Amicus Curiae Brief — Stenberg v. Carhart

—

—S— ee

\ o~ = 1 Qovw Supreme Court, U: 5

“No. 99-830 | FILED

MAR 29 °°.)

IN THE

Supreme Court of 7 sini! Sites

DON STENBERG, Attorney General of the State of Nebraska; GINA.

DUNNING, Director of Regulation and Licensure of the Nebraska

Department of Health and Human Services, and CHARLES ANDREWS,

M.D., Chief Medical Officer of the State of Nebraska,

Petitioners,

a

LEROY H. CARHART, M.D..,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF AMICI CURIAE SENATOR BARBARA BOXER

AND REPRESENTATIVE NITA M. LOWEY AND

OTHER MEMBERS OF CONGRESS IN SUPPORT OF

RESPONDENT LEROY H. CARHART, M.D.

ROBERT LEWIN

KEVIN J. CURNIN

CLAUDE G. SZYFER

Counsel of Record

ROBERT ABRAMS

BURTON N. LIPSHIE

STROOCK & STROOCK & LAVAN LLP

Counsel for Amici Curiae

180 Maiden Lane _

New York, New York 10038

Dated: March 29, 2000 (212) 806-5400

BEST AVAILABLE COPY

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ...................c.0005 iv

INTERESTS OF AMICI CURIAE.................... l

SUMMARY OF ARGUMENT ....................... 2

I. “PARTIAL BIRTH” ABORTION BANS

STRIKE AT THE CORE PRINCIPLES OF

Ses 0G SHUR caccatdusdvcdedecdecertseweeretadss 3

A. Roe Recognized A Constitutional Right

WG oi skcs ccccdtbdvivincessndedieciass 4

B. Only Two State Interests Justify

Restricting The Right To Choose.......... 5

C. “Partial Birth” Abortion Bans Derogate

Roe’s Essential Holding.................... 7

1. The Ban Does Not Protect Fetal Life .. 7

2. The Ban Does Not Promote Maternal

BOUNNEIEE 6 cccveccoccesncsesesusanenwanions 9

3. The Ban Lacks A Maternal Health

IID cc nccotccnvcdsnscecccdcesennns 10

D. “Partial Birth” Abortion Bans Undermine

The Rule of Law, To The Great Detriment

of Women and Society ..................... 11

II. “PARTIAL BIRTH” ABORTION BANS

UNDULY BURDEN THE RIGHT TO

REED vecndsesecveccocnesecesessocescusescsces

A. Partial Birth Abortion Ban Create

A “Significant Obstacle” For A

Woman and Her Physician.................

1. Bans of Particular Pre-viability

Procedures Have Never Been

Upheld By This Court..................

2. These Bans Supplant Physicians’

Best Medical Judgment ................

3. These Bans Make Exercising The

Right To Choose More Dangerous .....

4. “Partial Birth” Abortion Bans Will

Also Impede Medical Progress.........

B. “Partial Birth” Abortion Bans Sacrifice

Constitutional Principle to Political

EE vcd scedasendpiscnvevcsecvcccccess

1. The Political History Of Such

Bans Belies Their True Purpose........

2. The Liberty Interest Of Pregnant

Women Does Not Stop At The Cervix .

Ce wer TS

PAGE

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- ety

APPENDICES

i + i ilo ere c ens

B. Citations

ee ee

PAGE

+ a> Ray

iv

Vv

TABLE OF AUTHORITIES

Hilton v. South Carolina Public Railroads

Cases _— S| Comm ’n, 502 U.S. 197 (1991) ..................

Beal v. Doe, 432 U.S. 438 (1977) ......0ccccceeeeeeee 3a Hodgson v. Minnesota, 497 U.S. 417 (1990) ........

Bellotti v. Baird, 443 U.S. 622 (1979) ...........00-- ao 4 Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999)...

Brown v. Board of Education, 347 US. 483 . Lochner Vv. New York, 198 U.S. 45 (1905) WeTTTITiITe

(1954) Coe eee e ee eeeeeeeesseseseseseeesseeeseeeseses 12 i Loving Vv. Virginia, 388 U.S. 1 (1967) Seve ee WOM or

Carhart v. Stenberg, 192 F.3d 1142 Maher v. Roe, 432 U.S. 464 (1977) ..........000-00.

SE CE id ccundiucideedihnhenudionidaaanh 6 :

Mazurek v. Armstrong, 520 U.S. 968 (1997).........

Carhart v. Stenberg, 11 F. Supp. 2d. 1099 .

I sc ai 21 : Moragne v. States Marine Lines, Inc.,

I I i a ies einaeiieien

Carhart v. Stenberg, 972 F. Supp. 507 : t

A. SRD, GETD <cccecscsecentinettomnpsizconesent 6 ; Palko v. Connecticut, 302 U.S. 319 (1937)..........

City of Akron v. Akron Center For Reproductive Patterson v. McLean Credit Union, 491 U.S. 164

Health, Inc., 462 U.S. 416 (1983) .............. 4 ° RE ECU Se CT Saree

Colautti v. Franklin, 439 U.S. 379 (1979)........... 6 I Pierce v. Society of Sisters, 268 U.S. 510 (1925)....

Connecticut v. Menillo, 423 U.S. 9 (1975) .......... 3a : Planned Parenthood Association v. Ashcroft,

| ni ts

Cruzan v. Director, Missouri Dept. of Health, ‘

it %' oases 19 Planned Parenthood of Southeastern Pennsylvania

v. Casey, 505 U.S. 833 (1992) ..................

Doe v. Bolton, 410 U.S. 179, 192 (1973) ............ 18

Planned Parenthood of Central Missouri v.

Eisenstadt v. Baird, 405 U.S. 438 (1972)............ 5 Danforth, 428 U.S. 52 (1976)............0.0005.

Frontiero v. Richardson, 411 U.S. 677 (1973)....... 13 Plessy v. Ferguson, 163 U.S. 537 (1896) ............

Green v. United States, 355 U.S. 184 (1957)........ 13 Poe v. Ullman, 367 U.S. 497 (1961) .........-.--0---

Griswold v. Connecticut, 381 U.S. 479 (1965) ...... 4 Poelker v. Doe, 432 U.S. 519 (1977) ........0c0e000

H.L. v. Matheson, 450 U.S. 398 (1981) oecesosecesese 3a Prince v. Massachusetts, 321 U.S. 158 (1944) Pees

Harris v. McRae, 448 U.S. 297 (1980)............... 3a

Roe v. Wade, 410 U.S. 113 (1973)

‘Pre ae

vi . vii

PAGE PAGE

Rust v. Sullivan, 500 U.S. 173 (1991)..............-. 3a | H.R. 3660, 106th Cong. (2000) ..................005. 7

Simopolous v. Virginia, 462 U.S. 506 (1983)........ 3a . H.R. 929, 105th Cong. (1997) ............c0ceeeeee ee 7

Skinner v. Oklahoma, 316 U.S. 535 (1942).......... 4 ey Py Ce I CUED baccducéeccecccceccocceces 7

Thornburgh v. American College of Obstetricians . ly Se IE Ri cicknccésducnecccscessanesces 7

& Gynecologists, 416 U.S. 147 (1986) ......... 6 $.928, 106th Cong. (1999) .........ccecccccceeeeeeeee 7

Vasquez v. Hillery, 474 U.S. 254 (1986)............. Dees GND ER, CO Ronccncdcoccevscesetesecess 7

war A ry _— — oe , RR, TPA GE, BGI 6 ices cssnccsevevecssscecs 3

hich » Benne Bepevenens of Biatunne & Neb. Rev. Stat. §§ 28-329, 332............cccccccssees 9

Public Transp., 483 U.S. 468 (1987) ........... 9 Neb. Rev. Stat. §§ 2B-329-32 .......cccccccscvcccseees 11

