Reply Brief — Gonzales v. Carhart

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. 05-380 OFFICE OF THE 2. FRe

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In the Supreme Court of the Gnited States

ALBERTO R. GONZALES, ATTORNEY GENERAL,

PETITIONER

v.

LEROY CARHART, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

PAUL D. CLEMENT

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217 ~

TABLE OF AUTHORITIES

Cases: Page

American Dredging Co. v. Miller, 510 U.S. 443

STITT sicciaiteetasiataneiiidiesiaaitediaitkiidahigeeetdeiiamenaa taisiiniitabiacatiiiniany 2

Ashcroft v. Free Speech Coalition, 535 U.S. 234

GEE cansnstinnasnnininnsnigtatiurtnntermeteiianenenmnnmenniibinintsinnieiinmietnes 6

Board of Educ. v. Mergens, 496 U.S. 226 (1990) .............. 5

City of Akron v. Akron Ctr. for Reprod. Health,

Re 3

City of Boerne v. Flores, 521 U.S. 507 (1997) .....cccccceeees 6

Connecticut v. Menillo, 423 U.S. 9 (1975) .......ccccceeseeseeeee 10

Dickerson v. United States, 530 U.S. 428

TT siibiciinsceeibhab ihe aidan iain eihiarlataml ait 6

H.L. v. Matheson, 450 U.S. 398 (1981) .......ccccccecseeseenees ae 10

Johanns v. Livestock Mktg. Ass’n, 1258. Ct. 2055

SII etrhiniatintchchiapeiabtaedediiaiinamiit nia taadiiiaeinatasiaiiietiiiiaiiaeaiaes 2

Jones v. United States, 463 U.S. 354 (1983) ....cccseseeeeees 4,5

Kansas v. Hendricks, 521 U.S. 346 (1997) .........:ccccccsceeees 4

Lambert v. Yellowley, 272 U.S. 581 (1926) .........ccceceeeeees 4,5

Landmark Communications, Inc. v. Virginia,

| ETREES SERRE ee oar eee eee a 6

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

TTI ccncepeiiteinceendicahiccentebiadntenianitintanseatibanbiinienteeandsibimininatnmaansins 10

Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 823

CRED eranenvessssessasnsosssssnesnesesnssenssesusvsssenasssasessssasesnessensnenenesenee 5, 8,9

Rostker v. Goldberg, 453 U.S. 57 (1981) .......scssessseseeneeeees 5,6

Sable Communications of Cal., Inc. v. FCC,

494 U.S. 115 (1989) ....... sinsetbatatacheasihultinibtiindimmmnees 6

Simopoulos v. Virginia, 462 U Ss. SOG (1GBB) ........ccccceseeeee 10

Stenberg v. Carhart, 530 U.S. 914 (2000) .......cccccccssseee 2,9, 10

Texas v. Johnson, 491 U.S. 397 (1989) ..0........ccccccccceseeesseees 2

Tucson Woman's Clinic v. Eden, 379 F.3d 531

RD iittala it int innanrctiaa 5

Turner Broad. Sys., Inc. v. FCC, 520 US. 180

STITT sip hueieeichescichaiatingiaehtmaaeaeie inated inamsiaaeamaes 4,5,8

United States v. Eichman, 496 U.S. 310 (1990) ............... 2

United States v. Morrison, 529 U.S. 598 (2000) ............... 6

(I)

Cases—Continued: Page

United States v. O’Brien, 391 U.S. 367 (1968) .................. 5

United States v. Salerno, 481 U.S. 739 (1987) ...........000. 7

United States v. United Foods, Inc., 533 U.S. 405

I aarti anata hasnt etdecatlianiints 2

Walters v. National Ass'n of Radiation Survivors,

IE isinniincdicisaciinrerintincanetiietinesiimaniiaanaieicainaiin 5

Constitution and statute:

U.S. Const.:

Amend. | (Establishment Clause) ..............:ccccessseeeeeeeeees 5

Amend. V (Due Process Clause) ............:ccccesseeseeseeeneesseeeeees 5

Partial-Birth Abortion Ban Act of 2003, Pub. L. No.

