Opposition Brief — Cox v. Northland Family Planning, Inc. (No. 07-313)

AV Ap

No. 07-313 NOV 7 - 2007 |

' | OFFICE OF THE CLERK |

|_SUPREME.COURT. US.

IN THE ong

Supreme Court of the United States

—><—>=>

MICHAEL A. Cox,

Attorney General of the State of Michigan,

Petitioner,

NORTHLAND FAMILY PLANNING CLINIC, INC., et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

MICHAEL J. STEINBERG BRIGITTE AMIRI

KARY L. Moss Counsel of Record

American Civil Liberties TALCOTT CAMP

Fund of Michigan LOUISE MELLING

60 West Hancock Street ALEXA R. KOLBI-MOLINAS

Detroit, Michigan 48201 STEVEN R. SHAPIRO

(313) 578-6814 American Civil Liberties

Union Foundation

125 Broad Street, 18th Floor

New York, New York 10004

(212) 549-2633

EVE C. GARTNER

ROGER K. EVANS

Planned Parenthood

Federation of America

434 West 33rd Street

New York, New York 10001

(212) 541-7800

(Counsel for Respondents continued on inside cover)

JANET CREPPS DAVID A. NACHT, P.C.

Center for Reproductive Rights 201 South Main, Suite 1000 |

120 Wall Street, 14th Floor ' Ann Arbor, Michigan 48104

New York, New York 10005 (734) 663-7550

(917) 637-3600

Counsel for Respondents

QUESTION PRESENTED

Whether the Sixth Circuit abused its discretion in

refusing to certify a question to the Michigan

Supreme Court about the interpretation of

Michigan’s Legal Birth Definition Act after

determining that it was not reasonably susceptible to

a narrowing construction?

RULE 29.6 DISCLOSURE

None of the Respondents in this action has a

parent corporation or any stock owned by publicly

held corporations.

TABLE OF CONTENTS

QUESTION PRESENTED ............cccsccccecccevereseeeeees i

RULE 29:6 DISCLOSURE .........ccccccssccosccrsoccsveseses il

FE BEE Dercchcacessicsevstsssanescvisecwvensrs li

TABLE OF AUTHORITIES ............ccccccscsssccssssoeee IV

STATEMENT OF THE CASE.......0000000ccecceeeeeee 1

REASONS FOR DENYING THE WRIT............... 4

3 There Is No Conflict or Confusion in

the Lower Courts About the Standard

For Certifying Questions to State

UN IN sissisitecsce scccinaaciviecesesevexens 5

IT. The Sixth Circuit Properly Exercised

Its Discretion in Declining

Certification Based on Its

Determination That the Act Is Not

Reasonably Susceptible to a

Narrowing Construction. ............000.00..... 6

IIf. Whether the Sixth Circuit Abused Its

Discretion By Refusing to Certify

This Case to the State Supreme

Court Does Not Raise an Important

Federal Question. o.oo eeeeeeeceeececeeeee 14

SUNT Ssbstusrnisisante spncxicousostewssocaracoosents 17

in

TABLE OF AUTHORITIES

CASES

Almendarez-Torres v. United States, 523 U.S. 224

cS TERRE OE eS OTT OP REO ND PRI RETR T L SE Bee ee Bah 7

American Civil Liberties Union of Nevada v. Heller,

BIO Fk 1 COE CIR: BOD vvvvisescvcciccisccccesessscancveres 5-6

Arizonans for Official English v. Arizona,

I re Re is a rcsiean che ccdbabeekedecsictasctivdececkcecas 4,7

Ayotte v. Planned Parenthood of Northern New

England, 646 U.S. 320 (2006) .....ccccccccoccoevccascooccsesoes 13

City of Houston, Texas v. Hill,

IE ie Esa so ccradinnatend du cacvacracnccbieteiéecsan, oO,

DiBenedetto v. West Shore Hospital,

605 N.W.2d 300 (Mich. 2000) .0000000.0......ecccee eee. 12, 14

Dorman v. Satti, 862 F.2d 432 (2d Cir. 1988)............ 6

Elkins v. Moreno, 435 U.S. 647 (1978) .000.......00000000000. 7

Fiore v. White, 528 U.S. 23 (1999).............ccccccccoeeeeeee. 7

Frank W. Lynch & Co. v. Flex Technologies, Inc.,

OE FV. Fe 2 BOO CTICE. DOOD) oovvciscvcscneccecsiccoescocucccses. 1]

