Amicus Curiae Brief — Gonzales v. Carhart

(Bd FLED |

MAY 22 2006

OFFICE OF THE CLERK

SUPREME COU

No. 05-380 AT, U-S.

| a IN THE

Supreme Court of the Anited States

ALBERTO R. GONZALES,

Petitioner,

V.

LEROY CARHART, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF AMICUS CURIAE

OF JUDICIAL WATCH, INC.

IN SUPPORT OF PETITIONER

Meredith L. Di Liberto *

JUDICIAL WATCH, INC.

501 School Street, S.W., Suite 500

Washington, DC 20024

(202) 646-5172

Counsel for Amicus Curiae

*Denotes Counsel of Record

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE .............. |

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

RAE EE POM PL CE a he ene ar Py eee 3

| The Partial Birth Abortion Ban Act

of 2003 Is Constitutional Because

Congress Drafted It Within the

Confines of This Court's “Liberty

Interest” Jurisprudence ................ 3

A. The Jurisprudence of Liberty

SONNE. si var ea Chis nae bee wee eee 3

B. The Government May Restrict

BO RP er renee 6

c. The Partial Birth Abortion

Ban Act of 2003 Is a Legitimate

Restriction and Proper

Balancing of Liberty Interests ....9

I. The Holding in Stenberg v. Carhart \s

Contrary to This Court’s “Liberty Interest”

Jurisprudence and Should Be Overruled ....... 11

LRAT: 695.8 sons Repl ab es Like e chatpa Soe 12

TABLE OF CITATIONS

Cases Page

Carhart v. Ashcroft, 331 F. Supp. 2d 508

A EE Ve dean tan y kei eeéeks men 9

Carhart v. Gonzalez, 413 F.3d 791 (3 Cir. 2005) ...... 2

Casey v. Planned Parenthood, 505 U.S. 833

WUE i cee cas panes toeshe tint human 6-7, 11

Cruzan v. Misssouri, 497 U.S. 261 (1990) ....... 5,8, 11

Eisenstadt v. Baird, 405 U.S. 438 (1972) ............. 5

Griswold v. Connecticut, 381 U.S. 479 (1965) ...... 4,12

Lawrence v. Garner, 539 U.S. 558 (2003) .......... 5,8

Linkletter v. Walker, 381 U.S. 618 (1965) .... 2.2.0.2... 12

Meyer v. Nebraska, 262 U.S. 390 (1923).............. 4

Palko v. Connecticut, 302 U.S. 319 (1937) ............ 5

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

Stenberg v. Carhart, 530 U.S. 914

3 FSP TS pet ea eee ay eae passim

iil

Statutes and Rules

18 U.S.C. § 1531

SS RNase TPES ee ae passim

SNS COME TG FT IED io vo dice ects iccecne es I

ge gE Serr ees Tees rer ye |

Miscellaneous

Haskell, Martin, M.D., Second Trimester D&X,

20 Wks and Bevond, (September 1992 seminar) ........ 9

BRIEF OF AMICUS CURIAE IN SUPPORT OF

PETITIONERS

Judicial Watch, Inc. (“Judicial Watch”) respectfully

submits this brief amicus curiae in support of Petitioner

Attorney General Alberto R. Gonzalez. Pursuant to

Supreme Court Rule 37.3(a), counsel for the parties have

consented to the filing of this amicus brief.’ Letters of

consent to the filing of this brief have been filed with the

Clerk of the Court.

INTEREST OF THE AMICUS CURIAE

Judicial Watch 1s a public interest organization

headquartered in Washington, D.C. Founded in 1994,

Judicial Watch seeks to promote accountability,

transparency and integrity in the law, as well as ethics and

morality in public life. Since its inception more than ten

years ago, Judicial Watch has filed hundreds of lawsuits in

state and federal courts across the nation in pursuit of these

goals. Judicial Watch is participating as amicus in this case

for two primary reasons. First, the laws of this nation rely

on the proper functioning of the courts, including a proper

balance of powers and the judiciary’s ability to demonstrate

restraint. Judicial Watch believes this case is an important

opportunity for the Court to clanfy its liberty interest

jurisprudence. Second, as a frequent public interest litigant,

Judicial Watch relies on consistent application of

Pursuant to Rule 37.6, Judicial Watch states that no counsel for

any party authored this bricf in whole or in part, and no person or entity

other than the amicus curiae made a monetary contribution to the

preparation or submission of this brief,

2

constitutional law and precedent in its legal advocacy. The

opinion of the U.S. Court of Appeals for the Eighth Circuit

(“Eighth Circuit”) in Carhart v. Gonzalez, 413 F.3d 791

(3 Cir. 2005) demonstrates the effect of inconsistently

applied concepts of law and precedent; in particular, this

Court's opinion in Stenberg v. Carhart, 530 U.S. 914

(2000), which represents a departure from precedent and

should be overruled.

