# Amicus Curiae Brief — Voinovich v. Women's Medical Professional Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0143%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1998 - **Citation:** 523 U.S. 1036 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0143%3A08. Public record. Not legal advice.