Gonzales v. Carhart,

BF A, BB BE icsikedcdsscivivnnedesticondcchccccey. 6-7, 8, 9

Grant v. Meyer, 828 F.2d 1446 (10th Cir. 1987)........ 6

iv

In re Certified Question (Jewell Theatre Corp.),

359 N.W.2d 513 (Mich. 1984) 20.0.0... cece cess ceeee. 16

In re Certified Questions (Melson v. Prime

Insurance Syndicate),

696 N.W.2d 687 (Mich. 2005) .000........cc cece ee eeeeceeeeees 15

Knox v. Eli Lilly and Co.,

592 F.2d 317 (Gth Cir. 1979).........ccccccocccccecsccecevesevees 15

Kusper v. Ponttkes, 414 U.S. 51 (1973) .....0... eee. 5

Lehman Brothers v. Schein, 416 U.S. 386 (1974) ...... 5

People v. Adams, 205 N.W.2d 415 (Mich. 1973) ...... 13

People v. Bricker,

BAe IN, We Oe UTS CREME. BOTS) cccerccscerevccorecersesenees 12, 13

Planned Parenthood of Central New Jersey v.

Farmer, 220 F.3d 127 (8d Cir. 2000)..............0.....-+000. 6

Planned Parenthood, Sioux Falls Clinic v. Miller,

GS F.Be BEBE Geis Cie. BRDB).....cccccvccevceccccccevececcevonsose: 6

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

Union Planters Bank, N.A. v. New York,

436 F.3d 1305 (Lith Cir. 2O0G6).........csccccccccoccssescovccvesss 5

United States v. American Trucking Associations,

ek ie Be IS deicckvesintshceciscteheumeessuabenisceceutcouton 1]

Women’s Medical Professional Corp. v. Taft,

SSS F.3d 436 (Gth Cir. 2003). ..........cccecccececscccosesceseses 12

STATUTES

18 U.S.C. § 1531(b)(1)(B) (2000)... ec ee eeeeeeeeeeeee 9

Legal Birth Definition Act,

Mich. Comp. Laws §§ 333.1081-333.1085......... passim

OTHER AUTHORITIES

17A Wright, Miller, Cooper and Amar,

Federal Practice and Procedure:

Jurisdiction 3d § 4248 (2007).........cccceeeeeeceeeeeees 6, 14

M. Bryan Schneider, “But Answer Came There

None”: The Michigan Supreme Court and the

Certified Question of State Law,

41 Wayne L. Rev. 273 (1995)... ecccececcccccccseceseeeeee 15

Mich. Journal of the Senate 92-40

ee ae 11

Mich. Journal of the Senate 92-58

I iis nS ea Sek ot Be es hn refs 10

Mich. Op. Att’y Gen. No. 7174 (2005) «00.00.0000... 2,10

Senate Fiscal Agency Analysis for Enrolled

I IE I coe ee 11

RULES

I I Ss Ned 2 4

Be eric WIN sicenices acceded sevhcotcgcscaacemsssdh oapshiaccsa diated 4

Rs TUNG I WI sacecticlitcatcntssuacanteehe ciiteciti la eae 15

V1

STATEMENT OF THE CASE

This case involves a challenge to Michigan

Public Act 135 of 2004, the “Legal Birth Definition

Act” (codified at Mich. Comp. Laws §§ 333.1081-

333.1085) (“the Act”). Both courts below found that

the Act would broadly prohibit the most commonly

used methods of abortion in the first and second

trimesters. The Act does so not by banning abortion

directly, but by equating a “perinate” with a legally

born person “for all purposes under the law.” §

333.1083(1); Pet. App. 71a. The Act then defines a

“perinate” as a “live human being at any point after

which any anatomical part of the human being is

known to have passed beyond the plane of the

vaginal introitus,” i.e., the vaginal opening, “until the

point of complete expulsion or extraction from the

mother’s body.” § 333.1085(d) (emphasis added); Pet.

App. 72a (emphasis added). The Act specifies no

penalties for violating its terms, but it has the effect

of subjecting physicians to criminal, civil, and

administrative liability. See § 333.1083(2); Pet. App.

71a. Accordingly, physicians who perform the most

common first- and second-trimester abortions would

face prosecution for all acts and omissions they take

regarding “perinates.” § 333.1083(1); Pet. App. 71a.

The Act was passed in June 2004, and

scheduled to take effect on March 30, 2005. Pet.

App. 37a. On March 1, 2005, Respondents filed suit

alleging that the Act was unconstitutional because it

banned the most common abortion methods, thereby

creating an undue burden. Respondents also alleged

that the health and _ life exceptions were

constitutionally inadequate and that the Act was

void for vagueness. Jd. at 36a-37a. Respondents

simultaneously moved for a preliminary injunction.

