Amicus Curiae Brief — Stenberg v. Carhart

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No. 99-830 a

In The

Supreme Court of the United States

DON STENBERG, Attorney General of the

State of Nebraska, et al., Petitioners,

Vv.

LEROY CARHART, M.D., Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

Brief of Amici Curiae Alabama, lowa, Louisiana, New Jersey

General Assembly*, Pennsylvania, Virginia, South Carolina,

South Dakota, Utah, and West Virginia Gov. Cecil Under-

wood in Support of Petitioners

Bill Pryor James Bopp, Jr.

Attorney Gen. of Alabama Counsel of Record

State House Richard E. Coleson

11 S. Union Street Thomas J. Marzen

Montgomery, AL 36130 Bopp, COLESON & BOSTROM

334/242-7448 1 South 6" Street

Terre Haute, IN 47807-3510

*(See inside from cover for fuller 812/232-2434

description. ) Counsel for West Virginia Gov.

Cecil H. Underwood

[Additional Counsel Listed On Inside Cover]

Thomas J. Miller

* Attorney General of lowa

Hoover Building

Des Moines, IA 50319

515/281-3349

Richard P. leyoub

Attorney General of Louisiana

Department of Justice

P.O. Box 94095

Baton Rouge, LA 70804

225/342-1168

Richard F. Collier, Jr.

580 Howard Avenue

Somerset, NJ 08873

732/560-7100

Counsel for New Jersey Gen-

eral Assembly, by and through

Donald T. DiFrancesco, in

His Official Capacity as Presi-

dent of the New Jersey Senate,

and as the Representative of

the New Jersey Senate, and

Jack Collins, in His Official

Capacity as Speaker of the

New Jersey Assembly, and as

the Representative of the New

Jersey Assembly

D. Michael Fisher

Attorney Gen. of Pennsylvania

16th Floor, Strawberry Square

Harrisburg, PA 17120

717/787-3391

Charlie Condon

Attorney Gen. of South Carolina

P.O. Box 11549

Colombia, SC 29211-1549

803/734-3680

Mark Barnett

Attorney Gen. of South Dakota

500 E. Capitol

Pierre, SD 57501

605/773-3215

Jan Graham

Attorney General of Utah

236 State Capitol

Salt Lake City, UT 84114

801-538-9600

Mark L. Earley

Attorney General of Virginia

900 E. Main Street

Richmond, VA 23219

804-786-2071

QUESTIONS PRESENTED

Amici Curiae request the Court to grant a writ of certiorari for

the first two of Petitioners’ questions, as summarized below. Amici

Curiae do not believe that Petitioners’ final two questions need be

reached to resolve this case.

Whether the Eighth Circuit erred in broadly construing

Nebraska’s partial-birth abortion ban (unlike the Seventh

Circuit’s narrow construction of similar partial-birth

abortion bans), thereby concluding that it reached

conventional abortion methods, not just the intact D&X

procedure?

Whether the Eighth Circuit erred by holding that Ne-

braska’s law imposed an undue burden on the right to

abortion?

TABLE OF CONTENTS

QUESTIONS PRESENTED .... 1... cece cece eceees i

TABLE OP CONTENTS 2. ccc ccc nc sce cccccvvces ii

TABLE OF AUTHORITIES ... ww. ccc cccccccvcens iv

INTEREST OF AMICICURIAE ...........-.-0555 I

SUMMARY OF THE ARGUMENT ..............-. l

OTT SST TT TTT TTT oY Cee ee 2

1. Amici Curiae Request Review of the First Two Ques-

i ee eee eee ee eee 2

A. Serious federalism concerns are raised by the

partial-birth abortion cases, including construc-

tion and the facial challenge standard. ..... 3

B. The partial-birth abortion cases raise the issue of

precisely when the waxing state interest in a child

outweighs the waning abortion interest. .... 7

Il. A Partial-Birth Abortion Case Should Be Accepted for

Review as a Matter of Great Public Interest... .. . 13

Ill. A Partial-Birth Abortion Case Should Be Accepted for

Review Due to Conflict Between the Circuits. ... 16

Pe eee eh ke bee e hes ee be oe 17

TABLE OF AUTHORITIES

CASES

A Choice for Women v. Butterworth, 54 F. Supp. 2d 1148

nr PL i hs die e Baeva bebe e Uk obwees 14

Ada v. Guam Society of Obstetricians & Gynecologists, 506

nt ih dia deb 6 bu4 ce ee 6 60 6 0b 6 6

Barnes v. Moore, 970 F.2d 12 (Sth Cir. 1992) .......... 6

Carhart v. Stenberg, Nos. 98-3245NE, 98-3300NE, 1999 WL

753919 (8th Cir. Sept. 24, 1999) ............... 14

Causeway Med. Suite v. Foster, 43 F. Supp. 2d 604 (E.D.

Dich bdttins owned thbkeke wees 8% 14, 15

City of Chicago v. Morales, 119 S. Ct. 1849(1999) ...... 6

DeFunis v. Odegaard, 416 U.S. 312 (1974) ............ 4

Edwards v. Aguillard, 482 U.S. 578 (1987) ............ 4

Eubanks v. Stengel, 28 F. Supp. 2d 1024 (W.D. Ky. 1998)14, 15

Evans v. Kelley, 977 F. Supp. 1283 (E.D. Mich. 1997) .... 14

Fargo Women's Health Org. v. Schafer, 507 U.S. 1013 (1993) 6

Forsyth County v. Nationalist Movement, 505 U.S. 123

ih Cie de ve ce deeeteeeeueveede 4

Frisby v. Schultz, 487 U.S. 474, 483 (1988) ........... 4

Hoffman Est. vy. Flipside, Hoffman Est., 455 U.S. 489 (1982)

