Amicus Curiae Brief — Loce v. New Jersey

#'s 93-1148 and 93-1149

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

#93-1148

ALEXANDER LOCE, Petitioner

°

STATE OF NEW JERSEY, Respondent

#93-1149

TINA KRAIL, et. al., Petitioners

y

STATE OF NEW JERSEY, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEW JERSEY

BRIEF OF

JOSEPH SCHEIDLER

AND THE PRO-LIFE ACTION LEAGUE

AND OF TEXAS BLACK AMERICANS FOR LIFE AS

AMICI CURIAE IN SUPPORT OF PETITIONER LOCE AND

PETITIONERS KRAIL, ET. AL

Lawrence J. Joyce Craig H. Greenwood

Counsel of Record Of Counsel

6203 N. Keeler Ave.

Chicago, IL 60646; (312) 286-7986

QUESTIONS PRESENTED

Whether anything in the Due Process Clause, as explained in Roe v.

Wade, requires the states to make any person a criminal?

Whether the decision of the trial court, pursuant to Roe, to exclude

evidence which negates the criminal state of mind places Roe

squarely at odds with other precedents of this Court?

TABLE OF CONTENTS

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Arguments

I. NOTHING IN THE DUE PROCESS CLAUSE

REQUIRES THE STATES TO MAKE

IIIS, ccscricctusesenoreccesessevevssievecesentoceusons 2

Il. THE LANGUAGE OF ROE v. WADE DOES

NOT REQUIRE THE EXCLUSION OF

THE EVIDENCE OFFERED AT TRIAL. ............0:0sccseccescseeesees 2

Me Py Fg) 3

B. FOURTEENTH AMENDMENT PERSONHOOD

IS NOT AN ELEMENT OF THE AFFIRMATIVE

TTT dh eetpcdneneadeletieeneebinubesnaddenssiniteounreconseuceer 4

Il. NOT ALLOWING ONE TO INTRODUCE EVIDENCE

WHICH NEGATES THE CRIMINAL STATE OF MIND

VIOLATES THE DUE PROCESS CLAUSE. ........0.......0:000006. 7

IV. THE DECISION OF THE TRIAL COURT

PROMOTES A GROSS BREACH OF THE

SEPARATION OF POWERS AND OF FEDERALISM. ........... 8

V. CLARIFICATION BY THIS COURT IS NEEDED

BECAUSE THE HOLDING OF THE TRIAL

COURT OVERRULES THIS COURT, AND

DEMONSTRATES THAT ROE PLACES THIS

COURT'S PRECEDENTS AT ODDS WITH ONE

ANOTHER WHILE FOSTERING ERRONEOUS

DECISIONS BY THE LOWER COURTGB. ............ cekeetbiaedsines

A. THE TRIAL COURT OVERRULED THIS COURT. ............9

B. ROE REQUIRES UNHEARD OF AND

UNWARRANTED APPLICATIONS OF THE DUE

ES ed ee eee a

C_ ROE SETS THIS COURT'S PRECEDENTS AT

ODDS WITH ONE ANOTHER. .....000000.0..0.000ccccceee. ences ae

D. THE TRACK RECORD UNDER ROE

DEMONSTRATES THAT ROE IS THE PROBLEM. .............. 12

Vi. THIS CASE ILLUSTRATES THAT ROE v. WADE

IS UNSOUND IN PRINCIPLE AND UNWORKABLE

es TIE deisisisscnesasiiedidsaibtnsaimsdanpsniamtnidebubedidatastioseniebnionsins 13

A. ROE IS NOT NEEDED TO PROTECT

WOMEN AGAINST FORCED ABORTIONS. ....0.0.00000000000.... 14

Vil. PLANNED PARENTHOOD v. CASEY

SUCCEEDED ONLY IN CONFUSING THE LAW OF

ITT siekipiarshesiiiatiniiehibteniesbhbddadteunennasdigeaeteiaenmenneieie 14

Vill. THIS CASE WILL ENABLE THIS COURT TO

DO WHAT IT WANTED TO DO IN CASEY

BUT WAS UNABLE TO ACCOMPLISH. ......0000..000....00u. 17

IX. THE RECORD AT THE TRIAL LEVEL

INVITES A REEXAMINATION OF ROE. ...000000000.cc.cceee. 20

IIT caccinncavnnisctieiniiilitentilinssnbininieinasenecctutonsisaneicibéiien 20

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TABLE OF AUTHORITIES

CONSTITUTIONS

FEDERAL

Article Ill . areaeluaaaia | scnvlectaduinaduaabiuedar a

\ <caiiinsanntancasaniiies LS

First Amendment ee

Tenth Amendment ..... : | nae

Fourteenth Amendment ..................... eae SE

STATE

Constitution of the State of New Jersey

PRIS GD sctsivatcnitcsiicinaelaneiacann ‘seicenientanetameannst eae

STATUTES

Panes Ae Wiiandscicnniiaauselsidees maaan siiiabposasessadinad aan

os ee 6 ee iiihbbiabasateeneemenaion 4

CASES

FEDERAL

Supreme Court

Atascadero State Hosp. v. Scanlon, 473 U.S.