Two weeks later, the parties stipulated to a

temporary restraining order to remain in effect until

the district court ruled on the motion. Jd. at 37a. On

April 4, 2005, more than a month after this case was

filed, the Attorney General issued an opinion

purporting to limit the scope of the Act to cover only

one procedure, the intact variation of the dilation

and evacuation procedure, and to craft adequate

health and life exceptions. Id. at 54a-69a (Mich. Op.

Att'y Gen. No. 7174 (2005)). Based solely on the

Attorney General’s opinion, the State moved to

dismiss the case. Id. at 42a.

The district court, with the consent of the

parties, consolidated the motion for preliminary and

permanent relief, and heard arguments on that

motion and the motion to dismiss.! Jd. at 4la. On

September 12, 2005, the district court issued a

decision holding the Act unconstitutional because it

created an undue burden on women _ seeking

reproductive health care. The district court found

that “[t}he Act ... creates a ban on actions at the

heart of abortion procedures from the earliest stages

of pregnancy, whether used to perform induced

abortions or to treat pregnancy loss.” Id. at 43a-44a.

In so holding, the district court rejected the State’s

argument that the Act could be limited to intact

D&E: “A reading of the specific language of the Act

' The district court also heard a motion to intervene filed by an

entity called Standing Together to Oppose Partial-birth-

abortion (“STTOP”). The factual and procedural background

related to STTOP’s motion is detailed in Respondents’

opposition to STTOP’s petition for a writ of certiorari, Standing

Together to Oppose Partial-birth-abortion v. Northland Family

Planning Clinic, Inc., No. 07-291.

supports Plaintiffs’ arguments in that the Act would

ban all pre-viable abortion procedures, including the

suction curettage, D&E and induction methods of

abortion.” Id. at 44a. The district court also held

that the Act’s exceptions failed to protect women’s

health and their lives, and that the Act was

unconstitutionally vague. Jd. at 45a-49a. The

district court implicitly denied the State’s request to

certify a question about the meaning of the Act to the

Michigan Supreme Court.

The Sixth Circuit affirmed, agreeing with the

district court that the Act created an undue burden

by banning the most commonly used first- and

second-trimester abortion procedures, including

suction curettage and D&E.2 ZId. at 16a-17a. In so

holding, the court rejected the State’s attempt,

proffered through the Attorney General’s opinion, to

narrow the statute to cover only intact D&Es. Id. at

17a-18a. The court held that the statute was not

genuinely susceptible to such a construction, and

that the State’s argument to the contrary was “based

on either a misunderstanding or an inaccurate

description of the D&E procedure.” Jd. The Sixth

Circuit also declined the State’s request to certify a

question about the Act’s meaning to the Michigan

? The Sixth Circuit did not reach Respondents’ claims that the

Act's health and life exceptions were constitutionally

inadequate. The court also found it unnecessary to reach

Respondents’ vagueness claim, which focused primarily on the

health and life exceptions. For similar reasons. the Sixth

Circuit found it unnecessary to address the Act’s failure to

define with specificity the procedures that it banned because

the Sixth Circuit concluded that the Act bans a wide range of

medically safe procedures under any plausible construction of

the statute. See Section II, infra.

Supreme Court. Citing this Court’s decisions in

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

Arizonans for Official English v. Arizona, 520 U.S. 43

(1997), the Sixth Circuit held that “the language of

the statute here is not subject to a_ limiting

construction,” and therefore the “prerequisite for

certification is not met.” Pet. App. 29a.

REASONS FOR DENYING THE WRIT

The only question that the State has asked

this Court to review is whether the lower courts

should have certified a question about the meaning

of the Act to the Michigan Supreme Court. That

limited question does not warrant plenary review by

this Court for at least three reasons. First, there is

no dispute among the parties, or conflict in the lower

courts, about the proper standard for determining

whether to certify a question to a state supreme

court. See Sup. Ct. R. 10(a). Second, the Sixth

Circuit properly applied this Court’s well-established

standard for certifying a question: whether a state

statute is reasonably susceptible of a narrowing

construction. The Sixth Circuit held that the Act

unambiguously applied to the most commonly used

first- and second-trimester abortion methods, and

therefore properly exercised its discretion in

declining to certify a question to the Michigan

Supreme Court. Third, this case does not present an

important federal question because the procedures

for and practical application of certification are

entirely state-specific. Id. at 10(c). Accordingly, the

petition for certiorari should be denied.

1. There Is No Conflict or Confusion in the

Lower Courts About the Standard For

Certifying Questions to State Supreme

Courts.