SUMMARY OF THE ARGUMENT

Abortion is the most contentious domestic issue

today. Indeed, it has been the most contentious domestic

social issue for more than thirty years. Roe vy. Wade did not

provide the final word on abortion, rather it served as the

starting point for years of legal debate.

The subject matter before this Court 1s partial birth

abortion and whether the Partial Birth Abortion Ban Act of

2003 (“Act”) is unconstitutional. See 18 U.S.C. § 1531.

The U.S. Court of Appeals for the Eighth Circuit (“Eighth

Circuit”) found the Act unconstitutional based in large part

on this Court’s holding in Stenberg v. Carhart. The Eighth

Circuit’s opinion should be reversed and the injunction

lifted.

The Partial Birth Abortion Ban Act ts constitutional

because Congress drafted the Act within this Court's liberty

interest jurisprudence. The Act represents a legitimate

restriction of the qualified right to abortion because it takes

into consideration the liberty interests of both the woman

and the partially bom baby and properly balances them.

3

Stenberg represents a divergence of this Court's liberty

interest jurisprudence, and it should be overruled.

ARGUMENT

I. The Partial Birth Abortion Ban Act of 2003 Is

Constitutional Because Congress Drafted It

Within the Confines of This Court’s “Liberty

Interest” Jurisprudence.

The Partial Birth Abortion Ban Act (“Act”) was not

passed in a bubble. In fact, Congress considered and

passed partial birth abortion bans on several prior

occasions. During each congressional session, extensive

testimony and medical evidence was presented. It was also

apparent from the hearing transcripts that Congress took

great care to consider the law and legal implications of the

ban. What Congress passed in 2003 was a narrowly

tailored law reflective of this Court's liberty interest

jurisprudence.

A. The Jurisprudence of Liberty Interests.

“[B]ut as for me, give me liberty, or give me death!”

The impassioned cry of Patrick Henry in 1775 became a

call to arms, a call to join the fight against the tyranny and

control of the English. It was against this bloody and hard-

fought background that the Founding Fathers boldly

proclaimed the unalienable rights of “Life, Liberty, and the

pursuit of Happiness” in the Declaration of Independence.

For the next two hundred and thirty years, the meaning of

those words, and “liberty” in particular. would be debated.

argued over, interpreted and reinterpreted by this Court.

This Court has not coneptted an exhaustive list of

liberty interests, but it has spoken frequently on the subject

and set out certain types of conduct and actions that have

been deemed to be liberty interests. The Court held that:

[ W |hile this Court has not attempted to

define with exactness the liberty thus

guaranteed, the term has received much

consideration and some of the included

things have been definitely stated. Without

doubt, it denotes not merely freedom from

bodily restraint but also the right of the

individual to contract, to engage in any of

the common occupations of life, to acquire

useful knowledge, to marry, establish a

home and bring up children, to worship God

according to the dictates of his own

conscience, and generally to enjoy those

privileges long recognized at common law

as essential to the orderly pursuit of

happiness by free men.

Mever v. Nebraska, 262 U.S. 390, 399 (1923).

In his concurring opinion in Griswold v.

Connecticut, 381 U.S. 479, 486 (1965), Justice Goldberg

wrote that “the concept of liberty protects those personal

rights that are fundamental, and is not confined to the

specific terms of the Bill of Rights.” Building on this idea

of liberty interests, the Court later equated liberty interests

with a “nght to personal pnvacy, or a guarantee of certain

areas or zones of privacy.” See Roe v. Wade, 410 U.S. 113,

5

151 (1973). These personal rights were those

“*fundamental’ or ‘implicit’ in the concept of ordered

liberty.” /d. (quoting Palko v. Connecticut, 302 U.S. 319,

325 (1937)).

Continuing to build on this liberty interest theory.

the Court held that the “rational continuum” and “full scope

of liberty” included:

{T]he right of the individual, married or

single, to be free from unwarranted

govemmental intrusion into matters so

fundamentally affecting a person as the

decision whether to bear or beget a child.

Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). The

following year the Court added to the list of liberty interests

the limited “right of a woman to decide whether or not to

terminate her pregnancy.” Roe, 410 U.S. at 170. And so,

Roe gave birth to the qualified liberty interest called

abortion.

Since 1973, the Court has confirmed the liberty

interest of abortion and extended the concept of liberty

interest to include such actions as: the liberty interest of

refusing medical treatment, Cruzan v. Misssouri, 497 U.S.

261, 278-79 (1990); and the liberty interest of engaging in

homosexual sexual conduct, Lawrence v. Garner, 539 U.S.

