Amicus Curiae Brief — Voinovich v. Women's Medical Professional Corp.

No. 97-934

In The

Supreme Court of the United States

October Term, 1997

o

GEORGE VOINOVICH, et al.,

Petitioners,

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

Respondents.

e

On Petition For A Writ Of Certiorari

~ To The United States Court Of Appeals

For The Sixth Circuit

r

BRIEF OF THE STATES OF ARIZONA, ALABAMA,

CALIFORNIA, GEORGIA, IDAHO, ILLINOIS,

LOUISIANA, MISSISSIPPI, NEBRASKA,

PENNSYLVANIA, RHODE ISLAND, SOUTH

CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH,

AND VIRGINIA AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

e

Grant Woops

Attorney General

State of Arizona

Pauta S. Bickett*

Assistant Attorney General

Office of the Attorney General

1275 West Washington

Phoenix, Arizona 85007

(602) 542-3333

Counsel for the State of Arizona

Other Counsel Listed

Inside Front Cover

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Bit Pryor

Attorney General

State of Alabama

Office of the Attorney

General

Alabama State House

11 South Union Street

Montgomery, AL 36130

(334) 242-7300

Danie. E. LUNGREN

Attorney General

State of California

Department of Justice

1300 I Street, Suite 125

P. O. Box 944255

Sacramento, CA 94244-2550

(916) 445-9555

Micuaet J. Bowers

Attorney General of

Georgia

Office of the Attorney

General

40 Capitol Square, S.W.

Atlanta, GA 30334-1300

(404) 656-4585

ALAN G. LANCE

Idaho Attorney General

P. O. Box 83720

Boise, ID 83720-0010

(208) 334-2400

James E. Ryan

Attorney General

State of Illinois

100 W. Randolph Street

12th Floor

Chicago, IL 60601

(312) 814-2503

RicHArD P. Iryous

Attorney General of

Louisiana

P. O. Box 94005

Baton Rouge, LA 70804

(504) 342-7013

Mike Moore

Attorney General of

Mississippi

Office of the Attorney

General

Department of Justice

Post Office Box 220

Jackson, MS 39205-0220

(601) 359-3692

Don STENBERG

Nebraska Attorney General

Department of Justice

2115 State Capitol

Lincoln, NE 68509

(402) 471-2682

D. Micwaet FisHer

Attorney General

Commonwealth of

Pennsylvania

16th Floor, Strawberry

Square

Harrisburg, PA 17120

(717) 787-1144

Jerrrey B. Pine

Attorney General

State of Rhode Island

Office of the Attorney

General

150 South Main Street

Providence, RI 02903

(401) 274-4400

CHaruit M. CONDON

Attorney General of

South Carolina

Office of the Attorney

General

Rembert C. Dennis

Office Building

Post Office Box 11549

Columbia, SC 29211-1549

(803) 734-3970

Mark BARNETT

Attorney General of

South Dakota

Office of the Attorney

General

500 East Capitol

Pierre, SD 57501-5070

(605) 773-3215

JOHN Knox WALKUP

Attorney General and

Reporter

State of Tennessee

Office of the Attorney

General

425 Fifth Avenue North

Nashville, TN 37243-0485

(615) 741-6474

JAN GRAHAM

Attorney General of Utah

Office of the Attorney

General

State Capitol

Room 236

Salt Lake City, UT

84114-0810

(801) 538-1326

Mark L. Eartey

Attorney General

Commonwealth of Virginia

900 East Main Street

Richmond, VA 23219

(804) 786-2071

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE STATES....... 1

REASONS FOR GRANTING THE PETITION....... 4

The Sixth Circuit’s Decision Widens the Split of

Authority on Standards of Review in Abortion

GG THD GB oc hxc ce ccccsavosvcdasstccs

The Petition Should be Granted to Clarify that

States May Regulate Partial Birth and Post-Via-

See FRIED 6.0 Ce Vo seantsdocd ch dsavakecsnnes

A. The Sixth Circuit’s Vagueness Standard Ren-

ders Casey's Guarantee of the States’ Author-

ity to Regulate Abortions Meaningless.....

B. The Court of Appeals Erred in Concluding

that Ohio’s Post-Viability Abortion Regula-

tions are Invalid Because They Do Not Con-

tain a Mental Health Exception............