FB eee 1,2, 6, 7, 10

| ere 5

B BERGE, BRT BRE. TEI cesccscesccsscvcssesnsscsnnsesssenscmancssssans 7

In the Supreme Court of the Anited States

No. 05-380

ALBERTO R. GONZALES, ATTORNEY GENERAL,

PETITIONER

Vv.

LEROY CARHART, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

The court of appeals held that the federal Partial-Birth

Abortion Ban Act of 2003 (the Act) was facially invalid be-

cause it lacked an express statutory exception for cases in

which a partial-birth abortion is necessary to preserve the

health of the mother. That decision overrides Congress’s

carefully considered finding, following nine years of hearings

and debates, that partial-birth abortion is never necessary to

preserve a mother’s health. Respondents contend only

briefly that the court of appeals’ decision does not warrant

this Court’s review, and instead devote their efforts largely

to arguing the merits of the case. Their arguments not only

fail to justify the Act’s facial invalidation, but, more to the

point, provide no reason for denying the writ. Because the

court of appeals invalidated a landmark Act of Congress, and

because the court of appeals’ decision conflicts with decisions

of this Court, the petition for certiorari should be granted.

1. Remarkably, respondents assert (Br. in Opp. 16) that

“the Government’s contention that the Court should grant

certiorari simply because the Eighth Circuit declared uncon-

stitutional an act of Congress is unpersuasive.” This Court,

however, routinely exercises its certiorari jurisdiction to re-

view a decision invalidating a federal statute. See Pet. 10

(citing numerous cases). In fact, respondents do not cite a

2

single case in which this Court has declined to grant the

government’s petition in such circumstances. Particularly in

view of the importance of the Act and the national interest in

the resolution of the question presented by this case, see,

e.g., Br. of Amici Texas et al. 1-2, there is no reason for devi-

ating from that settled practice here.’

2. Respondents contend (Br. in Opp. 14-16) that the court

of appeals’ decision was “mandated” by this Court’s decision

in Stenberg v. Carhart, 530 U.S. 914 (2000). That contention

—which is merely an attempted defense of the court of ap-

peals’ decision on the merits—is incorrect. In Stenberg, the

Court held that Nebraska’s statute banning partial-birth

abortion was invalid because it lacked a health exception.

530 U.S. at 930. The Court concluded that the statute was

required to contain a health exception after resolving the

“factual question” whether the statute would pose “signifi-

cant health risks for women.” Jd. at 932. In Stenberg, of

course, no federal statute was at issue, and there were no

congressional findings on the need for a health exception. At

most, therefore, the Court could have established a rule of

decision for cases in the absence of congressional findings; it

was “quite impossible” for the Court to establish a rule of

decision even in the face of such findings. American Dredg-

ing Co. v. Miller, 510 U.S. 448, 457 (1994). Respondents

! Respondents attempt to distinguish the cases in which this Court

has granted certiorari to review decisions invalidating federal statutes on

the ground that “{i]n none of those cases did the Court grant certiorari to

review a decision that followed its precedent to revisit issues that had al-

ready been decided by the Court.” Br. in Opp. 16. That argument is ques-

tion-begging and incorrect in any event. This Court has granted plenary

review of decisions holding a federal statute unconstitutional even where

the parties seeking to invalidate the statute contended that the outcome

was dictated by a recent decision of the Court. See, e.g., Johanns v. Live-

stock Mktg. Ass'n, 125 S. Ct. 2055, 2060 (2005) (rejecting argument, first

advanced in brief in opposition, that case was controlled by United States

v. United Foods, Inc., 533 U.S. 405 (2001)); ef. United States v. Eichman,

496 U.S. 310, 313-318 (1990) (agreeing that case was controlled by Texas v.

Johnson, 491 U.S. 397 (1989)).