234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) 0000000. x

Brown v. Board of Education, 347 U.S. 483, 74 S.Ct

a Fe ee te CE certcessccsessennsendscernessnvectniecdaaendsisceenates 20

nT

Tulsa Professional Collection Services v. Pope, 485

U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) ... | 3

U.S. v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L_Ed.2d

SET OE ccccncsotinedeseaescecbibemdiaed " 7-9

District Court

Lifchez v. Hartigan, 735 F.Supp. 1361 (N.D. Ill. 1990) ........ 1]

Ragsdale v. Turnock, 734 F.Supp. 1457 (N_D. Ill. 1990) ..... 10

STATE

Supreme Court of the State of New Jersey

State v. Abbott, 36 N.J. 63, 174 A.2d 881 (1961) 7 7-8

State v. Fair, 45 N.J. 77, 211 A.2d 359 (1965) .......... 4-8

COMMENTATORS

| Bishop, Criminal Law Sect. 303, p. 204

GGG, TGIEE ccscensipsctsviiniasdanttinpandenieteniandinns | | me

Bopp and Coleson, The Right to Abortion

Anomalous, Absolute, and Ripe for Reversal, 2

BD. YU. 5. Ped. L. BBE CIGGI wvicevveccccscevcccccoreceees Mw S ees 13

Comment, 20 Wash. & Lee L. Rev. 98 (1963) «000000000... 6

Comment, 64 W.Va. L. Rev. 342 (1962) .00.....0..000cccccccccccccccce cues 6

Knowlton, Comments Upon the New Jersey Penal

Cote, 52 Rataene £.. Ty. 8 CIO TID ccceoecessevvecccescsesvcsvessccesssessseccen 4

| Wharton, Criminal Law and Procedure

freee Pa Soe alt aetna 6

Burnct v. Coronado Oil & Gas Co., 285 U.S. at 405,

52 S.Ct. at 446, 76 L.Ed. at 823 (1932) (Brandeis, J.,

dissenting) .......... hicndeuslsdlddevduasedenbesenmnecscesebeudences Selhenliensaieieies 15, 17

Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038,

I aeiietecebentiniadetentateansesicetioninniainencadtanonties 7-9

Cruzan v. Director, Missouri Dept. of Health, 497

U.S. at 287, 110 S.Ct. at 2856, 111 L.Ed.2d

at 247 (1990) (O'Connor, J., concurring) ........................000...... 14

Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39

TITTIES scnitiss i Finch ceipinceneasdthenndiniatnusesisadmmnnstenseanenia 15

Employment Division v. Smith, 494 U.S. 872,

110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) 000. 12

Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528, 105 S.Ct. 1005,

I 14

McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579

SSEPITUED csleisaiehtdisicnceialeaadineniaatinhihaunddusnisanailandnaniaddaanteeicimciaemeneneienate 16

Missouri v. Jenkins, 495 U.S. 33, 110 S.Ct.

Fig SE aa CD crnececenesncesenerinanenenensnttatenscnientaidinh 8

Planned Parenthood v. Casey, US. ,112

S.Ct. 2791, 120 L.Ed.2d 674 (1992) (Joint Opinion) .... 1, 9, 11-20

Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35

BEE a nee 1-4, 11-15, 18-20

Roe v. Wade, 410 U.S. at 221, 93 S.Ct. at 762, 35

L.Ed.2d at 195 (1973) (White, J., dissenting) ........................... 13

Texas v. Johnson, 491 U.S. 397, 109 S.Ct.

Ss ec 11

IV

Winans a eine Ss, ene meee eee

INTEREST OF THE AMICI

Joseph Scheidler and the Pro-Life Action League seek to

promote public awareness of the prevalence of abortion, and to

protest against its performance; Joseph Scheidler and the Pro-Life

Action League were named party defendants/respondents in this

Court's case of first impression, decided Monday, January 24,

1994, on the question of whether a plaintiff in a case based on the

Racketeer Influenced and Corrupt Organizations Act (RICO) must

prove an economic motive on the part of the defendants.

Texas Black Americans for Life is an organization which

seeks to promote awareness that abortion is a tool of racial

genocide.

SUMMARY OF ARGUMENTS

The holding of the trial court, which will be followed in

other cases, overrules this Court, places its precedents at odds with

one another, and illustrates that Roe v. Wade fosters erroneous

decisions by the lower courts.

Not allowing one to introduce evidence which negates the

criminal state of mind violates the Due Process Clause. Also, Roe

does not even require the exclusion of the evidence offered at tral.

Nothing in the Due Process Clause requires the states to

make any person a criminal.

This case illustrates that Roe v. Wade is unsound in

principle and unworkable in practice.

Planned Parenthood v. Casey succeeded only in confusing

the law of stare decisis. Further, this case will enable this Court to

do what it wanted to do in Casey but was unable to accomplish.

ARGUMENT

I. NOTHING IN THE DUE PROCESS CLAUSE REQUIRES

THE STATES TO MAKE ANY PERSON A CRIMINAL.

The trial court concluded that the conviction of the

defendants was compelled by Roe v. Wade, 410 U.S. 113, 93 S. Ct.

705, 35 L.Ed.2d 147 (1973), which was based on the Due Process

Clause of the Fourteenth Amendment. But the Due Process Clause

has never been held to require the states to make any person a

criminal; it has only been used the other way-—-prohibiting the states

from making persons criminals in certain instances.

