregnancy Before & After

Roe v. Wade, 268 JAMA 3231 (1992) ..........ccce0e000 5

Respondents Women’s Medical Professional Corporation

and Martin Haskell, M.D., on behalf of themselves and the

patients they serve, respectfully submit the following brief in

Opposition to the petition for certiorari filed by George

Voinovich, the Governor of Ohio, et al. [“the State”),

docketed on December 5, 1997.

OPINIONS BELOW

The opinion of the district court is reported at 911 F.

Supp. 1051 (S.D. Ohio 1995). The opinion of the court of

appeals is reported at 130 F.3d 187 (6th Cir. 1997).

PRELIMINARY STATEMENT

This case does not involve a “partial birth abortion” law.

The Ohio statute does not use that term and defines the

banned procedures differently than statutes that ban “partial

birth abortion.” See nn. 2 & 3 infra. At issue is a unique

criminal statute that uses imprecise terminology to ban the

dilation and extraction (“D&X”) surgical abortion procedure

throughout pregnancy, as well as “attempts” to use the D&X

procedure. Although the focus of the ban is on the use of

suction in abortion surgery, a first-trimester procedure,

suction curettage-or aspiration, is explicitly excluded from

the ban. The other procedures that involve suction —

particularly dilation and evacuation (“D&E”), the most

common second-trimester abortion procedure - are swept into

the ban.

The statute also bans most post-viability abortions. The

post-viability ban lacks any mens rea requirement and

therefore imposes strict criminal liability on physicians.

Further, the post viability ban lacks an adequate exception for

maternal health.

The jurisprudence applied by the lower courts to strike

down the statute is both correct and well established. The

2

petitioners fail to present any conflict with the prior abortion

decisions of this court or any conflict among the circuits that

makes this case appropriate for review. The petition should

be denied.

COUNTERSTATEMENT OF THE CASE

I. The Scope and Effect of HB 135

In 1995, the Ohio legislature passed HB 135, a criminal

statute banning all abortions performed by the “D&X”

procedure throughout pregnancy and prohibiting most post-

viability abortions. Pet. Att.' The Act also requires fetal

viability testing, defines viability and imposes five separate

limitations on the few post-viability abortions that remain

permissible under the Act.

A. The Method Ban in HB 135.

The Act defines the D&X procedure as “the termination

of a human pregnancy by purposely inserting a suction

device into the skull of a fetus to remove the brain....” Pet.

Att.1 (Ohio Rev. Code Ann. (“O.R.C.”) § 2919.15(A)). It

specifically excludes the most common first-trimester

methods, suction curettage and suction aspiration. /d.

Contrary to the State’s assertion, see Pet. at 15, the D&X

definition in the Ohio Act is not synonymous with “partial

birth abortion,”? nor is the Ohio Act similar to the partial

Citations to the Petition are in the form “Pet.”; to its unpaginated

Attachment are in the form “Pet. Att.”; and to its Appendix are in the

form “A-_™: citations to the trial record are given as “witness, transcript

date, page.”

2 See, e.g., Mich. Comp. Laws Ann. §§ 333.17016, 333.17516 (West

Supp. 1997) (Partial-birth abortion means an abortion in which the

physician “partially vaginally delivers a living fetus before killing the

fetus and completing the delivery.”).

3

birth abortion bans enacted in 16 other states. Pet. at 15-16.

Unlike the Ohio Act, the sixteen partial birth abortion bans

do not even attempt to exclude from their scope any abortion

procedures at all, nor do they include suctioning of the fetal

brain as an element. Moreover, all the other statutes involve

a ban on a method of terminating a fetal life while the Ohio

Act refers to the broader concept of “termination of a human

pregnancy,” which includes removal of a dead fetus.

> Although defendants claim that 17 states, including Ohio, regulate

partial birth abortions, see, Pet. at 15-16, only Ohio bans the D&X

procedure. The other 16 states ban “partial birth abortion,” defined using

language nearly identical to that in Michigan. See n.2, supra, and statutes

listed at Pet. 15-16. Eleven of these statutes have been challenged and

have either been enjoined or are pending final adjudication. See Evans v.

Kelley, 977 F. Supp. 1283 (E.D. Mich. 1997) (permanent injunction);

Planned Parenthood of Southern Arizona v. Woods, No. 97-385-TUC-

RMB, 1997 U.S. Dist. LEXIS 17226 (D. Ariz. Oct. 24, 1997) (permanent

injunction); Carhart v. Stenberg, 972 F. Supp. 507 (D. Neb. 1997)

(preliminary injunction); Causeway Medical Suite v. Foster, No. 97-2211

(E.D. La. July 14, 1997) (TRO); Rhode Island Medical Soc'y v. Pine, No.

97-416L (D.R.I. July 11, 1997) (TRO); Little Rock Family Planning

Services v. Jegley, No. LR-C-97-581 (E:D. Ark. July 31, 1997) (TRO);

Planned Parenthood of Central New Jersey v. Verniero, No. 97-6170

(D.N.J. Dec. 24, 1997) (TRO); Summit Med. Assocs. v. James, No. 97-T-

1149N, 1998 U.S. Dist. LEXIS 737 (M.D. Ala. Jan. 26, 1998) (denying

motion to dismiss in relevant part); Midtown Hospital v. Miller, No. 1:97-

CV-1786-JOF (N.D. Ga. July 23, 1997) (denying TRO while limiting

enforcement to post-viability); see also Intermountain Planned

Parenthood v. Montana, No. BDV 97-477 (Mont. Dist. Ct. Oct. 1, 1997)

(preliminary injunction under Montana Constitution); Planned

Parenthood of Alaska v. Alaska, No. 3AN-97-06019 Civil (Alaska Sup.

Ct. 3rd Dist. July 31, 1997) (TRO under Alaska Constitution).