3

point to no language in Stenberg suggesting that the Court

intended to foreclose Congress from deliberating on this is-

sue, considering the latest and best available medical evi-

dence, and making its own findings. If read in the fashion

respondents suggest, Stenberg would have profound separa-

tion-of-powers implications, given the “superior factfinding

capabilities” of legislatures compared to courts. City of Ak-

ron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 456

n.4 (1983) (Akron I) (O’Connor, J., dissenting).

Respondents assert that the evidence they presented in

the district court concerning the medical necessity of partial-

birth abortion was “even * * * strongler]” than the evi-

dence presented by the plaintiffs in Stenberg. Br. in Opp. 15,

16. Even assuming, arguendo, that respondents’ characteri-

zation of the evidence before the district court were correct

(and it is not), it would be both counterproductive (because it

would underscore that Stenberg rested on the district court

record, rather than settling the issue for all time) and irrele-

vant (because it would show that respondents would prevail

only if Congress’s findings concerning the medical necessity

of partial-birth abortion were entitled to no deference). Be-

cause Stenberg does not suggest, much less decide, that

courts considering challenges to statutes regulating abortion

should discount, let alone disregard altogether, congressional

findings, respondents’ contention that Stenberg controls the

outcome of this case should be rejected.

3. Respondents also argue the merits of the deference

owed to Congress’s findings in this context. Although those

arguments join issue on the question presented, they provide

no basis for denying plenary review of the question.

a. Respondents contend (Br. in Opp. 16-25) that, al-

though this Court has deferred to congressional findings in

a variety of constitutional contexts, such deference is inap-

propriate in this context. Respondents, however, offer no

persuasive basis for barring deference here.

4

First, respondents assert (Br. in Opp. 18-20) that the prin-

ciple of deference articulated in Turner Broadcasting Sys-

tem, Inc. v. FCC, 520 U.S. 180 (1997) (Turner ID), is inappli-

cable where the findings at issue are not “predictive.” That

distinction, however, lacks support and is illusory in any

event. Contrary to respondents’ assertion (Br. in Opp. 18),

Congress was indeed “making predictions about the future

impact of legislation” in this case: specifically, predictions

concerning the likely health effects of prohibiting a particu-

lar type of abortion procedure. To be sure, those predictions

were based on evidence concerning the “current state of

medicine” (id. at 19), just as the predictions at issue in

Turner II were based on Congress’s assessment of the then-

current conditions in the local broadcasting industry. See

520 U.S. at 195-196. It would be illogical, however, to defer

to congressional findings when they are based wholly on con-

jecture, but not when they are grounded on hard data. To

the contrary, a fundamental rationale for deference to con-

gressional findings is that Congress “is far better equipped

than the judiciary to amass and evaluate * * * data bearing

upon legislative questions.” Jd. at 195 (emphasis added)

(quotation marks omitted). It is thus unsurprising-that this

Court has deferred to Congress’s predictive judgments on

medical and scientific issues, even (or especially) where

those judgments were based on the “current state” of the

evidence. See, e.g., Jones v. United States, 463 U.S. 354, 363-

366 & n.13 (1983); Lambert v. Yellowley, 272 U.S. 581, 588-

597 (1926). Indeed, legislatures are entitled to the “widest

latitude” in resolving disagreements among medical profes-

sionals. Kansasv. Hendricks, 521 U.S. 346, 360 n.3 (1997).

* Respondents contend (Br. in Opp. 21) that Jones, Lambert, and other

cases are distinguishable on the ground that “none of those cases involved

deference to legislative findings.” Although Congress may not have made

express legislative findings in those cases like the findings at issue here,

Congress unquestionably made implicit findings about a disputed ques-

tion of fact that was relevant to the constitutional claim at issue. If any-

5

Second, respondents suggest (Br. in Opp. 20-24) that def-

erence to congressional findings is never appropriate in

cases “involving a burden on a constitutional right, infringe-

ment of which is subject to heightened scrutiny.” That con-

tention, however, cannot be reconciled with Turner I], which

involved a content-neutral regulation subject to irtermedi-

ate scrutiny under United States v. O’Brien, 391 U.S. 367

(1968). See Turner II, 520 U.S. at 185, 189-190. Indeed,

courts have noted that the “undue burden” standard appli-

cable to abortion regulations (which effectively replaced the

previously applicable strict-scrutiny standard, see Planned

Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 869-879 (1992)