This Court has made clear that the decision

whether to certify a question to a state supreme

court is discretionary, and that in exercising that

discretion federal courts should consider whether the

statute 1s susceptible to a narrowing construction.

See, e.g., Stenberg, 530 U.S. at 945 (refusing to

certify question about scope of Nebraska’s “partial-

birth abortion” statute because it was not fairly

susceptible to narrowing construction); City of

Houston, Texas v. Hill, 482 U.S. 451, 471 (1987)

(refusing to certify a question about the meaning of

an ordinance because it was “neither ambiguous nor

obviously susceptible of a limiting construction’);

Lehman Bros. v. Schein, 416 U.S. 386, 390-91 (1974)

(the decision to resort to certification “rests in the

sound discretion of the federal court”).

That is the standard that the Sixth Circuit

applied in this case.* Pet. App. 29a. It is also the

standard that other federal circuits have routinely

and consistently applied. See, e.g., Union Planters

Bank, N.A. v. New York, 436 F.3d 1305, 1308 (11th

Cir. 2006) (certification was appropriate where

3 Moreover, this standard properly balances federalism, comity,

and state sovereignty with the responsibility of the federal

courts. Cf. Kusper vu. Pontikes, 414 U.S. 51, 55 (1973) (where

statute not susceptible of constitutional interpretation, Pullman

abstention, the predecessor to certification, “would amount to

shirking the solemn responsibility of the federal courts to

guard, enforce, and protect every right granted or secured by

the constitution of the United States”) (internal quotation

marks omitted).

statute was ambiguous); Amer. Civil Liberties Union

of Nevada uv. Heller, 378 F.3d 979, 986-87 (9th Cir.

2004) (certification is appropriate if statute is

susceptible to a narrowing construction); Planned

Parenthood of Cent. N.J. v. Farmer, 220 F.3d 127,

151-52 & n.12 (3d Cir. 2000) (noting that certification

would be “fruitless” because, inter alia, the statute

was not amenable to a narrowing construction);

Planned Parenthood, Sioux Falls Clinic v. Miller, 63

F.3d 1452, 1463 (8th Cir. 1995) (certification is not

necessary where the statute is neither ambiguous

nor susceptible of a limiting construction); Dorman v.

Satti, 862 F.2d 432, 435 (2d Cir. 1988) (certification

is appropriate if the statute is readily susceptible to a

narrowing construction); Grant v. Meyer, 828 F.2d

1446, 1448 n.5 (10th Cir. 1987) (certification is

improper if the statute is unambiguous). See

generally 17A Wright, Miller, Cooper and Amar,

Federal Practice and Procedure: Jurisdiction 3d §

4248 (2007) (discussing history of federal

certification and collecting cases).

In short, there is no conflict or confusion in the

lower courts about the appropriate standard for

certification.

Il. The Sixth Circuit Properly Exercised Its

Discretion in Declining Certification

Based on Its Determination That the Act

Is Not Reasonably Susceptible to a

Narrowing Construction.

The Sixth Circuit properly followed this

Court's precedents in determining the threshold

question for certification: whether the Act is

“genuinely susceptible to two constructions.” Pet.

App. 17a (quoting Gonzales v. Carhart, 127 S. Ct.

1610, 1631 (2007)). As this Court held in Hill. a

statute is “not susceptible to a limiting construction”

if “its language is plain and its meaning

unambiguous.” 482 U.S. at 468 (internal quotation

marks and citations omitted); see also Stenberg, 530

U.S. at 945 (“statute must be ‘genuinely susceptible’

to two interpretations”) (quoting Almendarez-Torres

vu. United States, 523 U.S. 224, 237-39 (1998)).4

Turning first to this Court’s decisions in

Gonzales and Stenberg, the Sixth Circuit compared

the Act to the federal abortion ban this Court upheld,

and the Nebraska ban it struck down. Pet. App. 16a-

19a. The federal ban, the Sixth Circuit noted,

‘ The State’s argument that federal courts should normally

grant all requests for certification, Pet. Br. at 7-8, ignores this

well-settled precedent, and such a blanket policy would

inundate state supreme court dockets. Moreover, the cases

relied upon by the State involve circumstances not present

here. For example, in Arizonans for Official English this Court

noted in dicta that the lower courts should have given greater

“consideration” to the certification request because, inter alia,

the course of the case was “complex,” and there was a parallel

case pending in the state courts. 520 U.S. at 79-80. In

addition, Fiore v. White, 528 U.S. 23, 28-29 (1999), involved the

clarification of a state court’s previous construction of a state

statute, and in Elkins v. Moreno, 435 U.S. 647, 662 n.16 (1978),

the Court certified the interpretation of a single word -

“domicile” — because it was germane to the operation of state

government. Here, the State is seeking a construction of the

Act that does not turn on the interpretation of a word or a

phrase, but instead would require wholesale rewriting. See

infra at 16-17. As this Court has held in declining to certify a

question, “[a] federal court may not properly ask a state court if

it would care in effect to rewrite a statute.” Hill, 482 US. at

471.

