Amicus Curiae Brief — Gonzales v. PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.

aN FILED

a, AUG 3 - 2006

No. 05-1382 OFFICE OF THE CLERK

In The

Supreme Court of the United States

ALBERTO R. GONZALES, ATTORNEY GENERAL,

Petitioner,

Vv.

PLANNED PARENTHOOD FEDERATION

OF AMERICA, INC., ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF CHRISTIAN LEGAL SOCIETY,

NATIONAL ASSOCIATION OF EVANGELICALS, PRO-LIFE

LEGAL DEFENSE FUND, ALLIANCE DEFENSE FUND AND

CONCERNED WOMEN FOR AMERICA IN SUPPORT OF

PETITIONER

Gregory S. Baylor Richard W. Garnett

Steven H. Aden (Counsel of Record)

CENTER FOR LAW & NOTRE DAME LAW SCHOOL

RELIGIOUS FREEDOM =~ Notre Dame, IN 46556

8001 Braddock Rd. Tel.: (574) 631-6981

Suite 300

Springfield, VA 22151 Michael Stokes Paulsen

Tel.: (703) 642-1070 — UNIVERSITY OF

MINNESOTA LAW SCHOOL

229 19th Ave. S.

Minneapolis, MN 55455

Tel.: (612) 625-0018

Counsel for Amici Curiae

August 3, 2006

TABLE OF CONTENTS

SST AER ene eet RAI SOHO ES il

STATEMENTS OF INTEREST OF AMICT CURIAE .......0s0esesssseeeseeeee l

ee I I oa cccisetscscicisincesecetiicicastsnneniiiatvastiitamesi ]

SERS RR a EE ee TE TI RI 8

I. PRINCIPLES OF STARE DECISIS DO NOT REQUIRE

CONTINUED ADHERENCE TO STENBERG V.

RESEND Sooner 8

A. Stare Decisis is a Doctrine of Judicial

Policy, not a Constitutional Requirement

of Strict and Unyielding Adherence to

PURO PRIN as cccccssescccsocsinincsnrsnts 9

B. The Principles of Stare Decisis

Permitting Reconsideration of Prior

Decisions Support the Reconsideration

and Overruling of Stenberg..............00+++ 13

C. President Lincoln’s Statements

Concerning the Weight of Judicial

Precedents Provide a Useful Benchmark

for Deciding When it is Appropriate to

Overrule Prior Decisions........................ 15

Il. THE CONSTITUTION DoES NOT REQUIRE

ABORTION REGULATIONS TO INCLUDE SWEEPING

AND SELF-DEFEATING “HEALTH” EXCEPTIONS .. 22

SAI PER eS oe ew ei Se RNS eR 28

TABLE OF AUTHORITIES

CASES

Adarand Constructors, Inc. v. Pena,

Fe Ss Se ciccenercnsninnianscceniniinsasesin 10, 11, 13, 14

Agostini v. Felton, 521 U.S. 203 (1997) .......ccccescseseee 3, 10, 12

Atkins v. Virginia, 536 U.S. 304 (2002)........cccccceeeceeeee. 3,14

Booth v. Maryland, 482 U.S. 496 (1987).......c.cccccssseeesees 13, 19

Brown v. Board of Education, 347 U.S. 483 (1954)....... 18, 20

Carhart v. Gonzales, 413 F.3d 791 (2005) cert. granted sub

nom. Gonzales v. Carhart, 126 S.Ct. 1314 (2006)

iesinpieeicadeeeecialaiiis as tnaa ings tnettitiisianinisiaciieai 2,5, 22

City of Akron v. Akron Center for Reproductive Health, Inc.,

a ne TI sccsiiuiatichidehicieetpiianinanandasiiieat 4,12, 27

Cooper v. Aaron, 358 U.S. 1 (1958) ......ccccecessecsceseeseseesceees 17

Dickerson v. United States, 530 U.S. 428 (2000) ...............- 14

Doe v. Bolton, 410 U.S. 179 (1973)......ccccccceeseseeseeeees. 6, 25, 26

Glidden Co. v. Zdanok, 370 U.S. 530 (1962)......c.cccceceeeseeee. 12

Helvering v. Hallock, 309 U.S. 106 (1940)............c:se00e00- 3,10

Lawrence v. Texas, 539 U.S. 558 (2003) .....cccccsccsscseesesceseeees 3

Patterson v. McLean Credit Union, 491 U.S. 164 (1989) ...10

Payne v. Tennessee, 501 U.S. 808 (1991) seniebiidendehiaaanentil passim

li

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989)... 19

Penry v. Lynaugh, 492 U.S. 302 (1989) ..u.ccccccscssesesseceseeeeee 14

Planned Parenthood v. Casey, 505 U.S. 833 (1992) ... passim

Planned Parenthood v. Gonzales, 435 F.3d 1163

EE TRE SET RTs SO Tee 4

Plessy v. Ferguson, 163 U.S. 537 (1896) .......ccccccecssseee. 18, 20

Richmond Medical Center for Women v. Hicks,

LL | eae 5

Roe v. Wade, 410 U.S. 113 (1973) vocccccccccscscesceeees 1, 3, 25, 26

Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) .....cceceee0- 15

Seminole Tribe of Florida v. Florida,

og | SENSE ee 10,11, 12

Smith v. Allwright, 320 U.S. 649 (1944) o.o.cccccccccsseseseeeeeee. 12

South Carolina v. Gathers, 490 U.S. 805 (1989)... 13

St. Joseph Stock Yards Co. v. United States,

See | RRA 2 12

Stenberg v. Carhart, 530 U.S. 914 (2000) ....ccccccceseseeee passim

Thornburgh v, American College of Obstetricians &

Gynecologists, 476 U.S. 747 (1986).......ccccccccececseeeees 4,12

United States v. Int'l Boxing Club of N.Y., Inc.,

RE Re AE es PORTS RE 10

Washington v. Glucksberg, 521 U.S. 702 sen 2

ll

CONSTITUTIONAL AND STATUTORY PROVISIONS

Pub L. No. 108-105, 117 Stat. 120} ..c.ccccccccceccesecececeees 2, 6, 24

OTHER AUTHORITIES

Meet the Press, NBC television broadcast, 2 Mar 1997......... ]

ABRAHAM LINCOLN: SPEECHES AND WRITINGS, 1832-58:

SPEECHES, LETTERS, AND MISCELLANEOUS WRITINGS,

THE LINCOLN-DOUGLAS DeBateEs (Library of America

Wig Ce ixerrainicsenisinniteintiieinpendeelicnst an passim

ABRAHAM LINCOLN: SPEECHES AND WRITINGS, 1859-65:

SPEECHES, LETTERS, MISCELLANEOUS WRITINGS,

PRESIDENTIAL MESSAGES AND PROCLAMATIONS

(Library of America ed., 1989) oo. occeccccscsccesececesesseeceee 17

iv

STATEMENTS OF INTEREST OF AMICI CURIAE'

The Statements of Interest of Amici Curiae Christian

Legal Society, National Association of Evangelicals, Pro-

Life Legal Defense Fund, Alliance Defense Fund and

Concerned Women for America are set out in Appendix A

hereto. All are nonprofit membership or advocacy

_ organizations that have taken public positions against partial-

birth abortion and have sought to end its practice by means

of legislative action, education and legal advocacy.