The submission that the Due Process Clause, which

prohibits the states from extending their criminal laws against

private citizens in certain instances, now affirmatively requires the

states to extend their criminal laws against private citizens in

certain instances, is too novel a theory for this Court to let stand.

The trial court's holding turns our entire body of

jurisprudence on the Due Process Clause inside out. That view of

the Due Process Clause is like looking through a pair of binoculars

the wrong way. And it is statism, one of the things which the

Fourteenth Amendment was designed to protect us against.

By taking this case, this Court can prevent the development

of the erroneous notion that the Due Process Clause requires the

states to make certain persons criminals. If this Court refuses to

take this case, it can only set the stage for a more egregious

upheaval in our law later on, when the doctrine is firmly entrenched.

ll. THE LANGUAGE OF ROE v. WADE DOES NOT

REQUIRE THE EXCLUSION OF THE EVIDENCE

OFFERED AT TRIAL.

The trial court erred in thinking Roe requires a court to

exclude evidence, offered by the defense in a criminal case, which

Ee

—

demonstrates a reasonable, good faith belief that an unborn child is

a person. The language of Roe does not support this conclusion.

This Court said in Roe,

"All this, together with our observation, supra, that

throughout the major portion of the 19th century prevailing

legal abortion practices were far freer than they are today,

persuades us that the word ‘person,’ as used in the

Fourteenth Amendment, does not include the unborn." 410

U.S. at 158, 93 S.Ct. at 729, 35 L.Ed.2d at 180.

This Court also said,

"In view of all this, we do not agree that, by adopting one

theory of life, Texas may override the rights of the pregnant

woman that are at stake." 410 U.S. at 162, 93 S.Ct. at 731,

35 L.Ed.2d at 182.

A. THERE IS NO STATE ACTION.

In Roe, the State of Texas could ‘not, by adopting one

theory of life, override the rights of the pregnant woman. But the

case at bar involves action by a private citizen, not by a state. And

without state action, there is no denial of Due Process. As this

Court said,

"The Fourteenth Amendment protects this [Due Process]

interest, however, only from a deprivation by state action.

Private use of state-sanctioned private remedies or

procedures does not rise to the level of state action." Tulsa

Professional Collection Services v. Pope, 485 U.S. 478,

485, 108 S.Ct. 1340, 1345, 99 L.Ed.2d 565, 575 (1988).

This Court noted, in the same paragraph, that state action

may be found "...when private parties make use of state procedures

with the overt, significant assistance of state officials... ." 485 U.S.

at 486, 108 S.Ct. at 1345, 99 L.Ed.2d at 576. But no such thing

occurred here.

Nor is the law of the State of New Jersey pertaining to the

reasonable, good faith belief of the need to protect a third person an

attempt to frustrate Roe. For that law pertains to all cases in which

the defense of a third person is implicated, not jusi abortion. State

v. Fair, 45 N.J. 77, 90-91, 211 A.2d 359, 366 (1965).

Further, the provisions of New Jersey law relied on for the

affirmative defenses have been in existence since long before Roe.

Article One of the Constitution of the State of New Jersey was

adopted in 1947. N.J.S.A. 2C: 3-5 and 18-3 are simply reenacted

versions of statutes which were in place since 1898.

Also, as Prof. Knowlton has explained, the other

affirmative defense provisions which were asserted were simply

forma! codifications of the law of the State of New Jersey as it had

already existed. See, Knowlton, Comments Upon the New Jersey

Penal Code, 32 Rutgers L. Rev. 1, 3 (1979).

Further, the reluctance of the New Jersey judicial system at

all levels to rule in favor of the petitioners demonstrates that the law

of the State of New Jersey is not an attempt to frustrate Roe.

B. FOURTEENTH AMENDMENT PERSONHOOD IS NOT

AN ELEMENT OF THE AFFIRMATIVE DEFENSES.

The trial court based its decision on this Court's holding in

Roe that an unborn child is not a person within the meaning of the

Fourteenth Amendment. But this has no application here.

Fourteenth Amendment personhood is a status whereby a

given res may assert its own rights against state action. With the

exception of in rem proceedings, the status is inherent—at all times,

for all purposes, and against all others-——-in the res itself; it exists

independently of anyone else's actions or thought processes.

The focus of the affirmative defenses raised at trial,

however, is simply not on the thing sought to be protected; the

defenses pertain to something which exists only for a moment in the

mind of the criminal defendant: the reasonable, good faith belief

which motivated the conduct.

Fourteenth Amendment personhood (i.e. the possession by a

res of federal nights against state action) need not obtain in the thing

sought to be protected; the governing personhood is personhood

within the meaning of state law. For it is from the state constitution

that the legislature and the state courts derive their authority to

pronounce the affirmative defenses, and to define the terms therein;

and one of the defenses is Article One of the state constitution itself.

The language of the leading New Jersey case would even,

on its face, support the position that the status of personhood need

not obtain in the thing sought to be protected. Indeed, if someone

used force to prevent someone from burning a rumpled-up bundle of

clothing which he reasonably, and in good faith, thought was a

person lying helpless on the ground, the fact that there was only

clothing would not seem to defeat the defense.