applies only if a physician has delivered the fetus to

specified “anatomical landmarks,” which led the

Gonzales Court to conclude that the federal ban

applies only to intact D&E. ZId. at 18a. The Act in

_this case has no such limitation. Jd. Indeed, the Act

is even broader than the ban struck down in

Stenberg: that ban encompassed D&E procedures

because it applied once a “substantial portion” of the

fetus was through the cervix. Jd. In contrast, the

Act “applies when ‘any anatomical part’ of the fetus

passes the vaginal introitus.”5 Jd. The Sixth Circuit

properly reasoned that if the ban in Stenberg

5 There is a slight difference between the Nebraska ban’s

requirement that the fetus be brought into the vagina, and the

Act’s requirement that the embryo or fetus pass the vaginal

opening. But the Sixth Circuit found this difference

“insignificant” and noted that “Michigan does not argue to the

contrary.” Pet. App. 16a n.4. The Sixth Circuit based its

conclusion on the evidence, which demonstrated that ina D&E

procedure, the cervix is pulled “towards the vaginal introitus,

which shortens, if not eliminates, the distance between the

cervix and the vaginal introitus.” Jd. at 16a-17a n.4 (quoting

Decl. of Dr. Michael Hertz at 5). Indeed, regardless of the

language of the ban considered in Stenberg, it is undisputed

that during a D&E procedure a portion of the fetus is brought

outside the vaginal opening. See id. at 6a (“The resistance

caused by pulling the extracted portion of the fetus against the

cervix causes the fetus to disjoin and die, after which the

remaining parts are extracted.”). Because “a portion of the

fetus passes beyond the vaginal introitus” during a D&E, “this

necessarily means [the Act] applies to D&E procedures.” Id. at

16a-17a. This evidence is consistent with the description of

abortion procedures in Gonzales and Stenberg. Gonzales, 127 S.

Ct. at 1621 (in D&E procedure a fetal part is pulled “through

the cervix and vagina” and a feta] part may be disjoined as “it is

pulled through the cervix and out of the woman”); Stenberg, 530

U.S. at 925-26 (dismemberment in D&E occurs only after fetal

part is pulled outside the cervix).

encompassed D&E abortions, the Act must as well

because “whatever ‘substantial part’ means, it must

require the removal of more than ‘any anatomical

part, and both clearly fall short of the ‘anatomical

landmarks’ of the federal ban.”"6 Jd. The Act’s

language is so broad, the Sixth Circuit found, that it

also applied to first-trimester suction curettage and

second-trimester induction procedures because in

both procedures “signs of life identified in the statute

... are often present after the fetus or embryo passes

beyond the vaginal introitus.” Jd. at 18a-19a. The

court therefore held that the Act is “easily the most

Sweeping and the most burdensome of the three”

bans. Id. at 18a.

Accordingly, the Sixth Circuit rejected the

State’s argument, outlined in the Attorney General's

opinion, that the Act can be read to apply only to the

intact D&E procedure.’ Jd. at 17a-18a. The State

§ In addition, the Act lacks many other characteristics that led

this Court to uphold the federal ban in Gonzales. For example,

this Court held that the federal ban’s “intent requirements . . .

limit its reach to those physicians who carry out the intact

D&E.” 127 S. Ct. at 1629. The Michigan Act contains no

scienter requirements. In addition, unlike the Act. the federal

ban contains a requirement that the physician perform an

“overt act, other than completion of delivery, that kills the

partially delivered living fetus.” Id. at 1627 (quoting 18 U.S.C.

§ 1531(b)(1)(B) (2000)). This Court noted that such a

requirement “matters because, unlike intact D&E, standard

D&E does not involve a delivery followed by a fatal act.” Id. at

1631.

7 The Sixth Circuit also held that the Attorney General's

opinion could not moot the case because it did not bind courts or

future Attorneys General. Pet. App. 21a. Moreover. contrary to

the State’s claim, Pet. Br. at 4, the extent to which the Attorney

General can bind prosecutors is, at best, unclear, see Pet. App.