B. The Post-Viability Ban in HB 135.

In addition to the method ban, HB 135 bans almost all

post-viability abortions. Th< Act creates a rebuttable

presumption of viability at twenty-four weeks of gestational

age, Pet. Att. 5 (O.R.C. § 2919.17(C)), where gestational age

is "the age of an unborn human as calculated from the first

day of the last menstrual period of a pregnant woman.” Jd. at

2 (O.R.C. § 2919.16(B)). For any abortion performed after

twenty-one weeks of pregnancy, the physician must perform

a medical examination and tests to determine that the fetus is

not viable. Jd. at 6 (O.R.C. § 2919.18 (A)(1)-(2)).

The post-viability ban contains two exceptions, but both

lack a mens rea or scienter requirement. Jd. at 3-4 (O.R.C. §

2919.17(A)). The first exception permits post-viability

abortions if a 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.” Jd. at 3

(O.R.C. § 2919.17(A)(1)). The second exception permits an

abortion where the physician has determined “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 [O.R.C. § 2919.18(A)] of the

Revised Code [regulating the determination of viability] that

the unborn human is not viable.” Jd. at 3-4 (O.R.C. §

2919.17(A)(2)).

The Act requires physicians who do perform post-

viability abortions to take five additional steps: a certification

requirement; a second physician concurrence requirement; a

neonatal facility requirement; a choice-of-method

requirement; and a second-physician attendance requirement.

5

Id. at 4-5 (O.R.C. § 2919.17(B)(1)). A person who violates

the ban on post-viability abortions is subject to both criminal

liability as well as civil liability for compensatory and

punitive damages. /d. at 5-8 (O.R.C. §§ 2919.17 (D) &

2307.52(B)).

C. General Description of Abortion Procedures and

Relative Risks.

Abortion is a very safe medical procedure and has

become increasingly safe since this Court’s decision in Roe v.

Wade, 410 U.S. 113 (1973) . One major reason for this is the

development of safer abortion techniques.* In 1983, this

Court acknowledged this development, finding that since

Roe, “the safety of second-trimester abortion has increased

dramatically . . . the principal reason is that the D&E

procedure is now widely and successfully used.” City of

Akron v. Akron Center for Reproductive Health, Inc. (“Akron

I’), 462 U.S. 416, 436-37, 430 n.11 (1983).

The majority of abortions performed in Ohio, and in the

United States generally, occur during the first trimester of

pregnancy. A-94-95. Those abortions are mainly performed

by suction curettage or aspiration. A-21. In this procedure,

the cervix is dilated and the products of conception removed

by suction with a vacuum aspirator inserted into the uterus.

Id.

4 Deaths from legal abortions declined fivefold between 1973 and 1985

(from 3.3 to 0.4 per 100,000 procedures), making abortion mortality

more than 10 times lower than death from childbirth. See Council on

Scientific Affairs, AMA, Induced Termination of Pregnancy Before &

After Roe v. Wade, 268 JAMA 3231, 3235 (1992). Evolving abortion

methods, particularly the shift from instillation to D&E for second-

trimester abortions, are identified by the American Medical Association

critical to this increased safety. Jd. at 3232.

6

In the second trimester, when the fetus is often too large

to be removed solely by suction, the dilation and evacuation

(“D&E”) procedure is most commonly used. A-22. During

the D&E procedure, the physician employs both suction and

forceps to accomplish a complete evacuation of the uterus.

A-22. The fetal body, which at later stages of pregnancy

cannot be removed simply with suction, must be crushed or

disjoined. A-22. The head, because of its size, often cannot

pass through the woman’s cervical opening without some

form of decompression. In this conventional D&E as well as

in all of the surgical variations of the D&E, suction is used to

remove the contents of the skull during the surgery. A-22-

23.

Subsequent to the first trimester, other methods to

terminate the pregnancy include induction or instillation

methods. A-97-98; see also A-28 n.12. During these

procedures, the physician either injects a substance, such as a

prostaglandin and urea combination, into the woman’s

amniotic cavity, or places prostaglandin suppositories into

the vagina. A-97. The substances trigger labor, which

results in the eventual birth of a stillborn, often after more

than twelve hours of labor.> A-97-98.

5 The various induction methods have all the medical risks and

complications of labor, A-104, as well as specific contraindications

depending on each woman’s medical diagnosis. For example,

hypertension, asthma, epilepsy, and glaucoma are all contraindications

for saline abortion. Campbell, 12/6 Tr. at 26. Similarly, prostaglandin

abortions are contraindicated for women with asthma, epilepsy,

glaucoma, and pulmonary hypertension or systemic hypertension.

Instillation abortions may be contraindicated for women who have had

previous cesarean sections oF active pelvic infections, or for women with

a fetal death in utero. A-105; Campbell, 12/6 Tr. at 26-28.

Complications assoc‘ated with induction abortion range from forcing

infection A-98 , to severe respiratory and cardiac complications.

Campbell, +2/6 Tr. at 31.

7

Rarely used abortion procedures include hysterotomy

which is a cesarean section prior to viability, and a

hysterectomy which is the surgical removal of the uterus.

These are major surgical procedures and pose the most

complications of all as they are much more invasive and

traumatic than any of the other procedures. A-105.

D. The Method Ban in HB 135 Encompasses the

D&E Procedure.

The D&E method is the most common and safest method

of abortion during the second trimester. A-95; A-98. When

the fetal skull is too large to pass through the cervix,

physicians performing D&E abortion procedures use various

techniques to reduce it. Some physicians crush the fetal skull

with forceps and suction both the contents and skull pieces to

remove them from the uterus. Others do not crush the skull

but prefer to decompress it by suctioning its contents after the

skull has been separated from the rest of the fetus. Another

variation is employed by some physicians who compress the

skull with suction while it is still attached to the rest of the

fetus. See A-100-101 n.19. All of these surgical variations

are encompassed by the HB 135 ban because they involve

“purposely inserting a suction device into the skull of a fetus

to remove the brain . . .” or an attempt to do so. A-23-27.