Consider what the Supreme Court of New Jersey said,

"There are, however, two approaches as to the

scope of the right of one person to intervene in defense of

another. One is that the fault of the defended party is

imputed to the one who intervenes on his behalf, while the

other is that the intervening party is bound only by his own

intent. The former, commonly referred to as the ‘alter ego’

rule, emphasizes that the right of one person to defend

another is co-extensive with the right of the other to defend

himself. The latter categorized as the ‘objective test’ theory,

proceeds on the thesis that one who intervenes in a struggle

under a reasonable but mistaken belief that he is protecting

another who he assumes is being unlawfully assaulted is

thereby exonerated from criminal liability. As stated by

Bishop (1 Bishop, Criminal Law (Sect.) 303, p. 204 (9th

ed. 1923) ):

"What is absolute truth no man ordinarily

knows. All act from what appears, not from what

is. If persons were to delay their steps until made

sure, beyond every possibility of mistake, that they

were right, earthly affairs would cease to move.

*** All, therefore, must, and constantly do,

perform what else they would not, through mistake

of facts. ***'

"See generally 1 Wharton supra, (Sect.) 219; Comment, 20

Wash. & Lee L. Rev. 98 (1963); Comment, 64 W.Va. L.

Rev. 342 (1962).

"New Jersey has aligned itself with the latter view;

the test of whether a party may intervene in defense of a

third person being determined by the subjective intent of the

intervenor, subject only to the qualification that a jury

objectively find that he reasonably arrived at the conclusion

that the apparent victim was in peril, and that the force he

used was necessary. Thus, the so-called "reasonable

mistake of fact" doctrine is given its due, both as to the

amount of force and the initial lawfulness of the

intervention, and precludes criminal liability even though

it later appears that the person in whose behalf he

intervened was in fact the aggressor or that no defensive

measures on his part were actually necessary. [citations

omitted] Such a view has been recommended by the

American Law Institute in its Model Penal Code..."

(citation omitted) State v. Fair, 45 N.J. 77, 92-93, 211 A.2d 359,

367-368 (1965). (emphasis supplied)

Thus we see that the Supreme Court of New Jersey, upon

careful consideration of the question, expressly rejected the doctrine

which says that the defenses are available only when the one sought

to be protected is in fact a person who has the right to self-defense.

The focus instead is solely on the state of mind of the defendant.

Ill. NOT ALLOWING ONE TO INTRODUCE EVIDENCE

WHICH NEGATES THE CRIMINAL STATE OF MIND

VIOLATES THE DUE PROCESS CLAUSE.

The effect of a denial of this petition will be to exclude the

evidence offered at trial, and set as precedent the exclusion of

similar evidence in future cases, at least in the State of New Jersey

This Court has recognized, however, that not allowing the

introduction of relevant evidence in a criminal case violates the Due

Process Clause. Chambers v. Mississippi, 410 U.S. 284, 294, 93

S.Ct. 1038, 1045, 35 L.Ed.2d 297, 308 (1973); U.S. v. Nixon, 418

U.S. 683, 711-713, 94 S.Ct. 3090, 3109-3110, 41 L.Ed.2d 1039,

1066-1067 (1974). Such shall be the case here if the petitioners are

not afforded their opportunity to present evidence of their

reasonable, good faith belief that an unborn child is a person.

Under New Jersey law, defense of a third person negates an

element of the prosecution's case in chief: the criminal state of mind;

and New Jersey law requires the introduction of such evidence. As

the New Jersey Supreme Court said,

"An essential element of the charge of murder is

malice [citation omitted], and in order for criminal

liability to attach there must be a concurrence of an ‘evil-

meaning mind with an evil-doing hand." [citations

omitted] Basically, the so-called ‘affirmative defense’ of

defense of another in murder cases negates the existence of

the essential element of malice. What was said in State v.

Abbott, 36 N.J. 63, 72, 174 A.2d 881, 868 (1961), in

connection with self-defense is equally applicable to defense

of a third party:

***' if such evidence appears either in the State's

case or upon the defendant's case, the issue must be

left to the jury with this instruction: that the burden

is upon the State to prove beyond a reasonable

doubt that the defense is untrue, and hence there

must be an acquittal if there is a reasonable doubt

as to whether defendant did act in self-defense

within the definition of that defense. ***' " State v.

Fair, 45 NJ. 77, 90-91, 211 A.2d 359, 366 (1965) (emphasis

supplied).

In Chambers and Nixon this Court effectively recognized

that censorship in the courtroom is as destructive of liberty as

censorship in the press. The Court should not retreat from this.

1V. THE DECISION OF THE TRIAL COURT PROMOTES

A GROSS BREACH OF THE SEPARATION OF POWERS

AND OF FEDERALISM.

It would be difficult to imagine a more radical breach of the

separation of powers. If this Court were to acquiesce continually in

holdings such as this one, this Court would effectively require the

states to repeal certain laws of their own and make new ones against

private citizens whose actions frustrate restrictions which this Court

has placed on state action, not on the action of private citizens.

Further, given the federal nature of our Union, it would be

difficult to imagine a more gross breach of federalism, going even

beyond the boundaries set down in Missouri v. Jenkins, 495 U.S.

33, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990). For in Jenkins, at

least, this Court construed the scope of authority of Article III

courts under an act of Congress.