27a. In its petition, the State no longer argues that the

argued that a fetus in a D&E procedure will not

become a perinate because that procedure requires

the “dismemberment or disarticulation of the fetus

and removal of the dead fetus ‘piece by piece’ from

the woman’s uterus.” Jd. at 17a (quoting A.G. Op. at

9); Pet. Br. at 19. The Sixth Circuit held that the

State's purported construction “is at odds with the

language of the statute,” which encompasses suction

curettage, D&E, and inductions, and that the State’s

interpretation is “based on either a

misunderstanding or an inaccurate description of the

D&E procedure.”® Pet. App. 17a-18a.

The court also rejected the State’s legislative

history argument because “given the unambiguous

language of the statue . . . it [is] unnecessary to rely

upon the legislative history here.”® Jd. at 20a. As

Attorney General's opinion moots the case. Rather, it merely

suggests that it might provide a “template” for the Michigan

Supreme Court if certification was granted. Pet. Br. at 12-13.

* Contrary to the State’s argument, the Act nowhere requires

the embryo or fetus to be “intact” to be a “perinate.” Instead,

the Act applies once any non-severed part passes outside the

woman. As long as the “anatomical part” is non-severed when

it passes outside the woman, the embryo or fetus becomes a

“perinate.” See Pet. App. 45a. Moreover, even if the word

“intact” could be imported into the definition of “perinate,” it

would not limit the scope of the Act: the passage of a small part

of an intact embryo or fetus is routine in the most common and

safest procedures.

9 Moreover, contrary to the State’s claim that limiting the Act to

intact D&Es is faithful to the statute's legislative history, see

Pet. Br. at 25-29, there is evidence that the Legislature

intended the Act to encompass far more. If the Legislature had

intended to ban only intact D&E, it could have, for example,

adopted Ohio's intact D&E ban previously upheld by the Sixth

Circwt. See infra at 12 n.10. Even co-sponsors of the Act

stated it would ban other procedures, including inductions. See,

10

this Court has held, “[t]here is, of course, no more

persuasive evidence of the purpose of a statute than

the words by which the legislature undertook to give

expression to its wishes.” United States v. Amer.

Trucking Ass’ns, 310 U.S. 534, 543 (1940). The Sixth

Circuit noted that, as in Stenberg, “[t]he relevant

question is not whether the legislature wanted to ban

D&X; it is whether the law was intended to apply

only to D&X. The plain language covers both

e.g., Mich. Journal of the Senate 92-58 at 1065 (June 9, 2004)

(Senate co-sponsor Birkholz stating that without the Act.

“induced labor abortions” will “remain legal in Michigan”),

available at http://www .legislature.mi.gov/

(x50yexj4xx4x23uld3inod45)/documents/2003-2004/Journal/

Senate/pdf/2004-SJ-06-09-058 pdf.

Numerous legislators warned that the Act covered most

abortion procedures and was therefore unconstitutional. See,

e.g., Mich. Journal of the Senate 92-40 at 475-76 (May 1, 2003)

(Statements of Senators Jacobs and Schauer), available at

http://www legislature. mi.gov/(x50yexj4xx4x23u1d3inod45)/doc

uments/2003-2004/ Journal/Senate/ pdf/2003-SJ-05-01-040.pdf.

In addition, the State’s reliance on legislative and fiscal:

analyses is improper and misleading. See Pet. Br. at 26-27.

Far from proving one side’s claims, or demonstrating intent,

those analyses simply paraphrase the viewpoints of legislators

supporting and opposing the bill. See, e.g., Senate Fiscal

Agency Analysis for Enrolled Senate Bill 395 at 6 (the Act

would “prohibit at least D&X and D&E abortion procedures”)

(emphasis added) (cited in Pet. Br. at 26), available at

http://www legislature.mi.gov/(S(f54hfm45sncr3oyz1fjqo4bt))/do

cuments/2003-2004/billanalysis/Senate/pdf/2003-SFA-0395-

E.pdf; see also id. at 8 (this analysis “does not constitute an

official statement of legislative intent”); Frank W. Lynch & Co.

uv. Flex Techs., Inc., 624 N.W.2d 180, 184 & n.7 (Mich. 2001)

(such analyses are “a feeble indicator of legislative intent’).

li

procedures.”!® Pet. App. 18a (quoting Stenberg, 530

U.S. at 939).