Hope Clinic v. Ryan, 995 F. Supp. 847 (N.D. Ill. 1998) ... 14

Hope Clinic v. Ryan, 99A427 (U.S. Nov. 30, 1999) ...... 2

Hope Clinic v. Ryan, Nos. 98-1726, 99-2528, 99-2533, 1999

WL 974098 (7th Cir. Oct. 26, 1999) ...... 5, 11, 14-16

Leavitt v. Jane L., 518 U.S. 137 (1996) .............. 4

Little Rock Family Planning Services, P.A. v. Jagely, No. 99-

1004EA, 1999 WL 753928 (8th Cir. Sept. 24, 1999) 14, 15

McDonald v. Board of Election Comm'rs, 394 U.S. 802 (1969)

Planned Parenthood of Alaska v. State of Alaska, No. 3AN-

97-6019 civ (Super. Ct. March 13, 1998) ......... 14

Planned Parenthood of Central N.J. v. Verniero, 41 F. Supp.

SOG Gee Geo 6; hace cece be Wea oc 14, 15

Planned Parenthood of Greater lowa v. Miller, 30 F. Supp. 2d

SGSy Gees CLD.» 2 Bap 06 dea ve dees endows 14

Planned Parenthood of Greater lowa. v. Miller, No. 99-

1272S1, 1999 WL 753770 (8th Cir. Sept. 24, 1999) ... 14

Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 895

EY ks on dedi bet keemeeedaeoameie 6, 8-12

Planned Parenthood of Wis. v. Doyle, 44 F. Supp.2d 975

a! § Pee eae 8, 10, 11, 14

Planned Parenthood of Wis. v. Doyle, 99A428 (U.S. Nov.

ACs hials cea aie wid th be a ey on ae O's ro,

Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d

re a oe eee hbase dc 6

Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941) .... 3

Rhode Island Med. Society v. Whitehouse, 1999 WL 683846

ws 7 “erp 14, 15

Richmond Med. Ctr. for Women v. Gilmore, 144 F.3d 326

DT -«<¢déeGeeneeeentweatees 2, 5, 15

Richmond Med. Ctr. for Women v. Gilmore, 51 F. Supp. 2d

SEs SEED Ga ws veR Adee poteueetees, 14

Richmond Med. Ctr. for Women v. Gilmore, 55 F. Supp. 2d

Ss SES CUED oS eceddacdddeedetectates 15

Showery v. Texas, 690 S.W.2d 689, 692 (Tex. Ct. App. 1985) 8

Summit Med. Associates v. Pryor, 180 F.3d 1326 (11th Cir.

vnc ie meh abe saebecheeesees bbheenas os 15

Summit Med. Associates, P.C. v. James, 984 F. Supp. 1404

DEED ch eeecesedseeseacereecves 14

United States v. Salerno, 481 U.S. 739 (1987) ......... 5, 6

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ...... 4

Women’s Med. Prof. Corp. v. Voinovich, 130 F.3d 187 (6th

DLs co cd4ad 6 bbb cde eeeen cats babeses 15

Women’s Med. Prof. Corp. v. Voinovich, 911 F. Supp. 1051

DPD cteveséeséesevecdeesesc’ss 14

STATUTES

720 Ill. Comp. Stat. 513/5-5, 513/5-10, 513/5-20 (West 1998) 14

Ala. Code §§ 26-23-1, 26-23-3 to 26-23-4 (1998) ........ 14

Alaska Stat. §§ 18.16.050 (Michie 1998) ............. 14

Ariz. Rev Stat. Ann. 13.3603.01 (West 1997) .......... 14

Ark. Code Ann. §§ 5-61-201 to 5-61-203 (Michie 1997) ... 14

Fla. Stat. Ann. §§ 390.11, 390.0111 (West 1998) ........ 14

Ga. Code Ann. § 16-12-144 (1998) .. 2.0... eee 14

Ge UE ov vec tceeecuccesecesss 14

ind. Code Ann. §§ 16-18-2-267.5, 16-34-2-1(b), 16-34-2-7(d)

gf PPT TTT TTT LITT ee 14

Se FED 6. © o's we 6 Gee ee 0d be tener « 14

Ky. Rev. Stat. §§ 311.595(3), 311.720, 311.990(11) (Michie

SUED 2 6 o2:0.6s Kose cious ¢ sake cane chne 6¥e< 14

La. Rev. Stat. Ann. § 32.9 (West 1998) .............. 14

Miss. Code Ann. §§ 411-41-71, 411-41-73 (1998) ....... 14

ee, SR SEED 1 ns 6:6 acl ed 6400600 14

N.J. Stat. Ann. §§ 2A:65A-S to -7 (West 1997) ......... 14

Ohio Rev. Code §§ 2919.15 to 2919.19, 2307.51, 2305.11(C)

SE a Sb hepasbieeties vs eedncant eevee 14

Ge. SME. GR SE, HERO CITED cc ccc cc cccecevves 14

R.I. Gen. Laws §§ 23-4. 12-1, 23-4. 12-2, 23-4. 12-3, 23-4. 12-

OPT TCP EET EL TTT TE CLE PAT CLE Tee 14

S.D. Codified Laws §§ 34-23A, 34-23A-32 (Michie 1998) .. 14

Tenn. Code Ann. § 39-15-209 (1997) ............... 14

Utah Code Ann. § 76-7-310.5 (1999) .............4.5. 14

Va. Code Ann. § 18.2-74.2 (Michie 1998) ............ 14

W.Va. Code §§ 33-42-3, 33-42-8 (1998) .............. 14

Wis. Stat. §§ 895.038, 940.16 (1997) ................ 14

OTHER AUTHORITIES

er C.-C ct pees ee de esess 6

Vii

INTEREST OF AMICI CURIAE

Amici Curiae are states and state actors that have an interest

in having this Court accept a partial-birth abortion case for review.

