Amicus Curiae Brief — Stenberg v. Carhart

Supreme Court of the United S&@RRK

ee

S

DON STENBERG, Attorney General of the

State of Nebraska, et al.,

Petitioners,

Vv.

LEROY CARHART, M.D.,

Respondent.

>

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

o

BRIEF AMICUS CURIAE OF VIRGINIA, ALABAMA,

IDAHO, ILLINOIS, IOWA, MICHIGAN,

NORTH DAKOTA, OHIO, PENNSYLVANIA,

SOUTH CAROLINA, SOUTH DAKOTA, UTAH,

THE GOVERNOR OF RHODE ISLAND,

THE GOVERNOR OF WEST VIRGINIA, AND

THE STATE LEGISLATURE OF NEW JERSEY

IN SUPPORT OF PETITIONERS

¢

| Mark L. EAaRLey

) Attorney General of Virginia

WituiaM H. Hurp

Solicitor General

Counsel of Record

Dante. J. Poynor

Auson P. LANDRY

ANTHONY P. MEREDITH

Assistant Attorneys General

900 East Main Street

Richmond, Virginia 23219

804/786-2436

[Additional Counsel Listed On Inside Cover]

31 op

Brit Pryor

Attorney General

of Alabama

11 South Union Street

Montgomery, AL 36130

334/353-3738

ALAN G. LANCE

Attorney General of Idaho

P. O. Box 83720

Boise, ID 83720

208 /334-2400

James E. Ryan

Attorney General of Illinois

100 West Randolph Street

Chicago, IL 60601

312/814-3698

THomas J. MILLer

Attorney General of Iowa

Hoover Building

Des Moines, IA 50319

515/281-3349

JENNIFER M. GRANHOLM

Attorney General

of Michigan

P. O. Box 30212

Lansing, MI 48909

517/373-1124

Herp: Herrkamp

Attorney General

of North Dakota

State Capitol

600 East Boulevard Avenue

Bismarck, ND 58505

701/328-2210

Berry D. MONTGOMERY

Attorney General of Ohio

30 E. Broad Street

17th Floor

Columbus, OH 43215

614/466-4940

D. MicHaet FisHER

Attorney General

of Pennsylvania

16th Floor, Strawberry

Square

Harrisburg, PA 17120

717/787-3391

CHARLIE CONDON

Attorney General

of South Carolina

P. O. Box 11549

Columbia, SC 29211

803 /734-3680

Mark BARNETT

Attorney General

of South Dakota

500 East Capitol Avenue

Pierre, SD 57501

605 /733-3215

JAN GRAHAM

Attorney General of Utah

236 State Capitol

Salt Lake City, UT 84114

801/538-9600

Crame J. V. RicHarps

Room 119, The State House

Providence, RI 02903

401/222-2080

Counsel for Lincoln C.

Almond, Governor of

Rhode Island And

Providence Plantations

James Bopp, Jr.

Richard E. Coleson

Thomas J. Marzen

Bopp, Coleson & Bostrom

1 South 6th Street

Terre Haute, IN 47807-3510

812/232-2434

Counsel for Cecil H. Underwood

Governor of West Virginia

RicHarp F. Couuier, Jr.

Davip J. TReIsMAN

580 Howard Avenue

Somerset, NJ 08873

732/560-7100

Counsel for the New Jersey

Legislature, by and through

Donald T. DiFrancesco, in His

Official Capacity as President 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

i

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES .............ccccccccsees ii

INTERESTS OF AMICI CURIAE.......2.......+25.. 1

SUMMARY OF ARGUMENT.................000055 1

GEE wbbdndncciepenecbindncscienesovsccence 3

THE CARDINAL RULE OF CONSTRUCTION: ITS

ORIGIN AND DEVELOPMENT.................- 3

APPLICATION OF THE RULE TO THE NEBRASKA

BREED ed ccendisdidedwiecsuntéddseesesincoescs 12

The Textual Approach Supports A Narrow Reading .. 14

Other Sources of Legislative Intent Support A Nar-

row Reading ................. Dosadencesoovesocse 16

FUTURE OF THE RULE: TWO PROPOSED COROLL-

GED 66006 ten cotcgcdavbotartesiscdvcctovcceates 20

The “Reasonable Jurist” Corollary.................. 22

When a federal court construes a State statute that

has not been authoritatively construed the

courts of that State, the federal rina can

reject a proffered interpretation that would he

constitutional problems, unless the interpretation

is one that is not susceptible to debate among

reasonable jurists...............000eseeeeeeeeeees 24

The “State Certification” Corollary................. 25

When a federal court construes a State statute that

has not been authoritatively construed by the

courts of that State, the al court not

reject an interpretation advanced by the State, if

certification to the State’s highest court is available

to test the proffered interpretation............... 26

GSR 6 ce wesdsancccedsccscccccsvcccicceces 29

ii

TABLE OF AUTHORITIES

Cases PAGE

Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416

IDE c ccccoccacupecssdéncssbadadendsodoune 11, 20, 23

Arizonans for Official English v. Arizona, 520 U.S. 43

SUED o cavccavssedeudsctenssssetnbansseases 25, 26, 28

Babbitt v. United Farm Workers Nat'l Union, 442 U.S.

BP Gees ccccpocccnccsnnssesaucetesestesbenions 26

Bellotti v. Baird, 428 U.S. 132 (1966) ..............5.. 28

Blodgett v. Holden, 275 U.S. 142 (1927).............55: 6

Bratton v. Chandler, 260 U.S. 110 (1922)............... 6

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ............ 8

Brockett v. Spokane Arcades, 472 U.S. 491 (1985) ...... 28

Brown v. Wilson, 567 N.W.2d 124 (Neb. 1997)........ 17

Butler v. McKellar, 494 U.S. 407 (1990)............... 24

Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999)..... 12

Carhart v. Stenberg, 11 F. Supp. 2d 1099 (D. Neb.

Bn occcicnescccdunsesnesdbéosenasereetesacesde 13

Central States Found. v. Balka, 590 N.W.2d 832

(Neb. 1999)..........ceeeeeeccscecencceceecncenees 20

Chapman v. United States, 500 U.S. 453 (1991)........ 22

Chicago v. Morales, 527 U.S. 41 (1999). ...........0406. 23

Crowell v. Benson, 285 U.S. 22 (1932) .............055- 6

Edward J]. DeBartolo Corp. v. Florida Gulf Coast Bldg.

and Constr. Trades Council, 485 U.S. 568 (1988)... .8, 9

Ehler’s v. Perry, 494 N.W.2d 325 (Neb. 1993)......... 11

iii

TABLE OF AUTHORITIES - Continued

PAGE

Elkins V. Moreno, 435 U.S. 647 (1978)...........0000: 27

Erznoznik v. City of Jacksonville, 422 U.S. 205

SIRE < 006 ccesgecédeeevscnsesccecccestasetecce 7, 8,9

Eubanks v. Stengel, 28 F. Supp. 2d 1024 (W.D. Ky.

1998), appeal docketed No. 98-6071 (6th Cir. Dec.

BE, FRM 6 cecdoscctiecsvecscccencvecessaeseces 21, 22

Fiore v. White, 528 U.S. __, 120 S. Ct. 469 (1999) .... 28

Frisby v. Schultz, 487 U.S. 474 (1988) ...............5. 9

George A. Hormel & Co. v. Hair, 426 N.W.2d 281

Bh Bee occcocccnedcvetctsccecoscenensaccesese 14

Grenada County Supervisors v. Brogden, 112 U.S. 261

GD 00 ckdededapidccsccccsccudcosednsesoese settee 4

Harrison v. NAACP, 360 U.S. 167 (1959) ............. 26

Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999)..... 26

Hooper v. California, 155 U.S. 648 (1895) ............ 5,9

International Ass'n of Machinists v. Street, 367 U.S.