West Coast Hotel Co. v. Parrish, 300 U.S. 379 an

GRR Di cccocescnneseccccconsecdéuscapsuensenewsens 12

Williams v. Florida, 399 U.S. 78 (1970)............. 9 14 Issues L. & Med. 3, 6 (1998)......... 0... ccc cc neee 25

Williams v. Zbaraz, 448 U.S. 358 (1980) ............ 3a 1991 Journal of Supreme Court History 13, 16 ..... I

The Nature of the Judicial Process (1921) .......... 11

Statutes

143 Cong. Rec. H1220 (March 20, 1997)............ 24

144 Cong. Rec. H6198 (July 23, 1998).............. 11

144 Cong. Rec. H6209 (July 23, 1998).............. 10

144 Cong. Rec. 510481 (Sept. 17, 1998) ............ 19

144 Cong. Rec. $10492 (Sept. 17, 1998) ............ 25

144 Cong. Rec. $10511 (Sept. 17, 1998) ............ 19

H.R. 1032, 105th Cong. (1997) ..............cc ce eeee 26

See. BER, FE GRE, CESS ED cccccccccccccscseceses 7

H.R. 1833, 104th Cong. (1995) ...............000eee. 7

SRO EES

see

3

INTERESTS OF AMICI CURIAE'

Amici curiae are a bipartisan group of members of the

United States Congress who share a concern for the con-

tinued integrity of a woman’s right to decide, without unnec-

essary or arbitrary governmental interference, whether to

continue or terminate a pregnancy. We believe that a

woman's right to decide is implicit in our Nation’s concept

of liberty, as guaranteed by the Constitution. As a funda-

mental right deeply embedded in our society, it should be

insulated from shifting political winds, such as those giving

rise to a new breed of legislation, commonly known by the

misleading political sobriquet “partial birth” abortion bans,

one example of which is now before this Court. Legislation

of this type plays havoc with the constitutional principles

that infuse this Court’s abortion rights precedents and, if

upheld, would signal a retreat from the enduring and core

principles set forth in Roe v. Wade. As amici have witnessed

firsthand, sponsors of “partial birth” abortion bans have

strayed from constitutional guidelines in order to cultivate

anti-abortion sentiment. In so doing, as the overwhelming

majority of Federal courts that have considered this issue

have held, they have impermissibly interfered with the lib-

erty interest of pregnant women. Like any law that is con-

trary to constitutional principles, the law now before this

Court must be invalidated.”

' Pursuant to Rule 37.6 of the Supreme Court Rules, amici

curiae disclose that no part of this brief was authored by counsel for

a party in this action, nor did any person or entity make a monetary

contribution to the preparation or submission of this brief. Petition-

ers and Respondent both consented to the filing of this brief, and let-

ters of consent are on file with the Clerk of the Court.

2 Amici curiae are listed in Appendix A.

SUMMARY OF ARGUMENT

No legislation that was seriously designed to comport

with the law of the land regarding a woman’s right to decide

to terminate a pregnancy would attack that right in a manner

that so brazenly abuses this Court’s precedents. Built around

a term—*partial birth” abortion—that is more a political slo-

gan than a meaningful term of law or medicine, the

Nebraska law before this Court is rife with constitutional

deficiencies.

These deficiencies are deliberate. The real purpose of the

Nebraska ban and others of its kind is not to regulate within

the framework established by this Court’s abortion rights

precedents, but to pierce the core of a woman’s right to

choose. If bans such as Nebraska’s are upheld, they will roll

back the clock to the days before Roe v. Wade recognized

that it was the woman’s right, and not the State’s, to make

the intensely personal decision of whether to terminate a

pregnancy and, by recognizing that liberty interest, allowed

women to participate fully in the social and economic life of

this Nation.

This Court has identified only two State interests impor-

tant enough to justify restricting the liberty interest of preg-

nant women. One is promoting maternal heaith and safety;

the other is protecting potential life. Neither interest is

served here. Indeed, Nebraska does not even attempt to

serve either interest. Without the justification of a legitimate

State interest, the Nebraska ban is an unwarranted and

unconstitutional intrusion into this protected realm.

The Nebraska ban also runs afoul of this Court’s pro-

nouncements regarding the critical significance of fetal via-

- bility to the constitutional framework. Before viability—and

it is only pre-viability abortions that are at issue here—State

regulations must not “unduly burden” a woman’s right to

choose an abortion. Despite the clarity of this Court’s prece-

dent, the Nebraska ban ignores this demarcation and applies

with equal force before and after viability. The result, for a

woman seeking to terminate a pregnancy before viability, is

an “undue burden.” By banning safe procedures that are the

most medically appropriate for some women, the Nebraska

ban forces them to exercise their right to have an abortion

before viability only if they expose themselves to a greater

risk to their health.

Regardless of whether they are applied before or after via-

bility, governmental restrictions on a woman’s right to an

abortion are unconstitutional unless they contain an excep-

tion for the life and health of the mother. At no stage of the

pregnancy can the mother’s life or health be made subordi-

nate to that of her fetus. Yet the Nebraska ban, again in

derogation of this Court’s clear precedent, contains an unac-

ceptably narrow exception to save the life of the mother, and

none at all to preserve her health.

This Court ruled long ago that the difficult decision of

whether to terminate a pregnancy cannot be made unilater-

ally by the State. The fundamental right of a woman to make

this decision has been carefully balanced by this Court

against State interests. The Nebraska ban drastically alters

this careful balance, to the great detriment of women. As

such, the District Court and Court of Appeals were correct

in finding that law unconstitutional, and, we respectfully

urge, should be affirmed.

I.

“PARTIAL BIRTH” ABORTION BANS STRIKE

AT THE CORE PRINCIPLES OF ROE v. WADE

Nebraska’s “partial birth” abortion ban, Neb. Rev. Stat.

§ 28-328(1), impermissibly, indeed dangerously, upsets the

4

careful balance struck by this Court between the funda-

mental liberty interest of pregnant women and countervail-

ing State interests.

A. Roe Recognized A Constitutional Right To Choose

Personal liberty is a guarantee of the Constitution, and

from that guarantee emanates a right to privacy.’ Although

not explicit in the Constitution, the right to privacy is well-

recognized by this Court and deeply embedded in American

society.* The guarantee of privacy protects rights that are

“fundamental” or “implicit in the concept of ordered liberty”

from arbitrary governmental interference.°

This Court first held almost thirty years ago, in Roe v.

Wade, that the privacy right “is broad enough to encompass

a woman’s decision whether or not to terminate her preg-

nancy.” 410 U.S. 113, 153 (1973). As Roe set forth, the right

to choose follows from and is fully consistent with other

fundamental liberty interests involving highly personal deci-

sions about marriage, procreation, contraception, family

relationships, and child rearing and education.® Having long

recognized “that freedom of personal choice in matters of

marriage and family life is one of the liberties protected by

4 See, e.g., Roe v. Wade, 410 U.S. 113, 152 (1973).

4 Id. See Poe v. Ullman, 367 U.S. 497, 543 (1961).

3 Roe, 410 U.S. at 152 (citing Palko v. Connecticut, 302 U.S.

319, 325 (1937)).

® City of Akron v. Akron Center For Reproductive Health, Inc.,

462 U.S. 416, 427 (1983) (“The decision in Roe was based firmly on

this long-recognized and essential element of personal liberty.”). See

Skinner v. Oklahoma, 316 U.S. 535 (1942) (procreation); Prince v.

Massachusetts, 321 U.S. 158 (1944) (family relationships); Pierce v.

Society of Sisters, 268 U.S. 510 (1925) (child rearing and education);

Griswold v. Connecticut, 381 U.S. 479 (1965) (contraception); Lov-

ing v. Virginia, 388 U.S. 1 (1967) (marriage).

the Due Process Clause of the Fourteenth Amendment”’—

including freedom of personal choice in matters “so funda-

mentally affecting a person as the decision whether to bear

or beget a child’”*—this Court in Roe found that the privacy

right “necessarily includes the right of a woman to decide

whether or not to terminate her pregnancy.”