The acceptance by this Court, and other federal courts, of

what happened in this case, however (and will happen again in later

cases), would completely circumvent the requirement recognized in

Jenkins that the overriding of state sovereignty by federal law take

place only in pursuance to an act of Congress specifically intended

to do such a thing. See also, Atascadero State Hosp. v. Scanlon,

473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985).

This would constitute a dangerous precedent for allowing

this requirement to be completely overlooked in other areas,

effectively rendering the federal judiciary a body of general

jurisdiction rather than one of a limited nature.

It would render the Tenth Amendment a curiosity, a

conversation piece, or perhaps, at best, an interesting piece of

wallpaper. But it would cease to be a statement of law in our most

basic governing document.

V. CLARIFICATION BY THIS COURT IS NEEDED

BECAUSE THE HOLDING OF THE TRIAL COURT

OVERRULES THIS COURT, AND DEMONSTRATES

THAT ROE PLACES THIS COURT'S PRECEDENTS AT

ODDS WITH ONE ANOTHER WHILE FOSTERING

ERRONEOUS DECISIONS BY THE LOWER COURTS.

In Planned Parenthood v. Casey the Joint Opinion

expressed the view that courts building upon Roe will not be likely

to hand down erroneous decisions as a consequence. Planned

Parenthood v. Casey, US. __, 112 S.Ct. 2791, 2810, 120

L.Ed.2d 674, 702 (1992) (Joint Opinion). But the trial court's

action in the instant case, overruling this Court's precedents, and

setting them at odds with each other, belies that view, as does the

record subsequent to Roe.

Eventually this Court must rule on the issues presented in

this case. If it denies certiorari in every such case presented, it will

have ruled sub silencio on these issues, but without giving society

the benefit of its reasoning.

A. THE TRIAL COURT OVERRULED THIS COURT.

By refusing to consider evidence-of the petitioners’

reasonable, good faith belief that Mr. Loce's unborn child was a

person in need of their intervening help, the trial court overruled this

Court's holdings in Chambers and Nixon, supra. Other courts,

following the lead in this case, will do so also.

B. ROE REQUIRES UNHEARD OF AND UNWARRANTED

APPLICATIONS OF THE DUE PROCESS CLAUSE.

If this Court allows judgments such as the one in this case

to stand, it will be irrefutable that this Court will have allowed an

expansion of Due Process law into the field of affirmatively

requiring the states to make certain persons criminals. So radical a

change as that should not come from a silent Court.

Further, unless this Court eventually reverses a case like

this one, it will be equally clear that this Court will have accepted

the unheard of doctrine that nonpersonhood status in one thing

diminishes the rights held by another, one who is a person. Such a

radical change as this likewise should not come from a silent Court.

Also, Roe has even been relied upon to enjoin the operation

of a state statute without there ever being a finding of

unconstitutionality or any other violation of federal law. Ragsdale v.

Turnock, 734 F.Supp. 1457 (N.D. Ill. 1990); aff'd 941 F.2d 501

(7th Cir. 1991); cert. den. sub nom. Murphy v. Ragsdale, _ US.

__, 112 S.Ct. 879, 116 L.Ed.2d 784 (1992). In that case the

District Court accepted a settlement proposal in which the Attorney

General of a state and some private citizens literally rewrote a state

Statute, actions on their part which clearly lacked any authority

under the state constitution.

Simultaneously, that settlement proposal struck down the

most basic health and safety requirements: that an abortion clinic's

hallways be wide enough for an ambulance stretcher to pass

through, that any such clinic be within a few minutes’ ambulance

ride of a hospital, and that the ventilation system be designed to

prevent widespread contamination by airborne bacteria, which can

cause infections in a woman's bleeding reproductive tract. Thanks

to that settlement proposal, it is now legal in the State of Illinois for

the abortionist to scrub his hands in the same sink in which the

janitor cleans his toilet bowl brush.

10

It gets worse. Roc has been relied on to strike down a state

statute prohibiting fetal experimentation or the sale of unborn

children. Lifchez v. Hartigan, 735 F. Supp. 1361, 1376-1377 (N_D.

Ill, 1990), aff'd 914 F.2d 260 (7th Cir. 1990), cert. den. sub nom

Scholberg v. Lifchez, 498 U.S. 1069, 111 S.Ct. 787, 112 L.Ed.2d

850 (1991).

C. ROE SETS THIS COURT'S PRECEDENTS AT ODDS

WITH ONE ANOTHER.

In Casey the Joint Opinion noted that if Roe were to

portend a development "at odds with other precedent for the

analysis of personal liberty," this would prove to be grounds for

overruling Roe. See, Casey, supra, 112 S.Ct. at 2812, 120 L.Ed.2d

at 704. Such is what has happened here. For in not allowing the

petitioners to introduce evidence negating the criminal state of mind,

the trial court set this Court's precedents of Roe, on the one hand,

and Chambers and Nixon, supra, on the other hand, at odds with

one another.

We are left wondering what is good law and what isn't. The

words of the Joint Opinion in Casey are again applicable here:

"Liberty finds no refuge in a jurisprudence of doubt.” 112

S.Ct. at 2803, 120 L.Ed.2d at 693.