SUMMARY OF ARGUMENT

For as long as the American public has known about

partial-birth abortion, we have—by comfortable and

consistent margins—agreed with former Senator Daniel

Patrick Moynihan that this gruesome practice is “infanticide,

and one would be too many.” Meet the Press (NBC

~ television broadcast, Mar. 2, 1997). Whether we oppose

elective abortions as a matter of moral principle or regard a

woman’s legal access to abortion as a component of ordered

liberty; whether we regret this Court’s decisions in Roe v.

Wade, 410 U.S. 113 (1973), and Planned Parenthood v.

Casey, 505 U.S. 833 (1992), as occasions of dramatic and

damaging judiciai overreaching or as vindications of privacy

and autonomy; and whatever our views might be on a wide

range of economic, social, and political questions, we have

repeatedly and overwhelmingly concluded, in jurisdiction

after jurisdiction, that partial-birth abortion is a barbarism

that may and should be prohibited. The Court’s Amici

Amici curiae file this brief by consent of the partics, and copies

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

Counsel for Amici authored this brief in its entirety. No person or

entity, other than the amici curiae, their supporters, or their

counsel, has made a monetary contribution to the preparation or

submission of this brief.

believe this conclusion is entirely consistent with our shared,

abiding commitment to individual freedom under and

through the rule of law, and it is one that our Constitution

permits us to embrace. In our “democratic society,” the

debate over partial-birth abortion continues, and this Court

should not cut it short. Cf Washington v. Glucksberg, 521

U.S. 702, 735 (1997) (“Our holding permits this debate to

continue, as it should in a democratic society.”).

This case presents the question whether the United States

Court of Appeals for the Ninth Circuit erred in concluding

that the Partial-Birth Abortion Ban Act of 2003 (“the Act’),

Pub. L. No. 108-105, 117 Stat. 1201, is unconstitutional.

Amici believe it did. As Petitioner the United States makes

quite clear, the Act defines the prohibited conduct with

sufficient precision, Gonzales v. Carhart, No 05-380,

Petition for a Writ of Certiorari, at 2-3, and is supported by

Congress’s extensive factual findings and conclusion that

“partial-birth abortion is never medically indicated to

preserve the health of the mother,” id at 3 (quoting Sec.

2(14)(O), 117 Stat. at 1206). The decision below is neither

required nor justified by this Court’s previous partial-birth

abortion decision, Stenberg v. Carhart, 530 U.S. 914 (2000),

or by Casey and Roe.

In this brief, Amici respectfully submit that the task

appropriately before the Court is not so much to parse the

opinions in Stenberg or to identify the distinctions between

the Act under review here and the one previously

invalidated. Instead, the central issue that the Court may and

should resolve here is whether Stenberg should be overruled.

Although, as the United States has demonstrated, the Act can

be distinguished meaningfully from the Nebraska law struck

down in Stenberg, we believe that this Court’s time and

constitutional powers would be better spent, and the rule of

law better served, if Stenberg were abandoned as wrongly

decided and inconsistent with Casey's promise that to uphold

a basic nght to abortion was not to disable entirely We the

People from reasonably regulating the exercise of that right,

let alone from outlawing so brutal and brutalizing a practice

as partial-birth abortion.

Accordingly, Amici in this brief address two principal

matters: First, the appropriate weight of stare decisis to be

applied in this case; and second, the majority’s misguided

embrace in Stenberg of an extreme and unreasonable

understanding of the “health”-related reasons thought to

override limits on late-term abortion procedures.

With respect to the first point, we submit that stare

decisis need not, and should not, preclude reconsideration

and rejection of Stenberg. That case is recent; it was decided

by a closely divided Court, over strenuous — and persuasive —

dissents; it has not been reaffirmed repeatedly, nor has it

served as the foundation for a body of law or line of cases; it

is an outlier even in its relatively discrete area; it cannot

reasonably be regarded as having created reliance interests;

and, most important, it was wrongly decided.

Given all these circumstances and considerations, the

Court's stare decisis case-law poses no barrier to revisiting

Stenberg. As this Court has emphasized repeatedly, stare

decisis is not an “inexorable command;” it is instead a

“principle of policy and not a mechanical formula of

adherence to the latest decision.’”” Payne v. Tennessee, 501

U.S. 808, 828 (1991) (quoting Helvering v. Hallock, 309

U.S. 106, 119 (1940)). This Court has on regular occasions,

upon careful reflection, overruled what it regards as wrongly

decided cases and unwarranted divergences from earlier,

settled law. See, e.g. Lawrence v. Texas, 539 U.S. 558

(2003); Atkins v. Virginia, 536 U.S. 304 (2002); Agostini v.

Felton, 521 U.S. 203 (1997). Indeed, even in Planned

Parenthood v. Casey, this Court - while reaffirming what it

characterized as the “central holding” of Roe v. Wade, Casey,

505 U.S. at 853, 855, 858 — overruled two previous decisions

that it came to see as excessive, unjustified extensions of

Roe. 505 U.S. at 882 (overruling in part Thornburgh v.

American College of Obstetricians & Gynecologists, 476

U.S. 747 (1986), and City of Akron v. Akron Center for

Reproductive Health, Inc., 462 U.S. 416 (1983)). This case

presents the Court with a welcome opportunity to reconsider

Stenberg’s similarly unwarranted and extreme extension of

that case.’

Turning to our second point: Stenberg, which was the

basis for the decision below, was wrongly decided. The

Ninth Circuit Court of Appeals invalidated the will of the

People as expressed in the Act because of Stenberg. See

Planned Parenthood v. Gonzales, 435 F.3d 1163, 1175

(2006) (“[W]e are compelled [by Stenberg] to hold that a

health exception is constitutionally required.”). However,

nothing in the text, history, or structure of our Constitution,

nothing in our traditions, none of this Court’s precedents,

and none of our deeply rooted values support the conclusion

that the Constitution disables the American people from

affirming our commitments to democracy, individual

freedom, and the lives of vulnerable unborn — or, in this case,

being-born — children by rejecting partial-birth abortion.

This Court has affirmed repeatedly that governments have

compelling interests in protecting the lives of unbom

children, particularly after they are able to live outside their

mother’s body. See, e.g., Casey, 505 U.S. at 871; Stenberg,

530 U.S. at 961 (Kennedy, J., dissenting); id. at 1006-07

(Thomas, J., dissenting). Further, if any government interest

is especially compelling, it is the interest in preventing a

* Amici believe that Roe was wrongly decided and is best regarded

— in Justice White’s words - as an exercise of “raw judicial

power.” Roe, 410 U.S. at 222 (White, J., dissenting). There is no

need, however, to revisit Roe, or Casey, in order to reject Stenberg

and affirm the constitutional validity of the Act.

procedure that is, in effect, infanticide - the intentional

killing a living human being in the process of being born. Id.

at 960 (Kennedy, J., dissenting) (“[I]t should go without

saying that Nebraska’s ban on partial birth abortion furthers

purposes States are entitled to pursue.”); id. at 953 (Scalia, J.,

dissenting). Nothing in Roe or Casey supports, let alone

compels, the extreme conclusion that the right to abortion is

so unyielding and sweeping as to trump the public’s repeated

efforts to reject partial-birth abortion. In Stenberg, a bare

majority of this Court held that the Nebraska partial-birth

abortion law under review was invalid because, although it

permitted the procedure in cases where it is necessary to save

a mother’s Jife, it did not include a -similar exception for

cases where a partial-birth abortion is necessary to preserve a

mother’s health. Stenberg, 530 U.S. at 930-38. As the court

below stated, “Stenberg holds that an abortion regulation that

fails to contain a health exception is unconstitutional except

when there is a medical consensus that no circumstance

exists in which the »rocedure would be necessary to preserve

a woman’s health. Planned Parenthood, 435 F.3d at 1172.