Since Roe, this Court has repeatedly reaffirmed the Con-

Stitution’s protection of a woman’s right to choose. Most

prominently, Planned Parenthood v. Casey reaffirmed that

the decision to have an abortion “fits comfortably within the

framework of the Court’s prior decisions” regarding “the

most intimate and personal choices a person may make in a

lifetime, choices central to personal dignity and autonomy,

[and] central to the liberty protected by the Fourteenth

Amendment.” 505 U.S. 833, 851 and 859 (1992). This right

is nOW ingrained in our society.

B. Only Two State Interests Justify Restricting The

Right To Choose

A woman’s right to choose is not absolute. It can be

weighed against two “important and legitimate” State inter-

ests: the health of the pregnant woman and the potential life

of the fetus. Roe, 410 U.S. at 162; Casey, 505 U.S. at 846. If

neither interest is served, however, State regulation in this

protected realm is unwarranted and invalid.

Moreover, even if a legitimate State interest is served, it

cannot be advanced in such a way as to render the right illu-

sory, such that “choice exists in theory but not in fact.”

Casey, 505 U.S. at 872. Since Roe, this Court has therefore

7 Webster v. Reproductive Health Servs., 492 U.S. 490, 565

(1989) (Stevens, J., concurring in part and dissenting in part).

8 —_ Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).

9 Webster, 492 U.S. at 565.

6

crafted a careful balance between the protected liberty inter-

est of pregnant women and the countervailing interests of

the State. For “logical and biological” reasons,'° the fulcrum

of this balance is viability, when a fetus attains “the capa-

bility of meaningful life outside the mother’s womb.” Roe,

410 U.S. at 163.

The issue before this Court is the constitutionality of

Nebraska’s ban as applied before viability.'' Before viabil-

ity, the State interest in potential life of the fetus is not com-

pelling.''’ The State therefore cannot attempt to protect fetal

life in a manner that “imposes an undue burden” on the

woman’s right to terminate a nonviable fetus. Casey, 505

U.S. at 874. An undue burden has the purpose or effect of

putting a “substantial obstacle in the path of a woman seek-

ing an abortion of a nonviable fetus.” Jd. at 877. Indeed,

“[t]he woman’s right to terminate her pregnancy before via-

bility is the most central principle of Roe.” Jd. at 871.

Throughout pregnancy, the mother’s life and health are of

paramount importance and cannot be compromised by the

State regardless of the interest it purports to advance. Even

after viability, when the State may prohibit abortion, it may

not force a woman to continue a pregnancy that threatens her

life or health. Moreover, it cannot require the woman who

needs an abortion to undergo a method that is less safe for

her in order to further fetal interests.'* Because the life and

health of the mother are unalterably superior to the State’s

10 Colautti v. Franklin, 439 U.S. 379, 386 (1979) (discussing

Roe, 410 U.S. at 163).

'1_ Respondent performs the disputed procedure only before via-

bility. See Carhart v. Stenberg, 192 F.3d 1142, 1146 (8th Cir. 1999);

Carhart v. Stenberg, 972 F. Supp. 2d 507, 511 (D. Neb. 1997).

12 See Roe, 410 U.S. at 163-64; Casey, 505 U.S. at 846, 870.

13 See Thornburgh v. American College of Obstetricians &

Gynecologists, 476 U.S. 747, 769 (1986).

nahin ied aan

interest in the potential life she carries, abortion laws that do

not contain an exception “to preserve the life or health of the

mother” are unconstitutional. Roe, 410 U.S. at 164. Accord

Casey, 505 U.S. at 879.

Faced with the profoundly difficult issues raised by the

abortion debate, this Court, over the course of almost thirty

years, has fashioned a careful balance, attuned to both indi-

vidual liberty and governmental interests. This balance has

preserved the essential holding of Roe from the shifting cur-

rents of political opinion. Today’s “partial birth” abortion

bans, riding the latest political current, would destroy this

balance and the liberty interest it protects. Flouting prece-

dent, bans such as Nebraska’s and those debated in Congress

sweep indiscriminately into this protected realm.'* These

bans ignore the critical importance of viability and subor-

dinate maternal health in order to serve the illegitimate inter-

est of promoting a political anti-abortion message.'®

C. “Partial Birth” Abortion Bans Derogate Roe’s

Essential Holding

1. The Ban Does Not Protect Fetal Life

While Nebraska may have a general interest in potential

life even at the earliest stages of pregnancy, it “falls short of

justifying any plenary override of individual liberty claims.”

Casey, 505 U.S. at 857. Before viability, therefore, abortion

regulations may only “provide a reasonable framework for

a woman to make a decision that has such profound and last-

ing meaning.” Jd. at 873. Provided they do not become a

“substantial obstacle” to the woman’s exercise of her right

'4 Congress has debated “partial birth” abortion bans since

1995. See S. 939, 104th Cong. (1995); H.R. 1833, 104th Cong.

(1995); S. 6, 105th Cong. (1997); H.R. 929, 105th Cong. (1997); H.R.

1122, 105th Cong. (1997); S. 928, 106th Cong. (1999); S. 1692,

106th Cong. (1999); H.R. 3660, 106th Cong. (2000).

15 Webster, 429 U.S. at 521.

to choose, “regulations which do no more than create a

structural mechanism by which the State. . . may express

profound respect for the life of.the unborn are permitted.”

Id. at 877. In sum, regulations to protect a woman’s pre-

viable fetus must be “designed to persuade her to choose

childbirth over abortion.” Jd. at 878."°

The Nebraska ban has nothing to do with protecting fetal

life. “Partial birth” abortion bans do not express a preference

for childbirth, do not attempt to dissuade a woman from

choosing abortion, and do not “express profound respect for

the life of the unborn.” Casey, 505 U.S. at 877. These bans

do not “provide a reasonable framework for a woman to

‘ make a decision.” /d. at 873. The purported purpose is to

deny pregnant women access to a type of broadly defined

procedure, without disturbing access to other procedures that

are equally effective for aborting a nonviable fetus. Unlike

a waiting period or informed consent provision, banning a

procedure that lawmakers find offensive cannot be justified

as a “structural mechanism” designed to promote childbirth

or discourage abortion. Indeed, contrary to the parameters

set forth in Casey, the Nebraska ban provides no means for

the State to inform the woman’s choice or otherwise con-

-tribute anything to her decision-making process—other than

possible intimidation of women and their physicians. See

Casey, 505 U.S. at 877 (“[T]he means chosen by the State to

further the interest in potential life must be calculated to

inform the woman’s choice, not hinder it.”); Hope Clinic

v. Ryan, 195 F.3d 857, 878 (7th Cir. 1999) (Posner, C.J.,

dissenting) (criticizing “partial birth” abortion bans that do

not attempt to inform women but are likely to intimidate

physicians).

16 Regulations upheld on this basis include waiting periods,

informed consent, recordkeeping and reporting, and parental consent

provisions. Maher v. Roe, 432 U.S. 464, 473-74 (1977).

9

Because the ban does not further Nebraska’s interest in

pre-viable life, its intrusion on the liberty interest of preg-

nant women cannot be justified on that basis.'’

2. The Ban Does Not Promote Maternal Health

The second State interest important enough to justify reg-

ulating the right to choose is the health and safety of the

woman seeking an abortion. See Casey, 505 U.S. at 878

(“As with any medical procedure, the State may enact reg-

ulations to further the health or safety of a woman seeking

an abortion.”). This interest has been found to justify reg-

ulations regarding the qualifications and licensure of the per-

son performing the abortion,"* the licensure and type of

facility where it is performed,'’ and recordkeeping.*° No

such interest is furthered by the Nebraska ban.