Three goals are pursued as surgeons continue to impro ve

any surgical method. First, they seek to minimize trauma to

the patient; second, minimize blood loss; and third, reduce

surgical time. Suction helps a surgeon performing an

abortion accomplish those goals by reducing the amount of

material that must be removed physically by forceps and

thereby permitting the evacuation of the uterine cavity more

safely and expeditiously. A-96, 100. Suction has long been

an important aid in abortion surgery. Prohibiting the use of

suction to “remove the fetal brain” ignores the fact that

8

suction aids in the removal of every part of the fetus during

abortion surgery, at every stage of gestation.

In all conventional second-trimester D&E surgical

abortions, suction is employed to “purposely” remove the

brain and all fetal parts. Indeed, Dr. Doe Number One

testified that he seeks to “purposely” collapse the head by

using suction to evacuate its contents in pregnancies as early

as 15-18 weeks. A-101 n.19. Thus, Ohio’s statute imposes a

ban on all suction-assisted abortion techniques after the first

trimester and effectively bans the conventional D&E surgical

method.

E. The D&X Method Employed by Dr. Haskell Is

The Safest, Most Available Technique for Certain

Abortions.

One variation of the D&E procedure is referred to as

modified D&E, intact D&E or dilatation and extraction

(“D&X”). A-22; A-98. Plaintiff respondent Dr. Haskell is

one physician who uses this procedure. In this variation, the

cervix is dilated and the physician tries to remove the fetus

from the uterus intact. A-22-23; A-99-100. Using forceps,

the physician performs a breech delivery of the fetus, with

the exception of the head, which is too large to deliver. A-

23; A-99. Since a major goal is to avoid trauma to the

woman's cervix during the procedure, the physician creates a

small opening at the base of the fetal skull and evacuates the

contents, allowing the head to pass through the cervical

opening. A-23; A-99. Drs. John Doe One and John Doe

Two also employ surgical abortion techniques similar to the

D&X. A-101 n.19.

Although the conventional D&E is the safest abortion

technique from the thirteenth to the twentieth week of

pregnancy, after the twentieth week, the size of the fetus and

the increased difficulty of dismemberment make uterine

9

injury more likely. A-97-98. The district court found that

D&X was preferable to D&E because “it does not require

sharp instruments to be inserted into the uterus with the same

frequency or extent,” A-110, and “because it causes less

trauma to the maternal tissues (by avoiding the break up of

bones, and the possible laceration caused by their raw edges),

less blood loss, and results in an intact fetus that can be

studied for genetic reasons.” A-107. Further, unlike D&E,

the D&X procedure prevents the woman from coming into

contact with neurologic fetal tissue, which can interfere with

the woman’s blood-clotting ability. A-96.

After comparing the risks associated with the available

abortion techniques -- including D&E, D&X, induction

methods, and hysterotomy and hysterectomy -- the district

court correctly determined that after the twentieth week of a

woman's pregnancy, the D&X procedure employed by Dr.

Haskell is the safest method of abortion. A-105-111. The

district court also found that the D&X procedure performed

by Dr. Haskell is more available in Ohio than its main

alternative, the induction method. A-1 11-12.

F. The Health Exception to the Post-Viability

Abortion Ban is Limited to Physical Health.

HB 135 permits a post-viability abortion if 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.”* Pet. Att. 3

6 The law defines “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;

10

(O.R.C. § 2919.17). The Court of Appeals and the district

court correctly found that this health exception impermissibly

restricts physicians to physical health problems and excludes

all consideration of mental and emotional health problems

that may be manifested by the pregnant woman. A-34; A-

137-38. For example, HB 135 would have blocked an

abortion sought by an eleven year old victim of incest who

was the subject of testimony. That pregnancy was twenty-two

weeks along when terminated by Dr. Hillard shortly before

the trial of this action. A-136. The Act would also have

prohibited the abortions of Jane Doe I and Jane Doe II who

very much wanted their pregnancies to continue but who both

carried fetuses with severe fetal anomalies. A-132-136.

II. History of the Litigation

A. District Court Opinion

On the basis of six days of hearings, the district court

found that both the method and post-viability bans were void

for vagueness and violated the right of privacy. A-94, 102,

112-113. The district court found that the DéX abortion

method is a variant of the most common second-trimester

abortion method, the D&E. A-100. Because the Act’s

definition of D&X focuses on the use of suction, the ban

encompasses both D&E and the D&X variant. The court

found that the Act failed to provide fair warning of the

prohibited conduct and, therefore, was unconstitutionally

vague. A-102.

(2) Inevitable abortion;

(3) Prematurely ruptured membrane;

(4) Diabetes;

(5) Multiple sclerosis.

Pet. Att. 2-3 (O.R.C. § 2919.16(J)).

a

ll

In addition, the court made extensive factual findings that

the D&X technique, in which the physician attempts to

remove the fetus intact, is the safest abortion method for

women Over twenty weeks pregnant. A-110-113.

Prohibiting this method, even if it could be defined as distinct

from conventional D&E, would impermissibly compromise

the lives and health of women. /d. Moreover, the district

court found the Act not only failed to promote the state’s

claimed interest in preventing cruelty to the fetus, A-121, but

that the selectiveness with which it served this interest was

some indication that the actual purpose was to erect an

obstacle to women seeking abortion services. A-118-19 n.29.

The district court held that the ban on post-viability

abortions was unconstitutional because it lacked a valid

medical emergency or medical necessity exception. The Act

unduly limited the physician’s discretion to determine the

measures necessary to preserve a woman’s life and health,

including her mental health. A-34; A-137.

The district court also held that the Act’s conflicting

standards for viability testing were unconstitutionally vague

since it the physician’s determination of viability might be

judged by an objective standard. A-152. The court also

found the medical emergency exception unconstitutional

because it lacked a clear scienter requirement for its criminal

and civil provisions. Jd.

B. Court of Appeals Opinion *.

The court of appeals (per Kennedy & Brown, JJ.) agreed

with the district court that the Act’s ban on the D&X

procedure was unconstitutional because it included not only

D&X abortions, but also the most common second-trimester

method of abortion, conventional D&E. The ban clearly

violated the standard set forth in Planned Parenthood v.