See also Carhart v. Gonzales, 413 F.3d 791, 792 (8th Cir.

2005), cert. granted, 126 S.Ct. 1314 (2006) (“[T]he Court [in

Stenberg] determined the law was unconstitutional because it

did not contain an exception to preserve the health of the

mother.”). And, the court below concluded, “Stenberg

reaffirms . . . that the Constitution requires that any abortion

regulation must contain such an exception.” Planned

Parenthood, 435 F.3d at 1172 (emphasis added); see also

Carhart, 413 F.3d at 796; Richmond Medical Center for

Women v. Hicks, 409 F.3d 619, 625 (4th Cir. 2005).

The majority in Stenberg asserted that where “substantial

medical authority supports the proposition that banning a

particular abortion procedure could endanger women’s

health,” the statute must include a health exception.

Stenberg, 530 U.S. at 938. Imposing an impossible

evidentiary burden upon the States, the majority concluded

that Nebraska “fail[ed] to demonstrate that banning [partial-

birth abortion] without a health exception may not create

significant health risks for women.” Jd. at 932. In fact,

however, as Congress found, “partial-birth abortion is never

medically indicated to preserve the health of the mother,”

Sec. 2(14)(O), 117 Stat. at 1206, and “[t]here is no credible

medical evidence that partial-birth abortions are safe or are

safer than other abortion procedures.” Sec. 2(14)(B), 117

Stat. at 1204. In the face of Congress’s careful investigation

of the matter, and its repeated and well considered

conclusion that partial-birth abortions — i.e., these particular

methods of abortion — are never medically necessary to

protect a mother’s health, it was in Stenberg, and would be in

this case, a dramatic and unjustifiable act of judicial hubris

and overreaching to invalidate the public’s conclusion that

partial-birth abortion may and should be prohibited.

In addition to questions relating to the deference due to

Congress’s judgments about medical necessity, or to the

merits of the view that every regulation of abortion — i.e., not

only prohibitions, but also what might be thought of as time,

place, or manner regulations — requires a “health” exception,

there is in this case a more fundamental question about the

constitutionalization of a practically limitless definition of

“health.” The understanding at work in Stenberg, and thus in

the opinion of the court below, is so sweeping as to include

any reason a woman might have for wishing to end the life

of her unborn, or partially-born, viable child. On that

understanding, derived from Doe v. Bolton, 410 U.S. 179

(1973), it is apparently not even enough for legislatures to

carve out of abortion regulations exceptions relating to

serious dangers to a women’s physical health. Instead, they

must effectively gut the regulations, yielding to a “health”

exception that accounts for “all factors — physical, emotional,

psychological, familial, and the woman’s age — relevant to

the well-being of the patient.” Jd. at 192.

This Court should take the opportunity presented in this

case to correct Stenberg’s mistaken view that, in any case

where there is any disagreement about the need for a health-

related exception from any abortion-related regulation, the

absence of such an exception is fatal to the regulation. It

should also re-examine and refine the definition of “health”

that was constitutionalized in Bolton and other cases, and

should make clear that, given the compelling public interest

in protecting viable unborn human life, any health-exception

requirement need not and should nat function as a loophole

permitting elective abortion up to and including the moment

before birth.

This Couri’s decision in Casey reaffirmed the “central

holding” of Roe, but it did not purport to so cripple the

democratic process, or so entirely subordinate the considered

judgments of the American people, as to make it impossible

to find common ground and compromise in our national

debates over abortion. The majority’s decision in Stenberg

can only be seen as a repudiation of the balancing,

deliberation, and compromise by the respective assemblies

of the States and the United States that Casey invited. As

Justice Kennedy wrote in Stenberg:

The political processes of the State are not to be

foreclosed from enacting laws to promote the life of

the unborn and to ensure respect for all human life

and its potential... . The State’s constitutional

authority is a vital means for citizens to address these

grave and serious issues, as they must if we are to

progress in knowledge and understanding and in the

attainment of some degree of consensus.

The Court’s decision today, in my submission,

repudiates this understandingf.]

Stenberg, 530 U.S. at 957 (Kennedy, J., dissenting). This

repudiation of the proper political processes of the States and

the United States can, and should, be undone.

ARGUMENT

I. PRINCIPLES OF STARE DECISIS DO NOT REQUIRE

CONTINUED ADHERENCE TO STENBERG V. CARHART.

In Stenberg v. Carhart, a narrow majority of this Court

found in its abortion precedents a constitutional right to

partial-birth abortion, one that effectively immunizes this

controversial practice from democratically enacted and

broadly supported regulations. A partial-birth abortion —

also known as “dilation and extraction” (D & X) or “intact

dilation and evacuation” (intact D & E) — is a late gestation

abortion procedure whereby a physician partially delivers the

intact, living unborn child up to the head (in the case of a

breech presentation) or up to the waist (in the case of a head-

first presentation) and then, just before the moment of birth,

kills the nearly born child by puncturing his or her skull and

vacuuming out the brain. As the dissent in Stenberg noted,

one witness to the procedure described it this way:

The baby’s little fingers were clasping and

unclasping, and his little feet were kicking. Then the

doctor stuck the scissors in the back of his head, and

the baby's arms jerked out, like a startle reaction, like

a flinch, like a baby does when he thinks he is going

to fall. The doctor opened up the scissors, stuck a

high-powered suction tube into the opening, and

sucked the baby's brains out. Now the baby went

completely limp.

Stenberg, 5°0 U.S. at 1007 (Thomas, J., dissenting); see also

id. at 959-60 (Kennedy, J., dissenting) (“With only the head

of the fetus remaining in utero, the abortionist tears open the

skuli. According to Dr. Martin Haskell, a leading proponent

of the procedure, the appropriate instrument to be used at this

stage of the abortion is a pair of scissors. ... Brain death

does not occur until after the skull invasion, and, according

to Dr. Carhart, the heart of the fetus may continue to beat for

minutes after the contents of the skull are vacuumed out.”).

As Justice Scalia noted in that case, “[this] method of killing

a human child — one cannot even accurately say an entirely

unborn human child — proscribed by [the Nebraska law] is so

horrible that the most clinical description of it evokes a

shudder of revulsion.” Jd. at 953 (Scalia, J., dissenting).