CERES bb cdvicdvcdbevcsreavccesseavadicduees

10

TABLE OF AUTHORITIES

Page

Cases

Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990)....... 11

Anderson v. Edwards, 514 U.S. 143 (1995) ............. 3

Arizonans for Official English v. Arizona, 117 US.

SD Ge ss wh dadee vdeks bboddcaWeceCusctéenscecys 10

Barnes v. Moore, 970 F.2d 12 (5th Cir.), cert. denied,

Bh SEE, Bile Ge oo ckvuecsdcontccdtniaseesde.s 5

Carhart v. Stenberg, 972 F. Supp. 507 (D. Neb. 1997) ..... 9

Casey v. Planned Parenthood of Southeastern Pennsyl-

vania, 14 F.3d 848 (3d Cir. 1994) ................... 5

Causeway Med. Suite v. leyoub, 109 F.3d 1096 (5th

Cir.), cert. denied, 118 S. Ct. 357 (1997)............. 5

Chapman v. United States, 500 U.S. 453 (1991)......... 7

Colautti v. Franklin, 439 U.S. 379 (1979)............ 7, 12

ae Ci. Ee, GS Se Bee ee oc cecuacescdéatewss 13

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

DORs cducanevesduenseudedadeaatantedsthbalne 2, 9, 11

Fargo Women's Health Org. v. Schafer, 507 U.S. 1013

SU 4 chedAbas nace denotéséiuedeatuaiwetteustastee 5

Fargo Women’s Health Org. v. Schafer, 18 F.3d 526

Se Gab Mee cacehes dsecscennndectubebeueuksesnas 6

Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996),

ont. Gaia, Sar Bi GR, Be Ce hh ocaedocvtieciian 5

Janklow v. Planned Parenthood, Sioux Falls Clinic,

SED GB. GD Bees Cee oddcotecsusneadsusacnioudsces 5

Kolender v. Lawson, 461 U.S. 352 (1983)............... 7

TABLE OF AUTHORITIES — Continued

Page

Manning v. Hunt, 119 F.3d 254 (4th Cir. 1997) ........ 6

Maynard v. Cartwright, 486 U.S. 356 (1988)............ 7

New England Accessories Trade Ass'n, Inc. v. City of

Nashua, 679 F.2d 1 (ist Cir. 1982).................. 8

Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502

SEEN 6 6 uke a beet cdcecausivandd couse: cdephvtweewees 4

Planned Parenthood of Southeastern Pennsylvania v

Casey, 505 U.S. 833 (1992) ....... 6... cece nee passim

Planned Parenthood of Southern Arizona v. Woods,

No. CIV. 97-385-TUC-RMB, 1997 WL 679921 (D.

Ree. Gk. Bio Fee e is ov obunsscicevesiccsnceses 2, 9,

Planned Parenthood, Sioux Falls Clinic v. Miller, 63

F.3d 1452 (8th Cir. 1995), cert. denied, 116 S. Ct.

SE AS. «<3 ddddcbarnunteehascasveddeseeétasdd

Richmond Boro Gun Club, Inc. v. City of New York, 97

ke 8. fs Pere

Rust v. Sullivan, 500 U.S. 173 (1991).............55..

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

United States v. A Single Family Residence, 803 F.2d

GBB CEB Che, BOGE. 2occcccccccccccccccsccccvccces

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

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

United States v. Ragen, 314 U.S. 513 (1942)...........

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

United States v. Salerno, 481 U.S. 739 (1987)