Nebraska does not even purport to promote maternal

health or safety, nor could it, even if its ban only applied to

the D&X procedure.*' The D&X procedure was found by the

trial court to be safer than other alternatives, including the

most common alternative, the D&E procedure.”? Of course,

the Nebraska ban is no more justifiable if, given the most

reasonable interpretation of “partial birth abortion,” it is

read to bar the D&E procedure as well.”

'7 Nebraska already bans post-viability abortions. Neb. Rev.

Stat. §§ 28-329, 332.

* E.g., Mazurek v. Armstrong, 520 U.S. 968, 974-75 (1997).

'9 E.g., Roe, 410 U.S. at 163.

20 E.g., Planned Parenthood of Central Missouri v. Danforth,

422 U.S. 52, 81 (1976).

21 ‘The term “D&E” when used herein refers to an abortion

procedure known as “dilation and evacuation.” The term “D&X”

refers to a type of D&E abortion known as “dilation and extraction.”

22 ‘The trial court's finding, Carhart, 972 F. Supp. at 525-27,

was affirmed by the Court of Appeals at Carhart, 192 F.3d at 1146.

(footnote 23 appears on following page)

10

3. The Ban Lacks A Maternal Health Exception

A State can advance its interest in a viable fetus by

regulating or even proscribing abortion, but only if an

exception is made “where it is necessary, in appropriate

medical judgment, for the preservation of the life or health

of the mother.” Row, 4 0 U.S. at 164-65. Accord Casey, 505

U.S. at 846. Although 1 is a bedrock of this Court’s abortion

rights jurisprudence, maternal health is ignored by the

Nebraska ban. See Colautti, 439 U.S. at 400 (invalidating for

vagueness provision that failed to “clearly specify . . . that

the woman’s life and health must always prevail over the

fetus’ life and health when they conflict” and that raised

“[{sJerious ethical and constitutional difficulties” by failing

clearly to inform a physician “to consider Mis duty to the

patient to be paramount to his duty to the fetus”); Thornburgh,

476 U.S. at 771 (striking regulation that “evince[d] no intent

to protect a woman whose life may be at risk”).

Nebraska's narrow exception “to preserve the life of the

mother” offers no protection against threats to maternal

health. It is interesting to note that even in its pre-existing

statute proscribing abortions after viability, when the state

interest is at it peak, Nebraska’s legislature did include the

constitutionally required maternal health exception. Neb.

Rev. Stat. §§ 28-329, 330. Omitting the same exception from

the present ban, which amounts to a statement that a mother’s

health is less important to the State than that of a nonviable

fetus, disregards the plain law of the land.* By taking

23 Hope Clinic, 195 F.3d at 878 (“But as banning ‘partial birth’

abortions is not intended to improve the health of women (or anyone

else for that matter), it cannot be defended as a health regulation.”)

(Posner, C.J., dissenting).

24 Some advocates of “partial birth” abortion bans argue that a

maternal health exception would be abused by physicians who inter-

pret it too broadly. See 144 Cong. Rec. H6209 (July 23, 1998) (state-

ment of Rep. Hyde). This argument is flawed for at least five reasons.

First, it is hypocritical, coming as it does from the same advocates

11

unnecessary chances with the mother’s health, Nebraska

puts a “substantial obstacle” in the path of a woman seeking

to terminate her pregnancy.

D. Partial Birth Abortion Bans Undermine The Rule

of Law, To The Great Detriment of Women and

Society

The doctrine of stare decisis, which requires adherence to

sound judicial precedent, is indispensable to our constitu-

tional form of government.** Adherence to precedent gives

meaning to the rule of law and protects against arbitrary

governance.” It furthermore ‘protects a citizenry that relies

upon precedent to order their lives.”’

who, in other aspects of the abortion debate, rely upon and trust the

judgment of physicians. See 144 Cong. Rec. H6198 (July 23, 1998)

(statement of Rep. Smith regarding letter from AMA to Sen. Santo-

rum). Second, it is “founded on suspicion. . . discloses a lack of

confidence in the integrity of physicians . . . [and] is necessarily

degrading to the conscientious physician, particularly the obstetrician

. . «.” Bolton, 410 U.S. at 196. Third, by licensing physicians, the

State recognizes them to be “capable of exercising acceptable clin-

ical judgment,” and for those who do not, other forms of State cen-

sure are readily available. /d. at 199. Fourth, this argument does

nothing to excuse the failure to follow the clear precedent of this

Court. Fifth, Nebraska, like many states, provides a health exception

to its post-viability abortion ban, as well as latitude to the physician

to choose the method of post-viability abortion most protective of the

woman's life and health. Neb. Rev. Stat. §§ 28-329-32.

25 See Hilton v. South Carolina Pub. Rs. Comm'n, 502 U.S. 197

(1991); Powell, Stare Decisis and Judicial Restraint, 1991 Journal of

Supreme Court History 13, 16; Cardozo, The Nature of the Judicial

Process, 149 (1921) (both cited in Casey, 505 U.S. at 854).

26 «See Patterson v. McLean Credit Union, 491 U.S. 164, 172

(1989); Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S.

468, 478-79 (1987); Vasquez v. Hillery, 474 U.S. 254, 265-66 (1986).

27“ See Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403

(1970); Williams v. Florida, 399 U.S. 78, 127 (1970) (Harlan, J., con-

curring in part and dissenting in part).

12

Eight years after Casey was decided, there is still “no evo-

lution of legal principle [that] has left Roe’s doctrinal foot-

ings weaker than they were in 1973.” Casey, 505 U.S. at

857. The central holding of Roe, the right of a woman to ter-

minate her pregnancy before viability, remains a highly

workable rule well-rooted in our constitutional and social

firmament, its soundness relied upon by millions of Amer-

ican women. As such, the doctrine of stare decisis compels

that Roe’s central holding not be disturbed.

The purpose behind the stare decisis doctrine is “espe-

cially compelling” in a case of the constitutional magnitude

of Roe.** On only two occasions in its history has this Court

“responded to national controversies” of comparable mag-

nitude by reversing course and stating a new rule of law.*°

Casey, 505 U.S. at 861. Both decisions were predicated on

a fundamental change in the facts and circumstances upon

which the rejected precedent was based. West Coast Hotel

rejected the theory of laissez-faire economics embraced in

Lochner v. New York® because it “seemed unmistakable to

most people” that that theory rested on “fundamentally false

factual assumptions.” Jd. at 861-62. Brown v. Board of Edu-

cation rejected the “separate but equal” rule of Plessy v. Fer-

guson*' because “[s]ociety’s understanding of the facts upon

which a constitutional ruling was sought in 1954 was thus

fundamentally different from the basis claimed for the deci-

sion in 1896.” Jd. at 863.

Contrary to the circumstances underlying West Coast

Hotel and Brown, the facts underlying Roe’s essential hold-

ing are no different today than they were in 1973, and the

28 = Akron, 462 U.S. 416, 420 n.1 (1983).

29° West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), and

Brown v. Board of Education, 347 U.S. 483 (1954).

30 «198 U.S. 45 (1905).

31-163 U.S. 537 (1896).

13

Court’s “explanation for its decision” no less sound. Casey,

505 U.S. at 863. The wisdom of preventing the disenfran-

chisement of women from modern American society by rec-

ognizing their liberty interest in deciding for themselves

whether to continue a pregnancy is, if anything, more evi-

dent and more compelling today than it was in 1973.*? While

laissez-faire economic theory, by the time of Lochner, was

“recognized everywhere outside the Court to be dead,”** the

idea that the equal participation of women in our economic

and social life is for the good of the Nation is alive and well.

The finding adopted by this Court in 1992 that “[t]he abil-

ity of women to participate equally in the economic and

social life of the Nation has been facilitated by their ability

to control their reproductive lives,” id. at 856, is no less vital

today.