558. 567 (2003). In each of these cases, the Court based its

decision on the particular act or conduct being one

encompassing “the most intimate and personal choices a

person may make in a lifetime, choices central to personal

dignity and autonomy, are central to the liberty protected by

6

the Fourteenth Amendment.” Casey v. Planned

Parenthood, 505 U.S. 833, 851 (1992). The Court further

held in Casey that “at the heart of liberty is the right to

define one’s own concept of existence, of meaning, of the

universe, and of the mystery of human life.” /d.

In the Court's most recent abortion case, the

majority opinion held that the Nebraska Partial-Birth

Abortion Ban would be considered “in light of the

Constitution’s guarantees of fundamental individual

liberty” which “offers basic protection to the woman’s right

to choose.” Stenberg v. Carhart, 530 U.S. 914, 921 (2000).

The Court opted not to “revisit those legal principles,” but

instead to apply them to Nebraska’s Partial-Birth Abortion

Ban. However, there is no further mention of liberty or

liberty interests in the Court’s majority opinion, nor were

those principles of liberty applied.

B. The Government May Restrict Liberty Interests.

Even while expanding the list of liberty interests,

the Court has always been careful to note that even the

most fundamental of liberty interest may be restricted in

certain circumstances. In abortion cases, the Court has

recognized a state's interest in protecting women from

inherently hazardous procedures, maintaining safety

precautions for all medical procedures and the “important

and legitimate interest in potential life.” Roe, 410 U.S. at

150. Later in Roe, the Court held:

At some point in pregnancy, these respective

interests become sufficiently compelling to

7

sustain regulation of the factors that govern

the abortion decision.

* * * +

We, therefore, conclude that the nght to

personal privacy includes the abortion

decision, but that this right is not unqualified

and must be considered against important

interests in regulation.

Id. at 154.

The competing and compelling interests of the State

were further clarified and strengthened in Casey v. Planned

Parenthood. \n upholding most of the state restrictions

contained in the Pennsylvania Abortion Control Act, the

Court held:

[This] is a confirmation of the State’s power

to restrict abortions after fetal viability, if the

law contains exceptions for pregnancies

which endanger the woman’s life or health.

And [confirming] the principle that the State

has legitimate interests from the outset of the

pregnancy in protecting the health of the

woman and the life of the fetus that may

become a child.

Casey, 505 U.S. at 846. The Court found that the

requirements of informed consent, a 24-hour waiting

period, and parental consent were legitimate governmental

restrictions.

8

Governmental restriction of liberty interests is also

legitimate when the liberty interests of individuals or

groups of individuals clash. If liberty can be defined as

broadly as an individual's “autonomy of self that includes

freedom of thought, belief, expression, and certain intimate

conduct,” it is inevitable that liberty interests will clash.

Lawrence, 539 U.S. at 562. The law weighs or balances the

liberty interests involved and attempts to resolve the

conflict in a way that best respects the liberty interests of

both parties.

One of the factors considered in this weighing of

liberty interests is whether one person’s liberty interest

causes harm to another person’s liberty interest. For

example, in Lawrence v. Texas, 539 U.S. 558, 567 (2003),

the Court found a liberty interest in a person’s freedom to

choose his or her sexuality, and the actions associated with

that choice. This liberty interest does not, however, include

the freedom to engage in forcible sexual conduct or sexual

conduct with minors. Clearly, an individuals’ liberty

interest in bodily integrity and the protection of minors

outweighs any one person’s liberty interest in engaging in

whatever sexual behavior he or she prefers. No one person,

or group of people’s liberty interests, can ride roughshod

over another person or group of people. In a dissenting

opinion in Cruzan, Justice Stevens noted that “our

Constitution presupposes a respect for the personhood of

every individual, and nowhere is strict adherence to that

principle more essential than in the judicial branch.”

Cruzan, 497 U.S. at 356 (Stevens, J., dissenting).

9

Cc. The Partial Birth Abortion Ban Act of

2003 Is a Legitimate Restriction and

Proper Balancing of Liberty Interests.

In accordance with the above-mentioned principles,

the Act is a legitimate governmental restriction and a

proper balancing of liberty interests. Generally speaking,

partial birth abortion is performed from 22 to 26 weeks of

gestation. Several of the doctors testifying in the

congressional hearings on the matter testified that they use

partial birth abortion through the 32" week and beyond.

Carhart v. Ashcrojt, 331 F. Supp. 2d 508, 827 (D. Neb.

2004) (testimony of Dr. Martin Haskell, House hearings),

see also “Second Trimester D&X, 20 Wks and Beyond”,

Martin Haskell, M.D., September 1992 seminar).’ It is also

generally understood that while there is no determinative

moment of viability common to all fetuses, viability is

understood to exist by 23 to 24 weeks of gestation.

Carhart, 331 F. Supp. 2d at 915-16 (testimony from

doctors during House hearings). Logically, this means that

many, if not most, partial birth abortions are being

performed on viable fetuses. The Court held, and later

reaffirmed, that the State’s compelling interest in “potential

life” is strongest post-viability; the Act itself focuses

mainly on post-viable fetuses. It is clear that Congress was

operating well within this Court's precedent.’