WOTTTTTTITILO TILT T tie TiL iii et 3, 4, 5, 6, 7, 8

iv

TABLE OF AUTHORITIES - Continued

Page

Village of Hoffman Estates v. Flipside, Hoffman

Estates, Enc., 455 US. GBD CIGGRD. .... ccccccccesess 6, 7

Webster v. Reproductive Health Servs., 492 U.S. 490

GUE + ckbnvnsctncsecadcabeneeseienauas tabeehbendus 4

Women's Med. Prof’! Corp. v. Voinovich, 130 F.3d 187

RRR IRR TS ea aan passim

StaTUTORY PROVISIONS

ey eR a a 2

ST AL A ME 6 Tho wkd oh db bad eieneusdan GeeEdetaes 1

ee Tete. Te sp Sav be aks cavacunduseechemeuan l

Asiz. Rev. Stat. Ann. § 13-3603.01 .............000000. 1

Ariz. Rev. Stat. Ann. § 36-2301.01(A)................. 2

Se Was. PROD TOD een d4406 sds cadduece. bes eteibodeue, 1

Ri Came Am, B BP GGG vncecekctseactcevsicenen< 2

Cal. Health & Safety Code § 123405 ................. 2

Cal. Health & Safety Code § 123410 ................. 2

Cal. Health & Safety Code § 123415 ................. 2

Cal. Health & Safety Code § 123435 ................. 2

Conn. Gen. Stat. Ann. § 19a-602(b)................... 2

tess GA G EE nbc ndndbeiucncdedbedscectecs 2

Del. Code Ann. tit. 24, § 1790(a)(1) & (b)(1).......... 2

Fla. Stat. Ann. § 390.0111(1) & (4) ...............00.. 2

Vv

TABLE OF AUTHORITIES —- Continued

Page

Cee. Come Ratt. B BODOG co vcs cceciivswiweescces 2

Ge FO UDG Pre ee 1

Be Cate B Tee o 6 6c ev. ce cceiccccncccawentdsens 2

720 Ill. Comp. Stat. Ann. § 510/5.............-22-55. 2

720 Ill. Comp. Stat. Ann. §§ 513/1 through 513/20..... 1

Ind. Code Ann. § 16-18-2-267.5 ...........:0cce scenes 1

Ind. Code Ann. § 16-34-2-1(a)(3) .... 6.6... cece eee 2

Ind. Code Ann. § 16-34-2-1(b)... 0.2.0.6... cece eee eens 1

Se A. SS Be 0 noes cocccncevscccasasves 2

SG Ce Ss Oe I A bade beeen ciawecdsbnwdwes Kant 2

Ses, SSE. RD. BH Gc s ca tedewsciuccatchacasbuce, 2

i. Tow. Dent. Ag. ] DORTOR 2. cvcscocccesccvcescsess 2

ee ah, FN Wat naviernc cb apisandepecvacsucnehicera 1

FS §% © §& Bo! eee eee 1

La. Rev. Stat. Ann. § 40:1299.35.3 ............cceeeees 1

La. Rev. Stat. Ann. § 40:1299.35.4 .......... ccc ee ene 2

De. Rov. Stat. Amm. Ut. ZB, & BGG. oc cccccccccccccses 2

Mich. Comp. Laws Ann. § 333.16221(1) & (m)........ 1

Mich. Comp. Laws Ann. § 333.16226................. 1

Mich. Comp. Laws Ann. § 333.17016..............-.. 1

Mich. Comp. Laws Ann. § 333.17516...............-. 1

Minn. Stat. Ann. § 145.412(3) ........... ccc cece cece 2

vi vii

TABLE OF AUTHORITIES — Continued | TABLE OF AUTHORITIES — Continued

Page | Page

Miss. Code Ann. § 41-41-73. ......... 6c cece eee eens 1 S.D. Codified Laws §§ 34-23A-27 through

EE 5.65 44s edacheendacbae sevpndedscaeesyane’ 1

ED. AMM. TOR. BH TEED 000 vec cccvevedvcsveviveses 2 — eee. .

Se Sit Sey Pree ecren ens yr sei os. Peakpeere . Tenn. Code Ann. § 39-15-209.........060cceeeeeeeeees

Mont. Code Ann. § 50-20-401........... ween eeees 1 Wi Cian Mien GRIND, « ois co ccvsavecevecusasane 1

Neb. Rev. Stat. § 28-325. .........scceeeceeeceeeeeeees 1 We, eek, ae OEE iva censcscidecéuciceaeuena 2

& § § ber rr ee rer oer 1 Wyo. Stat. Ann. § 35-6-102.. 2.6... cece eee eee renee 2