(joint opinion of O’Connor, Kennedy, and Souter, JJ.)) closely

resembles intermediate scrutiny, see, e.g., Tucson Woman's

Clinic v. Eden, 379 F.3d 531, 549 (9th Cir. 2004). Moreover,

as discussed at greater length in the petition (Pet. 12-15),

this Court has deferred to congressiona! findings in a wide

range of other contexts involving fundamental constitutional

rights. See, e.g., Board of Educ. v. Mergens, 496 U.S. 226,

250-251 (1990) (Establishment Clause); Walters v. National

Ass'n of Radiation Survivors, 473 U.S. 305, 320-334 (1985)

(Due Process Clause); Jones, 463 U.S. at 361 (Due Process

Clause); Rostker v. Goldberg, 453 U.S. 57, 69 (1981) (equal

protection component of Due Process Clause); Lambert, 272

U.S. at 588 (Due Process Clause).”

thing, deference is all the more appropriate where, as here, Congress de-

liberately made express findings based on testimony and other evidence

received during extensive legislative hearings. See Partial-Birth Abortion

Ban Act of 2003, Pub. L. No. 108-105, § 2(14), 117 Stat. 1204.

3 Respondents’ efforts to distinguish those cases (Br. in Opp. 23-24)

are unavailing. Respondents suggest that, in Mergens and Walters, the

Court did not simply defer to Congress, but instead reviewed Congress's

findings in light of other evidence. In considering that evidence, however,

the Court acted entirely consistently with the principle that congressional

findings are entitled to deference only where a reviewing court is satisfied

that “Congress has drawn reasonable inferences based on substantial evi-

dence.” Turner 1], 520 U.S. at 195 (internal quotation marks omitted).

6

Third, respondents argue (Br. in Opp. 24-25) that defer-

ence to Congress’s findings would be inappropriate because

Congress was attempting to “redefine the scope of a consti-

tutional right” and “subvert this Court’s prior interpretation

of a constitutional issue.” In passing the Act, however, Con-

gress was not attempting to displace the constitutional rule

applied in Stenberg (i.e., the “undue burden” test), but in-

stead merely was making findings on a factual issue (i.e.,

whether partial-birth abortion is ever medically necessary)

relevant to the application of that rule. This case is there-

fore crucially different from cases in which Congress either

sought to supersede a constitutional ruling of this Court, see

Dickerson. v. United States, 530 U.S. 428 (2000); City of

Boerne v. Flores, 521 U.S. 507 (1997), or made insufficient

findings to sustain a statute’s constitutionality, see United

States v. Morrison, 529 U.S. 598 (2000).

b. Contrary to respondents’ suggestion (Br. in Opp. 25-

27), Congress’s findings concerning the medical necessity of

partial-birth abortion are entitled to deference under the

Respondents suggest that Rostker is distinguishable on the ground that it

involves the sui generis context of deference to congressional! judgments

concerning the military. In Rostker, however, the Court first noted the

general principle that congressional judgments on factual issues are “cus-

tomarfily|” entitled to deference, 453 U.S. at 64, before proceeding to note

that deference is particularly appropriate where congressional judgments

concerning the military are concerned, id. at 64-65.

Respondents rely (Br. in Opp. 20-21) on this Court’s decisions in Land-

mark Communications, Inc. v. Virginia, 435 U.S. 829 (1978); Sable Com-

munications of California, Inc. v. FCC, 492 U.S. 115 (1989); and Ashcroft

v. Free Speech Coalition, 535 U.S. 234 (2002). Those cases, however, are

inapposite. Landmark did not even involve a federal statute; Sable re-

jected a request for deference on the straightforward ground that “the

congressional record contain[ed] no legisiative findings” germane to the

constitutional question presented, 492 U.S. at 129-130; and Free Speech

Coalition did not reject a congressional finding that “virtual child pornog-

raphy whets the appetites of pedophiles and encourages them to engage in

illegal conduct,” but instead concluded that any such finding was legally

irrelevant on the ground that “|t|he mere tendency of speech to encourage

unlawful acts is not a sufficient reason for banning it,” 535 U.S. at 253.