Dr. Haskell’s presentation is available at:

hitp:/)/www_enric.org/abortion/pba/Haskellinstructional pdf.

Based, in pari, on the medical opinion of the American Medical

Association and the American College of Obstetricians and Gynecologists,

Congress concluded that partial-birth abortion was never medically

10

The Act also properly balances the liberty interests

at issue during a partial birth abortion. As articulated

above, the Court’s liberty interest jurisprudence has

declared a qualified right to an abortion to be protected by

due process under the Fourteenth Amendment. The

woman’s liberty interests include the freedom to engage in

sexual conduct, the freedom to use contraception, and the

qualified freedom to decide whether to terminate her

pregnancy. The woman’s liberty interest must, however,

have some reasonable boundaries in a moral and iawful

society. For example, should the woman choose to abort

her fetus, but due to premature labor she delivers a health

and living baby instead, the woman's liberty interest does

not extend to her right to have the baby killed. In fact, in

2002 Congress passed the Born-Alive Infants Protection

Act to make this point crystal clear. The woman's qualified

liberty interest is limited to choosing whether or not to

terminate her pregnancy and not a right to a dead baby.

Partial birth abortion brings a second set of liberty

interests into play that the other methods of abortion do not:

the liberty interests of the partially born baby. This is no

longer a fetus encapsulated within its mother. This is a

baby which, in the words of the American Medical

Association (“AMA”), has “an autonomy which separates it

from the right of the woman to choose treatments for her

own body.” Stenberg, 530 U.S. at 965 (quoting AMA

Board of Trustees Factsheet on HR 1222 (June 1997)). Roe

necessary, and, therefore. 1t was impossible tor the Act to create an undue

burden. Judicial Watch will leave the subject of undue burden for other

amici to discuss.

and Casey, therefore, simply are not relevant here. This is

an independent, autonomous person who, in the words of

Justice Stevens, should be accorded the respect

presupposed by the Constitution. Cruzan, 497 U.S. at 355,

dissenting. That respect includes all of the protections and

liberty interests accorded to every person.

As such, partial birth abortion should be viewed as a

balancing of the liberty interests accorded the woman, and

the liberty interests of the partially born baby. A woman’s

qualified liberty interest of abortion cannot be greater than

the baby’s liberty interest in life, even a partially bom baby.

I. The Holding In Stenberg v. Carhart ts Contrary

to This Court’s “Liberty Interest” Jurisprudence

and Should Be Overruled.

“Liberty finds no refuge in a jurisprudence of

doubt.” Casey, 505 U.S. at 844. Yet doubt is precisely

what the Court infused into its liberty interest jurisprudence

in Stenberg v. Carhart. \nstead of relying on its liberty

interest jurisprudence or its undue burden theory, the

majority held that the ban was unconstitutional because

Nebraska failed to convince it that “a health exception ts

‘never necessary to preserve the health of women.””

Stenberg, 530 U.S. at 937-38. Gone is any reference to

liberty interests, or personal privacy interests, or undue

burden. Now a legislature must demonstrate “subStantial

medical authority” that proves under no set of

circumstances 1s partial birth abortion ever necessary for

the health of the woman. Stenberg, 530 U.S. at 853.

12

Stenberg represents a divergence from this Court’s

liberty interest jurisprudence and the Court should take this

opportunity to overrule Stenberg. It is difficult not to recall

Justice Black’s timely concem for the judiciary and its

ability to restrain itself:

A collection of the catchwords and catch

phrases invoked by judges who would strike

down under the Fourteenth Amendment

laws which offend their notions of natural

justice would fill many pages. Perhaps the

clearest, frankest and briefest explanation of

how this due process approach works is ... to

invoke the Due Process Clause to strike

down state procedures or laws which it can

‘not tolerate.’

Griswold, 381 U.S. at 513 (Black, J., dissenting) (quoting

Linkletter v. Walker, 381 U.S. 618, 631 (1965)).

The result of Stenberg is before this Court: the

Eighth Circuit was handcuffed by Stenberg and its

erroneous holding. Stenberg fails to apply the Court's

liberty interest jurisprudence and must be overruled.

CONCLUSION

For the foregoing reasons, Judicial Watch

respectfully urges the Court to reverse the Eighth Circuit's

injunction against the enforcement of the Partial-Birth

Abortion Act and overrule Stenberg v. Carhart, 520 U.S.

914 (2000).

13

Respectfully submi. ed,

Meredith L. Di Liberto *

JUDICIAL WATCH, INC.

501 School Street, S.W.

Suite 500

May 22, 2006 Washington, DC 20024

(202) 646-5172

Counsel for Amicus Curiae

*Denotes Counsel of Record