Nevertheless, the majority in Stenberg struck down the

Nebraska law — and, in so doing, nullified dozens of similar

laws enacted by the States - as impermissibly vague,

because it assertedly applied more broadly than just to

partial-birth abortions, id. at 939-40, and because it failed to

include a “health” exception, id. at 938.

As we discuss in more detail below, Amici are confident

that Stenberg is neither required nor justified by the

Constitution, and was an unwarranted and improper

expansion of, and departure from this Court’s decision in

Planned Parenthood v. Casey. In brief, Stenberg was a

mistake that this Court may and should correct.’ That is, if a

majority of the Justices of this Court, after careful re-

consideration of the arguments presented and endorsed in

Stenberg, is persuaded that the case was wrongly decided,

then stare decisis considerations do not preclude this Court

from overruling it. Such a course would both respect and

vindicate the rule of law.

A. Stare Decisis is a Doctrine of Judicial Policy, not

> Again, we do not reject the possibility that there are differences

between the Act and the law invalidated in Stenberg, and do not

deny that the Aci may be upheld by distinguishing and limiting,

rather than overruling, Stenberg. Nevertheless, it is our view that

Stenberg should be overruled and that stare decisis considerations

pose no obstacle to overruling it.

a Constitutional Requirement of Strict and

Unyielding Adherence to Mistaken Precedents.

This Court has consistently made clear that the doctrine

of stare decisis is not an “inexorable command” of

unquestioning adherence to the most recently decided case.

It is not, as Justice Frankfurter once put it, the

“imprisonment of reason.” United States v. Int’l Boxing

Club of N.Y., Inc., 348 U.S. 236, 249 (1955) (Frankfurter, J.,

dissenting). Rather, it is a principle of sound judicial policy.

Planned Parenthood v. Casey, 505 U.S. 833, 854-55 (1992)

(collecting and quoting cases); Agostini v. Felton, 521 U.S.

203, 235 (1997) (stare decisis is “a policy judgment” rather

than an inflexible requirement); Seminole Tribe of Florida v.

Florida, 517 U.S. 44, 63 (1996) (quoting Helvering vy.

Hallock, 309 U.S. 106, 119 (1940) and Payne v. Tennessee,

501 U.S. 808, 828 (1991)) (“[W]e always have treated stare

decisis as a ‘principle of policy’ . . . and not as an

‘inexorable command””); Payne, 501 U.S. at 827-30 & n.1

(collecting cases); Patterson v. McLean Credit Union, 491

U.S. 164, 171-75 (1989); id. at 172 (stare decisis is a “basic

self-governing principle within the Judicial Branch” but the

Court has “overruled prior decisions where the necessity and

propriety of doing so has been established”); Helvering, 309

U.S. at 119 (“stare decisis is a principle of policy and not a.

mechanical formula of adherence to the latest decision”). As

Justice O’Connor noted in Adarand Constructors, Inc. v.

Pena:

Remaining true to an “intrinsically sounder”

doctrine established in prior cases better serves the

values of stare decisis than would following a more

recently decided case inconsistent with the decisions

that came before it; the latter course would simply

compound the recent error and would likely make the

unjustified break from previously — established

doctrine complete.

10

515 U.S. 200, 231 (1995) (Opinion of O’Connor, J., joined

by Kennedy, J.)

In accord with the judicial policy of stare decisis, it is

well to adhere to a course of settled decisions, and not to

depart from or upset it, absent a special justification for

overruling prior precedents that otherwise might be conceded

to have been erroneous. Casey, 505 U.S. at 854 (joint

opinion) (“{W]hen this Court reexamines a prior holding, its

judgment is customarily informed by a series of prudential

and pragmatic considerations designed to test the consistency

of overruling a prior decision with the ideal of the rule of

law, and to gauge the respective costs of reaffirming and

overruling a prior case.”); Payne, 501 U.S. at 828 (noting

that “the Court [had] during the past 20 Terms overruled in

whole or in part 33 of its previous constitutional decisions”);

id. at 842-43 (Souter J., joined by Kennedy, J., concurring)

(“[W]hen this Court has confronted a wrongly decided,

unworkable precedent calling for some further action by the

Court, we have chosen not to compound the original error,

but to overrule the precedent.”). Such “special justification”

exists when precedent is “inconsistent with the decisions that

came before it” because following such precedent “would

simply compound the recent error.” Adarand, 515 U.S. at

231 (Opinion of O’Connor J., joined by Kennedy J.). It

exists also when the precedent “lack[s] constitutional roots,”

id. at 232 (quoting United States v. Dixon, 509 U.S. 688, 704

(1993)), or was an “abrupt and largely unexplained departure

from precedent,” id. at 233 (quoting Continental T.V., Inc. v.

GTE Sylvania, Inc., 433 U.S. 36, 47 (1977)). See also, e.g.,

Seminole Tribe, 517 U.S. at 63 (quoting Payne, 501 US. at

827) (“‘[W]hen governing decisions are unworkable or are

badly reasoned, this Court has never felt constrained to

follow precedent.””).

The policy of stare decisis does and should exercise a

weaker pull on the Court’s decisionmaking in constitutional

11

cases. After all, such decisions may only be reversed by the

Court itself, or through the very difficult method of

constitutional amendment. Agostini, 521 U.S. at 235 (stare

decisis is “at its weakest when we interpret the Constitution

because our interpretation can be altered only by

constitutional amendment or by overruling our prior

decisions”); Seminole Tribe, 517 U.S. at 63 (quoting Payne,

501 U.S. at 828) (“Our willingness to reconsider our earlier

decisions has been ‘particularly true in constitutional cases,

because in such cases correction through legislative action is

practically impossible.””); Glidden Co. v. Zdanok, 370 U.S.

530, 543 (1962) (noting the Court’s ‘considered practice not

to apply stare decisis as rigidly in constitutional as in

nonconstitutional cases”); Smith v. Allwright, 321 U.S. 649,

665 (1944) (“In constitutional questions... this Court

throughout its history has freely exercised its power to

reexamine the basis of its constitutional decisions.”); St.

Joseph Stock Yards Co. v. United States, 298 U.S. 38, 94

(1936) (Stone & Cardozo, JJ., concurring in the result) (“The

doctrine of stare decisis . . . has only a limited application in

the field of constitutional law.”).

Indeed, in Casey itself — where this Court, on stare

decisis grounds, re-affirmed what it described as the “central

holding” of Roe, 505 U.S. at 854-69 - this Court clearly

modified the relevant constitutional rules and Roe’s rigid

“trimester” framework, id. at 872-73. The Court did not

hesitate in Casey to overrule outright two prior decisions that

had gone too far in expanding the right to abortion and tying

the hands of legislators, see id. at 882 (overruling in part

Thornburgh v. American College of Obstetricians &

Gynecologists, 476 U.S. 747 (1986), and City of Akron vy.

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

(1983)).

In sum, any blanket claim that stare decisis principles or

tule-of-law commitments reguire strict adherence to

12

precedent, no matter how misguided that precedent may be,

is untenable. Indeed, and ironically, such a claim would be

unprecedented, given that this Court’s cases teach

consistently and clearly that the doctrine of stare decisis is a

flexible, practical one that admits of substantial judicial

discretion as to how the policies underlying the doctrine

should be applied in any given set of circumstances.