Most of Amici Curiae states have enacted statutes banning partial-

birth abortion procedures. Over half of the states have enacted bans

on partial-birth abortion. Some of these statutes are in effect, but

others are under federal court injunction. The states have a strong

interest in having bans against partial-birth abortion declared

constitutionally permissible so that their own similarly-worded bans

may be enforced.

SUMMARY OF THE ARGUMENT

Amici Curiae ask the Court to accept one or more partial-birth

abortion cases for review, only requesting in the present case

review of the first two questions presented by Petitioners Stenberg

et al. concerning construction and undue burden. The partial-birth

abortion issue is ripe for review because it is one of great national

importance - as evidenced by the passing of partial-birth abortion

bans in nearly three-fifths of the States, extensive litigation, and

extensive congressional activity - and because of developed

evidentiary records (the Nebraska and Wisconsin cases had full

trials), polished arguments, and a conflict between the Seventh and

Eighth Circuits.

ARGUMENT

1. Amici Curiae Request Review of the First Two

Questions Presented.

Petitioners Stenberg et al. presented four questions in their

petition for a writ of certiorari. Amici Curiae believe this case can

be resolved on the basis of the first two questions presented: (1)

whether the Nebraska act should be narrowly construed so as to

reach only a procedure known as intact D&X, and (2) whether, as

so construed, the act imposes an undue burden on the right to

abortion? Therefore, Petitioners’ latter two questions need not be

reached: (3) whether a human being delivered but for its head is a

Fourteenth-Amendment person, and (4) whether the Court should

now recognize abortion as a legislative issue?

The United States Court of Appeals for the Seventh Circuit

recently upheld similar partial-birth abortion prohibitions in

consolidated cases from Illinois and Wisconsin without having to

reach issues (3) and (4) presented by Petitioners Stenberg et al.

(These cases will soon be the subject of petitions for a writ of

certiorari in this court, Justice Stevens having granted stays.

Planned Parenthood of Wis. v. Doyle, 99A428 (U.S. Nov. 30,

1999) and Hope Clinic v. Ryan, 99A427 (U.S. Nov. 30, 1999)

(orders staying mandate of Seventh Circuit)).

Similarly, the United States Court of Appeals for the Fourth

Circuit stayed a Virginia district court’s preliminary and permanent

injunctions against enforcement of a similar partial-birth abortion

statute without having to reach issues (3) and (4). Richmond Med.

Ctr. for Women v. Gilmore, 144 F.3d 326 (4th Cir. 1998) (Luttig,

J.), aff'd, 183 F.3d 303 (4th Cir. 1998) (staying prelim. injunction);

Richmond Med. Ctr. for Women v. Gilmore, No. 98-1930(L) (4th

Cir. Sept. 14, 1999) (order staying permanent injunction).

In fact, the federal partial-birth abortion ban bills, upon which

Nebraska’s ban and most other state bans are modeled, were

premised in part on the belief that abortion jurisprudence does not

even govern a statute involving partial-birth or parturition (but if it

does govern then there is no “undue burden" on the abortion right).

See H.R. Rep. No. 104-267, at 9 (1995)' (the report of the House

Committee on the Judiciary recommending passage of Partial-Birth

Abortion Ban Act of 1995); The Partial Birth Abortion Ban Act of

1995: Hearings on H.R. 1833 Before the Sen. Comm. on the

Judiciary, 104th Cong., Ist Sess. 172 (Nov. 17, 1995) (written

Testimony of Prof. Douglas W. Kmiec) (setting out basically the

argument given herein). This understanding of the Constitution and

this Court’s decisions is discussed more fully below. As shall also

be shown, partial-birth abortion bans may be readily upheld even

within this Court’s current abortion jurisprudence.

A. Serious federalism concems are raised by the

partial-birth abortion cases, including construction

and the facial challenge standard.

The partial-birth abortion cases raise important federalism

issues requiring resolution by this Court, including statutory

construction and the facial challenge standard.

"The twelve-page report discussed the constitutionality of the partial-birth

abortion ban under various levels of scrutiny. It declared that:

The Supreme Court has never decided the constitutional status of a

child in the process of being born. But even under Roe v. Wade and Planned

Parenthood of Southeastern Pennsylvania v. Casey, H.R. 1833, the "Partial-

Birth Abortion Ban Act of 1995," is constitutional both before and after fetal

viability. . . . In fact, in Roe the Court specifically noted that a Texas statute

that made killing a child during the birth process a felony had not been

challenged. . . . (H.R. Rep. No. 104-267, at 9.]

NN NE Te a ee

Under an appropriately narrow construction,’ partial-birth

abortion bans reach only one rarely-used procedure, intact D&X.

Such limited bans pose no undue burden (even if abortion jurispru-

dence is applicable) because they have neither the purpose nor the

effect of placing a substantial obstacle in the path of women seeking

an abortion. Furthermore, the limited bans are amply justified by

sufficient and indeed compelling state interests, including interests

in ‘Protecting partially-born human life, erecting an impenetrable

barrier against infanticide, and protecting maternal health, as well

as a moral interest in preventing an especially offensive procedure.

However, the Eighth Circuit and numerous other federal

courts have refused to adopt a narrow construction of partial-birth

abortion statutes - refusing to show any deference to reasonable

constructions offered by state enforcement authorities - and have

instead adopted the untenable position that state legislatures had the

purpose of banning virtually all common methads of abortion in

open defiance of this Court’s holdings on abortion.> This Court has

made it clear that it will not “cast a blind eye on over-reaching by

7A threshold issue, not addressed by the Eighth Circuit, is whether

federalism mandates that the state courts be afforded the first opportunity to give

the new state statute an authoritative construction that may eliminate or narrow the

federal constitutional issues presented here, under the doctrine of Railroad Comm'n

v. Pullman Co., 312 U.S. 496 (1941). While the Seventh Circuit was more

sensitive to the demands of federalism, it too failed to address the advisability of

Pullman abstention.