FE Ce ccdecccccccccvocdcccccescccccccvcsccens 7

Johnson v. Fankell, 520 U.S. 911 (1997) ............... 23

Jones v. Elliott, 108 N.W.2d 742 (Neb. 1961).......... 14

- Templars’ Indemnity Co. v. Jarman, 187 U.S.

Fe Ce cobs ncboccaccdeccccocccccncquscocesves 5, 6

Lucas v. Alexander, 279 U.S. 573 (1929) ...........005- 6

Marbury v. Madison, 5 U.S. 137 (1803) ............... 23

Massachusetts v. Feeney, 429 U.S. 66 (1976)........... 27

Murray v. The Charming Betsy, 6 U.S. 64 (1804) ..... 3, 9

~iv

TABLE OF AUTHORITIES - Continued

PAGE

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490

GRIO ER < onicusdcdeccccakesteucdebicaneesubednsdcwes 7,9

Parsons v. Bedford, 28 U.S. 433 (1830).............005. 3

Planned Parenthood v. Ashcroft, 462 U.S. 476 (1983) .... 11

Planned Parenthood of Central New Jersey v. Verniero,

41 F. Su Upp. . 2d 478 (D.N.J. 1998), appeal docketed

No. 99- (3d Cir. Feb. 2, 1999).............045. 22

Presser v. Illinois, 116 U.S. 252 (1886)................. 4

Reno v. ACLU, 521 U.S. 844 (1997) ....10, 11, 14, 16, 22

Reiter v. Sonotone, 442 U.S. 330 (1979) ............... 15

Richardson v. Board of Education, 290 N.W.2d 803

SR GOs coccnceduecuccevencsdecescansteduceus 15

Richmond Medical Ctr. For Women v. Gilmore, 144

F.3d 326 (4th Cir. 1998).......ccccccccccscvccccees 26

Sawyer v. Smith, 497 U.S. 227 (1990)..............44. 24

State v. Burke, 408 N.W.2d 239 (Neb. 1987) .......... 20

State v. Garza, 496 N.W.2d 448 (Neb. 1993).......... 11

State v. Glover, 325 N.W.2d 155 (Neb. 1982).......... 15

State v. Kipf, 450 N.W.2d 397 (Neb. 1990)............ 11

Sweet Home Chapter of Comm. for a Greater Oregon v.

Babbit, 1 F.3d 1 (D.C. Cir. 1993)................45. 16

Teague v. Lane, 489 U.S. 288 (1989) ................. . 24

Towne v. Eisner, 245 U.S. 418 (1918) ................ 12

United States v. Coombs, 37 U.S. 72 (1838)............. 4

Vv

TABLE OF AUTHORITIES - Continued

PAGE

United States v. Delaware & Hudson Co., 213 U.S.

BD GRR s 6c ccc cccenccccscapcconescccédseseveced 5, 6

United States v. Grace, 461 U.S. 171 (1983)........... 19

United States v. Jin Fuey Moy, 241 U.S. 394 (1916)..... 6

United States v. Monsanto, 491 U.S. 600 (1989) ....... 22

Virginia v. American Booksellers Ass'n, 484 U.S. 383

SED 0b 0006s dndccpnsanducscevessess 8, 9, 10, 11, 28

rginia Soc’y for Human Life v. Caldwell, 152 F.3d

"Es (4th Giz PL Recutscedesid coesoscddondecests 27

Willers v. Willers, 587 N.W.2d 390 (Neb. 1998)....... 17

Women's Medical Professional Corp. v. Voinovich, 130

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

BED CO eo ov cccccccvcccsctccoecccccccsccevecess 20

Wright v. West, 505 U.S. 277 (1992)........... ee eeees 24

Zant v. Stephens, 456 U.S. 410 (1982) ............455- 28

STATUTES AND RULES

29 U.S.C.A. § 158(b)(4)(ii)(B) .. eee ee eee eee 8

GD WBA. 6 Bae ssccvccccsccccccnsvccccsceccccces 19

GD UDCA. © DD occcccccvssccsccccccccccccsccccees 19

47 US.C.A. § 233(a)(1). 0... cee cece eee e rene eeees 10

DH UBGA. © BI acc cwccvcccccccsccesccscccsccces 10

477.004 R.S.Mo. (1999) ....... 6. ccc ec eeee eee eeeeees 27

Cal. Rules of Court, Div I R-29.5 (1999)............. 27

vi

TABLE OF AUTHORITIES - Continued

PAGE

In Re: Certification of Questions of Law (Order)

3-2 7.) 5 Ol Oe 27

Pas Ge Ts OE PEL bd Vescbudeectbceusdcunce ce 27

Neb. Rev. Stat. § 28-326(9) (1998) ................... 12

PES SUE OR dance dasdeddiddddendtaibawsuabale 27

OTHER

H.R. 1122, 105th Cong., Ist Sess. (1997)............. 17

SUR. Rep. No. 105-26 (1997). .......ccccccccccscccecs 17

Comment, 112 Harv. L. Rev. 731, 734, 736 (1999) .... 21

Schneider, “But Answer Came There None”: The

Michigan Supreme Court and The Certified

Question of State Law, 41 Wayne L. Rev. 273,

SP Cie SPA Ginevesed diccécesaunenteudcce 27

1

BRIEF OF VIRGINIA, ALABAMA, IDAHO,

ILLINOIS, IOWA, MICHIGAN, NORTH DAKOTA,

OHIO, PENNSYLVANIA, SOUTH CAROLINA, SOUTH

DAKOTA, UTAH, THE GOVERNOR OF RHODE

ISLAND, THE GOVERNOR OF WEST VIRGINIA,

AND THE STATE LEGISLATURE OF NEW JERSEY AS

AMICI CURIAE IN SUPPORT OF THE PETITIONERS

INTERESTS OF AMICI CURIAE

The States of our Union have a deep and abiding

interest in preserving the basic constitutional principles

on which our people erected their institutions of govern-

ment. Federalism and the separation of powers are two

such principles. Both are implicated whenever a federal

court is called upon to judge the constitutionality of a

statute enacted by the people of a State. In order to

uphold these principles — while fully protecting constitu-

tional liberties — the Supreme Court has declared a cardi-

nal rule: a federal court must not declare a State statute

unconstitutional if there is any fair interpretation of the

statute by which it can be saved. It is to preserve this rule

- and the constitutional principles it embodies — that

these States and State officials submit this brief as amici

curiae.

SUMMARY OF ARGUMENT

From the earliest days of the Republic, this Court has

sought the meaning of statutes in light of this broad

principle: that legislative acts of the sovereign must be

construed, whenever possible, to avoid conflicts with the

law to which the sovereign is bound. It is a principle that

1 Pursuant to Rule 37.3, counsel for the Petitioners and the

Respondent have given written consent to the filing of this

amicus curiae brief. Copies of the consent letters have been filed

with the Clerk.

2

has been explicated in increasing detail as circumstances

warranted. First applied to a potential conflict between

federal and international law, the principle was soon

expanded to cover federal statutes and the federal consti-

tution. The Court next applied the principle to cover State

statutes challenged for alleged constitutional violations

and then extended the principle so as to avoid not only

manifest unconstitutionality, but also grave doubts about

the constitutionality of a statute. Recently, the Court has

provided more detailed examples of the analysis that

federal courts should follow in trying to save a statute

from unconstitutionality.