B. The Principles of Stare Decisis Permitting

Reconsideration of Prior Decisions Support the

Reconsideration and Overruling of Stenberg.

Given the principles and practices outlined above, this

Court’s decision in Stenberg properly may be overruled. In

fact, a number of considerations weigh strongly against

affirming Stenberg simply on stare decisis grounds. First,

the decision is of very recent origin. See Adarand, 515 U.S.

at 231 (Opinion of O’Connor J., joined by Kennedy, J.)

(following “intrinsically sounder doctrine” serves stare

decisis more “than would following a more recently decided

case inconsistent with the decisions that came before it”);

Payne, 501 U.S. at 828-30 (overruling recent decisions in

Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina

v. Gathers, 490 U.S. 805 (1989)). Next, the decision in

Stenberg was issued by a deeply divided Court, and

produced several powerful dissents. See Payne, 501 U.S. at

828-30 (stare decisis a lesser consideration when a prior

decision was made on a close vote over “spirited dissents”).

Another fact that weighs heavily against according

Stenberg constraining precedential weight is that the decision

in that case was itself a striking departure from earlier

precedent. Stenberg, 530 U.S. at 957 (Kennedy, J.,

dissenting) (noting that Stenberg “repudiate[d]” the Casey

Court’s understanding that “[tJhe political processes of the

State are not to be foreclosed from enacting laws to promote

the life of the unborn and to ensure respect for all human life

13

and its potential”); see also, e.g., Adarand, 515 U.S. at 231,

233 (Opinion of O’Connor, J., joined by Kennedy, J.)

(noting diminished stare decisis weight where a decision is

“inconsistent with the decisions that came before it” or “an

abrupt and largely unexplained departure from precedent”).

That is, Stenberg is not well grounded in the Constitution's

text, history, or structure; and its unwarranted extension of

earlier cases (and repudiation of Casey) means that it can be

said to “lack constitutional roots.” Jd. at 232.

It is also important to appreciate that Stenberg has not

been reaffirmed in subsequent cases of this Court, has not

enjoyed or inspired the sustained acquiescence and

endorsement of the public or of other branches of

government, and has not become embedded in our practices

or traditions. Cf Dickerson v. United States, 530 U.S. 428,

443 (2000) (stare decisis strongly supported Miranda vy.

Arizona, 384 U.S. 436 (1966), because its rule had become

“embedded in routine police practice to the point where the

warnings have become part of our national culture”). Quite

the contrary: The legislatures of most states, like the

Congress of the United States, have banned partial-birth

abortion. Cf Atkins v. Virginia, 536 U.S. 304, 314-16 (2002)

(many of the states had, in the years after Penry v. Lynaugh,

492 U.S. 302 (1989), taken steps to exempt developmentally

disabled persons from death-eligibility). Nor is Stenberg the

rare case in which the Court could plausibly be said to have

invested its own prestige in the merits and survival of the

precedent. Cf Casey, 505 U.S. at 866-69.

Finally, Stenberg simply cannot be thought to have

created reasonable reliance interests in the availability-on-

demand of this particular type of elective abortion procedure.

Congress, like the legislatures of most states and the

overwhelming majority of the American people, has

considered and rejected the idea that the availability of this

particular — and particularly troubling — abortion procedure

14

is essential to a woman’s right to an abortion. See Stenberg,

530 U.S. at 957 (Kennedy, J., dissenting) (noting that the

Nebraska ban on partial-birth abortion “denie[d] no woman

the right to choose an abortion and place[d] no undue burden

upon the nght”). Certainly, no men or women have “ordered

their thinking and living” around an imagined constitutional

right to obtain an abortion via this particular method. C/

Casey, 505 U.S. at 856.

In case after case, each one of these factors has been

recognized by this Court as justifying overruling or departing

from a prior case or line of cases that is recognized as

unsound. Thus, if this Court concludes — as we believe it

should — that Stenberg was wrongly decided, neither stare

decisis nor our commitment to stability and the rule of law

requires continued adherence to that decision. This Court’s

decisions involving the content and application of the stare

decisis principle weigh heavily in favor of discarding

Stenberg.

C. President Lincoln’s Statements Concerning the

Weight of Judicial Precedents Provide a Useful

Benchmark for Deciding When it is Appropriate to

Overrule Prior Decisions.

This Court’s cases involving the stare decisis doctrine

bear a strong and instructive resemblance to principles set

forth by Abraham Lincoln, when he was a candidate for the

United States Senate. Lincoln confronted the argument that

the Court’s decision in the Dred Scott case (Scott v.

Sandford, 60 U.S. (19 How.) 393 (1857)) was settled,

binding law, and that those who would seek to have it

overruled were disrespectful of judicial authority and of the

Constitution. Lincoln’s response merits quotation at length:

Judicial decisions have two uses — first, to

absolutely determine the case decided, and secondly,

15

to indicate to the public how other similar cases will

be decided when they arise. For the latter use, they

are called “precedents” and “authorities.”

We believe... in obedience to, and respect for the

judicial department of government. We think its

decisions on Constitutional questions, when fully

settled, should control, not only the particular cases

decided, but the general policy of the country, subject

to be disturbed only by amendments of the

Constitution as provided in that instrument itself.

More than this would be revolution. But we think the

Dred Scott decision is erroneous. We know the court

that made it, has often overruled its own decisions,

and we shall do what we can to have it to over-rule

this.

If this important decision had been made by the

unanimous concurrence of the judges, and without

any apparent partisan bias, and in accordance with

legal public expectation, and with the steady practice

of the departments throughout our history, and had

been in no part, based on assumed historical facts

which are not really true; or, if wanting in some of

these, it had been before the court more than once,

and had there been affirmed and re-affirmed through

a course of years, it then might be, perhaps would be,

factious, nay, even revolutionary, to not acquiesce in

it as a precedent.

But when, as it is true, we find it wanting in all

these claims to the public confidence, it is not

resistance, it is not factious, it is not even

disrespectful, to treat it as not having yet quite

established a settled doctrine for the country....

*»aham Lincoln, Speech at Springfield, Illinois (June 26,

1... 7), reprinted in ABRAHAM LINCOLN: SPEECHES AND

WRITINGS, 1832-58: SPEECHES, LETTERS, AND

MISCELLANEOUS WRITINGS, THE LINCOLN-DOUGLAS

16

DEBATES 390, 390-92 (Library of America ed., 1989).

Lincoln’s statement of principles is characteristically

compelling. And, it is consistent with this Court’s own

statements concerning the force of precedent. The Court’s

Amici submit that the principles he defended supply

important guidance as to when it is proper for this Court to

overrule its prior decisions.