‘In accord with its concern for federalism, this Court has repeatedly indicated

that the federal courts should accept a state's representations - whether sworn or

unsworn, at oral argument or in memoranda, at the trial level or on appeal ~ as to

the scope or meaning of a statute or ordinance. E.g., Forsyth County v. Nationalist

Movement, SOS U.S. 123, 131 (1992); Ward v. Rock Against Racism, 491 U.S.

781, 795-96 (1989); Frisby v. Schultz, 487 U.S. 474, 483 (1988); Edwards v.

Aguillard, 482 U.S. 578, 595 (1987); Hoffman Est. v. Flipside, Hoffman Est. , 455

U.S. 489, 494 n.5 (1982); DeFunis v. Odegaard, 416 U.S. 312, 317 (1974).

Federalism also mandates the presumption that the state legislature acted with

knowledge of existing constitutional restrictions and did not intend to transgress

those restrictions. See, ¢.g., McDonald v. Board of Election Comm'rs, 394 U.S.

802, 809 (1969).

lower federal courts" and “undoubtedly should” grant certiorari in

order to prevent "blatant federal-court nullifications of state law" by

means of “state-law determinations that seem plainly wrong.”

Leavitt v. Jane L., 518 U.S. 137, 144-45 (1996).

The Fourth and Seventh Circuits have set the example of how

a partial-birth statute ought to be construed, adopting narrow

constructions under which only a procedure known as intact dilation

and extraction* is prohibited. Richmond Med. Ctr. for Women v.

Gilmore, 144 F.3d 326 (4th Cir. 1998) (Luttig, J.), aff'd, 183 F.3d

303 (4th Cir. 1998) (staying prelim. injunction); Richmond Med.

Ctr. for Women v. Gilmore, No. 98-1930(L) (4th Cir. Sept. 14,

1999) (order staying permanent injunction).

However, most other federal courts have, as one commentator

noted (concerning a case involving an early statute designed to stop

partial-birth abortion),

crafted an opinion unconstrained by the Supreme Court's

‘cardinal principle’ [that federal courts must give state statutes

a narrowing construction where reasonably possible to save

them from constitutional assault] or any other standard of

Statutory interpretation. Rather, the opinion’s only consistent

interpretive principle is that standards of interpretation are

“Intact dilation and extraction ("intact D&X") typically involves two days of

cervical dilation to allow the trunk of a fetus to be extracted, followed by feet-first

extraction of a living, post-20-week human being from the uterus until the head

lodges in the cervical os, at which time the child's skull is punctured and the brain

is suctioned out to collapse the head and permit extraction of the child.. See Hope

Clinic v. Ryan, — F.3d —, 1999 WL 974098 at *2 (7th Cir. 1999) (upholding

partial-birth abortion bans from Illinois and Wisconsin).

It is possible to conceive of variations of the intact D&X that the statutes

would also ban (for example, where the partially-delivered child is killed by lethal

injection rather than by brain suction). As a factual matter, such potential variations

do not figure in this case or in currently recognized abortion practices and need not

be distinguished from the intact D&X procedure described above. For purposes of

this brief, these variations will be treated as subsumed under the term “intact

D&X."

selectively and temporarily employed and rejected to flout the

Supreme Court’s mandate and find the statute unconstitutional.

Comment, 112 Harv. L. Rev. 731 (1999) (discussing Women’s

Med. Prof. Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997), cert.

denied, 523 U.S. 1036 (1998)).

Another key federalism issue is what standard should be

applied to facial challenges to state statutes under the federal

constitution. United States v. Salerno, 481 U.S. 739, 745 (1987),

should apply to partial-birth abortion cases and plaintiffs should

prevail only if they have demonstrated that there is "no set of

circumstances under which the Act would be valid.” Jd. Under the

Salerno rule, their challenges must fail because they have clearly

failed to demonstrate that the Act is unconstitutional under many

circumstances, e.g., as applied to post-viability elective intact D&X

abortions not done to preserve maternal life or health, or when

there is clearly no demonstrable differential health benefit in

performing such an abortion. Even if Salerno does not apply and

partial-birth abortion laws are subject to the "undue burden" test of

Casey, they do not impose a substantial obstacle to abortion for a

large fraction of women for whom they are relevant. Cf. Planned

Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 895 (1992).

This Court has not resolved under what circumstances the

Salerno test should apply to challenges to abortion legislation. The

circuit courts are badly divided on the issue,” as is this Court. Ada

v. Guam Society of Obstetricians & Gynecologists, 506 U.S. 1011

(1992); Fargo Women's Health Org. v. Schafer, 507 U.S. 1013

(1993).

In the partial-birth abortion cases, the important issue of what

standard to apply in facial challenges - especially those involving

abortion - is at issue. A partial-birth abortion case would be an

°Cf., ¢.g., Bares v. Moore, 970 F.2d 12 (Sth Cir. 1992) (employing Salerno

facial challenge test in abortion case) with Planned Parenthood, Sioux Falls Clinic

v. Miller, 63 F.3d 1452 (8th. Cir. 1995) (not employing Salerno test in abortion

case). See also City of Chicago v. Morales, 119 S. Ct. 1849 (1999).

<2 ....2”

excellent vehicle for this Court to clarify the confused facial

challenge issue. This is a vital federalism issue because federal

courts are too readily striking down partial-birth abortion statutes

with constitutional applications, depriving the states of the opportu-

nity to construe and work out the meaning of their own statutes in

the context of litigation involving real-life facts.

B. The partial-birth abortion cases raise the issue of

precisely when the waxing state interest in a child

outweighs the waning abortion interest.

The second issue that this Court should consider in a partial-

birth abortion case is whether the abortion right is burdened at all.