The mandate of the rule is beyond debate, but not

beyond misapplication. In the case at bar, the Eighth

Circuit acknowledged the rule, then proceeded to disre-

gard it, striking down Nebraska’s ban on partial birth

abortions even though that State offered a statutory inter-

pretation that avoided constitutional danger. The court of

appeals read the statute to ban conventional abortion

procedures. Yet, by Nebraska’s reading of its law, only

dilation and extraction (“D&X”) abortions are prohibited.

This Court should accept Nebraska’s interpretation of its

law, as presented by its Attorney General, and reverse the

judgment of the court of appeals.

The Nebraska case is not, however, the only occasion

on which federal courts have declared statutes uncon-

stitutional despite the availability of narrowing construc-

tions. Other States have experienced similar treatment of

their laws, especially in the area of abortion. The Amici

urge this Court to restate its cardinal ruie in terms so

explicit as to admit no possible misunderstanding. Speci-

fically, the Amici urge this Court to adopt the following

two corollaries:

First proposed corollary: When a federal court

construes a State statute that has not been

authoritatively construed by the courts of that

3

State, the federal court shall not reject a prof-

fered interpretation that would avoid constitu-

tional problems, unless the interpretation is one

that is not susceptible to debate among reason-

able jurists.

Second proposed corollary: When a federal

court construes a State statute that has not been

authoritatively construed by the courts of that

State, the federal court shall not reject an inter-

pretation advanced by the State, if certification

to the State’s highest court is available to test

the proffered interpretation.

ARGUMENT

THE CARDINAL RULE OF CONSTRUCTION:

ITS ORIGIN AND DEVELOPMENT

Stated in its most general terms, the principle at issue

in this case is that legislative acts of the sovereign must

be construed, whenever possible, to avoid conflicts with

the law to which the sovereign is bound. The principle

received its first formulation from Chief Justice John Mar-

shall in a case involving international law. “[A]n act of

Congress ought never be construed to violate the law of

nations if any other possible construction remains.” Mur-

ray v. The Charming Betsy, 6 U.S. 64, 118 (1804). Just as the

sovereign is subject to the law of nations, so too are

federal and State governments - each sovereign in its

own sphere - subject to the Constitution. Thus, the basic

principle recognized in the The Charming Betsy was soon

applied to purely domestic cases. In construing an early

federal statute, this Court said, “No court ought, unless

the terms of the act rendered it unavoidable, to give a

construction to it which should involve a violation, how-

ever unintentional, of the constitution.” Parsons v. Bedford,

28 U.S. 433, 448-49 (1830) (emphasis added). Again, in

4

United States v. Coombs, 37 U.S. 72, 76 (1838), this Court

wrote:

If a section of an act of congress admits of two

interpretations, one of which brings it within,

and the other presses it beyond the constitu-

tional authority of congress; it is the duty of the

Supreme Court to adopt the former construc-

tion: because a presumption never ought to be

indulged, that congress meant to exercise or

usurp any unconstitutional authority; unless

that conclusion is forced on the Court, by lan-

guage altogether unambiguous.

(Emphasis added).

It is not only acts of Congress that have the benefit of

this rule. The same-logic applies to acts of State legisla-

tures, a point firmly imbedded in constitutional jurispru-

dence well before the end of the 19th century. Grenada

County Supervisors v. Brogden, 112 U.S. 261 (1884), was a

diversity action involving the interpretation of a Missis-

sippi statute in light of limitations imposed by the consti-

tution of that State. Relying on precedent from

Mississippi and other States, as well as general constitu-

tional principles, this Court embraced a “duty to adopt

that construction which, without doing violence to the

fair meaning of the words used, brings the statute into

harmony with the provisions of the constitution.” Id. at

269. Soon thereafter, this Court decided Presser v. Illinois,

116 U.S. 252 (1886), a case that turned upon the inter-

pretation of State law in light of federal constitutional

limitations. The issue was whether an Illinois statute

conflicted with acts of Congress for the organization of

the militia. Finding no conflict, this Court said “it is a rule

of construction that a statute must be interpreted so as, if

possible, to make it consistent with the Constitution and

paramount law.” Id. at 269. What was a “rule of construc-

tion” in Presser was elevated to an “elementary rule” in

5

Hooper v. California, 155 U.S. 648, 657 (1895) (“The elemen-

tary rule is that every reasonable construction must be

resorted to in order to save a statute from unconstitu-

tionality.”). And what was an “elementary rule” in Hooper

was further elevated to a “cardinal rule” in Knights Temp-

lars’ & Masons’ Life Indem. Co. v. Jarman, 187 U.S. 197, 205

(1902).

Notwithstanding the preeminence of the rule, the

formulation in Knights Templars was somewhat less

emphatic than in earlier and later decisions by this Court.

The Court said that “where the language of an act will

bear two interpretations, equally obvious, that one which

is clearly in accordance with the provisions of the consti-

tution is to be preferred.” Id. (emphasis added). Standing

alone, Knights Templars might be read to suggest that a

court is to choose a constitutional interpretation over an

unconstitutional one only if the former is at least as

obvious as the latter. But that would misread the rule.

While such “parity” between competing interpretations is

a sufficient circumstance for the rule to apply, it is not a

necessary one. Shortly after Knights Templars, the Court

decided United States v. Delaware & Hudson Co., 213 U.S.

366 (1909), and cited Knights Templars as authority for the

following formulation:

It is elementary when the constitutionality of a

statute is assailed, if the statute be reasonably

susceptible of two interpretations, by one of

which it would be unconstitutional and by the

other valid, it is our plain duty to adopt that

construction which will save the statute from

constitutional infirmity.

Id. at 407, citing Knights Templars, 187 U.S. at 205

(emphasis added).

Thus, in order to merit adoption, the constitutional

interpretation need not be “equally obvious” with the

unconstitutional one. It need only be an interpretation to

6

which the statute is “reasonably susceptible.” Delaware &

Hudson also recast the rule in a way that extended it to

cases where the unconstitutionality of one interpretation

was not definite, but only a matter of grave doubt:

[T]he rule plainly must mean that where a stat-

ute is susceptible of two constructions, by one of

which grave and doubtful constitutional ques-

tions arise and by the other of which such ques-

tions are avoided, our duty is to adopt the latter.

Id. at 127 (emphasis added).

This expansion of the rule was underscored in a long

line of cases that extended into the early 1930s.? In 1932,

the Court decided Crowell v. Benson, 285 U.S. 22 (1932), a

case involving the constitutionality of a federal statute

that vested commissioners — rather than federal judges -

with the power to make certain decisions about workers’

compensation cases. The Court invoked the rule by a

formulation that reaffirmed three of its salient features:

“even if a serious doubt of constitutionality is raised, it is

a cardinal principle that this Court will first ascertain

whether a construction of the statute is fairly possible by

which the question may be avoided.” Id. at 62 (emphasis

added). By so formulating the rule, the Court implicitly

rejected a competing formulation advanced by the dis-

sent, which used the approach suggested by an overly

narrow reading of Knights Templars. The dissent took

issue with the majority’s construction, saying that the

statute “is not equally susceptible to two constructions.”

Id. at 76. By contrast, the majority asked only whether a

saving construction is “fairly possible” and whether the

2 See, e.g., United States v. Jin Fuey Moy, 241 U.S. 394, 401

(1916); Bratton v. Chandler, 260 U.S. 110, 114 (1922); Blodgett v.

Holden, 275 U.S. 142, 148 (1927); Lucas v. Alexander, 279 U.S. 573,

577 (1929).

7

statute is “open” to such a construction. Id. at 62 (major-

ity opinion). This formulation of the rule continued to be

invoked by the Court. See, e.g., International Ass'n of

Machinists v. Street, 367 U.S. 740, 749-50 (1961); NLRB v.