First, Lincoln notes that the Court’s decisions absolutely

determine the individual cases decided, even if one might

think the Court’s judgments erroneous. Later, in his First

Inaugural, Lincoln elaborated that such decisions “must be

binding in any case, upon the parties to a suit.” Abraham

Lincoln, First Inaugural Address (March 4, 1861), reprinted

in ABRAHAM LINCOLN: SPEECHES AND WRITINGS, 1859-65:

SPEECHES, LETTERS, MISCELLANEOUS WRITINGS,

PRESIDENTIAL MESSAGES AND PROCLAMATIONS 215, 221

(Library of America ed., 1989). While it is “obviously

possible that such decision may be erroneous in any given

case, still the evil effect following it, being limited to that

particular case, -with the chance that it may be over-ruled,

and never become a precedent for other cases, can better be

borne than could the evils of a different practice.” Jd. at 221.

This Court, of course, has long embraced this principle. Cf

Cooper v. Aaron, 358 U.S. 1 (1958). This does not mean,

however — it could not mean — that the Court’s decisions, as

precedents, are absolutely binding and immune from

reconsideration. Rather, such constitutional decisions

control the general policy of the nation only when they have

become “fully settled” by virtue of a sustained course of

judicial decision and public acquiescence by other actors in

our constitutional system. Abraham Lincoln, Speech at

Springfield, Illinois (June 26, 1857), supra, at 393.

In Lincoln’s day (as in ours) it was widely recognized

that the Court “has often overruled its own decisions,” id.,

and that it was appropriate to seek to have the Court overrule

17

a case like Dred Scott. Again, this Court’s doctrine is

similar: While every judgment of the Court is authoritative

and binding, no precedent is beyond the Court’s

reconsideration, if there are persuasive reasons to believe the

decision wrong and continued adherence to it would be

harmful. Only if a decision has been fully settled by long

practice and acceptance does it become so sufficiently part

of the fabric of the law as to be exempt from this usual rule

permitting overruling. Abraham Lincoln, Speech at

Springfield, Illinois (June 26, 1857), supra, at 393 (noting

significance of whether a decision accords with “legal public

expectation, and with the steady practice of the departments

throughout our history”). Thus it is that even a case like

Piessy v. Ferguson, 163 U.S. 537 (1896) — though used as a

basis for other decisions over a period of more than half a

century, and surely relied on to some extent by many -

remained deeply contested and thus unsettled. The Court’s

decision to reconsider and overrule it in Brown v. Board of

Education, 347 U.S. 483 (1954), was fully consistent with

Lincoln’s principle. See Casey, 505 U.S. at 862-64 (noting

propriety of Brown’s overruling of Plessy).

Lincoln appreciated, as have the Justices of this Court,

that some precedents carry less authority than others.

Judicial decisions, he observed, “are of greater or less

authority as precedents, according to circumstances. That

this should be so, accords both with common sense, and the

customary understanding of the legal profession.” Abraham

Lincoln, Speech at Springfield, Illinois (June 26, 1857),

supra, at 393; cf. Casey, 505 U.S. at 854 (noting that “when

this Court reexamines a prior holding, its judgment is

customarily informed by a series of prudential and pragmatic

considerations” designed to “gauge” the appropriate weight

of prior decisions and the costs and benefits of overruling in

a particular instance). The reasons invoked by Lincoln as

proper grounds for overturning precedent are remarkably

similar to the ones identified by this Court’s recent doctrine:

a

18

It is relevant whether the decision is one of extremely long

Standing, such that its rule has become entrenched in

established practice and accords with “legal public

expectation, and with the steady practice of the departments

throughout our history.” Lincoln, Speech at Springfield,

Illinois (June 26, 1857), supra, at 393. Similarly, this Court

has treated precedent as being strongest where public

institutions, or private reliance interests, have grown up

around a decision. See, e.g., Payne, 501 U.S. at 828

(“Considerations in favor of stare decisis are at their acme in

cases involving property and contract rights, where reliance

interests are involved”); Pennsylvania v. Union Gas Co., 491

U.S. 1, 34 (1989) (Scalia, J., concurring in part and

dissenting in part) (noting significant public institutional

reliance on Court’s earlier sovereign immunity decisions for

nearly a century “and the difficulty of changing, or even

clearly identifying, the intervening law that has been based

on that answer”). In this respect, stare decisis can be seen as

“the application to judicial precedents of a more general

principle that the settled practices and expectations of a

democratic society should generally not be disturbed by the

courts.” Payne, 501 U.S. at 834-35 (Scalia, J., concurring).

As Lincoln noted, the converse is equally true: Where the

settled practices and expectations of a democratic society do

not agree with a judicial precedent, the precedent cannot be

regarded as having become a fully settled part of the fabric

of the law.

The degree to which a decision has commanded

unanimous or near-unanimous support within the Court is

also relevant, especially with respect to precedents of recent

vintage. As Lincoln put it, it would certainly have mattered

had Dred Scott, or any other decision, “been made by the

unanimous concurrence of the judges, and without any

apparent partisan bias.” Abraham Lincoln, Speech at

Springfield, Illinois (June 26, 1857), supra, at 393; cf.

Payne, 501 U.S. at 828-29 (noting that “Booth and Gathers

19

were decided by the narrowest of margins, over spirited

dissents”).*

Finally, Lincoln remarked that, even if a decision were

“wanting” in some of the usual attributes of enduring

precedents, it might nonetheless be “factious . . . to not

acquiesce in it as a precedent” if the issue “had been before

the court more than once, and had there been affirmed and

re-affirmed through a course of years{.]” Abraham Lincoln,

Speech at Springfield, Illinois (June 26, 1857), supra, at 393.

Surely, a case that has been re-affirmed often and regularly

will enjoy great precedential weight and deference. At the

same time, a relatively recent case that has not been

reaffirmed or settled into a body of law or line of cases

would not necessarily deserve the same treatment. To be

sure, there have been judicial decisions and doctrines that,

even though reaffirmed repeatedly, were so wrong as to be

beyond the reach of this kind of respect. For example,

Plessy stood for fifty-eight years, and was a premise for

many subsequent decisions of this Court before Brown v.

Board of Education interred its unsound holding. Thus,

while it is true that long adherence to a judicial doctrine may

be a factor in favor of its retention (at least in doubtful or

close cases), that consideration should not override all]

others. At the very least, the time period and degree of

* To be clear: We do not mean to suggest that Dred Scott should

have been accepted as a precedent, or validly could be thought

immune to reconsideration, had it been unanimous. (The decision

was 7-2 in support of the Court’s disposition and opinion.)

Rather, we note the descriptive correctness of Lincoln’s evaluation

that the degree of judicial consensus certainly matters to the

authority any particular precedent may be thought to carry for

future decisions, as does the persuasiveness (or lack thereof) of the

Court’s reasoning. These factors certainly detracted from the

precedential weight, and deference, to be accorded the Court’s

Dred Scott decision.

20

reaffirmation necessary to consider a course of judicial

decisions as having “settled” a debatable proposition of

constitutional law should be very extensive indeed.

Lincoln’s proposition is perhaps most persuasive when

formulated in the negative: The absence of a long period of

sustained judicial embrace of a questionable doctrine is an

important factor against according such decisions strong

stare decisis weight.