As noted above, the partial-birth abortion laws were premised in

part on the notion that abortion jurisprudence does not even apply

to a partial-birth abortion statute because the constitutional equation

has changed with the changed location of human offspring. The

abortion right involves an “unborn” human being (not one partially

born) and the termination of a pregnancy (which barely exists, if at

all, when a child is partially delivered). Therefore, there could be

no “undue burden" under a Casey analysis because a Casey analysis

would not apply.

But even if some abortion interest remains when a child is

partially born, what is the precise moment when the waxing state

interest in the child outweighs the waning abortion interest? Three-

fifths of the States now say by their partial-birth abortion bans that

the constitutional balance tips when the fetus moves out of the

womb and becomes a partially-born child.

That, then, is the overriding substantive issue of this case -

one which this Court has not decided, as shown next. It is the issue

this Court ought to decide: Does an abortion right apply in a partial-

birth situation and, if so, when must it yield to a state’s interest in

the child?

In Roe v. Wade, 410 U.S. 113 (1973), this Court held that the

Texas anti-abortion statute at issue was unconstitutional, but the

Court also noted that another Texas statute that bans killing children

in parturition was unchallenged and unaffected. As quoted by the

Court, this statute provids as follows:

Art. 1195. Destroying unborn child.—Whoever shall during

parturition of the mother destroy the vitality or life in a child

in a state of being born and before actual birth, which child

would otherwise have been born alive, shall be confined in the

penitentiary for life or for not less than five years.

Id. at 118 n.1.° The Texas parturition statute remains operative.

Tex. Rev. Civ. Stat. Ann. art. § 4512.5 (West 1996). See Tex.

Att’y Gen. Opinion H-369 (Aug. 13, 1974) (Texas parturition

statute unaffected by Roe); Showery v. Texas, 690 S.W.2d 689, 692

(Tex. Ct. App. 1985) (Texas parturition statute retains “current

viability").’

The partial-birth abortion bans are based in part on the

premise that states have a compelling interest in protecting the

actual life of a child in the process of birth that is greater than, and

distinguishable from, a state’s interest in the “potential life" of a

fetus in utero, which this Court has termed "substantial." Casey,

505 U.S. at 876. As the Wisconsin District Court found,

when the physician kills a child in a partial birth abortion, the

child "is merely inches from being delivered and obtaining full

legal rights of personhood under the US Constitution.”

Accordingly, . . . partial birth abortion is “closer to infanticide

than it is to abortion." The [Wisconsin State] legislators who

filed an amicus brief [in the District Court] make similar

arguments. The Court concludes that these facts demonstrate

that the Act serves compelling state interests.

**Parturition” is “the action or process of giving birth . . . ." American

Heritage College Dictionary 997 (1993).

"The plain language of the Texas law requires only that the child in

parturition “would otherwise have been born alive," not that the child be "viabie."

The partial-birth abortion statutes likewise are not limited to viable children.

~~ + ey

Planned Parenthood of Wis. v. Doyle, 44 F. Supp.2d 975, 982

(W.D. Wis. 1999) (citations omitted).

It logically follows from this Court’s abortion decisions that

the interest in protecting the life of the child in the process of birth

arises from the change of legal status the fetus undergoes as she

changes location, emerging from the maternal body toward

complete birth. Roe affirmed the constitutional significance of the

locational change that occurs as the child emerges from the maternal

body. The child who has been completely born is a fully legal

person, and the abortion liberty can make no claim on such a child’s

life. Roe, 410 U.S. at 156-57. Similarly, it follows that the child

who is partially born is at least the subject of a compelling state

interest, and any asserted abortion liberty holds, at most, diminished

power over such a child.

"Birth" is "1.a. The emergence and separation of offspring

from the body of the mother. b. The act or process of bearing

young, parturition . " American Heritage College Dictionary

141 (1993); *{[t}he act of being born or wholly brought into separate

existence." Black's Law Dictionary 154 (Sth ed. 1979). “Born” is

the “[ajct of being delivered or expelled from mother’s body,

whether or not placenta has been separated or cord cut." /d. at 167.

A child who has fully emerged from the mother’s body has

obviously been “born” and is certainly a “person” who is the subject

of compelling interests and the bearer of rights, as Roe recognized.

But a child who is in the “process” of “being born,” in the “act of

being delivered," also falls within these common definitions. The

state may properly conclude that such a child is no longer “unborn”

- no longer fully under the sway of the abortion liberty as described

by Roe and Casey.

This Court has acknowledged that a state’s interest in the life

of a fetus grows as the fetus becomes able to survive apart from the

mother’s body - as the fetus becomes “viable.” Roe, 410 U.S. at

163-64; Casey, 505 U.S. at 875-76. Likewise, a state’s interest in

protection of the life of an unborn child increases and becomes

compelling as she emerges from the maternal body and proceeds

toward full birth, reaching its apogee when live birth is completed.

As the length of gestation has jurisprudential significance, so does

location, and it is on the basis of the child’s change in location that

States assert a distinct compelling interest in protection of human life

in the process of birth.

In the typical intact D&X abortion - the only procedure to

which a properly construed partial-birth abortion statute applies -

the child is delivered in a breech position, and only the child’s head

remains within the uterus. Much of the remainder of the child’s

body exists entirely outside the body of the woman. See Report of

the AMA Board of Trustees ("One feature that distinguishes the

D&X procedure from other destructive procedures is that the fetus

may be partly outside the woman’s body."). Surely, a state may

conclude that such a child is no longer “unborn” and that the

process of birth has proceeded to such a point that a state’s interest

in protection of the child has become compelling. “[T}he State

cannot be faulted for acting where it can to outlaw an unnecessary

procedure that in most cases in which it is used is literally inches

away from being infanticide." Doyle, 44 F. Supp. 2d at 984.