Catholic Bishop, 440 U.S. 490, 500-01 (1979).

In a series of First Amendment cases beginning in the

mid-1970s, the Court used a somewhat different formula-

tion. Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975),

involved a city ordinance that prohibited showing films

containing nudity at a drive-in movie theater when its

screen is visible from a public place. The Court was

concerned that a “demonstrably overbroad statute or

ordinance may deter the legitimate exercise of First

Amendment rights.” Id. at 216. Yet, it also recognized that

facial challenges must be approached with “caution and

restraint” because “invalidation may result in unnecess-

ary interference with a state regulatory program.” Id. The

Court said that “in accommodating these competing

interests the Court has held that a State statute should not

be deemed facially invalid unless it is not readily subject

to a narrowing construction by the state courts... .” Id.

(emphasis added). This formulation suggests three ques-

tions. First, in assessing the availability of a constitutional

construction, how does the term “readily subject” square

with the more familiar term “fairly possible”? Second,

assuming arguendo that the two terms mean different

things, does the newer term displace the old one alto-

gether, or does it have an application limited to First

Amendment cases? Third, does use of the term “readily

subject” in conjunction with the reference to “state

courts” suggest that some different or additional princi-

ple may be at work when the statute at issue is one of

State, rather than federal law?

Answers to these questions were suggested — though

not definitively given — by a trio of cases decided in 1988,

all dealing with the First Amendment. In January of that

year, the Court decided Virginia v. American Booksellers

Ass'n, 484 U.S. 383 (1988), a case involving a State statute

that prohibited the display of materials “harmful to juve-

niles.” The Court said:

It has long been a tenet of First Amendment law

that in determining a facial challenge to a stat-

ute, if it be “readily susceptible” to a narrowing

construction that would make it constitutional,

it will be upheld. Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975); Broadrick v. Oklahoma, 413

U.S. 601 (1973). The key to application of this

principle is that the statute must be “readily

susceptible” to the limitation; we will not

rewrite a state law to conform it to constitu-

tional requirements.

Id. at 397 (emphasis added).

On the one hand, this passage suggested that the

“readily susceptible” test might apply only in the special

context of the First Amendment, and not displace the

“fairly possible” test in other contexts. On the other hand,

by juxtaposing “readily susceptible” with the extreme

alternative of “rewrit[ing] a state law”, the Court left

open the question of how much more restrictive, if at all,

the “readily susceptible” test might be.

The second case to be decided was Edward J. DeBar-

tolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Coun-

cil, 485 U.S. 568 (1988). This case did not deal with a State

law, but with a federal statute, 29 U.S.C.A.

§ 158(b)(4)(ii)(B), making it an unfair labor practice for a

labor organization to threaten, coerce or restrain any

person to cease doing business with another person. The

question was whether the statute covered peaceful distri-

bution of certain leaflets at a mall entrance urging cus-

tomers not to shop there. The National Labor Relations

Board had ruled that the federal statute banned such

9

leafleting; however, in order to avoid “serious questions”

of constitutionality, the Court gave it a narrower inter-

pretation that allowed the leafleting to occur. In so doing,

the Court did not invoke the phrase “readily susceptible”

nor did it cite Erznoznik or American Booksellers, even

though the latter case was decided only four months

earlier. Instead, the Court invoked ten other cases stretch-

ing from the 1804 decision in The Charming Betsy through

the 1979 decision in Catholic Bishop. In so doing, it pre-

sented two formulations of the “cardinal principle,” a

principle the Court declared “beyond debate.” The Court

first said: “where an otherwise acceptable construction of

a statute would raise serious constitutional problems, the

Court will construe the statute to avoid such problems

unless such construction is plainly contrary to the

intent of Congress.” 485 U.S. at 575 (emphasis added).

Later on the same page, the Court quoted its 1895 deci-

sion in Hooper for the proposition that “every reasonable

construction must be resorted to, in order to save a

statute from unconstitutionality.” 485 U.S. at 575

(emphasis added). By implicitly equating these two for-

mulations of the cardinal rule, DeBartolo gave additional

meaning to the term “reasonable construction.” A pro-

posed construction of a federal statute is reasonable

unless it is “plainly contrary to the intent of Congress.”

The different approaches in American Booksellers and

DeBartolo appeared to suggest that the “readily suscept-

ible” terminology was not only limited to First Amend-

ment cases, but to First Amendment cases involving State

statutes. The same divergent approach was suggested by

Frisby v. Schultz, 487 U.S. 474 (1988), decided two months

after DeBartolo. In saving a local ordinance prohibiting

residential picketing, the Court reverted back to the ter-

minology used in Erznoznik and American Booksellers,

holding that “the ordinance is readily subject to a

10

narrowing construction that avoids constitutional diffi-

culties.” Id. at 482 (emphasis added).

Despite the diverging applications suggested in 1988,

a 1997 decision gave a unified formulation. In Reno v.

ACLU, 521 U.S. 844 (1997), the Court considered a First

Amendment challenge to portions of the Communica-

tions Decency Act (“CDA”), 47 U.S.C.A. §§ 223(a)(1) and

(d). This federal statute prohibited the knowing transmis-

sion to minors of “indecent” or certain “patently offen-

sive” communications. Drawing upon Erznoznik and

American Booksellers, both State statute cases, the Reno

Court said it “may impose a limiting construction on a

statute only if it is ‘readily susceptible’ to such a con-

struction.” 521 U.S. at 884. This eliminated any previously

implied distinction between First Amendment challenges

to State and federal statutes. Moreover, the Court distin-

guished its criticism of the “open-ended” CDA from

“those [cases] in which [the Court has] construed a stat-

ute narrowly because the text or other source of Congres-

sional intent identified a clear line that this Court could

draw.” Id. (emphasis added). By expressly endorsing

these two methods of discerning legislative intent, the

Court also appeared to close any gap between free speech

cases and cases involving other constitutional guarantees.

Thus, in any constitutional challenge, federal courts are

to use the text of a statute to discern legislative intent

and, where possible, a narrowing construction. Where a

narrowing construction cannot be grounded in a textual

approach, other sources of legislative intent can still sup-

ply the rationale for narrowing. This focus on sources of

legislative intent is the other side of the same coin used in

DeBartolo, which said a court is to adopt a narrowing

construction “unless plainly contrary” to legislative

intent. 485 U.S. at 575. Reno also repeated the admonition

11

that courts “will not rewrite a law to conform it to consti-

tutional requirements.” 521 U.S. at 884-85, quoting Ameri-

can Booksellers, 484 U.S. at 397 (quotation marks omitted).

But, by juxtaposing this admonition with its approval of

“the text or other source of Congressional intent,” the

Court implicitly limited the admonition to cases where

such sources provide no basis for a narrowing construc-

tion.

Brought to this point, the cardinal rule may be sum-

marized as follows: federal courts must not construe a

statute in a way that leaves doubts about its constitu-

tionality, if the text or other source of legislative intent

furnishes the basis for a narrowing construction that will

avoid those doubts. It is a rule applicable to statutes

generally, including State statutes dealing with abortion.

See, e.g., Akron v. Akron Ctr. for Reprod. Health, 462 U.S.

416, 441 (1983); Planned Parenthood v. Ashcroft, 462 U.S.

476, 493 (1983).