Casey, 505 U.S. 833 (1992), and the court below further held

12

that the post-viability application of the ban could not be

severed from the previability application and that

“[ajccordingly, the entire ban is unconstitutional.” A-32.

The court of appeals did not address the district court's

findings that the D&X definition was unconstitutionally

vague; that the D&X procedure as performed by Dr. Haskell

was potentially safer than other available methods; or that the

D&X ban failed to serve the State's asserted purpose for the

legislation.

The appellate court also affirmed the district court’s

ruling invalidating the ban on post-viability abortions. A-34.

The court held that the medical necessity and medical

emergency provisions were unconstitutionally vague because

they lacked scienter requirements, id., and failed to include

any protection for a “serious non-temporary threat to a

pregnant woman’s mental health.” A-48.

Judge Boggs dissented from the majority's opinion and

would have upheld the constitutionality of the statutes.

REASONS FOR DENYING THE WRIT

The petition for certiorari should be denied because the

State has failed to establish any of the factors that weigh in

favor of a grant of certiorari. First, the decision of the court

below is not “in conflict with the decision of another United

States court of appeals on the same important matter,” Sup.

Ct. R. 10(a); nor did the court below decide “an important

federal question‘in-a way that conflicts with relevant

decisions of this Court.” Sup. Ct. R. 10(c). Further, no

important question of federal law is raised by this case that

has not been, but should be settled by the Court. /d.

Accordingly, the petition should be denied.

13

I. THE DECISION OF THE COURT OF APPEALS

PRESENTS NO IMPORTANT QUESTION OF

FEDERAL LAW THAT HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT.

A. The Invalidation Of Ohio’s Surgical Suction Ban

By The Court Of Appeals Was Required Under

Well-Settled Decisions Of This Court.

1. The Ban on D&X Abortions as Defined in HB

135 is Unconstitutionally Vague.

The Act expansively defines D&X abortion procedures,

in relevant part, as “the termination of a human pregnancy by

purposely inserting a suction device into the skull of a fetus

to remove the brain. . .” Pet. Att. 1 (O.R.C. §2919.15(A)).

The court of appeals carefully reviewed the findings of the

district court and held: “We believe the record amply

supports the District Court’s and our conclusion that the

D&E procedure can entail purposely inserting a suctioning

device into the skull in order to empty the brain contents.”

A-26 (footnote omitted). The court also noted that the ban on

any “attempt” to perform the D&X procedure further

supported this conclusion. A-26 n.10.

The court of appeals did not specifically address the

district court’s legal conclusion that this method ban was

unconstitutionally vague, but the district court conclusion on

that point is entirely consistent with this Court’s

jurisprudence requiring that criminal laws provide “fair

warning as to what conduct is permitted, and as to what

conduct will expose them to criminal and civil liability.” A-

102 (footnote omitted). See Grayned v. City of Rockford, 408

U.S. 104 (1972). This principle is particularly important

when the criminal laws implicate constitutionally protected

activity. See, e.g., Colautti v. Franklin, 439 U.S. 379, 395

(1979). Finally, as a result of the vagueness of the Act, it has

14

the additional defect of exposing physicians to arbitrary

enforcement and chilling physicians from providing

abortions. See id.

2. The Ban on D&X Abortions Imposes an Undue

Burden on the Right of Women to Choose

Previability Abortions.

The holding of the court of appeals that the Act imposes

an undue burden on women’s access to previability abortions

follows directly from this Court’s determination that it is

unconstitutional to ban a safe, common method of abortion.

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

(1976), this Court invalidated a ban on saline amniocentesis

abortions (a type of induction procedure). At the time

Danforth was decided, approximately 70% of all post-first-

trimester abortions in Missouri were done by saline

amniocentesis, 428 U.S. at 76, and the saline procedure was

safer with respect to maternal mortality than continuing a

pregnancy to term. /d. at 77. This Court held that the ban

was unconstitutional because it “forces a woman and her

physician to terminate her pregnancy by methods [namely

hysterotomy or hysterectomy] more dangerous to her health

than the method outlawed.” Jd. at 79.

The principles established in Danforth apply here. By

effectively banning all D&E procedures, including the D&X

variation, the Act is “almost tantamount to a prohibition of

any abortion” after 12 weeks of pregnancy. /d., 428 U.S. at

102 (Stevens, J., concurring in part and dissenting in part).

Between !3 and 16 weeks of pregnancy, the only abortion

procedures that physicians perform is the D&E. A-97. After

sixteen weeks, induction procedures would theoretically be

available despite the Act, but compared to inductions, D&Es

are “less painful,” A-98, “take [ ] less time,” id., and have a

“reduced risk of retained products of conception, infection,

hemorrhage, and cervical injury.” /d. Thus, for some

15

women, the Act operates as a ban on all second-trimester

abortions except for hysterotomy and hysterectomy, and for

others it operates as a ban on the safest and most available

abortion methods. This is plainly unconstitutional under

Danforth.

The lower courts correctly concluded that Casey also

requires invalidation of the Ohio Act. “Because the

definition of the banned procedure includes the D&E

procedure, the most common method of abortion in the

second trimester, the Act’s prohibition on certain uses of

suction in post-first-trimester abortions has the effect ‘of

placing a substantial obstacle in the path of a woman seeking

an abortion of a nonviable fetus.’” A-28 (quoting Casey, 505

U.S. at 877). In Casey, this Court struck down

Pennsylvania’s spousal notice requirement because it “will

often be tantamount to [a] veto” over a woman’s abortion

decision. 505 U.S. at 897. Here, by banning all abortions

between 13 and 16 weeks of pregnancy and dramatically

limiting abortions thereafter to those that are less safe and

less available, the Act will effectively prevent a significant

number of women from obtaining pre-viability second-

trimester abortions.

