# Petition for Writ of Certiorari — Rogers v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1850%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 507 U.S. 917 ## Text pour, U.S. Supreme Court, U.S. FILED t DEC 2 1.1992 OFACE OF THE CLERK Supreme Court of the United States OCTOBER TERM, 1992 EDWIN W. EDWARDS, et al, Petitioners, V. SOJOURNER T., et ai, Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT RICHARD P. IEYOUB, Attorney General M. PATRICIA JONES Assistant Attorney General LOUISIANA DEPARTMENT OF JUSTICE Office of Attorney General State Capitol—22nd Floor Baton Rouge, LA 70806 (504) 342-7013 ROBERT E. WINN,* JOY G. BRAUN, Special Assistant Attorneys General 3500 Place St. Charles 201 St. Charles Avenue New Orleans, LA 70170 (504) 582-1500 JAMES BOPP, JR., Special Assistant Attorney General 191 Harding Avenue P. O. Box 8100 Terre Haute, IN 47808-0410 (812) 238-2421 Counsel for Petitioners A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555 i QUESTIONS PRESENTED 1. Whether the Louisiana Abortion Statute is un- constitutional in all of its possible applications and, if not, whether it can be enforced in its constitutionally permissi- ble applications? 2. Whether, in light of the undisputed facts of human development and the recently acquired scientific evidence of the humanity of the unborn child, Louisiana’s Abortion Statute is an appropriate and reasonable exercise of authority reserved to the states by the United States Constitution? ii PARTIES TO THE PROCEEDING The Defendants-Appellants below and Petitioners in the case at bar are Edwin W. Edwards, as Governor of the State of Louisiana; and Richard P. Ieyoub, as Attorney General of Louisiana. Harry Connick, Sr., as District At- torney for the Parish of Orleans was also made a party defendant in the district court. He appealed the district court’s decision and has filed a separate petition for certiorari.* The Plaintiffs-Appellees below and Respondents herein are Sojourner T., Jane and Ida B. on behalf of themselves and all others similarly situated; James DeGueurce, M.D., Calvin Jackson, M.D., and Pamela Bran- ning, M.D., on behalf of themselves and all others similarly situated, and their patients; Hope Medical Group for Woman; Delta Women’s Clinic West; Causeway Medical Suite; Emilia Bellone, M.S.W., on behalf of herself and her clients; Reverend Kathleen Korb and Rabbi Michael Matuson, on behalf of themselves and their congregants; and Dr. Ifeanyi Charles Okpalobi. *Harry Connick, Sr. was represented in the district court and Court of Appeals by John S. Baker, Room 414, LSU Law Center, Baton Rouge, LA 70806, (504) 388-8846. AP EE “ lil TABLE OF CONTENTS Page(s) QUESTIONS PRESENTED ....................... i PARTIES TO THE PROCEEDINGS ............... ii TABLE OF CONTENTS ......................... iii TABLE OF AUTHORITIES ..................... Vii OPP ROU MRED MOEMMOW ceca l NS ah ok dep yd wld d Aas shew ea ss l STATUTE & CONSTITUTIONAL PROVISIONS ....2 STATEMENT OF THE CASE..................... 2 A. Course of Proceedings and Disposition in the Court Below ........................... sa ee 2 B. Statement of the Facts....................... 3 REASONS FOR GRANTING THE WRIT........... 6 PRELININARY STATEMENT I. The Court Below Failed to Apply The Normal Standard for Facial Challenges, Which Must Be Applied in Cases Involving The Con- stitutional Right to Abortion ................... 7 A. In a Facial Challenge to a Statute, the Plaintiff Has the Burden of Proving That No Application of the Statute Is a lt ca ce kbs scaee. 7 B. The Normal Rule for a Facial Challenge Should Apply to Cases Involving Abortion .. .8 iv TABLE OF CONTENTS (continued) Page(s) 1. The facial challenge rule is a general principle of law that should be applied in an even-handed, neutral fashion ...... 9 2. Sound jurisprudential and practical reasons support principled adherence to the facial challenge rule ............ 10 3. The lower court failed to apply facial challenge principles to the Louisiana pe ee ee 11 II. The Court Should Grant Review to Consider the Right of the State of Louisiana to Re- Weigh the Interests of the Pregnant Woman ee ee ce Pe ee 11 A. The Crucial Balancing in Roe of the Rights of the Pregnant Woman Against Only the Potential Life of the Unborn Child Was Wrong and Should Be Re-Examined........ 