Finally, lest there be any doubt about Nebraska juris-

prudence, the Supreme Court of that State likewise has a

practice of construing statutes to avoid constitutional dif-

ficulty. Nebraska courts are “required to construe a penal

statute so as to give it an interpretation which meets

constitutional requirements if such can reasonably be

done.” State v. Kipf, 450 N.W.2d 397, 403 (1990); accord

State v. Garza, 496 N.W.2d 448, 454 (1993). If a statute is

“susceptible to more than one reasonable construction, a

court uses the construction that will achieve the statute’s

purpose and preserve the statute’s validity.” Ehler’s v.

Perry, 494 N.W.2d 325, 334 (1993). Unfortunately, the

Nebraska courts never had the chance to apply these

canons to the law of their State, and the Eighth Circuit

utterly failed to do so, just as it failed to apply the

cardinal rule of this Court.

_ 12

APPLICATION OF THE RULE

TO THE NEBRASKA STATUTE

A word is not a crystal, transparent and

unchanged, it is the skin of a living thought and

may vary greatly in color and content according

to the circumstances and the time in which it is

used.

Towne v. Eisner, 245 U.S. 418, 425 (1918) (Holmes, J.).

This observation by an eminent jurist should be

borne in mind in approaching this case, which turns on

the meaning of the words used by Nebraska in writing its

statute banning partial birth abortion. “Partial birth abor-

tion” is defined in the statute as:

an abortion procedure in which the person per-

forming the abortion partially delivers vaginally

a living unborn child before killing the unborn

child and completing the delivery. For purposes

of this subdivision, the term partially delivers

vaginally a living unborn child before killing the

unborn child means deliberately and inten-

tionally delivering into the vagina a living

unborn child, or a substantial portion thereof,

for the purpose of performing a procedure that

the person performing such procedure knows

will kill the unborn child and does kill the

unborn child.

Neb. Rev. Stat. § 28-326(9) (1998) (emphasis added).

The Eighth Circuit construed the Nebraska statute to

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

abortion method in the second trimester. So construed,

the statute was held to impose an “undue burden on a

woman's right to choose to have an abortion” and was

thus declared unconstitutional. Carhart v. Stenberg, 192

~13

F.3d 1142, 2151 (1999).3 In reaching this conclusion, the

court said the “crucial problem” was the term “substan-

tial portion,” which “is nowhere defined in the statute.”

Id. at 1150. More specifically, the question was how much

of the unborn child must be delivered into the vagina

before the “substantial portion” element is met. The court

made no effort to construe this term - or any other

statutory term - in light of Nebraska law. The Attorney

General of Nebraska said the child must be delivered up

to his head, as is done in the D&X procedure that the

statute targets. The court of appeals rejected this inter-

pretation without analysis. It concluded that fetal arms or

legs qualify as a “substantial portion” and that, because

such delivery of limbs occurs in many D&E abortions, the

Nebraska statute sweeps too broadly to be constitutional.

In reaching its decision, the Eighth Circuit acknowl-

edged the cardinal rule of statutory construction, then

turned around and ignored it. It first said, “In interpret-

ing the statute, it is our duty to give it a construction, if

reasonably possible, that would avoid constitutional

doubts.” Id. (emphasis added). Yet, only a few sentences

later, the court abandoned this standard and baldly

declared: “if ‘substantial portion’ means an arm or a leg -

and surely it must - then the ban created by [the

Nebraska statute] encompasses both the D&E and the

D&X procedures.” Id. (emphasis added). Similarly, it

declared that it “agree[s] with the District Court’s assess-

ment that in any sensible and ordinary reading of the

word, a leg or arm is ‘substantial.’ ” Id., quoting Carhart v.

Stenberg, 11 F. Supp. 2d 1099, 1129 (D. Neb. 1998)

3 Since the Eighth Circuit did not reach other aspects of the

decision by the district court, the Amici will not address those

issues, other than to note their view that, properly construed,

the Nebraska statute should survive scrutiny there as well.

14

(emphasis added; internal quotation marks omitted). The

inconsistency is obvious. Identifying the “sensible and

ordinary” meaning of a word is a fundamentally different

task than deciding whether an interpretation is “reason-

ably possible” in the context of a particular statute. The

court of appeals should have followed Justice Holmes by

looking for the “living thought” beneath the words at

issue. Instead, it treated those words as “transparent and

unchanged.” This was error.

If the court of appeals had adhered to the cardinal

rule of construction, it would have adopted the inter-

pretation advanced by the Attorney General of Nebraska.

Under the approach approved in Reno, the court should

have examined both the “text” of the Nebraska statute

and “other sources” of legislative intent. 521 U.S. at 884.

Both of these sources identify a clear line between the

D&X procedure, which is prohibited, and the D&E pro-

cedure, which is allowed.

The Textual Approach Supports A Narrow Reading.

The Nebraska Supreme Court has recognized that the

word “substantial” has a broad range of possible mean-

ings. See, e.g., George A. Hormel & Co. v. Hair, 426 N.W.2d

281, 284 (1988) (“ ‘Substantial’ has been defined to mean

‘material,’ ‘important,’ ‘massive,’ or ‘considerable in

amount.’ ”) (citation omitted). It has also recognized that

the meaning to be attached to the term depends on con-

text, and that the term can mean what the State contends

it means here - “almost all of” something. See, e.g., Jones

v. Elliott, 108 N.W.2d 742, 748 (1961) (“substantial perfor-

mance” of a construction contract is a close “approxima-

tion to complete performance”). This alone is enough to

rebut the Eighth Circuit’s unsupported conclusion that a

“substantial portion” of an unborn child “surely” means

something less than delivery up to the head.

15

Nebraska’s interpretation of its statute is also sup-

ported by returning the disputed words to the place

where they are found and examining them there in the

light of the applicable canons of construction. As this

Court has recognized, one such canon is “to give effect, if

possible, to every word.” Reiter v. Sonotone, 442 U.S. 330,

339 (1979). The same familiar canon applies in Nebraska.

Richardson v. Board of Education, 290 N.W.2d 803, 807

(1980) (“We must presume that the Legislature intended

every provision of the statute to have a meaning.”);

accord, State v. Glover, 325 N.W.2d 155 (1982). What mean-

ing does the word “substantial” bring? In order to answer

this question, it is helpful to consider the statute as it

would appear with “substantial” omitted. In such a case,

the law would still not be violated unless, inter alia, the

portion of the child “deliver[ed] into the vagina” were

capable of being the subject of “a procedure that the

person performing such procedure knows will kill the

unborn child.” When such a hypothetically abbreviated

statute is analyzed by a textual approach, fetal limbs

alone would arguably qualify because, by their disar-

ticulation, a physician could kill the fetus and, as the

record shows, this is a recognized procedure.* But, there

is no recognized procedure in which a physician draws

into the vagina a fetal part smaller than a limb for the

purpose of performing a fatal procedure. When the word

“substantial” is added, it must bring added meaning. It

* Some States adopted partial birth abortion bans based on

the 1995 federal model, rather than the 1997 federal model that

introduced the words, “substantial portion.” While those earlier

States would not have the benefit of the same textual argument

made here, they have other textual arguments, as do States

using the 1997 model. All of these statutes also have the benefit

of a narrowing construction based on legislative intent.

16

requires the delivery of a greater portion of the child than

would be required without that additional term. Thus,

more than fetal limbs must be delivered.

More, but how much more? And, why is Nebraska

correct to say that the child must be delivered up to its

head? A persuasive answer can be found in the circum-

stances of fetal anatomy and abortion practice. First, the

fetal torso is an anatomical feature having far greater

girth than fetal limbs and requiring significantly more

cervical dilation to deliver. If the cervix has sufficiently

dilated to permit a portion of the torso to be drawn

through the cervix, the rest of the torso follows easily.