Certainly, there is no precedent from this Court and there is

no explicit language in the Constitution that precludes a state from

determining that a child in the process of birth warrants special

protection as the subject of a compelling state interest. This Court

has simply not addressed the issue.

Nor has this Court held that gestational development/viability

are the exclusive criteria by which the Constitution allows the State

to measure its interest in the protection of human life.* "Although

*Lower courts which have rather summarily dismissed the claim that

thesState may maintain an enhanced interest in protection of the child in the process

of birth have either erroneously regarded the gestational-development and viability

criteria of Roe and Casey as exclusive or erroneously regarded the claim that

locational criteria should be acknowledged as the addition of an unprecedented

novelty to the analytic framework of Roe and Casey. See Ricwmond Med. Ctr. for

Women v. Gilmore, 1999 WL 507453, at *35 (B.D. Va.) (uly 16, 1999);

(continued...)

abortion laws are typically justified according to the state’s interest

in maternal health or potential life, the Casey court specifically

recognized that ‘other valid state interest[s]’ could justify a pre-

viability abortion restriction.”"" Doyle, 44 F. Supp. 2d at 983

(quoting Casey, 505 U.S. at 877).° In fact, it would be absurd to

posit that the mere potential to live outside the womb - viability -

has constitutional significance, while the actual fact of emergence

of a living child from the womb has none whatever.

In short, a state may assert a distinct compelling interest in the

protection of children in the process of birth in support of the Act.

This locational interest exists apart from the substantial and

compelling interests that the State might properly assert in

(...contimued)

Causeway Med. Suite v. Foster, 43 F. Supp. 24 604, 615 (E.D. La. 1999); Carhart

v. Stenberg, 11 F. Supp. 2d 1099, 1132 n. 48 (D. Neb. 1998) (incorporating

Carhart v. Stenberg , 972 F. Supp. 507, 529(D. Neb. 1997)); Planned Parenthood

of S. Ariz. v. Woods, 982 F. Supp. 1369, 1377 (D. Ariz. 1997).

But these decisions are in error. First, as noted in text, this Court recognized

that “other valid state interest{[s}]" might also justify pre-viability abortion

restrictions. Casey, 505 U.S. at 877. Second, the locational criterion of birth is at

the very core of the analytic framework of both Roe and Casey: The “right to

abortion” applies only to “unborn” fetuses and has no claim on a child once birth

is accomplished - when the child is not merely the subject of a compelling interest,

but also a person and rights-bearer. Thus, although it is true thai recognition of an

enhanced state interest in the child in the process of birth elaborates and clarifies

one element of Roe/ Casey jurisprudence, it does not introduce an alien element imo

it.

** After a trial, the district court in the Wisconsin case concluded that the

imact D&X procedure is never necessary from the perspective of the patient's

health." Hope Clinic v. Ryan, 1999 WL 974098 at *14 (citing Doyle, 44 F. Supp.

2d at 979-82). Neither the American College of Obstetricians and Gynecologists

imact D&X would be the only medically appropriate option. Jd. The Sevemh

Circuit declared that "[w]e proceed on the assumption, which appears to be shared

by the American Medical Association, that the D&X is not the best or safest option

im any articulable category of situations." /d.

“potential” human life based on gestational development, and it

warrants special protection of the partially-born child.

The fully born child - whether “viable” or not - is the subject

of a most compelling interest in the protection of the child’s life,

based solely on the locational change the child has undergone.

Likewise, the child in the process of birth - whether “viable” or not

- is the subject of an enhanced state interest by virtue of the child’s

change in location.

Furthermore, the abortion right wanes as a state’s interest in

protecting a partially born child waxes. This Court has recognized

only a right to terminate pregnancy. Casey, 505 U.S. at 847. This

right authorizes a pregnant woman to seek the means to terminate

her pregnancy without state interference that unduly burdens her

decision. Jd. at 876-77. What are the outer boundaries of this right?

Certainly, they do not extend beyond the maternal body. A woman

seeking an abortion could not claim that this right authorizes killing

a child who survives an abortion procedure and is born alive.

of the abortion liberty. They acknowledge that pregnancy may be

terminated under this Court’s precedent, but deny that it may be

terminated in a manner that purposefully seeks to kill the child once

the child has begun the process of birth, a process marked by the

passage of the living child’s body from womb into birth canal to

outside the woman's body. At this point, any claim of a right to

terminate pregnancy is substantially obviated as pregnancy is

terminated. The power and dominion of the abortion liberty

diminish as its purpose is achieved and the child is delivered. Since

the right to abortion does not include an independent right to assure

fecal death, the abortion liberty cannot be asserted to justify a

separate act to kill the child as the child proceeds out of the

maternal body.

In sum, just as a state’s interest in protection of the child

increases as the child proceeds toward birth, the woman’s right to

birth abortion bans do not prevent the termination of any preg-

oe > ee eg

a tn I a

pleted.

Therefore, the abortion right is not even implicated in a

parturition/partial-birth situation, so that this Court need not reach

any issue related to the reconsideration of Roe. Even if a Roe/Casey

analysis were appropriate, partial-birth abortion statutes should be

upheld as marking the precise moment when the waxing state

interest in protecting the partially-born child outweighs the waning

interest in terminating a pregnancy. They should also be upheld as

This Court should accept review of a partial-birth abortion

case to clarify this vital issue of the precise moment when any

residual abortion right must yield to the interest a state protects

when it outlaws infanticide. A majority of the States now say this

happens during parturition, regardless of how the child arrives at its

Il. A Partial-Birth Abortion Case Should Be Accepted

for Review as a Matter of Great Public Interest.

The partial-birth abortion cases involve matters of great public

interest, given that Congress has twice passed bills that were vetoed

by President Clinton and only narrowly avoided being overridden.

See, e.g., Cong. Rec. $18228, roll call #596 (Dec. 7, 1995); Cong.