Also, the concept that the Due Process Clause places an

affirmative obligation on the states to make certain persons

criminals has never arisen in our jurisprudence before, and will be

applicable, as a practical matter, only against those who engage in

civil disobedience because of their political and religious opposition

to abortion. As such, it will effectively be "a law directed at speech

itself," in contravention of this Court's First Amendment holding in

Texas v. Johnson, 491 U.S. 397, 406, 109 S.Ct. 2533, 2541, 105

L.Ed2d 342, 355 (1989).

Further, even though the trespass statute under which the

petitioners were convicted may be generally applicable to all, so as

1]

to avoid any clash with the Free Exercise Clause of the First

Amendment, it will remain the case, nevertheless, that the doctrine

that the Due Process Clause itself affirmatively requires the states

to make certain persons criminals will not be generally applicable to

all, this doctrine itself will be applied only to abortion protesters,

and as such will contravene this Court's numerous prior holdings.

See, Employment Division v. Smith, 494 U.S. 872, 876-878, 110

S.Ct. 1595, 1599-1600, 108 L.Ed.2d 876, 884-885 (1990).

D. THE TRACK RECORD UNDER ROE DEMONSTRATES

THAT ROE IS THE PROBLEM.

The above cited examples of chaos in our jurisprudence all

have one thing in common: Roe. In Casey the Joint Opinion

speculated that Roe might be sui generis. But sui generis just

doesn't explain it. Roe is a renegade-~an accident waiting for the

next opportunity to occur, waiting for its next victim (Due Process,

the First Amendment, unborn children, federalism, the separation of

powers, expectant fathers, etc.) to step in line.

The chaos begins in Roe itself, as the Joint Opinion in

Casey learned when it tried to untangle the basic premise of Roe

from Roe's rigid, trimester framework 112 S.Ct. at 2816-2821, 120

L.Ed.2d at 709-716. Roe was also contradictory in its approach to

the relevaace of biomedical facts to the protection of the unborn.

This Court first said that the findings of the discipline of

biology were of no moment in determining whether an unborn child

is a person or not. 410 U.S. at 159, 93 S.Ct. at 730, 35 L.Ed.2d at

181. But just a few pages later this Court then went on to deny

protection to the unborn in the early stages of pregnancy on the

basis of "the now-established medical fact...that until the end of the

first trimester mortality in abortion may be less than mortality in

normal childbirth." 410 U.S. at 163, 93 S.Ct. at 731-732, 35

L.Ed.2d at 182. This juxtaposition of reliance on medical facts to

deny protection for the unborn, coming immediately after a total

disregard for such facts in recognizing rights for the unborn,

Suggests a double standard in the most obvious way.

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Significantly, the Joint Opinion in Casey chose to recognize

the obvious: medical facts pertaining to the unborn child---in Casey,

the concept of viability---are indeed relevant in determining the

status of laws pertaining to the unborn child. 112 S.Ct. at 2817,

120 L.Ed. 2d at 710.

Yet Roe remains today what Justice White said of it on the

day it was decided: "...an exercise of raw judicial power...an

improvident and extravagant exercise of the power of judicial

review...{with] no constitutional warrant..." See, Roe, 410 U.S. at

222, 93 S.Ct. at 763, 35 L.Ed.2d at 196 (White, J., dissenting).

Roe has tied the cloth of our jurisprudence in a knot. It has

done so before. See, Bopp and Coleson, The Right to Abortion:

Anomalous, Absolute, and Ripe for Reversal, 2 B.Y.U. J. Pub. L.

181 (1989). It continues to do so now. It begs for reversal.

VI. THIS CASE ILLUSTRATES THAT ROE v. WADE IS

UNSOUND IN PRINCIPLE AND UNWORKABLE IN

PRACTICE.

The clash of interests here is irreconcilable: On the one

hand we have pregnant women claiming a constitutional nght under

the Due Process Clause, a night which the justices who authored the

Joint Opinion in Casey admitted they might not have recognized had

the case been before them in the first instance. See, Casey, supra,

112 S.Ct. at 2817, 120 L.Ed.2d at 711.

On the other hand we have the protesters claiming their

nght under the Due Process Clause, a right never questioned by this

Court, to present evidence which negates the criminal state of mind.

The need of the State of New Jersey to uphold the law and preserve

the peace, meanwhile, is well known to all.

The arguments of the petitioners—which we accept—-

regarding the personhood of unborn children aside for a moment,

this case does illustrate, if nothing else, that there is a compelling

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state interest in the arca of abortion, an interest which requires the

overruling of Roe

Roe is unsound in principle and unworkable in practice. As

this Court has noted, if a prior holding of this Court is later found

to be unsound in principle and unworkable in practice, that will

constitute grounds for overruling the prior case. Garcia v. San

Antonio Metropolitan Transit Authority, 469 U.S. 528, 546, 105

S.Ct. 1006, 1015, 83 L.Ed.2d 1016, 1031 (1985). The Joint

Opinion in Casey recognized this would apply to Roe. See, Casey,

supra, 112 S.Ct. at 2809, 120 L.Ed.2d at 700.

A. ROE IS NOT NEEDED TO PROTECT WOMEN

AGAINST FORCED ABORTIONS.