Second, there is no evidence of any abortion technique in

which the physician pauses mid-torso to perform the pro-

cedure that will kill the child. Even if there may be rare

circumstances where a different result occurs, it is reason-

able to judge the meaning of “substantial” based on the

typical and ordinary circumstances, not the extraordin-

ary ones.° Thus, analyzing the text of the statute supports

the reasonableness of the interpretation offered by

Nebraska.

Other Sources of Legislative Intent Support A Narrow

Reading.

The courts are not confined, however, to a textual

approach. As Reno shows, other sources of legislative

5 Similarly, even if the Respondent could speculate about

some hypothetical procedure in which a physician would pause

mid-torso to deliver the lethal blow, that is not enough. A

plaintiff cannot “have a regulation wiped off the books

... merely by showing that it will be impermissibly vague in the

context of some hypothetical application.” Sweet Home Chapter of

Comm. for a Greater Oregon v. Babbitt, 1 F.3d 1, 4 (D.C. Cir. 1993).

17

intent can also draw “a clear line” in interpreting the

sweep of a statute. Nebraska courts consult the legislative

purpose, and place on the statute a “construction that

best achieves the statute’s purpose.” Willers v. Willers, 587

N.W.2d 390, 394 (1998); Brown v. Wilson, 567 N.W.2d 124,

128 (1997). The public record surrounding passage of the

Nebraska statute - as well as the public history of these

times - leads to the conclusion that the Nebraska legisla-

ture’s purpose was to ban only the D&X procedure.

The intent of the Nebraska legislature is confirmed

by examining the history of the federal legislation on

which the Nebraska statute is based.® In 1995 and 1997,

Congress passed legislation to ban partial birth abortions.

Although both bills were vetoed by the President, they

served as models for similar legislation by the States.

Passed in 1997, the Nebraska statute was modeled on the

1997 version of the federal bill.” It is, therefore, reason-

able to infer that the Nebraska legislature intended to

6 The Amici will not duplicate Nebraska’s discussion of its

own legislative history, but wish to make the point that the

history of the federal model is a sufficient basis on which to find

legislative intent for Nebraska's statute as well as for all other

State statutes based on the federal legislation.

7 ‘The federal bill gave the following definition:

(b)(1) ... “partial-birth abortion” means an

abortion in which the person performing the abortion

partially vaginally delivers a living fetus before

killing the fetus and completing the delivery.

(3) “ ... vaginally delivers a living fetus before

killing the fetus” means deliberately and

intentionally delivers into the vagina a living fetus, or

a substantial portion thereof, for the purpose of

performing a procedure the physician knows will kill

the fetus, and kills the fetus.

H.R. 1122, 105th Cong., 1st Sess. (1997).

18

address the same problem as Congress. The legislative

history of the federal bill is useful in ascertaining the

legislative intent underlying the State version.

In its report on the 1997 bill, the Judiciary Committee

of the U.S. House of Representatives explained that the

purpose of the federal legislation is to prohibit the D&X

procedure. H.R. Rep. No. 105-24 (1997) (“the Report”). In

describing “partial birth abortion,” the Report quoted a

presentation about D&X by Dr. Martin Haskell, an inven-

tor of the procedure. That presentation included Dr.

Haskell’s discussion about how much of the unborn child

is to be delivered into the vagina before the lethal blow is

delivered:

[Using forceps] the surgeon reliably grasps a

lower extremity ... and pulls the extremity into

the vagina . . . . With a lower extremity in the

vagina, the surgeon uses his fingers to deliver

the opposite lower extremity, then the torso, the

shoulders and the upper extremities. The skull

lodges at the internal cervical os. At this point

[holding the fetus in place] the surgeon then

forces the scissors into the base of the skull or

into the foramen magnum... .

Id. at 3, quoting Martin Haskell, M.D., “Dilation and

Extraction for Late Second Trimester Abortions” (1992)

(emphasis added).

No abortion technique other than the Haskell D&X

was described by the Report as falling into the category

of “partial birth abortion.”® Since it was clearly the

8 One could conceive of variations of the D&X that the

statute would also ban (e.g., killing by letha! injection, instead of

brain suction). Such potential variations do not figure in this

_______case_or current abortion practice and need not be distinguished

from the Haskell D&X. Such potential variations are subsumed

here under the term “D&X.”

19

legislative intent to ban the D&X procedure, and since

that procedure clearly requires delivery of the child up to

its head, it is reasonable to construe the words “substan-

tial portion” as being met in the federal bill only when

the child has been so delivered. And, since the State law

mirrors the federal bill, it is likewise reasonable to say

that the words at issue here require delivery of the child

up to his head.

This approach compares favorably with the one used

in United States v. Grace, 461 U.S. 171 (1983). At issue

there was a federal statute, 40 U.S.C.A. § 13k, that prohib-

ited picketing and leafleting on the grounds of the

Supreme Court. The grounds were defined to encompass

the entire block on which the Supreme Court building is

located, bounded by the curbs of the bordering streets. 40

U.S.C.A. § 13p. Thus, while no separate mention was

made of sidewalks, the statute was drawn in terms so

broad as to encompass them by a literal reading of its

terms. Treating sidewalks as a traditional public forum,

this Court held that § 13k was unconstitutional insofar as

it banned picketing and leafleting occurring there. Yet,

the entire statute was not struck down; it was only invali-

dated as applied to the sidewalks. Even without a textual

basis, the Court was able to use legislative intent to draw

a dividing line across a plot of ground. Legislative intent

should likewise be a sufficient basis on which to draw a

dividing line across the body of a fetus. Moreover, the

Nebraska statute’s use of “substantial portion” provides a

textual basis for line-drawing wholly missing in Grace.

Thus, the Court should simply decide that the Nebraska

statute does not apply when only arms and legs are

delivered. It only applies when the child has been deliv-

ered up to its head. It bans the D&X, not the D&E.

In sum, both the “text” of the Nebraska statute and

“other source[s] of [legislative] intent identif[y] a clear

20

line that this Court could draw.” Reno, 521 U.S. at 884.

Of course, the task of line-drawing here is one more

properly performed by the Supreme Court of Nebraska.®

As for their part, federal courts should “assume . . . that a

state court presented with a state statute specifically gov-

erning . . . abortion . . . procedures will attempt to

construe the statute consistently with constitutional

requirements.” Akron, 462 U.S. at 441.

FUTURE OF THE RULE:

TWO PROPOSED COROLLARIES

For this Court to accept the narrowing construction

offered by Nebraska - and to reverse the court of appeals

- are the only actions needed to resolve the present

controversy. That can be done quite concisely. But, the

Court should consider doing more. The failure of the

court of appeals to abide by the cardinal rule in the case

at bar is not an isolated occurrence. Other federal courts

have committed similar errors. Indeed, “[f]ederal courts

have always struggled to say how far they should go in

defining state statutes so they are constitutional.” Eubanks

® There is no reason to believe that the Nebraska court

would ignore its own canons of construction, or that there is

some other obstacle to its arriving at a perfectly plausible

construction of “substantial portion” that would eliminate or

narrow federal constitutional questions by excluding D&E from

the statute’s reach. See, e.g., State v. Burke, 408 N.W.2d 239, 246

(1987) (saving statute from First Amendment overbreadth

challenge by rejecting construction of a term that would cause

statute to reach protected conduct); cf. Central States Found. v.

Balka, 590 N.W.2d 832, 839 (1999) (although statute lacks explicit

procedural requirements, “we read the statute as including the

procedural requirements necessary to satisfy the Fourth

Amendment.”).