The application of Lincolnian principles to Stenberg is,

we submit, quite obvious, and accords with the earlier

discussion of this Court’s stare decisis cases. If this Court

believes that Stenberg was wrongly decided — i.e, an

incorrect interpretation of the Constitution, and an unsound

extension of prior case law judicial doctrine — it should be

overruled. The decision was not “made by the unanimous

concurrence of the judges,” but a hotly contested 5-4

decision, supported by a narrow concurring opinion. See 530

U.S. at 947-51 (O’Connor, J., concurring). The decision is

not “in accordance with legal public expectation” and “the

steady practice of the departments throughout our history.”

Abraham Lincoln, Speech at Springfield, Illinois (June 26,

1857), supra, at 393. Rather, it is a still-recent and

tendentious departure from prior decisions of the Court, see

Stenberg, 530 U.S. at 957 (Kennedy, J., dissenting) (“The

Court’s decision . . . repudiates [Casey’s] understanding[.]”).

It certainly has not received the approbation of the other

departments of government. And, this six-year-old decision

has not been “before the court more than once” or “affirmed

and re-affirmed through a course of years.” Abraham

Lincoln, Speech at Springfield, Illinois (June 26, 1857),

supra, at 393. What Lincoln said of Dred Scott is true of

Stenberg: “But when, as it is true we find it wanting in all

these claims to the public confidence, it is not resistance, it is

not factious, it is not even disrespectful, to treat it as not

having yet quite established a settled doctrine for the

country.” Id.

21

Il. THE CONSTITUTION Dogs NoT REQUIRE ABORTION

REGULATIONS TO INCLUDE SWEEPING AND SELF-

DEFEATING “HEALTH” EXCEPTIONS.

The court below invalidated the Act because, in its

view, Stenberg “requires that any abortion regulation must

contain [a health] exception.” Planned Parenthood, 435 F.3d

at 1172. See also Carhart, 413 F.3d at 796 (Stenberg

“establishes a per se constitutional rule” that “a health

exception applies to all abortion statutes.”). Noting that the

Act does not contain such an exception, the Court of Appeals

said that it was compelled to hold that “Congress’s failure to

include a health exception in the statute renders the Act

unconstitutional.” Planned Parenthood, 435 U.S. at 1176.

See also id. at 1172 (“Stenberg holds that an abortion

regulation that fails to contain a health exception is

unconstitutional except when there is a medical consensus

that no circumstance exists in which the procedure would be

necessary to preserve a woman’s health.”); Carhart, 413

F.3d at 803 (“Because the Act does not contain a health

exception, it is unconstitutional.”).

In Stenberg itself, the narrow majority (citing Casey, 505

U.S. at 880) reasoned that, because “the law requires a health

exception in order to validate even a postviability abortion

regulation, it at a minimum requires the same in respect to

previability regulation.” Stenberg, 530 U.S. at 930; see also

id. at 931 (quoting Casey, 505 U.S. at 879) (“[T]he

governing standard requires an exception ‘where it is

necessary, in appropriate medical judgment for the

preservation of the life or health of the mother[.]’”); id. at

938 (quoting Casey, 505 U.S. at 879) (“{W]here substantial

medical authority supports the proposition that banning a

particular abortion procedure could endanger women's

health, Casey requires the statute to include a health

exception when the procedure is ‘necessary, in appropriate

22

medical judgment, for the preservation of the life or health of

the mother.””).

In our view, it simply is not the case that the

Constitution, properly understood, requires every regulation

of abortion procedures to include an amorphous, Bolton-

style “health” exception. We agree with Petitioner, many

other Amici, and Congress’s investigation and findings

regarding the lack of any medical necessity or health-

protecting justifications for partial-birth abortion. That said,

Amici urge this Court to revisit and clarify its decisions

relating to health exceptions and abortion laws, and to clarify

that the Constitution does not require legislators, and the

People, to enact self-defeating and meaningless abortion

regulations with health exceptions that, in effect, swallow the

regulations themselves. See, e.g., Stenberg, 530 U.S. at 965

(Kennedy, J., dissenting) (“Requiring Nebraska to defer to

Dr. Carhart’s judgment is no different from forbidding

Nebraska from enacting a ban at allJ.]”’).

To be clear: The decision of the court below, like that of

this Court in Stenberg, renders meaningless the assurances

provided in Casey — i.e., that notwithstanding the abortion

right created in Roe, “the States retain a critical and

legitimate role in legislating on the subject of abortion,”

Stenberg, 530 U.S. at 956-57 (Kennedy, J., dissenting) — in

at least two ways. First, what might be called the “triggering

condition” for the health-exception requirement is

“appropriate medical judgment,” which in effect “awards

each physician a veto power over the State’s judgment that

the procedures. should not be performed.” Jd. at 964

(Kennedy, J., dissenting). Justice Kennedy noted that Dr.

Carhart, the plaintiff in both Stenberg and Carhart, “has

made the medical judgment to use the D&X procedure in

every case, regardless of indications, after 15 weéks’

gestation.” /d. at 964-65 (Kennedy, J., dissenting). Under

the Stenberg majority’s approach, a “single physician or

23

group of physicians” has the ability to “set{] abortion

_ policy[,] . . . not the legislature or the people.” Jd. at 965

(Kennedy, J., dissenting). This complete evisceration of the

State’s legitimate role in determining what procedures are

appropriate and which are not — and this substitution of an

abortionist’s veto for careful, balanced consideration of those

interests — is inconsistent with the position outlined in the

Casey joint opinion. See Stenberg, 530 U.S. at 956-57

(Kennedy, J., dissenting) (noting that, under Casey,

government “retain{s] a critical and legitimate role” in

regulating abortion and promoting respect for all human

life).

As Petitidner makes clear - and as did the dissenting

Justices in Stenberg — the record both in Stenberg and here

establishes that partial-birth abortion is never, truly

medically necessary. Id. at 965-67 (Kennedy, J., dissenting).

In any event, courts are simply “ill-equipped to evaluate the

relative worth of particular surgical procedures” and

substitute their factual determinations for those of the

legislature. Jd. at 968 (Kennedy, J., dissenting). After nearly

a decade of robust debate, Congress elected by a wide

margin to prohibit partial-birth abortion, in substantial part

because the procedure “is never medically indicated to

preserve the health of the mother.” § 2(14)(O), 117 Stat.

1206. The Constitution does not require this Court to

substitute an interested party’s ipse dixit for the considered,

morally serious judgment of the Congress of the United

States.

The second, and more basic, way in which this Court has

hamstrung legislatures’ legitimate right — recognized in

Casey — to “promote the life of the unborn and to ensure

respect for all human life and its potential,” Stenberg, 530

U.S. at 957 (Kennedy, J., dissenting), has to do not with the

“tiggering condition” for the “health”-exception

requirement, but with the content of that requirement.