In Casey the Joint Opinion expressed the concern that

without Roe women could be forced to undergo abortions against

their will. 112 S.Ct. at 2811, 120 L.Ed.2d at 703. But as Justice

O'Connor pointed out in a case involving the other end of life's

spectrum, any forced bodily invasion would constitute a classic

example of a forcible restraint of one's liberty, it would also

constitute an intrusion into one's body of the type that would burden

the woman's liberty, dignity, and freedom to determine the course of

her own life. Thus, it would run afoul of this Court's previously

stated notions of constitutionally permissible state action. See,

Cruzan v. Director, Missouri Dept. of Health, 497 U.S. at 287-289,

110 S.Ct. at 2856-2857, 111 L.Ed2d at 247-249 (1990)

(O'Connor, J., concurring).

VIl. PLANNED PARENTHOOD v. CASEY SUCCEEDED

ONLY IN CONFUSING THE LAW OF STARE DECISIS.

In Casey the Joint Opinion went to great lengths to state

that the decision reached therein was required by the doctrine of

stare decisis. See, Casey, supra, 112 S.Ct. at 2808-2816, 120

L.Ed.2d at 699-709. Paradoxically, however, the Jount Opinion

overruled this Court's precedent on stare decisis without even

stating why it was doing so.

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In 1932 Justice Brandeis penned his famous dissent in

which he wrote,

"Stare decisis 1s usually the wise policy, because in most

matters is more important that the applicable rule of law

be settled than that it be settled nght. [citation omitted] This

is commonly true even where the error is a matter of serious

concern, provided correction can be had by legislation. But

in cases involving the Federal Constitution, where

correction through legislative action is practically

impossible, this court has often overruled its earlier

decisions. The court bows to the lessons of experience and

the force of better reasoning, recognizing that the process of

trial and error, so fruitful in the physical sciences, is

appropriate also in the judicial function." (citation omitted)

Burnett v. Coronado Oil and Gas Co., 285 U.S. at 406-408, 52

S.Ct. at 447-448, 76 L.Ed. at 823-825 (1932) (Brandeis, J.,

dissenting). The footnotes in Justice Brandeis’ opinion, omitted

above, and footnote four of his opinion following the above quoted

text, cite a very large number of cases as examples of what he was

saying.

The force of this logic was finally expressly adopted by this

Court a year after Roe was decided. See, Edelman v. Jordan, 415

U.S. 651, 671, n. 14, 94 §.Ct. 1347, 1359, n. 14, 39 L.Ed.2d 662,

667, n. 14 (1974). It has been followed by this Court since then.

See, Solario v. U.S., 483 U.S. 435, 450, 107 S.Ct. 2924, 2933, 97

L.Ed.2d 364, 378 (1987).

In Casey, however, the Joint Opinion did not follow this

precedent on stare decisis. The Joint Opinion did not even confront

the issue, let alone explain why it was doing what it did. Only a

fleeting reference to Burnett was made, one which did not even

acknowledge the’ fact that Justice Brandeis’ reasoning had been

adopted by this Court. See, Casey, 112 S.Ct. at 2808, 120 L.Ed.2d

at 700.

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Consequently, the Joint Opinion, in attempting to uphold

the doctrine of stare decisis, overruled this Court's precedent on

stare decisis, and succeeded only in confusing that area of law.

That this should be done by only three members of this Court---and

only in an abortion case!—-speaks volumes about this Court's

willingness to bend the rules any time the topic of abortion is at

hand.

Is the rule of Justice Brandeis, adopted by this Court in

Edelman, still good law? Further clarification is needed.

In reconsidering this question (which Casey means this

Court must surely do again someday), this Court should recognize

that of the two views of stare decisis on constitutional law—the

view of Justice Brandeis, and the one adopted by the Joint Opinion

in Casey—only one is consistent with the nature of a constitution.

For if a constitution is a standard against which all other law—

opinions of this Court included—is to be measured, then any

departure from it, whether it be legislative or judicial in nature,

must be recognized as error and corrected.

Chief Justice John Marshall, in considering a case in

constitutional law, reminded us,

".we must never forget that it is a constitution we are

expounding.” McCulloch v. Maryland, 4 Wheat. 316, 407, 4 L.Ed.

579, 602 (1819). (emphasis in original)

To do otherwise is to stand the very nature of a constitution

on its head. The substantial obstacles raised by Article V to the

amending of the U.S. Constitution were created to protect the

same rule about overruling erroneous precedent in constitutional

law as it does in statutory cases, it will place upon a minority the

impossible task of obtaining a super majority to amend the

Constitution so as to overrule the erroneous precedent. A decision

by this Court not to overrule erroneous precedent on constitutional

issues will thus become a means of turning the guarantees of Article

V inside out.

The opinion of Justice Brandeis gives further instruction,

saying,

"In cases involving the Federal Constitution the position of

this court is unlike that of the highest court of England,

where the policy of stare decisis was formulated and is

strictly applied to all classes of cases. Parliament is free to

correct any judicial error; and the remedy may be promptly

invoked.

"The reasons why this court should refuse to follow

an earlier constitutional decision which it deems erroneous

are particularly strong where the question presented is one

of applying, as distinguished from what may accurately be

called interpreting the Constitution. **** This is strikingly

true of cases under the due process clause when the

question is whether a statute is unreasonable, arbitrary, or

capricious..." See, Burnet, supra, 285 U.S. at 409-410, 52

S.Ct. at 448-449, 76 L.Ed. at 826. (emphasis supplied)

In Casey the issue was what would happen to the Court's

legitimacy if it should overrule precedent. 112 S.Ct. at 2814-2816,

120 L.Ed.2d at 706-709. But none will ever question the legitimacy

of a Court which recognizes that it must submit itself to the very

Constitution which it is established to uphold and defend, and which

pays homage to the patriots who fought and gave their lives to

enshrine that document as the supreme law of the land.