. @§ | FQ Be ee eT yer. 2 |

ec Dis ee RN on ico sc scke cn sckaaecbatbiine 1 |

N.J. Stat. Ann. §§ 2A:65A-5 through 2A:65A-7........ 1

Pea SUS RY We Ws 5 vdeo heed cnseseesssenensens 2

OES, . Cee Se SB Ree ks kdvavscaedervectscavbubenes 2

8. 5° mB * Ree rr or ey Fee 2

Pes GO BURR GB DRIER s os ceccnvesccévicssnneneotan es 2

Ole Rev. Cate Agim. © BORGES «ous cs ccocccvenesecss 1

Ohio Rev. Code Ann. § 2919.17...... SERIA ee 2

Cope. SReR.. Am, GD. GA BGG cco cccsccnccstncesses 2

18 Pa. Cons. Stat. Ann. § 3210......... ; Cobmedee eons 2

Se GOR CNIS Bs kk cbs ccadeccacnceisanchecces 2

R.I. Gen. Laws §§ 23-4.12-1 through 23-4.12-6........ 1

ie. Ce A. BH Ga sia eh vik ceca eebsivedcess 1

S.D. Codified Laws § 34-23A-5.............. cece eee 2

INTEREST OF THE AMICI CURIAE STATES

Amici States are interested in protecting potential life

by regulating abortions within the parameters of Planned

Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.

833 (1992). Several States, including Ohio and a number

of the amici States, have attempted carefully —- and demo-

cratically — to effectuate that interest by regulating the

rarely used, late-term abortion procedure known as Dila-

tion and Extraction (D&X)! or “partial-birth” abortion? or

' The D&X procedure is typically used late in the second

trimester, between the twentieth and twenty-fourth week of

pregnancy. Women’s Medical Professional Corporation v. Voinovich,

130 F.3d 187, 212 (6th Cir. 1997); A-22-23. The cervix is dilated

for two days and on the third day, the doctor removes, intact, all

but the head of the fetus from the vagina, and then, the doctor

forces scissors into the base of the skull, places a suction

catheter into the scissor hole, and evacuates the skull contents.

Id. The American Medical Association has 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).

2 The nineteen states with partial-birth abortion statutes

include 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; 720 Ill. Comp. Stat. Ann. §§ 513/1 through 513/20;

Ind. Code Ann. § 16-18-2-267.5 and 16-34-2-1(b); 1997 La. Acts

906, La. Rev. Stat. Ann. §§ 14:32.9 and 40:1299.35.3; Mich. Comp.

Laws Ann. §§ 333.16221(l) & (m), 333.16226, 333.17016, and

333.17516; Miss. Code Ann. § 41-41-73; Mont. Code Ann.

50-20-401; Neb. Rev. Stat. §§ 28-325, 28-326(9) and 71-148; N.].

Stat. Ann. §§ 2A:65A-5 through 2A:65A-7; Ohio Rev. Code Ann.

§ 2919.15; R.I. Gen. Laws §§ 23-4.12-1 through 23-4.12-6; S.C.

Code Ann. § 44-41-85; S.D. Codified Laws §§ 34-23A-27 to -33;

Tenn. Code Ann. § 39-15-209; Utah Code Ann. § 76-7-310.5.

by limiting post-viability abortions.* Other States, also

including a number of amici, are considering such enact-

ments.

The States’ ability to regulate in this area of vital

interest is stymied, however, by the decision of the court

uf appeals in this case, and by district court decisions

that strike down such “partial-birth” legislation facially

by accepting the invitation of the challengers to the legis-

lation to construe it so as to ensure a finding of uncon-

stitutionality rather than accepting the State’s proffered

constitutional construction. Given the already difficult

task of determining the scope of permissible abortion

Thirteen of these states join this Brief for purposes of urging the

Court to hear this case.

* States which regulate post-viability or third trimester

abortions include 1997 Ala. Acts 442; Ariz. Rev. Stat. Ann.

§ 36-2301.01(A); Ark. Code Ann. § 20-16-705; Cal. Health &

Safety Code §§ 123405, 123410, 123415, 123435; Conn. Gen. Stat.

Ann. § 19a-602(b); D.C. Code § 22-201; Del. Code Ann. tit. 24,

§ 1790(a)(1) & (b)(1); Fla. Stat. Ann. § 390.0111(1) & (4); Ga. Code

Ann. § 16-12-141(c); Idaho Code § 18-608(3); 720 Ill. Comp. Stat.

Ann. § 510/5; Ind. Code Ann. §§ 16-34-2-1(a)(3) and 16-34-2-3;

lowa Code Ann. § 707.7; Kan. Stat. Ann. § 65-6703; Ky. Rev. Stat.

Ann. § 311.780; La. Rev. Stat. Ann. § 40:1299.35.4; Me. Rev. Stat.