21

v. Stengel, 28 F. Supp. 2d 1024, 1037 (W.D. Ky. 1998), appeal

docketed, No. 98-6671 (6th Cir. Dec. 11, 1998). This case

provides an excellent opportunity for the Court to give

additional guidance on how the rule is to be applied.

Nowhere is the failure to adhere to the rule more

evident than in cases dealing with the sensitive and pro-

found issue of abortion. One example of such a failure is

found in Women's Medical Professional Corp. v. Voinovich,

130 F.3d 187 (6th Cir. 1997), cert. denied, 523 U.S. 1036

(1998), where the Sixth Circuit struck down Ohio’s ban on

the D&X procedure. As suggested by the dissenting

judge, the majority not only disregarded the cardinal rule

of construction, but turned the rule on its head,

“strain[ing] to interpret” the statute “so as to make the

burden . . . appear ‘undue’ in violation” of Supreme

Court precedent. Id. at 212. One commentator described

the decision this way:

Directly contradicting Supreme Court prece-

dent, the Voinovich court failed to seek a consti-

tutional interpretation of the D&X ban. Rather

than adopting a consistent method of statutory

interpretation, the court repeatedly changed its

interpretive position in order to push the law

toward unconstitutionality.

* * *

The Sixth Circuit crafted an opinion uncon-

strained by the Supreme Court's “cardinal prin-

ciple” or any other standard of statutory

interpretation. Rather, the opinion’s only consis-

tent interpretive principle is that standards of

interpretation are selectively and temporarily

employed and rejected to flout the Supreme

Court’s mandate and find the statute uncon-

stitutional.

Comment, 112 Harv. L. Rev. 731, 734, 736 (1999).

22

Other courts have struck down partial birth abortion

statutes based on a cramped understanding of their man-

date to adopt narrowing constructions whenever possi-

ble. A leading example is Planned Parenthood of Central

New Jersey v. Verniero, 41 F. Supp. 2d 478 (D.N.J. 1998),

appeal docketed, No. 99-5042 (3d Cir. Feb. 2, 1999), a case

that vividly illustrates the need for additional guidance.

In striking down the New Jersey partial birth abortion

ban, the court acknowledged the cardinal rule, but mis-

takenly believed that it applies only in “close cases.” See

id. at 486. This mistake was apparently engendered by

that court’s misreading of Chapman v. United States, 500

U.S. 453 (1991). Chapman provides no guidance on how

far a court may go in accepting a State’s construction of

its statute before it ventures into the forbidden ground of

rewriting it. That guidance was provided by Reno, 521

U.S. at 884-85. The Verniero court acknowledged Reno, but

only took note of the “readily susceptible” term found

there without recognizing the broad use of text and other

sources of legislative intent that Reno authorizes within

the scope of that term.

Additional guidance is also needed to prompt federal

courts to entrust decisions about State law to State courts

through use of certification. In Eubanks, for example, Ken-

tucky asked che district court to certify its partial birth

abortion statute to the Kentucky Supreme Court for a

definitive ruling about its meaning. The district court

refused, based on its failure to discern a limiting construc-

tion to which the statute was “obviously susceptible” and

a reluctance to entrust to the State courts a decision that

might resolve the entire case. 28 F. Supp. 2d at 1038 n.17.

The “Reasonable Jurist” Corollary

The Amici respectfully suggest that the failure to

adhere to the rule arises, in part, from an insufficient

23

focus on the proper role of the federal judiciary in dealing

with the meaning of State law. When dealing with federal

law — including the federal constitution - “[i]t is emphat-

ically the province and duty of the judicial department to

say what the law is.” Marbury v. Madison, 5 U.S. 137

(1803). And, by the same logic, it is the province and duty

of the State judiciary to say what the State law is. Thus,

where a State’s highest court has declared what State law

means, federal courts may not say otherwise. Johnson v.

Fankell, 520 U.S. 911, 916 (1997) (“Neither this Court nor

any other federal tribunal has any authority to place a

construction on a state statute different from the one

rendered by the highest court of the state.”); Chicago v.

Morales, 527 U.S. 41, 119 S.Ct. 1849, 1861 (1999) (“We have

no authority to construe the language of a state statute

more narrowly than the construction given by that State’s

highest court.”). By the same token, where a State’s high-

est court has not yet construed a State statute, it is not the

task of the federal courts to displace or preempt that State

tribunal by declaring what the statute means. Instead, it

is the federal court's role to make a predictive judgment

about how State courts may interpret their own State law.

In making this judgment, the federal court should

“assume .. . that a state court . . . will attempt to construe

the statute consistently with constitutional require-

ments.” Akron, 462 U.S. at 441. Accordingly, a federal

court should not conclude that the State court would fail

in this endeavor unless there is simply no saving con-

struction that a reasonable jurist could reach. In sum, the

basic principles previously recognized by this Court give

rise to the following corollary, which the Amici respect-

fully urge this Court expressly to adopt:

© For Nebraska rules on achieving constitutional

constructions, see supra at 11.

24

When a federal court construes a State statute

that has not been authoritatively construed by

the courts of that State, the federal court shall

not reject a proffered interpretation that would

avoid constitutional problems, unless the

interpretation is one that is not susceptible to

debate among reasonable jurists.

This corollary would promote adherence to the

Court’s cardinal rule by stating more expressly what the

focus of federal courts must be when confronted with a

constitutional challenge to a new State law. The question

is not what they believe the State law means, but whether

a proposed interpretation is one that is open for their

State counterparts to adopt. The “reasonable jurist” test is

not new in the law. An analogous approach has been used

in habeas corpus jurisprudence since Butler v. McKellar, 494

U.S. 407 (1990) and Sawyer v. Smith, 497 U.S. 227 (1990)."!

The issue is not whether the jurist would have been right

or wrong to make a particular ruling on the law, but

whether that ruling was open to debate. Similarly, when a

federal court is presented with a narrowing construction

of a new State law, its task is not to decide whether that

construction is right or wrong, but whether it is subject to

debate among “reasonable minds” or “reasonable

jurists.” If so, then the federal court must presume that

1! There, the “reasonable jurist” test is part of the non-

retroactivity doctrine. Under Teague v. Lane, 489 U.S. 288, 310

(1989), “new constitutional rules of criminal procedure will not

be applicable to those cases which have become final before the

new rules are announced.” As the Court has explained, “[a] rule

is ‘new’ for Teague purposes whenever its validity under

existing precedent is subject to debate among ‘reasonable

minds’ or among ‘reasonable jurists.’ ” Wright v. West, 505 U.S.

277 (1992), quoting Butler, 494 U.S. at 415, and Sawyer, 497 U.S. at

234.

—_ —- ——— -_— «

oe

25

the State court would adopt that construction - or some

better one - in order to save the statute from unconstitu-

tionality.

In the case at bar, it was clear error for the Eighth

Circuit not to adopt - or even consider - the narrowing

construction of the Nebraska statute offered by the Attor-

ney General of that State. It is an error that might well

have been avoided - and that would be more easily

avoided in the future — if the cardinal rule of construction

were stated as directly as the first corollary the Amici now

propose. The Amici respectfully request the Court to

adopt that corollary.

The “State Certification” Corollary

The first corollary proposed by the Amici would clar-

ify the rules of substantive decision-making by federal

courts. The second proposed corollary addresses the pro-

cedure for interpreting State statutes. Reviewing the con-

stitutionality of a State statute is one of the gravest duties

that can be undertaken by a federal court. It is especially

so when that review leads to a conflict between the court

and the State as to the meaning of the statute. At one end

of the courtroom sits the federal judge, embodying the

weight and authority of the United States government. At

the other end stands the Attorney General, representing

the State government whose statute is under attack. The

State government says to the federal that the State law

means this. And the federal government responds by

telling the State that it is wrong about its own statute, and

that its law means that. We all must “pause to ask: Is this

conflict really necessary?” Arizonans for Official English v.