Even if the Act banned only the D&X abortions as

performed by Drs. Haskell, John Doe I and John Doe II, the

lower court ruling would still be correct under Casey,

Danforth and Thornburgh v. American College of

Obstetricians & Gynecologists, 476 U.S. 747 (1986).’ As the

7 The State originally claimed that the conventional D&E procedure was

included in the definition of suction curettage and vacuum aspiration

procedures and therefore not banned by HB 135, since the Act explicitly

excludes those procedures. This argument was carefully considered and

then firmly rejected by the district court which held that suction curettage

and vacuum aspiration describe first-trimester abortion procedures and

that conventional D&E is clearly a second-trimester procedure. A-94.

The State has now abandoned this argument but continues, now without

16

district court here held: “use of the D&X procedure in the

late second trimester appears to pose less of a risk to maternal

health” than the D&E procedure, the induction procedure or

hysterotomy and hysterectomy. A-110.° As a result, the

foundation, to argue to this Court that the Ohio ban is limited to the D&E

variation performed by Dr. Haskell and known as intact D&X, even

though the text of the Act wholly fails to do so.

8 The State and Judge Boggs in dissent rely on a statement by the Board

of Trustees of the American Medical Association (AMA) for the medical

conclusion that the D&X procedure is never the only appropriate abortion

procedure. See Pet. 17; A-59. This statement is not part of the record in

this case and was not even issued until nearly two years after HB 135 was

passed. This Court is not in a position to weigh a nonrecord opinion by

the AMA against all of the record evidence in this case. See Russell v.

Southard, 12 How. 139, 159 (1851) (“This court must affirm or reverse

upon the case as it appears in the record”). See also New Haven

Inclusion Cases, 399 U.S. 392, 450 n.66 (1970).

The AMA definition of “intact D&X” is markedly different from the

definition in HB 135, because the former requires, inter alia, that the

fetus be /iving after the torso is delivered intact and before the head is

compressed. In this case, the State stipulated that at the beginning of the

D&X procedure “some fetuses are dead and some are alive.” A-118

n.29. Thus the procedure banned by the Ohio law is much broader than

that defined by the AMA. Nor is the recent AMA statement consistent

with the Statement of Policy on Intact D&X by the American College of

Obstetricians and Gynecologists (ACOG). The opinion of the Ohio

ACOG Section Chief was presented to the district court and explained at

trial by Dr. Goler. See 12/16 Tr. at 126-27.

Finally, in its recent published statement, ACOG has taken the

position that the intact D&X procedure “may be the best or most

appropriate procedure in a particular circumstance to save the life or

preserve the health of a woman, and only the doctor, in consultation with

the patient, based upon the woman’s particular circumstances can make

this decision.” Statement on Intact Dilatation and Extraction, ACOG

Statement of Policy (Jan. 12, 1997). Even the AMA itself has stated that

the intact D&X procedure “may minimize trauma to the woman's uterus,

cervix, and other vital organs. Intact D&X may be preferred by some

physicians, particularly when the fetus has been diagnosed with

hydrocephaly or other anomalies incompatible with life outside the

17

district court correctly concluded that “[bJecause the D&X

procedure appears to have the potential of being a safer

procedure than all other available abortion procedures” used

in the later part of the second trimester, “the state is not

constitutionally permitted to ban the procedure.” /d. It

further concluded that if “women were forced to use riskier

and more deleterious abortion procedures,” the ban would

unduly burden the abortion right. A-110-11. That holding

follows ineluctably from Casey, and this Court’s prior

abortion jurisprudence.

A state cannot force a woman from a safer abortion

procedure to a riskier one. In Thornburgh, this Court struck

down a statute that would have required doctors performing

post-viability abortions to use the abortion method most

likely to result in a live birth, unless doing so “would present

a significantly greater risk to the life or health of the pregnant

woman.” 476 U.S. at 768. Because the statute required a

“trade-off” between the woman’s health and fetal survival,

and “failed to require that maternal health be the physician’s

paramount consideration,” id. at 768-69, it was facially

unconstitutional. /d. at 769 (citing Colautti, 439 U.S. at 397-

401). If a woman cannot be required to have an abortion

procedure that exposes her to any additional health risk for

the fetus after viability, she surely cannot be forced to do so

prior to viability.

This conclusion regarding the more limited ban on a

narrowly interpreted HB 135 is also supported by Danforth.

There the court examined several factors in concluding that

Missouri could not ban the use of saline amniocentesis as a

method of abortion. First, the Court looked at whether saline

amniocentesis was “an accepted medical procedure in this

womb.” See Carhart, 972 F. Supp. at 515 (quoting AMA statement as a

finding of fact).

18

country.” /d., 428 U.S. at 77. Ohio’s method ban, even if it

does not cover D&E’s generally, prohibits an accepted

medical procedure. Second, Danforth relied on the

“anomaly” that the Missouri law banned saline abortions “but

[did] not prohibit techniques that are many times more likely

to result in maternal death.” 428 U.S. at 78. Similarly, the

Ohio method ban does not prohibit abortions by hysterotomy

or hysterectomy, both of which procedures “are many times

more likely to result in maternal death” than D&X abortions.

Finally, the Court observed that saline abortions were “safer,

with respect to maternal mortality, than even continuation of

the pregnancy until normal childbirth.” Jd. Here, too, the

D&X ban is safer than continuation of pregnancy through

childbirth. Thus, under Danforth, even a narrower D&X ban,

as suggested by the State, is invalid.

3. The Ban on D&X Abortions Unconstitutionally

Increases the Health Risks of Post-Viability

Abortions.

To the extent that the method ban extends to abortions

after viability, the lower court’s decision is squarely

supported by Thornburgh and Casey, and thus raises no

issues appropriate for review by this Court. It is well-

established that after viability, a woman has the right to

obtain an abortion “where it is necessary, in appropriate

medical judgment, for the preservation of [her] life or

health...” Casey, 505 U.S. at 879 (citing Roe, 410 U.S. at

164-165), and that she is entitled to select the abortion

method that is safest for her health. Thornburgh, 476 U.S. at

768-69; Jane L. v. Bangerter, 61 F.3d 1493, 1502-05 (10th

Cir. 1995), rev'd on other grounds sub nom. Leavitt v. Jane

L., 518 U.S. 137 (1996). Thus, even if the Act reached only

the D&X procedures as claimed by the State, the ban is

unconstitutional because the D&X procedure is safer after

19

viability than other types of post-viability abortion

procedures. A-110.