Vill. THIS CASE WILL ENABLE THIS COURT TO DO

WHAT IT WANTED TO DO IN CASEY BUT WAS

UNABLE TO ACCOMPLISH.

In Casey the Joint Opinion stated that the Court was

reaching the decision it did because doing so was necessary to fulfill

this Court's perceived mission to take on such issues and settle them

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with finality on behalf of the nation as a whole. Casey, supra, 112

S.Ct. at 2815, 120 L.Ed.2d at 708. In doing so the Joint Opinion

went to great lengths to reaffirm Roe's central holding repeatedly, so

as to leave no doubt as to what it was doing. 112 S.Ct. at 2804,

2808, 2816-2818, 2821, 120 L.Ed.2d at 694, 699, 709-712, 715-

716.

Simultaneously, however, the Joint Opinion went out of its

way to note that none of the criteria for reexamining the precedent

of Roe de novo seemed to be present, and that thus the Court would

not do so in that case. 112 S.Ct. at 2808-2816, 120 L.Ed.2d at 699-

709. This was true even though those who authored the Joint

Opinion declared that they were expressing no comment as to

whether they would have agreed with the holding in Roe had the

case been before them in the first instance. 112 S.Ct. at 2817, 120

L.Ed.2d at 711. The possibility of reexamining Roe at a later date,

when the nght case came along, was reserved by the Joint Opinion.

112 S.Ct. at 2808-2815, 120 L.Ed.2d 699-704, 706, 708-709.

These two concepts—settling Roe once and for all, and

expressly avoiding reexamining it de novo (while keeping that

option open for a future case), operate to the exclusion of each

other. Roe can never be settled once and for all while this Court

keeps brushing aside opportunities to reexamine it and tell us

whether it is truly a case which can stand the test of time.

There could be no better case for finally settling this once

and for all. For if this Court is going to reaffirm Roe in a case in

which:

1.) the father of an unborn child was turned down by the

judiciary in his attempt to seek an injunction against the destruction

of his own child;

2.) one in which the trial court denied him the opportunity

to present evidence which negates the criminal state of mind,

thereby overruling the precedents of this Court itself on that point;

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3.) one in which voluminous testimony of new facts

elucidated since Roe was offered at trial by internationally

renowned experts in support of the personhood of the unborn child

and the newly found capacit: of unborn children to feel pain;

4.) one in whick this Court would, for the sake of

preserving Roe, adopt the extraordinary new doctrine that the Due

Process Clause places an affirmative obligation on the states to

make certain persons criminals (and one which would apply to no

one of any other political or religious conviction, at that);

5.) one in which this Court would, for the sake of

preserving Roe, adopt the extraordinary new doctrine that

nonpersonhood status in one thing diminishes the nights held by one

who is a person;

6.) one in which this Court would, for the sake of

preserving Roe, countenance a breach of the highest order of the

separation of powers and of federalism; and

7.) one in which this Court, for the sake of preserving Roe,

would be content to leave its precedents concerning Due Process

and First Amendment interests at odds with themselves;

then nothing will ever get this Court to change its mind about Roe.

And those of us who someday hope to achieve an overruling of Roe

will know that no short term gain is to be had, and that our strategy

must be for the long term in the strictest sense.

On the other hand, if Roe is the type of case which will not

stand the test of time, and will fall upon reexamination of it de

novo, there could be no better case than this one for telling us that

this is so.

Either way, this case will enable this Court to do what it

wanted to do in Casey but could not accomplish: settle the status of

Roe once and for all.

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IX. THE RECORD AT THE TRIAL LEVEL INVITES A

REEXAMINATION OF ROE.

The record at trial is well developed. The petitioners

presented ample evidence of facts newly elucidated since Roe was

decided concerning the personhood Mr. Loce's unborn child, and its

capacity to feel pain; there was also ample opportunity for cross-

examination.

In Casey the Joint Opinion expressed the view tl + when

the facts underlying a prior holding are newly found to be «iifferent

from what this Court had previously assumed, the new finding will

constitute grounds for overruling a prior case such as Roe. 112

S.Ct. at 2811-2812, 120 L.Ed.2d at 703-704. The Joint Opinion

even noted that such newly discovered facts can not only justify

overruling a prior case of great public notoriety, they can even

require it, as was the case in Brown v. Board of Education, 347

U.S. 483, 74 S.Ct. 686, 98 L.Ed.2d 873 (1954).

The issues of personhood, and the capacity to feel pain,

being as important as they are, we submit that such is the case here.

The task before this Court may be daunting, but the

application of reasoned judgment to the facts of this case will enable

this Court to perform this task, one which it ultimately must face

anyway. See, Casey, supra, 112 S.Ct. at 2806, 120 L.Ed.2d at 697.

This Court should take this case and overrule Roe.

CONCLUSION

Wherefore, the Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

Lawrence J. Joyce Craig H. Greenwood

Counsel of Record Of Counsel

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