Ann. tit. 22, § 1598; Minn. Stat. Ann. § 145.412(3); Mo. Ann. Stat.

§ 188.030(1); Mont. Code Ann. § 50-20-109(c); Neb. Rev. Stat.

§ 28-329; N.Y. Penal Law §§ 125.00, 125.05 and 125.45; N.C. Gen.

Stat. § 14-45.1; Ohio Rev. Code Ann. § 2919.17; Okla. Stat. Ann.

tit. 63, § 1-732; 18 Pa. Cons. Stat. Ann. § 3210; R.I. Gen. Laws

§ 11-23-5; S.D. Codified Laws § 34-23A-5; Tenn. Code Ann.

§ 39-15-201(c)(3); Wis. Stat. Ann. § 940.15; Wyo. Stat. Ann.

§ 35-6-102.

4 See, e.g., Planned Parenthood of Southern Arizona v. Woods,

No. CIV. 97-385-TUC-RMB, 1997 WL 679921 (D. Ariz. Oct. 27,

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

regulation under this Court’s decisions, the lower courts’

improper application of the standard for facial challenges

to abortion regulations renders many State legislatures’

task of drafting constitutional language to regulate abor-

tion nearly impossible.> Like the dissenting circuit judge

in this case, amici States believe that “|this] Court meant

what it said in permitting state abortion regulations in

certain contexts.” A-56. Because the signatory States are

vitally interested in knowing and preserving the scope of

legitimate State action under Casey, these amici join Ohio

in urging this Court to grant the Petition for Certiorari in

this case.

At minimum, certiorari should be granted to provide

States and lower courts much-needed guidance as to the

appropriate standard of review in facial challenges to

State statutes. Many circuits, as well as members of this

Court, have concluded that Casey silently overruled

United States v. Salerno, 481 U.S. 739 (1987), which

required plaintiffs in facial challenges to show that “no

set of circumstances” exists in which the challenged stat-

ute may be constitutionally applied. Instead, a more

lenient test has been used, requiring challengers to estab-

lish unconstitutionality in only a “large fraction” of cases.

Other courts, commentators, and Justices have main-

tained the continuing vitality of Salerno, and indeed, the

Court recently has cited Salerno approvingly in non-abor-

tion contexts. Anderson v. Edwards, 514 U.S. 143, 155 n.6

(1995). The Sixth Circuit not only joined the side of the

5 As cogently noted by Judge Boggs in this case, “any set of

words chosen by the Ohio legislature would have been

challenged on vagueness grounds.” A-60 (Boggs, J., dissenting).

split rejecting Salerno, but it also broke new ground by

extending the “large fraction” test beyond its “undue

burden” roots and applying it in the entirely separate

area of vagueness. The States are interested in resolving

this confusion and split of authority in the abortion area.

The States also are concerned about the trend in some

courts to extend this Casey-trumps-Salerno logic to new

areas of the law.

S

REASONS FOR GRANTING THE PETITION

I. The Sixth Circuit’s Decision Widens the Split of

Authority on Standards of Review in Abortion and

Vagueness Cases.

The Petition in this case compellingly identifies the

conflict of authority on the appropriate standard for

reviewing a facial challenge to an abortion regulation.

The traditional rule for assessing a facial challenge is

summarized in Salerno, requiring a challenger to “estab-

lish that no set of circumstances exists under which the

Act would be valid.” 481 U.S. at 745. Additionally, in

several abortion decisions, this Court has applied a “no

set of circumstances” test in assessing facial challenges to

a statute. See Rust v. Sullivan, 500 U.S. 173, 183 (1991);

Ohio v. Akron Ctr. For Reproductive Health, 497 U.S. 502,

514 (1990); see also Webster v. Reproductive Health Serv., 492

U.S. 490, 524 (1989) (O’Connor, J., concurring in part and

concurring in the judgment). Without explicitly overrul-

ing these cases, Casey affirmed the facial invalidation of a

spousal notification requirement because the statute

would operate as a substantial obstacle to a woman's

choice to undergo an abortion in a “large fraction” of the

— ss =

cases in which the statute was relevant. 505 U.S. at 895.