Arizona, 520 U.S. 43, 75 (1997). Such a conflict between the

two governments — each sovereign in its own sphere - is a

spectacle that ought to be assiduously avoided. In the

26

interests of avoiding such conflicts, the Amici also pro-

pose the following corollary to the cardinal rule of con-

struction:

When a federal court construes a State statute

that has not been authoritatively construed by

the courts of that State, the federal court shall

not reject an interpretation advanced by the

State, if certification to the State’s highest

court is available to test the proffered inter-

pretation.

Such an approach would defuse the conflict - and

avoid “friction-generating error” — by shifting the dispute

over State statutory interpretation into a State forum.

Arizonans, 520 U.S. at 79. Whether the State court

accepted or rejected the Attorney General’s view about

the meaning of the State statute, the State would then be

the master of its own house.!? Thus, concerns about com-

ity and federalism would no longer be implicated. On the

12 While certification proceedings were pending, the

federal court could provide plaintiffs with any necessary

protection by a preliminary injunction preventing enforcement

of the statute in a manner inconsistent with the proffered

interpretation. See Babbitt v. United Farm Workers Nat'l Union,

442 U.S. 289, 312 n.18 (1979); Harrison v. NAACP, 360 U.S. 167,

179 (1959). Of course, “there is no reason to suppose

that . . . assurances [given to the Court by state officials

concerning the limited scope of the statute] will not be honored

by these or other [state] officials not parties to [the] litigation.”

Id. As a result, in most cases there will be no basis for the kind of

“precautionary injunction” issued by the Seventh Circuit in

Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999) (en banc). Indeed,

it is a violation of federalism to assume that state officials will

adopt and enforce an unconstitutional interpretation of the

statute. Richmond Medical Ctr. For Women v. Gilmore, 144 F.3d 326,

332 (4th Cir. 1998) (Luttig, J.) (single judge).

—— — ae

———

27

other hand, if the State court declined to hear the case,

the State would at least have had the opportunity to have

construed its own law. Thus, even if the federal court

thereafter reached an unfavorable conclusion about the

statute, concerns about comity and federalism would be

sharply reduced.

As this Court has already recognized, federal courts

have authority to certify questions of State law on their

own motion. E.g., Elkins v. Moreno, 435 U.S. 647, 662

(1978); Massachusetts v. Feeney, 429 U.S. 66 (1976). Forty-

seven States — including Nebraska — now have certifica-

tion procedures in place.’* Neb. Rev. Stat. Ann. § 24-219.

While the Court has not yet called for certification in the

same terms suggested by the Amici, the proposed corol-

lary represents a logical extension of the guidance previ-

ously announced by the Court. That guidance is found in

various statements that - like the proposed corollary -

13 Nevertheless, where the State’s highest court has

declined to accept certification from a federal district court, the

same opportunity should be again provided by any federal

appellate court that might be inclined to reject the Attorney

General's interpretation. This is so not only because the district

court’s subsequent decision on the merits may make acceptance

of certification more compelling, but also because the State’s

highest appellate court may prefer to limit the cases it accepts to

those certified by another appellate court. See, e.g., Virginia Soc’y

for Human Life v. Caldwell, 152 F.3d 268 (4th Cir. 1998) (describing

acceptance of certification by Virginia Supreme Court when

request received from court of appeals, despite earlier rejection

of certification request from federal district court).

14 See Schneider, “But Answer Came There None”: The

Michigan Supreme Court and The Certified Question of State

Law, 41 Wayne L. Rev. 273, 275-277 n.1. (1995) (listing forty-

three states with certification procedures); Cal. Rules of Ct. Div I

R 29-5 (1999); 477.004 R.S.Mo (1999); N.J.Ct.R. 2:12 A (1999); In

Re: Certification of Questions of Law (Order) (S. Ct. of Pa. Jan.

12, 2000).

28

aim at avoiding clashes between State and federal gov-

ernments, while facilitating an accurate resolution of the

constitutional challenge. “Speculation by a federal court

about the meaning of a state statute in the absence of

prior state court adjudication is particularly gratuitous

when . . . the state courts stand willing to address ques-

tions of state law on certification from a federal court.”

Arizonans, 520 U.S. at 79 (quoting Brockett v. Spokane

Arcades, 472 U.S. 491, 510 (1985) (O’Connor, J., concur-

ring) (other citation omitted). See also, e.g., American Book-

sellers, 484 U.S. at 395 (case remanded for certification

“where the nature and substance of plaintiffs’ constitu-

tional challenge is drastically altered if the statute is

read” in a narrower way than plaintiffs propose); Zant v.

Stephens, 456 U.S. 410, 416 (1982) (“Suffice it to say that

the state-law premises of the Georgia Supreme Court's

conclusion of state law are relevant to the constitutional

issue at hand.”); Arizonans, 520 U.S. at 77, 79 (certification

warranted if it would “ ‘greatly simplify’ an ultimate

adjudication in federal court”) (citation omitted); Fiore v.

White, 528 U.S. __, 120 S. Ct. 469, 473 (1999) (State

Supreme Court’s answer to certified question “will help

determine the proper state-law predicate for our deter-

mination of the federal constitutional questions raised in

this case.”). As this Court has also recognized, a State’s

proffer of a narrowing construction is important or even

decisive evidence of the statute’s susceptibility to it. E.g.,

Arizonans, 520 U.S. at 77-78; American Booksellers, 484 U.S.

at 394-97; Bellotti v. Baird, 428 U.S. 132, 143-45 (1976).

There is no sign in the Eighth Circuit’s remarkably

brief opinion of the slightest interest in what Nebraska

courts would have to say about the Nebraska statute.

With a dismissive wave of a judicial hand, the court

simply announced its own unsupported view that the

Nebraska statute “surely” prohibits D&E abortions. Our

29

Federalism does not permit such cavalier treatment of a

new State statute. This Court should correct that grave

constitutional error by giving the statute an appropriate

narrowing construction or, alternatively, by certifying the

question of the statute’s proper construction to the

Nebraska Supreme Court. In either case, adoption of the

proposed corollary would avoid such infringements in

the futu. e.

CONCLUSION

We live under a constitutional framework that not

only divides power among three branches of government,

but also between two levels of sovereignty: federal and

state. The preservation of that framework depends in no

small measure upon the restraint and balance exercised

by federal courts when called upon to decide constitu-

tional challenges to State statutes. The cardinal rule of

statutory construction — saving statutes whenever possi-

ble — is a reflection of the need for restraint and balance.

When the rule is not followed, it is nothing less than a

violation of constitutional principles, a violation that is

not mitigated — but aggravated —- when the people of the

States have expressed their will on a subject so sensitive

and profound as the one at issue here.

The court of appeals failed to follow the cardinal

rule, and improperly struck down a Nebraska statute

banning partial birth abortion. This Court should correct

the error, accept the narrowing construction offered by

Nebraska and uphold the statute as constitutional. More-

over, the Court should use this case as an opportunity

to undergird constitutional principles by adopting

30

corollaries to the cardinal rule that will promote restraint

and balance in future controversies.

Respectfully submitted,

Mark L. Ear.ey

Attorney General of Virginia

Wriuiam H. Hurp

Solicitor General

Counsel of Record

Danie. J. PoyNnor

Autison P. LANpry

ANTHONY P. MEREDITH

Assistant Attorneys General

900 East Main Street

Richmond, Virginia 23219

804/786-2436

[Additional Counsel Listed On Inside Cover]

February 28, 2000