Rec. H2929, roll call #94 (Mar. 28, 1996); Cong. Rec. H3338-

3339, H. Doc. 104-198 (Apr. 10, 1996). Even now the issue

remains alive in Congress, with the Senate recently passing a

revised partial-birth abortion bill. (S.1692 passed 63-34, Oct. 21,

1999.) See also James Bopp, Jr. and Curtis R. Cook, Partial-Birth

Abortion: The Final Frontier of Abortion Jurisprudence 14 Issues

in L. & Med. 3, 1998 (describing more fully the national history of

the partial-birth abortion debate).

Following the lead of Congress, nearly three-fifths of the states

have enacted some form of partial-birth abortion ban, most

patterned closely after either the 1995 or 1997 federal models."

The passage of these st’ »artial-birth abortion bans has led

to extensive litigation in fede:. . courts."’

“Twenty-seven states have enacted statutes substantially similar to

Nebraska's: Ala. Code §§ 26-23-1, 26-23-3 to 26-23-4 (1998); Alaska Stat.

$§ 18.16.050 (Michie 1998); Ariz. Rev Stat. Ann. 13.3603.01 (West 1997); Ark.

Code Ann. §§ 5-61-201 to 5-61-203 (Michie 1997); Fla. Stat. Ann. §§ 390.11,

390.0111 (West 1998); Ga. Code Ann. § 16-12-144 (1998); Idaho Code § 18-613

(1998); 720 Ill. Comp. Stat. $13/5-5, 513/5-10, 513/5-20 (West 1998); Ind. Code

Ann. §§ 16-18-2-267.5, 16-34-2-1(b), 16-34-2-7(d) (Michie 1998); lowa Code

§ 707.8A (1998); Ky. Rev. Stat. §§ 311.595(3), 311.720, 311.990(11) (Michie

1998); La. Rev. Stat. Ann. § 32.9 (West 1998); Michigan Senate Bill 546, P.A.

107 (1999) (signed July 7, 1999) (eff. date 90 days after closing of 1999 legislative

session); Miss. Code Ann. §§ 411-41-71, 411-41-73 (1998); Missouri Senate

Substitute No. 3 for House Bills Nos. 427, 40, 196 and 404 (1999), to be codified

at Mo. Rev. Stat. § 565.300 et seq.; Mom. Code Ann. § 50-20-401, as amended

by 1999 Mom Laws 479; Neb. Rev. Stat. Ann. §§ 28-326, 28-328, 71-148(15)

(Michie 1997); N.J. Stat. Ann. §§ 2A:65A-5 to -7 (West 1997); N.D. Cent. Code

§§ 14-02.6-01 to 14-02.6-03; Okla. Stat. tit. 21, § 684 (1998); R.I. Gen. Laws §§

23-4. 12-1, 23-4. 12-2, 23-4. 12-3, 23-4. 12-4 (1998); S.C. Code Ann. §§ 44-41-85,

16-1-90(F) (Law Co-op 1997); S.D. Codified Laws §§ 34-23A, 34-23A-32 (Michie

1998); Tenn. Code Ann. § 39-15-209 (1997); Va. Code Ann. § 18.2-74.2 (Michie

1998); Wis. Stat. §§ 895.038, 940.16 (1997); W.Va. Code §§ 33-42-3, 33-42-8

(1998). Three other states have attempted to target imact D&X in statutes using

differem language. See Kansas Stat. Ann. § 65-6721 (1998); Ohio Rev. Code §§

2919.15 to 2919.19, 2307.51, 2305.11(C) (1997); Utah Code Ann. § 76-7-310.5

(1999)

"'Partial-birth legislation has been the subject of numerous final federal

district and state trial court decisions. Swnmit Med. Associates, P.C. v. James, 984

F. Supp. 1404 (M.D. Ala. 1998) (question certified to Ala. S. Ct.); Little Rock

Family Planning Services, PA. v. Jagley, No. LR-C-97-581, 1999 WL 753928

(8th Cir. Sept. 24, 1999) (Ark.); Planned Parenthood of Alaska v. State of Alaska,

No. 3AN-97-6019 CIV (Super. Ct. Mar. 13, 1998); Planned Parenthood of S.

Ariz. v. Woods, 982 F. Supp. 1369 (D. Ariz. 1997); A Choice for Women v.

Butterworth, 54 F. Supp. 2d 1148 (S.D. Fla. 1998); Midtown Hosp. v. Miller, %

F. Supp. 2d 1360 (N.D. Ga. 1998) (approving consent order), dismissed, No. 1:97-

CV-1786-JOF, by order entered Sept. 9, 1998); Weyhrich v. Lance, No. 1:98-CV-

(continued. ..)

Partial-birth type statutes have now been the subject of several

final federal circuit court decisions. Hope Clinic v. Ryan, Nos. 98-

1726, 99-2528, 99-2533, 1999 WL 974098 (7th Cir. Oct. 26, 1999)

(Ill. and Wis.); Carhart v. Stenberg, Nos. 98-3245NE, 98-3300NE,

1999 WL 753919 (8th Cir. Sept. 24, 1999) (Neb.); Planned

Parenthood of Greater lowa. v. Miller, No. 99-1272S1, 1999 WL

753770 (8th Cir. Sept. 24, 1999) (lowa); Little Rock Family

Planning Services, P.A. v. Jagely, No. 99-1004EA, 1999 WL

753928 (8th Cir. Sept. 24, 1999) (Ark.); Summit Med. Associates

v. Pryor, 180 F.3d 1326 (11th Cir. 1999) (Ala.) (limited to

Eleventh Amendment issue); Women's Med. Prof. Corp. v.

Voinovich, 130 F.3d 187 (6th Cir. 1997), cert. denied, 523 U.S.

1036 (1998) (Ohio).