To directly compromise, if not neutralize, that right in the

manner intended by bans such as Nebraska’s would not, as

in Brown, confirm what American society has already rec-

ognized, but rather refute it, sending an incomprehensible

and disruptive message about the rule of law and the role of

women in our society.** For millions of Americans who have

come to rely on the liberty interest recognized in Roe and

undisturbed in at least twenty subsequent abortion rights rul-

ings of this Court,** to now pierce its heart by upholding

such unprincipled restrictions would exact a “terrible cost”

32 See Green v. United States, 355 U.S. 184, 215 (1957) (Frank-

furter, J., dissenting) (noting that the respect for precedent mandated

by stare decisis demonstrates “the wisdom of this Court as an insti-

tution transcending the moment”).

33 Casey 505 U.S. at 862 (quoting Justice Jackson, The Strug-

gle for Judicial Supremacy, at 85 (1941)).

44 ~~ See Frontiero v. Richardson, 411 U.S. 677, 684 (1973)

(deploring our Nation’s “long and unfortunate history of sex dis-

crimination”). -

$s See Appendix B.

14

and cause “profound and unnecessary damage to the Court’s

legitimacy, and to the Nation’s commitment to the rule of

law.” Id. at 869.

“PARTIAL BIRTH” ABORTION BANS UNDULY

BURDEN THE RIGHT TO CHOOSE

A. “Partial Birth” Abortion Bans Create A “Significant

Obstacle” For A Woman and Her Physician

1. Bans of Particular Pre-viability Procedures

Have Never Been Upheld By This Court

To further its interest in maternal health, the State may, for

example, regulate who performs the abortion procedure and

in what kind of facility. To further its interest in potential

life, the State may express its preference for childbirth. But

this Court has not been willing to approve bans or restric-

tions on the performance of particular abortion procedures,

finding that such regulations are not adequately related to

either legitimate State interest. In each of three cases since

Roe in which this Court reviewed regulation of particular

procedures, the regulation was invalidated.

In Planned Parenthood of Central Missouri v. Danforth,”

several provisions of a Missouri abortion law were reviewed,

including one which banned the use of saline amniocentesis

as an abortion procedure. The ban was challenged on the

grounds that saline amniocentesis was not only the most

common form of abortion after the first trimester but it was

safer than the readily available alternatives. This Court

agreed and invalidated the ban for several reasons.

First, it was important to “recognize the prevalence” of

saline amniocentesis “as an accepted medical procedure in

36 428 U.S. 52 (1976).

15

this country.” Danforth, 428 U.S. at 77. In addition, a broad

“outright legislative prescription” had the effect of deterring

development of other safe and effective methods. Jd. Most

importantly, the ban “force[d] a woman and her physician to

terminate her pregnancy by methods more dangerous to her

health than the method outlawed.” /d. at 79.°”

Because the Nebraska ban, like other “partial birth” abor-

tion bans, will have the practical effect of banning both

D&X and D&E procedures, the latter being the most com-

mon second trimester technique in the United States today,

and because the remaining alternatives will be less safe for

the mother than those outlawed, it, too, is an unreasonable

and arbitrary regulation that should be invalidated.

Colautti v. Franklin® addressed the constitutionality of a

Pennsylvania regulation that restricted physician discretion

by providing that “the abortion technique employed shall be

that which would provide the best opportunity for the fetus

to be aborted alive so long as a different technique would

not be necessary in order to preserve the life or health of the

mother.” Colauiti, 439 U.S. at 397. The record indicated that

available techniques for maximizing fetal survival all

“involved disadvantages from the perspective of the

woman.” Jd. at 398. Then, as now, there was “disagreement

among medical authorities about the relative merits and

safety of different abortion procedures that may be used dur-

ing the second trimester.” Jd. at 399. The regulation was

declared unconstitutionally vague because it did not clearly

allow the physician to put the life and health of the mother

first, but instead left the door open to a “trade-off” between

37 The wisdom, in this case as in Danforth, of preventing leg-

islative bans from chilling medical progress is proven by the fact that

saline amniocentesis abortion is now nearly non-existent, as safer

methods have been allowed to develop. See II.A.4, infra.

38-439 U.S. 379 (1979).

16

maternal and fetal health that raised “serious ethical and

constitutional difficulties.” Jd. at 400.

The regulation reviewed in Thornburgh v. American Col-

lege of Obstetricians and Gynecologists* required physi-

cians, after viability, to use the procedure most likely to

preserve the life of the fetus unless doing so presented “sig-

nificantly greater risk” to the life or health of the mother.

Thornburgh, 476 U.S. at 747. The Court of Appeals for the

Third Circuit had found that this provision forced an uncon-

stitutional “trade-off” between maternal and fetal health. This

Court affirmed, agreeing that the provision was “not suscep-

tible to a construction that does not require the mother to bear

an increased risk in order to save her viable fetus.” Jd. at 769.

The same deficiencies that rendered these provisions

unconstitutional are manifest here. The Nebraska ban forces

a “trade-off” of an even less rational sort, one in which the

health of the mother is subordinated not for the sake of

potential life, but for the sake of a judgment by the Nebraska

legislature that one medical technique is less “moral” than

another. As discussed below, the Nebraska ban also dan-

gerously interferes with a physician’s exercise of medical

judgment. The result is a regulation that unconstitutionally

burdens the right to choose.

2. These Bans Supplant Physicians’ Best Medical

Judgment

By regulating a liberty interest solely to express a moral

judgment, Nebraska has intruded without justification into

a realm of fundamental privacy protected by the Constitu-

tion. By banning a safe pre-viability abortion procedure, it

has also unduly burdened that liberty interest. Preventing

physicians from recommending what for some women would

be the most medically appropriate procedure (regardless of

39-476 U.S. 747 (1986).

17

what Nebraska’s legislators feel is most morally appropri-

ate), puts a substantial obstacle in the path of a woman who

decides to terminate her pregnancy before viability.

Deciding whether to have an abortion raises complex

medical, social, familial, moral and religious questions.

Deciding how to perform an abortion is primarily a medical

question. This Court has repeatedly and unequivocally rec-

ognized how important it is to keep medical judgment,

knowledge and skill free from unnecessary regulation.“

Indeed, the right to choose recognized in Roe “vindicate[d]

the right of the physician to administer medical treatment

according to his professional judgment up to the point where

important state interests provide compelling justifications

for intervention. Up to those points, the abortion decision in

all its aspects is inherently, and primarily, a medical deci-

sion, and basic responsibility for it must rest with the physi-

cian.” Roe, 410 U.S. at 165-66. Almost twenty years later, in

Casey, this Court’s recognition of the importance of safe-

guarding medical judgment from State impairment remained

undiminished. There, for example, Pennsylvania’s informed

consent provision was upheld because it “d[id] not prevent

the physician from exercising his or her medical judgment.”

Casey, 505 U.S. at 884.*' From Roe to Casey, this Court has

closely guarded against the potential for unnecessary State

interference with a physician’s judgment and ability most

40 See, e.g., Roe, 410 U.S. at 165; Danforth, 428 U.S. at 61;

Thornburgh, 476 U.S. at 764; Casey, 505 U.S. at 883-84; Colautti,

439 U.S. at 387 (Roe and Bolton “underscored the importance of

affording the physician adequate discretion in the exercise of his

medical judgment.”).

4! Even Casey’s approval of Pennsylvania's informed consent

statute was tethered to that statute’s recognition that the physician

could tailor the required information where doing so was necessary

to avert “serious adverse” consequences to the woman's health.

Casey, 505 U.S. at 883-84.

18

safely to administer health care to women, particularly in

performing pre-viability abortions.”