Since Casey, several Justices have commented on the need

for further review of this issue. Janklow v. Planned Parent-

hood, Sioux Falls Clinic, 116 S. Ct. 1582, 1584-85 (1996)

(Scalia, J., joined by Rehnquist, C.J., and Thomas, J., dis-

senting from denial of certiorari). But see id. at 1583

(Stevens, J., concurring in denial of certiorari) (opining

that the articulation of the standard for facial challenges

in Salerno was dicta and therefore properly ignored); Fargo

Women's Health Org. v. Schafer, 507 U.S. 1013, 1014 (1993)

(O’Conner, J., joined by Souter, J., concurring in denial of

stay) (indicating that Salerno is inconsistent with Casey).

The federal courts of appeals also have adopted dif-

ferent positions on whether Casey modifies the Salerno/

Rust/Akron standard. On one hand, two 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 S. Ct. 2453

(1997); Casey v. Planned Parenthood of Southeastern Pennsyl-

vania, 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, 14 n.2 (5th Cir.) (“we do not interpret Casey as

having overruled, sub silentio, longstanding Supreme

Court precedent governing challenges to the facial consti-

tutionality of statutes”), cert. denied, 506 U.S. 1021 (1992);

accord Causeway Med. Suite v. Ileyoub, 109 F.3d 1096, 1104

(5th Cir.) (“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). The Fourth

Circuit has gone out of its way to indicate its agreement

with the Fifth Circuit that Salerno still governs. See Man-

ning 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”)

(dicta).

The Eighth Circuit is itself split on the issue. One

Eighth Circuit panel, uncertain of the effect of Casey on

the Salerno standard, analyzed the challenged abortion

statute first under Salerno and then as if the Casey “large

fraction” test replezed Salerno. Fargo Women’s Health Org.

v. Schafer, 18 F.3d 526, 529-30 (8th Cir. 1994). Another

Eighth Circuit panel applied the standard in Casey to

facially invalidate an abortion regulation. Planned Parent-

hood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1456-58 (8th

Cir. 1995), cert. denied, 116 S. Ct. 1582 (1996). This intra-

circuit split dramatically demonstrates the extent of the

confusion regarding the appropriate standard to be

applied after Casey.

In addition to the Salerno/Casey division of authority,

this case reveals another split, which the Sixth Circuit has

now widened as well. In assessing facial attacks on

allegedly vague statutes, the Supreme Court has stated

that it 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, assessed

claimants’ vagueness challenge to the restrictions on the

D&X procedure and post-viability abortions under a dif-

ferent standard: “General standards governing vagueness

challenges suggest that a statute with vagueness prob-

lems that could chill constitutional freedoms should be

held unconstitutionally vague. [Citations omitted.] Since

we have already held that Salerno does not apply in the

abortion context, it is enough that the statute may be

unconstitutionally applied to a large fraction of women

for whom the law is relevant.” A-39 n.18.

This extension of the Casey overbreadth standard to

vagueness is contrary to other Supreme Court precedents

governing vagueness challenges. See, e.g., Chapman v.

United States, 500 U.S. 453, 467 (1991) (“vagueness

claim|s] 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). But cf. Kolender v. Lawson, 461 U.S. 352, 358-59 n.8

(1983) (suggesting overbreadth analysis may apply when-

ever there is any “constitutionally protected conduct” at

issue); Colautti v. Franklin, 439 U.S. 379, 394-401 (1979).

And, the Sixth Circuit approach directly conflicts with

Hoffman Estates.

In addition, several circuit courts have applied a

different standard of review from the one applied by the

Sixth Circuit. 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”) (internal 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 constitu-

tionality 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 pro-

tected conduct, we can invalidate it only if it is imper-

missibly vague in all of its applications”).

The Sixth Circuit’s adoption and extension of the

Casey standard to strike down the Ohio statute, which

could have been construed to avoid constitutional prob-

lems, demonstrates the critical need for this Court's

review and clarification of the appropriate standard to be

applied in abortion and vagueness cases. Without review

and clarification, those States in the circuits that have

concluded that Casey modifies Salerno may be effectively

precluded from regulating abortions to further their

interest in potential life.

Il. The Petition Should be Granted to Clarify that

States May Regulate Partial-Birth and Post-Via-

bility Abortions.