Moreover, there are presently five partial-birth abortion cases

pending on appeal in federal courts of appeals. Rhode Island Med.

Society v. Whitehouse, — F. Supp. 2d — , 1999 WL 683846 (D.

R.1. 1999), appeal docketed, Nos. 99-2095 , 99-2141 (ist Cir. 1999)

(proceedings stayed pending decision of a writ of certiorari in this

case, Nov. 23, 1999); Planned Parenthood of Central N.J. v.

Verniero, 41 F. Supp. 2d 478 (D. N.J. 1998), appeal docketed, No.

99-5042 (3d Cir. argued Nov. 19, 1999); Richmond Med. Ctr. for

Women v. Gilmore, 55 F. Supp. 2d 441 (E.D. Va. 1999), appeal

docketed, Nos. 98-930, 99-2000 (4th Cir. 1999); Causeway Med.

Suite v. Foster, 43 F. Supp. 2d 604 (E.D. La. 1999), appeal

"(. continmed)

117 (D. Idaho Oct. 12, 1999); Hope Clinic v. Ryan, 995 F. Supp. 847 (N.D. Ill.

1998); Planned Parenthood of Greater lowa v. Miller, 30 F. Supp. 24 1157 (S.D.

lowa 1998); Eubanks v. Stenge!, 28 F. Supp. 2d 1024 (W.D. Ky. 1998); Causeway

Med. Suite v. Foster, 43 F. Supp. 24 604 (B.D. La. 1999); Evans v. Kelley, 977

F. Supp. 1283 (B.D. Mich. 1997); Intermountain Planned Parenthood v.

Montana., No. BVD-97-477 (Mont. Dist. Ct., June 29, 1998); Carhart v.

Stenberg, 11 F. Supp. 2d 1099 (D. Neb. 1998); Women's Med. Prof. Corp. v.

Voinovich, 911 F. Supp. 1051 (S.D. Ohio 1994); Planned Parenthood of Central

N.J. v. Verniero, 41 F. Supp. 2d 478 (D.N.J. 1998); Rhode Island Med. Society

v. Whitchouse, 1999 WL 683846 (D. R.1. Aug. 30, 1999); Richmond Med. Ctr.

for Women v. Gilmore, 51 F. Supp. 2d 441 (E.D. Va. 1999); Planned Parenthood

of Wis. v. Doyle, 44 P. Supp. 2d 975 (W.D. Wis. 1999).

docketed, No. 99-30324 (Sth Cir. 1999); Eubanks v. Stengel, 28 F.

Supp. 2d 1024 (W.D. Ky. 1998), appeal docketed, No.98-667 1 (6th

Cir. to be argued Dec. 15, 1999).

Two courts of appeals have now addressed the partial-birth

abortion issue on the merits: the Eighth Circuit (represented by the

present case) and the Seventh Circuit, Hope Clinic v. Ryan and

Christensen v. Doyle, — F.3d — , 1999 WL 974098 (7th Cir. 1999)

(upholding partial-birth abortion bans from Illinois and Wisconsin).

The Fourth Circuit has also addressed the statutory construction

issue in interlocutory orders staying the preliminary and permanent

injunctions of a Virginia district court against implementation of the

Virginia partial-birth abortion ban on the basis that as properly

construed the statute bans only a procedure no plaintiff alleged

doing, i.e., intact D&X. Richmond Med. Ctr. for Women v.

Gilmore, 144 F.3d 326 (4th Cir. 1998), aff'd, 183 F.3d 303 (4th

Cir. 1998) (staying prelim. injunction); Richmond Med. Ctr. for

Women v. Gilmore, No. 98-1930(L) (4th Cir. Sept. 14, 1999)

(order staying permanent injunction).

This issue is now ripe for this Court’s resolution.

il. A Partial-Birth Abortion Case Should Be Accepted

for Keview Due to Conflict Between the Circuits.

A partial-birth abortion case is now ripe for review because

there has been extended record development (with full trials in the

Nebraska and Wisconsin cases), full development of the arguments

through extended briefing, and a conflict between the Eighth Circuit

(this case) and the Seventh Circuit. Hope Clinic v. Ryan and

Christensen v. Doyle, — F.3d — , 1999 WL 974098 (7th Cir. 1999)

(upholding partial-birth abortion bans from Illinois and Wisconsin).

CONCLUSION

For the foregoing reasons, Amici Curiae request the Court to

accept one or more partial-birth abortion cases for review, request-

ing in the present case only review of the two questions set out at

the beginning of the present brief.

Respectfully submitted,

Bill Pryor James Bopp, Jr.

Attorney General of Alabama § Counsel of Record

State House Richard E. Coleson

11 S. Union Street Thomas J. Marzen

Montgomery, AL 36130 Bopp, COLESON & BOSTROM

334/242-7448 1 South 6* Street

Terre Haute, IN 47807-3510

Thomas J. Miller 812/232-2434

Attorney General of lowa ‘Counsel for West Virginia Gov.

Hoover Building Cecil Underwood

Des Moines, 1A 50319

515/281-3349 D. Michael Fisher

Attorney Gen. of Pennsylvania

Richard P. leyoub 16th Floor, Strawberry Square

Attorney Gen. of Louisiana Harrisburg, PA 17120

Department of Justice 717/787-3391

P.O. Box 94095

Baton Rouge, LA 70804 Charlie Condon

225/342-1168 Attorney Gen. of South Carolina

Richard F. Collier, Jr.

P.O. Box 11549

Colombia, SC 29211-1549

580 Howard Avenue 803/734-3680

Somerset, NJ 08873

732/560-7100 Mark Barnett

Counsel for New Jersey Gen- Attorney Gen. of South Dakota

eral Assembly (See inside 500 E. Capitol

front cover for fuller descrip- Pierre, SD 57501

tion.) 605/773-3215