In Doe v. Bolton, for example, a regulation requiring the

approval of a hospital committee before an abortion was per-

formed was invalidated because “the woman’s right to

receive medical care in accordance with her licensed physi-

cian’s best judgment and the physician’s right to administer

it are substantially limited.” 410 U.S. 179, 197 (1973). The

Court found that

medical judgment may be exercised in light of all fac-

tors—physical, emotional, psychological, familial, and

the woman’s age—relevant to the well-being of the

patient. All these factors may relate to health. This

allows the attending physician the room he needs to

make his best medical judgment. And it is room that

operates for the benefit, not the disadvantage, of the

pregnant woman.

Id. at 192.

The State also may consider these factors, in addition to

“the physical safety of a particular procedure,” when craft-

ing health regulations.** But that is not the purpose or effect

of the Nebraska ban. Nebraska forbids a physician, directly

responsible for preserving the pregnant woman’s well-being

42 “The Court also has recognized, because abortion is a med-

ical procedure, that the full vindication of the woman’s fundamental

right necessarily requires that her physician be given ‘the room

he needs to make his best medical judgment.’ ” Akron, 462 U.S. at

427 (quoting Doe v. Bolton, 410 U.S. 179, 192 (1973), and citing

Whalen v. Roe, 429 U.S. 589, 604-05 n.33 (1977)). See Colautti, 439

U.S. at 387 (discussing importance of adequate physician discretion);

Danforth, 428 U.S. at 67 n.8 (warning against “confin[ing] the attend-

ing physician in an undesired and uncomfortable straitjacket in the

practice of his profession”).

43° See Akron, 462 U.S. at 467 (O’Connor, J., dissenting).

19

and intimately involved in her right to choose, from offering

her the pre-viability abortion procedure that carries the least

risk to her health. See Casey, 505 U.S. at 895 (“The effect of

state regulation of a woman’s protected liberty is doubly

deserving of scrutiny in such a case, as the State has touched

not only upon the private sphere of family but upon the very

bodily integrity of the pregnant woman.”’).* And the loss of

the physician’s judgment and attendant sacrifice of maternal

safety is not offset by any legitimate gain for Nebraska, as

there is no indication that any of the “health” factors that

should inform a State’s regulation in this area were even

considered, much less served, by the Nebraska ban.

Perhaps it is because so much of their reasoning relies on

the erroneous assumption that so-called “partial birth” abor-

tion is never the safest pre-viability alternative, that advo-

cates of such bans are willing to risk substituting their

judgment for that of the attending physician in every case.*

And yet, determining which procedure is safest for any

particular woman 16 to 20 weeks pregnant is at least as com-

plicated and individualized a medical question as deter-

mining when any particular fetus is viable, a question this

Court has always held should be answered by the physician,

not pre-ordained by the State.*° The real risk here, of course,

44 And see Casey, 505 U.S. at 857 (discussing Roe as a rule of

“personal autonomy and bodily integrity, with doctrinal affinity to

cases recognizing limits on governmental power to mandate medical

treatment or to bar its rejection,” and citing, among other cases,

Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 278

(1990).

45 See, e.g., 144 Cong. Rec. $.10511 (Sept. 17, 1998) (statement

of Sen. Domenici) and S.10481 (statement of Sen. Faircloth).

46 See, e.g., Danforth, 439 U.S. at 388-89. (“[W]Je observed in

Roe that viability is a matter of medical judgment, skill and techni-

cal ability, and. . . it is not the proper function of the legislature or

courts to place viability, which essentially is a medical concept, at a

specific point.”)

20

is borne by the woman whose decision to terminate a non-

viable fetus can only be effectuated if she subjects herself to

a procedure that may be more dangerous to her life or health

than the one outlawed. Regardless of how many or how few

women are put at risk, replacing a physician’s case-by-case

judgment with a sweeping moral pronouncement is unduly

burdensome. See Casey, 505 U.S. at 894 (“the proper focus

is on the group for whom the law is a restriction, not the

group for whom it is irrelevant”). Accord Carhart, 972 F.

Supp. at 530 (“[F]or women who die or suffer serious com-

plications because they cannot have the safest available pro-

cedure to abort their nonviable fetuses, the increased risk

cannot be honestly considered insignificant.”).

3. These Bans Make Exercising The Right To

Choose More Dangerous

The right to choose has two identifiable components:

deciding whether or not to have an abortion and, if made,

implementing the decision to have an abortion.*’ After a

decision to end a pre-viable pregnancy has been made, and

the State’s legitimate efforts, if any, to encourage childbirth

have failed, “partial birth” abortion bans illegitimately inter-

fere with the exercise of that choice by denying the woman,

and her physician, access to what may be the safest and most

medically appropriate procedure.

o See Roe, 410 U.S. at 164 (discussing “the abortion decision

and its effectuation”); Bolton, 410 U.S. at 197 (discussing “(t]he

woman's right to receive medical care. . . and the physician's right

to administer it”); Colautti, 439 U.S. at 387 (discussing physician's

central role “both in consulting with the woman about whether or not

to have an abortion, and in determining how any abortion [is] to be

carried out”); Akron, 462 U.S. at 427 (discussing “full vindication of

the woman’s right” as necessitating exercise of medical judgment in

“both assisting the woman in the decision making process and imple-

menting her decision should she choose abortion”).

21

Rather than create “a structural mechanism” that favors

child birth, bans like Nebraska’s effectively penalize the

woman who decides against childbirth. The effect is an

undue burden—a substantial obstacle placed by the State

between the woman’s decision and her ability to act most

safely on that decision.*

As reaffirmed in Casey, part of Roe’s “essential holding”

is “the right of the woman to choose to have an abortion

before viability and to obtain it without undue interference

from the State.” Casey, 505 U.S. at 846 (emphasis added).

Thus, other than by the kind of governmental influence sanc-

tioned in Casey (e.g., “legislation aimed at ensuring a deci-

sion that is mature and informed,” id. at 883), once a woman

makes a decision to terminate a pre-viable fetus, that deci-

sion “may be effectuated by an abortion free of interference

by the State.” Roe, 410 U.S. at 163. See Colautti, 439 U.S.

at 386 (“[P]rior to viability, the State may not seek to further

this interest by directly restricting a woman’s decision

whether or not to terminate her pregnancy.”). True, Roe’s

“essential holding implies no limitation of the authority of

48‘ There can be no doubt, based on the record before this Court.

that the D&X procedure performed by Respondent is the safest for

some women. The District Court so found on two occasions: in grant-

ing a preliminary injunction against the Nebraska ban, and after a full

trial on the merits, in granting a permanent injunction. These findings

of fact were not disturbed by the Court of Appeals.

Among the risks to maternal life and health that Respondent avoids

by performing the D&X procedure are: (1) longer operating time; (2)

greater blood loss and infection; (3) complications from bony frag-

ments; (4) instrument-inflicted damage to the uterus and cervix; (5)

exposure to the most common causes of maternal mortality (DIC and

amniotic fluid embolus); [and] (6) “horrible complications” arising

from retained fetal parts. Carhart v. Stenberg, 11 F. Supp. 2d. 1099,

1127 (D. Neb. 1998) (“These are substantial obstacles within the

meaning of Casey.”). The vast majority of lower courts agree that the

D&X procedure has significant health and safety benefits. See Hope

Clinic, 195 F.3d at 883 (collecting cases).

22

the State to make a value judgment favoring childbirth over

abortion,” Maher, 432 U.S. at 474, but if a pregnant woman

rejects that State-sponsored value judgment, and opts instead

to end her pregnancy before viability, Roe and Casey limit

the authority of the State to put new and additional obstacles

in her path, such as the denial of a safe and medically appro-

priate means of effectuating her decision.

4. “Partial Birth” Abortion Bans Will Also Impede

Medical Progress

Since Roe, this Court has kept a watchful eye on medical

advances when balancing State interests against personal lib-

erty. Indeed, the shift from Roe’s trimester framework to

Casey's more fluid viability standard reflected a judicial

appreciation of medical progress. See Casey, 505 U.S. at

860. In stark contrast, Nebraska’s ban and others like it

ignore the importance of advances in medicine, to the detri-

ment of both this Court’s careful constitutional balancing

and the health of pregnant women.