The significance of the questions presented also war-

rants review. The Court has not yet considered the val-

idity of limitations on partial-birth abortions. Nor has it

determined whether a mental health exception is consti-

tutionally required when it comes to restrictions on post-

viability abortions, or whether, since Casey, a law restrict-

ing post-viability abortions must include a scienter

requirement. And, for six years now, the lower courts

have remained uncertain regarding the appropriate stan-

dard for reviewing claims such as these.

The Sixth Circuit applied a vagueness standard that

seems to guarantee the statute’s demise. Relying on

Casey, the court facially invalidated both pre-and post-

viability abortion statutes because the statute may be

unconstitutionally applied to a large fraction of the

women for whom the law is relevant. A-39 n.18. Without

this Court's review of this erroneous decision, the demo-

cratic efforts of an overwhelming majority of Ohio’s citi-

zens to express their collective concerns about partial-

birth and post-viability abortions will be nullified. This

nullification will not be limited to Ohio, however, as

eighteen other States have enacted partial-birth abortion

laws,* most of which are already under judicial attack,

see, e.g., Planned Parenthood of Southern Arizona v Woods,

No. CIV. 97-385-TUC-RMB, 1997 WL 679921 (D. Ariz. Oct.

27, 1997), Carhart v. Stenberg, 972 F. Supp. 507 (D. Neb.

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

and many, if not all, of which are vulnerable under the

analysis adopted by the Sixth Circuit. Similar problems

plague the other State laws that limit post-viability a >r-

tions and employ the Casey-approved “substantial and

irreversible impairment of a major bodily function” lan-

guage to protect the pregnant woman’s health. Moreover,

© See note 2 supra.

10

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” excep-

tion in the context of a ban on post-viability abortions.

A. The Sixth Circuit’s Vagueness Standard Ren-

ders Casey's Guarantee of the States’ Authority

to Regulate Abortions Meaningless.

In striking down Ohio's partial-birth abortion law,

the majority of the Sixth Circuit panel found that the ban

of the D&X procedure encompassed “the more commonly

employed D&E [Dilation and Evacuation] procedure and

thereby place[d] a substantial obstacle in the path of

women seeking pre-viability abortions.” A-32. The major-

ity, thus, accepted Plaintiffs’ argument that Ohio’s statu-

tory definition of the D&X procedure is vague and

rejected Defendants’ unwavering assertion that the defi-

nition of the D&X procedure does not include or describe

the D&E procedure. The majority thus “reachies] out to

strike down” the Ohio regulation instead of “inter-

pret[ing] [it] so as to avoid difficult constitutional ques-

tions where possible.” A-53-54 (Boggs, J., dissenting).” As

noted by the dissent, the majority's application of the

rules of construction is contrary to this Court's authority.

See, e.g., Arizonans for Official English v. Arizona, 117 U.S.

7 The Sixth Circuit’s rationale differed from that of the

district court’s in that the Sixth Circuit did not find that a

narrowly construed D&X procedure, which excluded the D&E

procedure, would be nonetheless unconstitutional. A-20.

a

Owe

a a

11

1055, 1074 (1997); Adams Fruit Co. v. Barrett, 494 U.S. 638,

647 (1990).

Moreover, applying a re!»»d vagueness standard to

facial challenges of abortion regulations allows a court to

strike down a statute before a State has the opportunity

to implement it and apply it constitutionally. Such a

standard readily invites challenges because “words can

always be said to be ambiguous.” A-59 (Boggs, J., dissent-

ing). This is especially true in the area of abortion regula-

tion where the legislature must attempt to combine

medical and legal terminology and where plaintiffs will

“challenge any set of words chosen by the Ohio legisla-

ture.” Id.; see also Evans v. Kelley, 977 F. Supp. 1306 (court

found Michigan’s partial-birth abortion law uncenstitu-

tionally vague because the term “partially vaginally

delivers a living fetus” covers “the partial removal of a

fetus while its heart is still beating, whether in whole or

in part, [and thus] could outlaw conventional dilation

and evacuation procedures in which the fetus is evacu-

ated part by part, as well as intact D&E procedures”);

Planned Parenthood v. Woods, 1997 WL 679921, at *10-11

(court found Arizona partial-birth abortion law uncon-

Stitutionally vague because the term “partially vaginally

delivers a living fetus” could be interpreted to include

D&E and induction procedures). Given the legislature’s

use of the term “D&X procedure,” the medical commu-

nity’s understanding of that term, the lack of any legisla-

tive intent to restrict the D&E procedure, ard the

Defendants’ position that the definition of the D&X pro-

cedure did not include the D&E procedure, the Sixth

Circuit erred in finding the term vague. This Court

should grant review to put a stop to the futile game that

12

many State legislatures are forced to play in an effort to

find judicially acceptable language to restrict the rarely

used, unnecessarily cruel abortion procedure, commonly

known as partial-birth abortion.