7

standards of Turner IJ. The court of appeals nevertheless

refused to apply any deference to Congress’s factual find-

ings, reasoning that “the government’s argument regarding

Turner deference is irrelevant to the case at hand.” Pet.

App. 15a. Respondents argue (Br. in Opp. 25) that the dis-

trict court did apply deference, but concluded that Con-

gress’s findings were not supported by substantial evidence.

Pet. App. 463a, 476a-477a. In analyzing Congress’s findings,

however, the district court asked the wrong question: rather

than asking whether substantial evidence supported Con-

gress’s conclusion that partial-birth abortion was never nec-

essary to preserve a woman’s health, the court asked

whether substantial evidence supported the proposition that

no substantial medical authority supported the proposition

that partial-birth abortion was ever necessary to preserve a

woman’s health. /d. at 460a-461a. Even assuming that is the

correct question for a court to ask in the absence of congres-

sional findings, it clearly is the wrong standard to apply in

evaluating those findings.

If the district court had properly applied the standards ar-

ticulated in Turner J], it would have concluded that Con-

gress’s findings—specifically, its ultimate finding that “par-

tial-birth abortion is never medically indicated to preserve

the health of the mother,” see Partial-Birth Abortion Ban

Act of 2003, Pub. L. No. 108-105, § 2(14)(O), 117 Stat. 1206—

were entitled to deference. As the district court acknowl-

edged, most of the physicians who testified before Congress

supported the Act. Pet. App. 58a. That congressional testi-

mony was reinforced by various written materials that Con-

gress also considered, including statements from leading

physician groups, articles in professional journals, and other

submissions from individual physicians. And it was supple-

mented by ample testimony from physicians at trial. At

most, respondents simply highlight other record evidence to

demonstrate that contrary evidence was presented to Con-

gress (and introduced at trial). But that fact just under-

8

scores that Congress received information from a wide vari-

ety of sources before making its findings. Under Turner I]

and separation-of-powers principles, the correct inquiry is

not whether a reviewing court would reach the same deter-

mination as Congress on the basis of the record that Con-

gress had before it; instead, it is simply whether there was

sufficient evidence to suggest that Congress’s determination

was reasonable. See, e.g., 520 U.S. at 210-211.‘ Because the

evidence before Congress, especially as supplemented by the

trial record, was more than sufficient to support Congress’s

determination concerning the medical necessity for partial-

birth abortion, that determination is entitled to deference.

4. Respondents contend (Br. in Opp. 27-29) that the court

of appeals correctly held that an abortion statute that lacked

a health exception was facially invalid if the regulated proce-

dure was arguably necessary to preserve the health of the

mother only in some instances. That contention lacks merit.

Respondents suggest (Br. in Opp. 28) that a plaintiff

bringing a facia! challenge to an abortion statute that lacks a

health exception need not show that such an exception is

necessary in all cases, see United States v. Salerno, 481 U.S.

739, 745 (1987), or even a “large fraction” of cases, see Casey,

505 U.S. at 895, because this Court’s decision in Casey “did

not apply the ‘large fraction’ test to its evaluation of the

* As respondents note (Br. in Opp. 17), the precise inquiry is whether,

“in formulating its judgments, Congress has drawn reasonable inferences

based on substantial evidence.” Turner J], 520 U.S. at 195 (emphasis

added) (quotation marks omitted). Although respondents contend (Br. in

Opp. 17) that “the Government proposes on appeal a watered down ver-

sion of the Turner test” by “omit[{ting] the critical first part of the test”