The procedures targeted by the Nebraska ban play an

important and evolving role in second trimester abortions.”

Medical advances in these and other techniques have made

it safer for women who choose to end their pregnancies at

this stage. Such advances should be encouraged, not stymied

by sweeping prohibitions. See Danforth, 428 U.S. at 78

(striking provision banning particular procedure because, in

part, ban appeared to sweep in procedures “that may be

developed in the future and may prove highly effective and

completely safe”); Colautti, 439 U.S. at 387 (“We thus have

left the point [of viability] flexible for anticipated advance-

ments in medical skill.”). Because the Nebraska ban crimi-

nalizes a broad and vaguely defined class of medical

procedures, it will have a particularly chilling effect on

49 Carhart, 972 F. Supp. at 515-16, 525-27 (discussing D&E

and D&X procedures).

23

physicians who will steer well clear of its proscriptions in

order to avoid being prosecuted as criminals. See Hope

Clinic, 195 F.3d at 889 (noting the “in terrorem effect” of

“partial birth” abortion).

The harm to women is therefore twofold: access to a safe

procedure today is denied and the likelihood of developing

an even safer procedure tomorrow is diminished.

B. “Partial Birth” Abortion Bans Sacrifice Constitu-

tional Principle To Political Expediency

1. The Political History Of Such Bans Belies

Their True Purpose

As shown above, the effect of “partial birth” abortion bans

such as Nebraska’s and those passed by Congress but vetoed

by the President would be to overturn several core principles

of Roe v. Wade, rendering a woman's constitutional right to

choose virtually meaningless. But it is also quite clear that

such a result is exactly what the sponsors of such bans

intend. Although they now contend that “partial birth” bans

are designed to outlaw only the D&X procedure (which even

so construed would violate this Court’s precedents), the

political history of these bans reveal a far broader agenda.

The amicus brief submitted on behalf of Petitioners by

members of Congress (“Petitioners’ Congressional Brief”),

such as Representatives Hyde and Canady, claims that the

Nebraska ban targets the D&X procedure only. Such repre-

sentations are contrary to the plain language of the Nebraska

ban, prior statements made by many of these same legisla-

tors, and prior claims by brief’s author, James Bopp, Jr.

For example, Mr. Canady, through Petitioners’ Congres-

sional Brief, now represents that “[t)he history of congres-

sional efforts to ban PBA [“partial birth” abortion] shows

that only a new procedure was targeted. . . known as intact

dilation and extraction (“intact D&X”)—not conventional

24

abortion methods.” Petitioners’ Congressional Brief at 1.

This new claim reverses his prior position. In 1996, in a let-

ter to House members that attempted to muster anti-abortion

sentiment for a then-pending federal ban on “partial birth”.

abortions, Mr. Canady declared that

H.R. 1833 [The 1995 Partial-Birth Abortion Ban Act]

does not ban “D&X” or “brain suction” abortions. H.R.

1833 bans any “abortion in which the person performing

the abortion partially vaginally delivers a living fetus

before killing the fetus and completing the delivery.”°

Similarly, during debate in 1997 concerning another pend-

ing “partial birth” abortion ban, H.R. 1122, Representative

Hyde, speaking in favor of the bill, unleased the following

broadside against Roe v. Wade, in which he accused this

Court of “strip-mining” the Constitution.

This great trajectory in our national experience, that of

inclusion, has been shattered by Roe v. Wade and its

progeny. By denying an entire class of human beings the

protection of the laws, we have betrayed the best in our

tradition. We have also put at risk every life which

someone, some day, somehow might find inconvenient.

We cannot today repair ail the damage done to our cul-

ture by Roe v. Wade. We cannot undo the injustice that

has been done to 35 million tiny members of the human

family who have been summarily killed since the

Supreme Court, strip-mining the Constitution, discov-

ered therein a fundamental right to abortion. . . .*'

50 Letter from Rep. Canady, dated March 18, 1996 at Supp.

Appendix Exh. 31 (emphasis added)

5! 143 Cong. Rec. H1220 (March 20, 1997) (Statement of Rep.

Hyde). In Senate debate, supporters of the ban also spoke of it in

terms of undoing the “horrendous rule” of Roe v. Wade. See 144

25

Finally, James Bopp, Jr. is both the author of the Peti-

tioners’ Congressional Brief and the author of 1998 article

on “partial birth” abortions. Petitioners’ Congressional Brief

draws heavily from the article, yet steers clear of statements

therein in which Mr. Bopp states that the term “partial birth”

abortion does not mean what Petitioner now says it means.

When writing for this Court, Mr. Bopp claims that D&X is

the “targeted procedure” of “partial birth” abortion bans, but

when cultivating anti-Roe sentiment in his article, he

acknowledges that “partial birth” abortion “has a clear leg-

islative definition making it unique from intact D&E, intact

D&X (the ACOG definition), and other procedures.”*”

In addition, the Nebraska ban, like its federal counterparts,

invites prosecutors to set their targets beyond the D&X pro-

cedure. Predicated as they are on the vague and medically

meaningless term “partial birth” abortion, such legislation is

inherently suspect.*’ Yet efforts to define this term were

rebuffed, since clarifying these statutes would have made it

more difficult to use them as proxies for the right to choose

in general, and more difficult to stir “anti-abortion fervor”

through misleading characterizations of the D&X proce-

Cong. Rec. S.10492 (Sept. 17, 1998) (“[O}ne of the most tragic and

saddest days in our nation’s history was the day the Supreme Court

ruled in Roe v. Wade that unborn babies can legally be killed by their

mothers. Each of us who has fought, heart and soul, to undo that dam-

aging decision, understood so well on January 22, 1973, that we had

yet to see what devastation would come of such a horrendous rule.”)

(statement of Sen. Helms).

52 James Bopp, Jr., Partial-Birth Abortion: The Final Frontier

of Abortion Jurisprudence, 14 Issues L. & Med. 3, 6 (1998)

53 See Carhart, 11 F. Supp. 2d at 1131 (“The legislature elected

to use nonmedical terms to describe surgical techniques and it must

bear the consequences of that decision.”). Accord Carhart, 192

F.3d at 1145 (finding that the term has “no fixed medical or legal

content”).

26

dure.** Vagueness, and the elasticity it offers for attacking the

heart of Roe from various angles, are preferred.*°

Nebraska's ban and its federal analogues suffer from

grave and obvious constitutional infirmities beyond vague-

ness and overbreadth. Most striking, and in direct defiance

of this Court’s abortion rights decisions, is the lack of a

maternal health exception. Another glaring deficiency is the

failure to respect this Court’s foundational distinction

between pre-viability and post-viability abortions. The moti-

vation behind such tactics is clear: sponsors of these bans

will not allow principle or precedent to interfere with their

attack of Roe.

~

Tellingly, these infirmities could have been readily cured

by amendment. And although an amendment recognizing the

viability distinction and providing a maternal health excep-

tion was offered in Congress, the House majority refused to

allow the amendment to be debated on the floor.** Again, the

message is clear: only legislation aimed at the heart of Roe

v. Wade will suffice. In sum, the “peculiar and questionable

character’’*’ of such bans is symptomatic of an agenda other

than what is presently represented to this Court and other

than what this Court’s precedents require.

54 Hope Clinic, 195 F.3d at 879-80 (Posner, C.J., dissenting).

55 See Id. at 879 (Posner, C.J., dissenting) (“[TJhere is no mean-

ingful difference between the forbidden and the privileged practice.

. . We should consider therefore why any state would pass such a

law.”).

56 See H.R. 1032, 105th Cong. (1997) (the Hoyer-Greenwood

amendment).