24

Again, there is no legitimate medical justification for the

partial-birth abortion procedure. However, the definition of

“health” that was read into the Constitution in Roe v. Wade

and in Doe v. Bolton, and that runs through so much of this

Court’s post-Roe case-law, is not limited to medical

considerations. In practice, the stylized definition of

“health” employed in this Court’s abortion cases readily

permits a construction and application that winds up

requiring states to permit unrestricted abortion on demand, at

any time and for any reason. Under Doe’s “health”-

exception gloss on Roe, a woman may - if an abortion

provider agrees — secure an abortion (or any method of

abortion) for any medical-, emotional-, social-, mental- or

family-related reason. Doe, 410 U.S. at 192. Such a

definition — if, indeed, the term can plausibly be “defined” to

include somuch — permits, in practice, a much more extreme

and democracy-blocking notion of the abortion right than the

Court seemed to contemplate in Casey. Accordingly, this

Court should give careful consideration to the definition of

“health” in its prior decisions, and overrule or modify Doe to

the extent that it admits of such an extreme and unreasonable

exception to a late-term abortion restriction — an exception

that, as Stenberg demonstrates, tends to swallow the rule.

The expansion of the definition of “health” started with

what the Court in Roe and Doe held: Under the Roe / Doe

framework, the right to abortion in the third trimester (that is,

“subsequent to viability”) may be limited by the state,

“except where it is necessary, in appropriate medical

judgment, for the preservation of the life or health of the

mother.”. Roe, 410 U.S. at 164-65. (Stenberg cited and

quoted this formulation exactly, 530 U.S. at 921.) “Health,”

however, turns out to be a legal term of art in the abortion

context, as was made clear immediately in Doe.

In Doe, the Court considered whether a recent Georgia

statute permitting an abortion where a doctor determines that

25

it is medically necessary was too narrow or restrictive of the

right to abortion recognized in Roe. Doe, 410 U.S. at 182-

83. The Court construed the Georgia exception broadly to

embrace broad-ranging discretion for doctors to evaluate

anything that might relate, directly or indirectly, to a

woman’s health, and found the statute constitutional because

the health-of-the-mother exception, as so construed, was

sufficiently broad to satisfy what the Court felt were the

appropriate constitutional standards:

[T]he medical judgment [of the physician] may be

exercised in the light of all factors — 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.

Doe, 410 U.S. at 192. Doe’s description of relevant “health”

considerations thus built on Roe’s identification of a

woman’s constitutionally protected interests in having an

abortion in order to avoid “a distressful life and future,” and

its recognition of the “{m]ental and physical health” drains of

caring for a child, the “distress, for all concerned, associated

with the unwanted child,” the “problem of bringing a child

into a family already unable, psychologically and otherwise,

to care for it,” and the “difficulties and continuing stigma” of

being an unwed mother. Roe, 410 U.S. at 153.

Doe’s all-encompassing understanding of health — one

that rendered hollow the Court’s assurances in that case that

a “woman does not have an absolute constitutional right to

an abortion on her demand,” Doe, 41C U.S. at 189 — has

carried forward through the Court’s abortion case-law

(although, of course, Roe’s anachronistic “trimester”

26

framework was discarded in Casey). See, e.g., Stenberg, 530

U.S. at 930-31 (striking down Nebraska’s ban on late-term

partial-birth abortions on the ground that the statute did not

contain a “health” exception required by Casey, Roe, and

Doe). The effect of this understanding of “health” is to vest

individual abortionists like Dr. Carhart with the plenary

power to overrule any and all restrictions on abortion that a

legislature might adopt, even those that apply after the child

is viable outside the mother’s body. Indeed, the result of this

broad Doe “health” loophole is to render the purported pre-

viability / post-viability line of allowable state regulation of

abortion completely illusory. An abortionist may perform

essentially any type of abortion he deems appropriate, at any

time during pregnancy, for whatever reason the woman and

abortionist agree is a sufficient emotional, psychological, or

family “health” reason.

It is difficult to believe that this Court meant to embrace

such an unrestricted abortionist’s veto in Casey, in which the

majority affirmed the legitimacy and propriety of state

regulation to protect fetal human life once the point of

viability is reached. Doe’s extreme conception of “health,”

and the carrying forward of such an extreme view in

Stenberg, is not consistent with the approach of Casey and

not supportable by the text of the Constitution. In light of

Casey, the astounding breadth of Doe’s “health” loophole is

truly a “remnant of abandoned doctrine,” Casey, 505 U.S. at

&55, that this Court should explicitly disapprove. The Court

should overrule or modify Doe’s health exception to bring

the law more faithfully in line with the right of the state,

recognized in Casey, to restrict or prohibit abortion where

the child could live outside his or her mother’s womb.

Compare Casey, 505 U.S. 881-83 (overruling in part

Thornburgh and Akron, on similar grounds).

27

CONCLUSION

The judgment of the United States Court of Appeals for

the Ninth Circuit should be reversed.

Respectfully submitted,

Prof. Richard W. Garnett

(Counsel of Record)

NOTRE DAME LAW SCHOOL

Notre Dame, IN 46556

Tel.: (574) 631-6981

Michael S. Paulsen

UNIVERSITY OF

MINNESOTA LAW SCHOOL

229 19th Ave. S.

Minneapolis, MN 55455

Tel.: (612) 625-0018

Gregory S. Baylor

Steven H. Aden

CENTER FOR LAW

& RELIGIOUS FREEDOM

8001 Braddock Rd., Suite 300

Springfield, VA 2215]

Tel.: (703) 642-1070

Counsel for Amici Curiae

August 3, 2006

Appendix A

STATEMENTS OF INTEREST OF AMICI

The Christian Legal Society (“CLS”), founded in 1961,

is a nonprofit interdenominational association of Christian

attorneys, law students, judges, and law professors with

chapters in nearly every state and most law schools. Since

1975, the Society’s legal advocacy division, the Center for

Law and Religious Freedom, has litigated and educated on

behalf of the sanctity of human life.

The National Association of Evangelicals (“NAE”) is a

nonprofit association of evangelical © Christian

denominations, churches, organizations, institutions, and

individuals. It includes some 45,000 churches from 59

denominations and serves a constituency of approximately

30 million people. NAE is committed to defending the nght

to life as a precious gift of God and a vital component of the

American heritage.

The Pro-Life Legal Defense Fund, Inc. ("PLLDF") is a

Massachusetts not-for-profit corporation that provides pro

bono legal services for the protection of human life. The

PLLDF strongly opposes the partial-birth abortion

procedure.

The Alliance Defense Fund (“ADF”) is a nonprofit

public interest law firm founded in 1993 to aggressively

defend the sanctity of life, religious liberties, and traditional

family values. ADF’s goal is to reform American law so that

all human life will be respected and protected from

conception until natural death. To accomplish this goal,

ADF has trained hundreds of attorneys to litigate sanctity of

life issues. ADF’s network of over 700 attorneys has

participated in litigation and amicus curiae briefs opposing

all forms of abortion, including “partial-birth” abortion,

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public funding of abortion, and efforts to legalize euthanasia.

ADF has also participated in litigation supporting parental

consent and informed consent laws, and defending pro-life

advocates’ free speech rights.

Concerned Women for America (“CWA”) is the

nation’s largest public policy organization for women.

Located in Washington, D.C., CWA is a non-profit

organization that provides policy analysis to Congress, state

and local legislatures and assistance to pro-family

organizations through “research papers and publications.

CWA seeks to inform the news media, the academic

community, business leaders and the general public about

marriage, family, cultural and constitutional issues that affect

the nation. CWA has participated in numerous amicus

curiae briefs in the United States Supreme Court, lower

federal courts and state courts.

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