Notwithstanding the Sixth Circuit’s fidelity to

this Court’s precedent, the State contends that the

court abused its discretion in refusing to certify a

question to the Michigan Supreme Court because

that court would have “construed” the Act to render

it constitutional. See Pet. Br. at 17. In fact,

Michigan’s cannons of statutory construction, which

are virtually identical to those employed by the Sixth

Circuit, would demand the same result the Sixth

Circuit reached.'!!' See DiBenedetto v. W. Shore

Hosp., 605 N.W.2d 300, 304 (Mich. 2000) (where

statutory language is unambiguous Michigan courts

“presume that the Legislature intended the meaning

clearly expressed - no further judicial construction is

required or permitted”). Moreover, contrary to the

State’s claim, the Michigan Supreme Court’s decision

in People v. Bricker did not establish unique

statutory construction principles for abortion

jurisprudence in Michigan. 208 N.W.2d 172, 176

(Mich. 1973) (decision “based upon a construction of

10 The Sixth Circuit also recognized that the Michigan

legislature “had significant guidance in implementing a statute

that would ban only the D&X procedure” from this Court in

Stenberg and from the Sixth Circuit’s decision in Women’s Med.

Prof! Corp. v. Taft, 353 F.3d 436 (6th Cir. 2003), which upheld

Ohio’s intact D&E ban. Pet. App. 22a. The Legislature

nevertheless passed a “very broadly-worded statute that

showed no meaningful attempt to comply with the

constitutional limitations articulated by federal courts.” Jd.

‘1 Furthermore, the Michigan Supreme Court rarely accepts

certified question from federal courts, particularly where, as

here, the underlying action involves a federal constitutional

challenge to a state statute. See Section [II, infra.

12

Michigan’s’ statute guided by constitutional

principles well recognized and applied in our state”).

The Bricker court simply held that the pre-Roe v.

Wade abortion ban could be applied to non-

physicians consistent with legislative intent,

especially because there was no question about the

law’s constitutionality when it was enacted.!2 Jd. at

174-76. The same cannot be said of the Act. See

supra at 12 n.10; infra at 14.

Moreover, contrary to the State’s claim that

the Sixth Circuit did not adhere to the principles of

federalism and comity, the Sixth Circuit properly

followed Ayotte v. Planned Parenthood of N. New

England, 546 U.S. 320, 330 (2006), in determining

that rewriting the Act in the manner suggested by

the State would invade the legislative domain.

Although Ayotte involved the standard for fashioning

an appropriate remedy after a _ finding of

unconstitutionality — not the construction of a

statute — the Sixth Circuit noted that both doctrines

require fidelity to the text of the statute “lest the

courts usurp the legislative function.” Pet. App.

16a.'3 Similarly, courts are not in a position to

'2 The same is true in People v. Adams, cited by the State. 205

N.W.2d 415, 422 (Mich. 1973) (statute must be construed “to

achieve the Legislature’s intention’) (cited in Pet. Br. at 17).

'3 The Sixth Circuit recognized that the State conflated the

doctrine of constitutional avoidance, in which a narrowing

construction 1s adopted, with the question of fashioning a

remedy after a court has determined that a statute is

unconstitutional. Pet. App. 15a. The only doctrine at issue in

this petition is the former as it relates to certification — the

State has not asked this Court to review the Sixth Circuit's

undue burden holding or the remedy adopted by the Sixth

Circuit upon finding the Act unconstitutional. See Pet. Br. at i.

6-7.

13

“rectify [a legislature’s] dragnet approach to

legislation” if a legislature passes a “very broadly-

worded statute that show[s] no meaningful attempt

to comply with .. . constitutional limitations.” Jd. at

_ 22a. Indeed, as the Sixth Circuit observed, Ayotte’s

warning to courts to “be wary of statutes that set an

extremely wide net of prohibited conduct, and leave

it to the courts to set the constitutional boundaries,”

was particularly “apropos here [because] the

Michigan legislature appears to have cast a wide net

that would prohibit virtually all methods of abortion

once a fetal heart beat is detectable . . . despite

knowing that some of these procedures were

constitutionally protected.” Pet. App. 19a. Accord

DiBenedetto, 605 N.W.2d at 306 (“[W]e decline to

rewrite the plain statutory language and substitute

our own policy decisions for those already made by

the legislature”).

III]. Whether the Sixth Circuit Abused Its

Discretion By Refusing to Certify This

Case to the State Supreme Court Does

Not Raise an _ Important Federal

Question.

This case does not present an important

federal question because the mechanism for

certifying a question to a state supreme court is

grounded in state law. Some states do not even have

a process for federal courts to certify questions to the

state supreme court. See, e.g., 17A Wright, Miller,

Cooper and Amar, Federal Practice and Procedure:

Jurisdiction 3d § 4248 (2007). Moreover, whether a

state supreme court will, in practice, accept @

certified question varies widely from state to state.