57 —_ Hope Clinic, 195 F.3d at 878 (Posner, C.J., dissenting).

a

27

2. The Liberty Interest Of Pregnant Women Does

Not Stop At The Cervix

Faced with the transparency of trying to pass off these

bans as something that they are not, Representatives Hyde,

Canady and others retreat to what is, if anything, an even

less plausible argument. Since the constitutional principles

of Roe v. Wade and the political purposes of such bans can-

not co-exist, this alternative argument posits that Roe is not

at issue at all, much less at stake. Roe, this argument goes,

is about the “unborn,” whereas this legislation is about the

“partially born.” Petitioners’ Congressional Brief at 20.**

Petitioners’ congressional amici urge that Roe is inap-

plicable to “partial birth” abortions because Roe only pro-

tects fetuses that are entirely within the uterus, not those

which may have begun to move into the vagina. This Court,

however, has never gerrymandered a woman’s anatomy into

different zones with different levels of constitutional pro-

tection. Roe’s protections do not end at the cervical os.

This Court’s precedents are therefore not susceptible to

Petitioners’ strained interpretation. The essential holding of

Roe, reaffirmed in Casey, is that a woman has a right—one

that is particularly resistant to State interference before via-

bility—to determine whether to continue or terminate a

pregnancy. See Casey, 505 U.S. at 871 (“The woman’s right

to terminate her pregnancy before viability is the most cen-

tral principle of Roe [and) a rule of law and a component of

liberty we cannot renounce.”). The D&X procedure is a safe

means of effectuating a choice that every woman has a right

‘8 The Court of Appeals dismissed this argument as “unavail-

ing.” Carhart, 192 F.3d at 1151. Representatives Canady, et al., base

this argument in part on a regulation of the Texas Code that was not

before the Court in Roe v. Wade. Yet Petitioner somehow extrapolates

that this Court not only upheld the constitutionality of the regulation,

but created a two-tiered analysis with different results for fetuses

which are “unborn” and those which are “partially born.”

28

to make. At the very least, bans like Nebraska’s restrict a

woman’s ability to exercise her liberty and thus directly

implicate Roe. Furthermore, the right to abortion has been

expressed by this Court in terms of a careful balance

between individual liberty and State interest. Because “par-

tial birth” bans fundamentally disrupt that balance, those

precedents are at issue. And when the core concepts of via-

bility and maternal health are compromised, revisiting the

essential holding of Roe is inevitable. Thus, in addition to a

lack of common sense, the “legal” argument put forward by

Petitioners’ congressional amici lacks any support in the law

and should, we respectfully submit, be rejected.

CONCLUSION

Bans such as Nebraska’s defy this Court’s abortion rights

jurisprudence. They serve no legitimate State interest, they

compromise maternal health, and they apply indiscrimi-

nately to pre- and post-viability procedures alike. Such bans

sacrifice constitutional principles to political opportunism,

disturbing not only the careful balance wrought by this

Court over almost thirty years, but the ability of women to

participate fully in the social and economic life of the coun-

try. Rooted as it is in a fundamental privacy right guaranteed

by the Constitution, the liberty interest of pregnant women

should not, indeed must not, be so cavalierly undone. For

these and all the reasons stated above, amici curiae respect-

fully submit that the decision of the Court of Appeals to

invalidate the Nebraska ban be affirmed.

29

Respectfully Submitted,

ROBERT LEWIN

KEVIN J. CURNIN

CLAUDE G. SZYFER

Counsel of Record

ROBERT ABRAMS

BURTON N. LIPSHIE

STROOCK & STROOCK & LAVAN LLP

Counsel for Amici Curiae

180 Maiden Lane

New York, New York 10038

(212) 806-5400

APPENDICES

Appendix A

os AMICI CURIAE—MEMBERS OF CONGRESS

Rep. Neil Abercrombie Rep. Rush Holt

Rep. Gary L. Ackerman Rep. Steve Horn

Rep. Thomas H. Allen Sen. Daniel Inouye

Rep. Robert E. Andrews Sen. James M. Jeffords

Rep. Brian Baird Rep. Jesse Jackson, Jr.

Rep. John E. Baldacci Rep. Eddie Bernice Johnson .

Rep. Tammy Baldwin Rep. Nancy Johnson

, heh.

+

\.

+"

FSA rae

yO rg eR ey ON

Vee th

*

Rep. Robert A. Brady

Rep. Xavier Becerra

Rep. Shelley Berkley

Rep. Howard L. Berman

. Barbara Boxer

Rep. Rich Boucher

Rep. Michael E. Capuano

Rep. Julia M. Carson

Rep. John Conyers, Jr.

Rep. Danny K. Davis

. Peter DeFazio

Rep. Diana DeGette

Rep. Rosa DeLauro

. Peter Deutsch

Rep. Lloyd Doggett

. Julian C. Dixon

Rep. Eliot L. Engel

Rep. Anna Eshoo

Rep. Sam Farr

Rep. Chaka Fattah

Sen. Dianne Feinstein

Rep. Bob Filner

Rep. Martin Frost

Rep. Maurice D. Hinchey

Rep. Joseph M. Hoeffel

Rep. Tom Lantos

Sen. Frank Lautenberg

Rep. Barbara Lee

Rep. Sheila Jackson Lee

Sen. Carl Levin

Rep. Zoe Lofgren

Rep. Nita M. Lowey

Rep. Carolyn Maloney

Rep. Robert T. Matsui

Rep. James P. McGovern

Rep. Cynthia McKinney

Rep. Martin T. Meehan

Rep. Juanita Millender-

McDonald

Rep. Gregory W. Meeks

Rep. Constance Morella

Sen. Patty Murray

Rep. Jerrold Nadler

Rep. Eleanor Holmes Norton

Rep. John W. Olver

Rep. Major R. Owens

Rep. Donald M. Payne

Rep. Frank Pallone, Jr.

Rep. Nancy Pelosi

Rep. David E. Price

Rep.

Rep.

Rep.

Rep.

Sen.

Rep.

Sen.

Rep.

Rep.

Rep.

Rep.

Rep.

Rep.

Rep.

Rep.

Rep.

Rep.

Martin Olav Sabo

Loretta Sanchez

Bernard Sanders

Janice D. Schakowsky

Charles E. Schumer

Louise M. Slaughter

Olympia Snowe

Pete Stark

Mike Thompson

John F. Tierney

Edolphus Towns

Mark Udall

Nydia M. Velazquez

Henry A. Waxman

Anthony D. Weiner

Lynn C. Woolsey

Albert R. Wynn

3a

Appendix B

Connecticut v. Menillo, 423 U.S. 9 (1975); Planned Par-

enthood v. Danforth, 428 U.S. 52 (1976); Beal v. Doe, 432

U.S. 438 (1977); Maher v. Roe, 432 U.S. 464 (1977);

Poelker v. Doe, 432 U.S. 519 (1977); Colautti v. Franklin,

439 U.S. 379 (1979); Bellotti v. Baird, 443 U.S. 622

(1979); Harris v. McRae, 448 U.S. 297 (1980); Williams v.

Zbaraz, 448 U.S. 358 (1980); H.L. v. Matheson, 450 U.S.

398 (1981); City of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416 (1983); Planned Parenthood Ass'n v.

Ashcroft, 462 U.S. 476 (1983); Simopolous v. Virginia, 462

U.S. 506 (1983); Thornburgh v. American College of

Obstetricians and Gynecologists, 476 U.S. 747 (1986);

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

(1989); Hodgson v. Minnesota, 497 U.S. 417 (1990); Ohio

v. Akron Center for Reproductive Health, 462 U.S. 416

(1990); Rust v. Sullivan, 500 U.S. 173 (1991); Planned

Parenthood of Southeastern Pennsylvania v. Casey, 505

U.S. 833 (1992); Mazurek v. Armstrong, 520 U.S. 968

(1997).