B. The Unconstitutionality Of Ohio’s Post-Viability

Abortion Ban Is Well-Settled.

1. The Lack of a Scienter Requirement Renders

the Post-Viability Ban Vague.

The court of appeals properly struck down the ban on

post-viability abortions, holding that “the medical necessity

and medical emergency provisions are unconstitutionally

vague because they lack scienter requirements.” A-34. This

ruling is consistent with well-established caselaw.

HB 135 permits the physician to proceed with a post-

viability abortion upon a determination of “medical

emergency” made “in good faith and in the exercise of

reasonable medical judgment.” See Pet. Att. 2 (O.R.C.

$2919.1 6(F)). Likewise, application of the “medical

necessity” exception requires a physician determination made

“in good faith and in the exercise of reasonable medical

judgment.” /d. at 3 (O.R.C. §2919.17(A)(1)). The court

described the defect as follows:

Thus, both of these provisions contain

subjective and objective elements in that a

physician must believe that the abortion is

necessary and his belief must be objectively

reasonable to other physicians. This dual

standard as written contains no scienter

requirement. Therefore, a physician may act

in good faith and yet still be held criminally

and civilly liable if, after the fact, other

physicians determine that the physician’s

medical judgment was not reasonable.

20

A-35. In concluding that the absence of a scienter

requirement made these provisions unconstitutionally vague,

the court of appeals properly relied on three cases. First, in

Colautti, this Court held a Pennsylvania law

unconstitutionally vague which required each physician who

performs an abortion to determine viability “based on his

experience, judgment, or professional competence.” /d., 439

U.S. at 380 n.1 (quoting Pennsylvania statute). Additional

requirements were imposed by the statute “if there [was]

sufficient reason to believe that the fetus [might] be viable.”

Id. This language lacked a scienter requirement and therefore

served as “little more than ‘a trap for those who act in good

faith.”” Jd. at 395 (citations omitted). Similarly, the court

below correctly concluded that the language of HB 135 will

have a profound “chilling effect” on physicians who “cannot

know the standard under which their conduct will ultimately

be judged.” A-38.

The only other court of appeals decisions addressing this

issue in the abortion context have been decided by the Eighth

Circuit and support the decision of the court of appeals in this

case. See Fargo Women's Health Org. v. Schafer,

18 F.3d 526, 534 (8th Cir. 1994) (presence of scienter

requirement saved North Dakota medical emergency

definition); Planned Parenthood v. Miller, 63 F.3G 1452,

1465 (8th Cir. 1995) (absence of scienter requirement made

criminal provisions of South Dakota parental notice and

waiting period unconstitutional), cert. denied, 116 S. Ct.

1582 (1996).

The State practically concedes the vagueness of the Act

in the petition when it laments the failure of the courts to

accept “reasonableness” as a basis for criminal liability in the

area of abortion regulation. By conceding that “clear lines

are hard to find,” Pet. 26, the State itself has underscored the

need for a scienter requirement. The court of appeals thus

21

correctly held that the post-viability ban in HB 135 is

unconstitutionally vague.

2. The Lack of an Adequate Health Exception

Violates the Right to Privacy.

Ohio’s post-viability abortion ban, which limits its health

exception to physical health, runs afoul of twenty-five years

of this Court’s jurisprudence consistently hoiding that a ban

on abortions after viability must contain exceptions for

abortions necessary to preserve the woman’s life and health.

Roe, 410 U.S. at 165 (State may proscribe abortion after

viability “except where it is necessary, in appropriate medical

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

mother”); Colautti, 439 U.S_ at 400; Casey, 505 U.S. at 879

(reaffirming Roe 's requirement that post-viability abortion

ban contain exception for woman’s life and health):

Thornburgh, 476 U.S. at 768-69 (woman’s health must be

physician’s “paramount consideration” even after viability).

See also Jane L. v. Bangerter, \02 F.3d 1112, 1118 n.7 (10th

Cir. 1996), cert. denied, 117 S. Ct. 2453 (1997).

That “health” under Roe 's required exception to post-

viability abortion bans includes mental health is not in doubt.

Roe itself states that whether the woman’s health would be

preserved by an abortion must be left to “appropriate medical

judgment.” 410 U.S. at 165. Certainly such medical

judgment must take into account both physical and mental

health. Moreover, as this Court wrote before it decided Roe,

“whether a particular operation is necessary for a patient’s

physical or mental health is a judgment that physicians are

obviously called upon to make routinely whenever surgery is

considered.” United States v. Vuitch, 402 U.S. 62, 72 (1971)

(footnote omitted).

It strains credulity to suppose that when this Court used

the word “health” in requiring exceptions to post-viability

22

bans in Roe two years later, and re-affirmed that language in

Casey, the Court intended physicians to use “appropriate

judgment” different from that used “whenever surgery 1s

considered.” See Doe v. Bolton, 410 U.S. 179, 191-92 (1973)

(statute at issue in Vuitch, having been construed to “bear

upon psychological as well as physical well-being,” allowed

physicians to exercise judgment they would be “called upon

to make routinely”). Thus, the holding of the court of

appeals that Ohio’s post-viability ban is invalid because it

lacks a mental health exception, see A-45-49, is entirely

consistent with settled law.

ll. THE STANDARD OF REVIEW APPLIED BY THE

COURT OF APPEALS IS IN ACCORD WITH THE

DECISIONS OF THE OTHER UNITED STATES

COURTS OF APPEALS AND OF THIS COURT.

A. The Standard Of Review Employed By the Court

Of Appeals To Determine That Ohio's Abortion

Method Ban Violates The Right To Privacy Is

Consistent With The Decisions Of This Court And

Of The Majority Of Courts Of Appeals.