14

Although Michigan allows federal courts to certify

questions to the Michigan Supreme Court, Mich. Ct.

R. 7.305, that court rarely accepts such questions. !4

In Knox v. Eli Lilly and Co., the Sixth Circuit

expressed its frustration after the Michigan Supreme

Court refused to answer a certified question:

This is not the first time our questions

have been rebuffed by the Michigan

Supreme Court, and we must frankly

conclude that the promise of the

certification procedure . . . [is] illusory. .

. . If our requests for assistance are to

be denied . . . the certification procedure

is worse than useless, as it only further

delays the lethargic movement of civil

cases through the courts.

592 F.2d 317, 319 (6th Cir. 1979); see also M. Bryan

Schneider, “But Answer Came There None”: The

Michigan Supreme Court and the Certified Question

of State Law, 41 Wayne L. Rev. 273, 315 (1995) (“The

Michigan Supreme Court, to say the least, is not very

'4 Indeed, some Michigan Supreme Court justices believe that

they lack the constitutional authority to accept certified

questions from federal courts, which leads them to routinely

refuse to accept questions. See, e.g., In re Certified Questions

(Melson v. Prime Ins. Syndicate), 696 N.W.2d 687, 687 (Mich.

2005) (Weaver, J., concurring); id at 687-92 (Young, J.,

concurring) (“[a]ny construction of Michigan law that we would

have provided by answering the certified questions would have

been merely ‘advisory’ because our decision would not have

been binding” and such an advisory opinion is “beyond the

‘judicial power’ of this Court, and therefore, unconstitutional”).

15

receptive to the certified question. .. . [T]he court

refuse[s] to answer most questions”). !5

The Michigan Supreme Court is particularly

reluctant to answer questions in the context of

federal constitutional challenges, such as this case.

For example, in In re Certified Question (Jewell

Theatre Corp.), 359 N.W.2d 513 (Mich. 1984), the

Michigan Supreme Court refused to accept a

question about the meaning of the phrase “open and

indecent exposure” from a federal district court

considering the constitutionality of an indecent

exposure statute. The Michigan Supreme Court held

that certification was not properly invoked, in part

because the federal district court, “remarkably, but

unequivocally, declared that the statute apparently

[would] not pass constitutional muster .. . unless

this Court responded to a certified question giving a

‘saving construction” to the statute. Jd. at 515-16.

The court also noted that the question was “a mere

request for an advisory opinion . . . [about] federal

constitutional law, thinly veiled behind a purported

request” for advice on Michigan law. Id. at 516. The

factors that led the Michigan Supreme Court to

refuse to accept a certified question in Jewell Theatre

apply with even more force here. First, the Sixth

Circuit has already declared the Act unconstitutional

— which the State has not appealed — and the

certified question the State proposes would clearly

ask the Michigan Supreme Court to “save” the Act

from otherwise certain unconstitutionality. Second,

the State’s request is not proposed as a question

15 The State thus errs in claiming that certification in this case

would further “judicial economy.” Pet. Br. at 8.

16

about a specific phrase or word in the Act, such as

“open and indecent”; rather, the question is whether

the Act may be replaced in its entirety with the

Attorney General’s opinion.

Accordingly, because the contours and

practical application of the certification mechanism

vary from state to state, this case does not present an

important federal question.

CONCLUSION

For the foregoing reasons, the State’s petition

for a writ of certiorari should be denied.

Respectfully submitted,

BRIGITTE AMIRI

Counsel of Record

TALCOTT CAMP

LOUISE MELLING

ALEXA R. KOLBI-MOLINAS

STEVEN R. SHAPIRO

American Civil Liberties

Union Foundation

125 Broad Street, 18t* Floor

New York, NY 10004

(212) 549-2633

MICHAEL J. STEINBERG

KARY L. Moss

American Civil Liberties Fund

of Michigan

60 West Hancock Street

Detroit, Michigan 48201

(313) 578-6814

Counsel for Individual Physicians

EVE C. GARTNER

ROGER EVANS

Planned Parenthood

Federation of America

434 West 33'¢ Street

New York, NY 10001

(212) 541-7800

Counsel for Planned Parenthood

Mid- Michigan Alliance and Planned

Parenthood of South Central Michigan

18

JANET CREPPS

Center for Reproductive Rights

120 Wall Street, 14» Floor

New York, New York 10005

(917) 637-3600

DAVID A. NACHT, P.C.

201 South Main, Suite 1000

Ann Arbor, Michigan 48104

(734) 663-7550

Counsel for Northland Clinics and

Summit Medical Center, Inc.

November 7, 2007

19