The Sixth Circuit also erred in facially invalidating

Ohio’s post-viability abortion regulations on vagueness

grounds. The court erred in concluding that 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 viable fetus is unconstitutionally vague

because the statute lacks a scienter requirement.*

In Colautti, this Court specifically declined to decide

whether “under a properly drafted statute, a finding of

bad faith or some other type of scienter would be

required before a physician could be held criminally

responsible for an erroneous determination of viability.”

439 U.S. at 396. Colautti simply held that a scienter

requirement can mitigate the vagueness of an otherwise

vague law. Ohio’s requirement that a physician exercise

reasonable medical judgment is sufficiently clez. “to

afford a practical guide to permissible conduct.” United

States v. Ragen, 314 U.S. 513, 523 (1942). Moreover, such a

requirement may be appropriately applied to medical

decisions. See Casey, 505 U.S. at 879 (the “life or health of

the mother” exception may be invoked only when neces-

sary in appropriate medical judgment).

8 The Sixth Circuit need not have reached this issue because

the Ohio law does have a scienter requirement. See Petition at

24-25.

a ete ee > ee ee

= eS ee oe

ete a ee ee

13

The Sixth Circuit decision here seriously undermines

this Court’s holding in Casey that permits the States to

regulate abortions. Unless the Court grants review, many

States’ desire to so regulate will be thwarted.

B. The Court of Appeals Erred in Concluding that

Ohio's Post-Viability Abortion Regulations are

Invalid Because They Do Not Contain a Mental

Health Exception.

The court of appeals also erred in concluding that

Ohio may not prohibit post-viability abortions unless

there is an exception related to the mental health of the

pregnant woman. This conclusion is not warranted by

this Court’s precedents and undermines the States’ ability

to regulate post-viability abortions.

Ohio’s maternal health exception is substantively

identical to the maternal health exception upheld in

Casey. See discussion in Petition at 26. Moreover, neither

Doe v. Bolton, 410 U.S. 179 (1973) nor United States v.

Vuitch, 402 U.S. 62 (1971), upon which the court of

appeals relied in making its finding, addressed the consti-

tutional requirement for regulation of post-viability abor-

tions. See Brief Amicus Curiae of a Majority of Members

of the Ohio General Assembly at 19-20 & n.24. The impo-

sition of a broad mental health exception to a prohibition

on post-viability abortions could render meaningless the

State’s compelling interest in protecting fetal life and its

right to actually proscribe post-viability abortions. Id.

14 15

At a minimum, review should be granted to clarify James E. Ryan

whether this Court requires a mental health exception to arta a

prohibitions of post-viability abortions. tate of Illinois

S

CONCLUSION

The Court should grant the Petition for Writ of Cer-

Grant Woops

Attorney General

State of Arizona

Pauta S. Bickett

Assistant Attorney General

Counsel of Record

Office of the Attorney General

1275 West Washington

Phoenix, Arizona 85007

(602) 542-3333

Counsel for the State of Arizona

Birt Pryor

Attorney General

State of Alabama

Danie. E. LUNGREN

Attorney General

State of California

MicHaet J. Bowers

Attorney General

State of Georgia

ALAN G. LANCE

Attorney General

State of Idaho

RicHarp P. levous

Attorney General

State of Louisiana

Mike Moore

Attorney General

State of Mississippi

Don STENBERG

Attorney General

State of Nebraska

D. Micuaet FisHer

Attorney General

Commonwealth of Pennsylvania

Jerrrey B. Pine

Attorney General

State of Rhode Island

CHarRLE M. Conpon

Attorney General

State of South Carolina

Mark BARNETT

Attorney General

State of South Dakota

JoHN KNox WaLkKup

Attorney General and Reporter

State of Tennessee

JAN GRAHAM

Attorney General

State of Utah

Mark L. Eartey

Attorney General

Commonwealth of Virginia