The standard of review used by the court of appeals to

assess the facial constitutionality of Ohio’s method ban is the

standard used by the controlling opinion of this Court in

reviewing the Pennsylvania abortion restrictions in Planned

Parenthood v. Casey, 505 U.S. 833 (1992). Casey holds that

a pre-viability abortion restriction is unconstitutional on its

face if “in a large fraction of the of the cases in which [the

restriction] is relevant, it will operate as a substantial obstacle

to a woman’s choice to undergo an abortion.” 505 U.S. at

895 (joint opinion). The court below properly used this

standard in affirming the district court’s judgment that the

method ban is invalid, reasoning as follows:

23

[I}t follows that a statute which bans a

common abortion procedure would constitute

an undue burden. An abortion regulation that

inhibits the vast majority of second-trimester

abortions would clearly have the effect of

placing a substantial obstacle in the path of a

woman seeking a pre-viability abortion.

A-28. Thus, there is no conflict between the decision of the

court below and the most recent (and hence controlling)

relevant decision of this Court.

In order to find a conflict that calls for resolution, the

State therefore urges this Court to look to older decisions of

this Court seemingly applying a different standard and to two

decisions of a single court of appeals. But its efforts are

unavailing. The proposed alternative standard of review,

dubbed the Salerno standard because it derives from this

Court’s opinion in United States v. Salerno, 481 U.S. 739,

745 (1987), “has been properly ignored in subsequent cases

even outside the abortion context.” Janklow v. Planned

Parenthood, 116 S. Ct. 1582, 1583 (1996) (Stevens, J.,

respecting denial of certiorari) (footnote omitted). Under the

Salerno dictum, a facial challenge fails unless the challenger

shows that there “is ‘no set of circumstances’ in which the

statute could be validly applied.” /d. This “unfortunate

language,” id., has never been used by this Court to uphold

an abortion restriction that is invalid in a large fraction of its

applications.

The abortion cases cited by the State that quote Sa/erno's

dictum, see Pet. at 10, do not “apply” this standard. First,

because the restriction at issue in Rust v. Sullivan, 500 U.S.

173 (1991), involved federally funded programs, and because

this Court has long held that no right is impinged upon by

abortion restrictions in federal funding programs, see Harris

v. McRae, 448 U.S. 297 (1980), Rust actually holds that no

24

right is violated by the Title X regulations at issue there, not

that the regulation is valid even though it violates the

Constitution in a large fraction of cases. See id., 500 U.S. at

201-02 (government has no constitutional duty to subsidize

abortion counseling or referral). Similarly, although this

Court’s opinion in Ohio v. Akron Center for Reproductive

Health {Akron II), 497 U.S. 502 (1990), quotes Salerno, it

does not apply it. Instead, Akron // holds the inverse of

Salerno: that a statute will not be held unconstitutional

because it might, in an unlikely or “worst case scenario,”

violate the Constitution. See id. at 514 (“The Court of

Appeals should not have invalidated the Ohio statute based

upon a worst-case analysis that may never occur.”).

Similarly, Justice O’Connor in Webster v. Reproductive

Health Services, 492 U.S. 490 (1989), wrote that “there may

be conceivable applications of [Missouri's] ban on the use of

public facilities that would be unconstitutional,” id. ai 523

(O’Connor, J., concurring in part and concurring in the

judgment), but found the presence of such “conceivable

applications” insufficient to render the statute invalid on its

face. See also Washington v. Glucksberg, 117 S. Ct. 2302,

2304-05 & n.6 (1997) (Stevens, J., concurring in the

judgments). Thus, there is no conflict between the decision

of the court below and any of the abortion decisions of this

Court cited by the State.

There is likewise no real conflict between the decision of

the court below and the decisions of the one court of appeals

that even nominally continues to adhere to the Salerno

dictum. Neither Barnes v. Moore, 970 F.2d 12 (Sth Cir.),

cert. denied, 506 U.S. 1021 (1992), nor Causeway Medical

Suite v. levoub, 109 F.3d 1096 (Sth Cir.), cert. denied, 118 S.

Ct. 357 (1997), present a real conflict with the decision of the

court below.

25

First, the Causeway decision holds a Louisiana abortion

statute unconstitutional under the Salerno regime; a fortiori,

the same statute would be unconstitutional under the more

protective standard employed by the court below. Simply

put, Causeway did not apply Salerno “to deny relief in a case

in which a facial challenge would otherwise be successful.”

Janklow, 116. S. Ct. at 1583 (Stevens, J., respecting denial of

certiorari) (footnote omitted).

Second, as Justice Stevens has noted, “{i]r all likelihood,

the decision of the Fifth Circuit [in Barnes] applying the ‘no

circumstance’ test would have been decided the same way

even if that court had utilized the ‘large fraction’ test... ”

Janklow, 116. S. Ct. at 1583 n.2 (Stevens, J., respecting

denial of certiorari). Thus, as to both Barnes and Causeway,

the purported conflict is not sufficiently direct and real to

merit resolution by this Court.®

In any event, under the State’s analysis, Sa/erno's “no set

of circumstances” standard is met here. Because the same

result would be reached in this case regardless of what

standard is applied, there is no reason for this Court to review

the lower court decision. The State asserts that “[tJhe

traditional Salerno requirement has long been met when a

Statute ‘operates on a fundamentally mistaken premise.’”

Pet. at 21 (quoting Secretary of State of Maryland v. J.H.

Munson Co., 467 U.S. 947, 966 (1984)). In Casey, the State

9 Indeed, once the suggested conflict with the Fifth Circuit is laid aside,

the decision of the court below to apply the standard used by the joint

opinion in Casey is in complete harmony with all other federal courts to

consider the question. Jane L., 102 F.3d at 1116; Miller, 63 F.3d at

1456-58; Casey v. Planned Parenthood, 14 F.3d 848, 861 (3d Cir. 1994);

Compassion in Dying v. Washington, 79 F.3d 790, 798 n.9 (9th Cir.

1996) (en banc), rev'd on other grounds sub nom. Washington v.