(i.e., “whether Congress’s conclusion was ‘reasonable’”), the petition spe-

cifically quoted the foregoing formulation of the Turner I/ inquiry. See

Pet. 11. In any event, respondents do not explain how an inquiry con-

cerning whether Congress’s findings are “reasonable” would differ from

an inquiry concerning whether those findings are supported by “substan-

tial evidence,” and the findings at issue in this case are reasonable by any

measure in light of the record before Congress.

medical emergency exception.” In the portion of Casey on

which respondents rely, however, the Court was considering

only an exception for medical emergencies—-not the broader

health exception that respondents seek. See id. at 879. And

the Court did not address whe‘ier a statutory exception for

medical emergencies was necessary in the first place, but

instead merely held that the definition of a medical emer-

gency in the statutory exception was constitutionally suffi-

cient. See id. at 880. Moreover, Casey did not suggest that a

defect in the medical-emergency exception would result in

facial invalidation, but rather would require only limiting

“the restrictive operation of the provision.” Jbid. Casey

therefore does not support either the proposition that a gen-

eral health exception is automatically required in every abor-

tion statute or the proposition that a general health excep-

tion is required upon a showing that the statute would im-

pose a health risk only in some instances. Nor does it sup-

port the proposition that the absence of a general health ex-

ception requires facial invalidation of a statute in its en-

tirety, regardless of its constitutional applications.

In the alternative, respondents seemingly embrace the

suggestion (Br. in Opp. 28) that Stenberg adopted a more

permissive standard for facial challenges than either the “no

set of circumstances” standard from Salerno or the “large

fraction” standard from Casey. Although the Court did note

in Stenberg that partial-birth abortion was itself a relatively

rare procedure, the Court did not further hold that the stat-

ute required a health exception because partial-birth abor-

tion was medically necessary only in a small percentage of

instances in which the statute applied. See 530 U.S. at 934.

Respondents’ reading of Stenberg would not only belie the

Court’s assertion that the requirement of a health exception

constituted “simply a straightforward application of [Ca-

sey’s} holding,” 530 U.S. at 938, but would (contrary to re-

spondents’ unelaborated assertion, Br. in Opp. 29) entirely

subvert the Salerno standard by allowing a plaintiff to ob-

10

tain facial invalidation of a statute simply by showing that

the statute had a few unconstitutional applications. That

reading of Stenberg would be difficult to reconcile with a host

of the Court’s other decisions, see Ohio v. Akron Ctr. for Re-

prod. Health, 497 U.S. 502 (1990) (Akron ID; Simopoulos v.

Virginia, 462 U.S. 506 (1983); H.L. v. Matheson, 450 U.S. 398

(1981); Connecticut v. Menillo, 423 U.S. 9 (1975), which ei-

ther reject overbreadth analysis in the abortion context

(H.L., 450 U.S. at 405-407), apply a Salerno-type test to fa-

cial challenges to abortion statutes (Akron II, 497 U.S. at

514), or permit as-applied challenges to abortion statutes

that were susceptible to unconstitutional applications (Si-

mopoulos, 462 U.S. at 510; Menillo, 423 U.S. at 11). Even if

respondents have the correct view of Stenberg, this Court

should grant certiorari to clarify the status of those prece-

dents. Apart from refusing to defer to Congress’s findings,

therefore, the court of appeals also erred by holding that the

statute was facially invalid because its lack of a health excep-

tion could be problematic in some applications.”

* * + *

For the foregoing reasons and those stated in the petition,

the petition for a writ of certiorari should be granted.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

DECEMBER 2005

5 As explained in the petition (Pet. 22-24), the Court’s decision in

Ayotte v. Planned Parenthood of Northern New England, No, 04-1144

(argued Nov. 30, 2005), could shed light on certain aspects of the question

presented in this case. The Court, however, should grant certiorari out-

right in this case and proceed with its disposition. The court of appeals

invalidated a landmark Act of Congress and enjoined all of its pre-viability

applications. Granting certiorari now would expedite the ultimate resolu-

tion of the Act’s constitutionality and would enable the Court more fully to

consider the ramifications of its decision in Ayotte on the appropriate

standard for facial challenges to abortion statutes and on the necessity for

a health exception.