Glucksberg, 117 S. Ct. 2258 (1997); see also Karlin v. Foust, 975 F.

Supp. 1177, 1204 (W.D. Wis. 1997).

26

argues, the spousal notice provision was unconstitutional

because it rested on the “mistaken premise” that “a

husband’s interest in the potential life of the [unborn] child

outweighs a wife’s interest [to choose to have an abortion].””

Pet. 21. The same principle applies here. The ban on D&X

abortions throughout pregnancy is unconstitutional under the

Salerno dictum because it rests on the “mistaken premise”

that prior to viability any state interest in the potential life of

the fetus justifies forcing a woman into having a less safe

abortion, or preventing her from making her own decision a*

to what procedure is best for her. This plainly is not the case.

B. The Standard Of Review Employed By The Court

Of Appeals To Determine That Ohio’s Post-

Viability Ban Is Vague Is Consistent With The

Decisions Of This Court And Of The Other Courts

Of Appeals.

The State also contends that the vagueness standard

applied by the court below conflicts with the standard applied

by this Court and several courts of appeals. Contrary to the

State’s argument, however, the decision of the court below is

entirely consistent with this Court’s precedents; and whatever

conflicts may exist between the standard applied by the court

below and the standard applied by other courts of appeals is

not a direct and real conflict, but one that evaporates upon

careful examination of the cases cited by the State.

The State’s claim that the vagueness standard used by the

court of appeals conflicts with this Court’s decision in

Village of Hoffman Estates v. Flipside, Hoffman Estates, !nc.,

455 U.S. 489 (1982), is simply incorrect. In Hoffman, this

Court was careful to qualify its statement that a facial

vagueness challenge should be upheld “only if the enactment

is impermissibly vague in all of its applications” with the

phrase “assuming the enactment implicates no

constitutionally protected conduct.” /d. at 494-95. Similarly,

27

the Court’s subsequent opinion in Kolender v. Lawson, 461

U.S. 352 (1983) rejects a requirement that a statute must be

“vague in all of its possible applications,” id., 461 U.S. at 358

n.8 (quoting Justice White’s dissent), in order to be held

vague on its face. Instead, the Kolender Court recognizes

that the Court has “traditionally viewed vagueness and

overbreadth as logically related and similar doctrines,”

holding that when a statute imposes criminal penalties and

affects constitutionally protected conduct, the Hoffman

vagueness test does not necessarily apply. /d. The Court

also cited Colautti with approval, which invalidated an

abortion statute on vagueness grounds. Kolender, 461 U.S.

at 358 n.8. See also Akron I, 462 U.S. at 451-52

(invalidating requirement that fetal remains be disposed of

“humane[ly]” as impermissibly vague). The State is simply

mistaken that the vagueness standard used by the court below

conflicts with Hoffman, as further elucidated in Kolender.

Because none of the other cases cited by the State involve

a facial vagueness challenge to a statute affecting

constitutionally protected conduct, the State has presented no

conflict at all between the vagueness standard applied by the

28

court of appeals and the standard used by this Court!® and

other courts of appeals.'!

'0 First, Chapman v. United States, 500 U.S. 453 (1991), in which the

Court affirmed a criminal conviction for distributing more than one gram

of the prohibited drug LSD, was simply not a facial challenge to a statute,

and thus has no bearing on the standard applicable in such a challenge.

Further, Chapman obviously did not involve constitutionally protected

conduct. Second, Maynard v. Cartwright, 486 U.S. 356 (1988), which

affirmed a grant of habeas corpus to a man sentenced to death in

Oklahoma, was decided “under the Eighth Amendment,” id., at 361, and

involved analysis of whether a particular “aggravating circumstance” was

sufficiently clear to “inform juries what they must find to impose the

death penalty.” Jd. at 361-62. The Court explicitly distinguished general

Due Process Clause vagueness law, which looks to whether a statute

gives adequate notice of prohibited conduct. /d. at 361. Because

Maynard was decided under a different analysis, it too does not alter

Hoffman ot Kolender.

Nor is there any conflict between the two pre-Hoffman/Kolender

cases cited by the State, United States v. Powell, 423 U.S. 87 (1975), and

United States v. Mazurie, 419 U.S. 544 (1975), both of which involved

appeals from criminal convictions in federal court, and hence were not

facial vagueness challenges at all. Nor did either case involve

constitutionally protected conduct. Powell was convicted of sending a

sawed-off shotgun through the mails, 423 U.S. at 89; and the defendants

in Mazurie were convicted of introducing liquor into an Indian

reservation. 419 U.S. at 545.

'! None of the court of appeals cases cited by the State involve

constitutionally protected conduct. See United States v. Reed, 114 F.3d

1067, 1068 (10th Cir. 1997) (appeal from conviction of possession of a

weapon or ammunition while unlawfully using marijuana); Richmond

Boro Gun Club, Inc. v. City of New York, 97 F.2d 681, 684 (2d Cir. 1996)

(plaintiffs “concede that the local law does not infringe upon a

fundamental constitutional right”); United States v. A Single Family

Residence, 803 F.2d 625 (11th Cir. 1986) (civil forfeiture for drug

transaction); Stoianoff v. Montana, 695 F.2d 1214 (9th Cir. 1983)

(challenge to statute restricting drug paraphernalia). The Eleventh

Circuit decision actually confirms Hoffman and Kolender. See 803 F.2d

at 630.

29

CONCLUSION

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

certiorari should be denied.

Dated: February 3, 1998.

Respectfully submitted,

ALPHONSE A. GERHARDSTEIN

(Counsel of Record)

1409 Enquirer Building

617 Vine Street

Cincinnati, Ohio 45202

(513) 621-9100

JANET BENSHOOF

SIMON HELLER

JULIE F. KAY

The Center for Reproductive

Law & Policy

120 Wall Street

New York, New York 10005

(212) 514-5534

DAVID GREER

6 North Main Street

Dayton, Ohio 45402

(937) 223-3277

Counsel for Respondents