12 B. Principles of Stare Decisis, Properly Understood, Should Not Preclude Recon- sideration of Roe and the Re-Balancing of the Competing Interests in the Abortion SG nce as ee nee ast 14 C. Louisiana’s Determination That Actual Human Life Begins Jn Utero and Its Deci- sion to Protect Such Life Accords With Modern Scientific Knowledge Available Since Roe v. Wade ........................ 17 v TABLE OF CONTENTS (continued) Page(s) 1. Modern developments in embryology and fetology establish the humanity of ee 17 2. Ultrasound enables us to observe the humanity of the unborn child.......... 18 3. There is evidence of fetal pain......... 20 D. Louisiana’s Abortion Statute Is an Ap- propriate and Reasonable Exercise of Authority Reserved to the States by the riley GHP Ces 0465 4 Zee hw Ske ds eh 22 1. This Court has recognized other areas where States may legislate not- withstanding individual privacy rights . . 22 2. Louisiana’s determination that actual human life begins in utero accords with the recognition of unborn human life in the law of most States............. 24-25 3. Louisiana’s unique legal system has historically afforded legal protection to ree 26 CAIPGUUUE oo oh wk xn Chink Ceewn eae ee 29 vi TABLE OF CONTENTS (continued) APPENDICIES: Page(s) A. OPINION AND JUDGMENT OF THE B. UT We TE 68k SRA wh he SAAR es A-l OPINION OF THE DISTRICT COURT REASONS FOR JUDGMENT ............. A-13 JUDGMENT OF THE DISTRICT COURT . .A-17 ACT 26 OF THE 1991 LOUISIANA SAA EAIME, 55. us oy caw Dh b a va ek A-19 . OPINION OF THE LOUISIANA AT- Wubeerems es GIBIIERAL.. . 6 cs cee cess, A-24 LIST OF STATES RECOGNIZING THAT HUMAN LIFE BEGINS AT CONCEPTION . A-31 . LIST OF STATES THAT TREAT THE KILLING OF AN UNBORN CHILD AS at ee eae okay ee A-63 6 a IPM MEAS! gatas ite hag yb. A-68 Vii TABLE OF AUTHORITIES CASES: Page Akron v. Akron Center for Reproductive Health, Se I oc an ies aren 9 Barnes v. Moore, 970 F. 2d 12 (5th Cir. 1992), cert. denied, Dec. 7, 1992, 61 U.S.L.W. 3303 ............ 6 Booth v. Maryland, 482 U.S. 496 (1987) .......... 15,16 Bowers v. Hardwick, 478 U.S. 186 (1986) ........... 24 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 447, 76 L.Ed. 815 (1932) ........ 15 Byrn v. New York, 31 N.Y.2d 194 (1992) appeal dismissed 410 U.S. 949 (1973) ................... 13 Connecticut v. Menillo, 423 U.S. 9 (1975) .......... 8,10 Danos v. St. Pierre, 402 So.2d 633 (La. 1981) ........ 28 Guam Society of Obstetricians and Gynecologists v. Ada, 962 F.2d 1366 (9th Cir. 1992); cert. denied, 61 U.S.L.W. 3399 (U.S. Nov. 30, 1992) ............... 5 Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604 (1940).................... 15 Johnson v. South New Orleans Light & Traction Co., No. 9,048 (La. App. Orl. Cir. 1923), writ denied, No. 26,443 (La. 1942) (unreported decisions) . 27 Vili TABLE OF AUTHORITIES (continued) CASES: Members of City Council v. Taxpayers for Vincent, S00 U.S. TOD, TOG (2984)... 2... ccc. 8,9 Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. to gg BEES PO NA a DT Ee 55 ata 24 National Metropolitan Bank v. U.S.. 323 U.S. 454 Pe ae ee ee ern 4 Ohio v. Akron Center for Reproductive Health, 110 es eo CP ie ee 9 Ifeanyi C. Okpalobi v. State 0 Louis’ x, et al, No. 91-2422 (E.D. La. July 3, 1991: ................... 3 Payne v. Tennessee, 111 S.Ct. 2597 (| ia 14,15,16 Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791 (1992) .............. passim Reynolds v. United States, 98 U.S. 145 mere. oe 23 Roe v. Wade, 410 U.S. 113 (1973) .............. passim Rust v. Sullivan, 111 S.Ct. 1759, 1767 Si) | is 5,10 Schall v. Martin, 467 U.S. 253, 269 n. 19 (1984)...... 11 ix TABLE OF AUTHORITIES (continued) CASES: Page Smith v. Allwright, 321 U.S. 649, 665, 64 S.Ct. 757, 765, 88 L.Ed. 987 (1944)................. ee Sojourner T. v. Edwards, 974 F. 2d 27 (5th Cir. SE AG ick es Wa sachs Cs OW CY GO a ee ores passim Sojourner T. v. Roemer, 772 F. Supp. 930 (E.D. La. Peed Vo ora ce ee ee, ero ee passim United States v. Salerno, 481 U.S. 739, 745 (1987) .8,9,10 Webster v. Reproductive Health Services, 492 U.S. EE S28 areca cee vit aid 4 RII Soe oc 7,8,9,10 STATUTES: oe ge eS A re ne neem 2 First Amendment, U.S. Constitution ............... 10 Tenth Amendment, U.S. Constitution ........... 2,6,22 Fourteenth Amendment, U.S. Constitution........ 13,27 ee Pe nos ic os oe cdc doe ban 2 ee BLeOS censdew sas oas 1 SD a we Wenn a ve hawt avns l on iy Gog sense vapeudeeeadeue l ok) 1 x TABLE OF AUTHORITIES (continued) STATUTES: | Federal Rules of Civil Procedure 12(c).............. 2,3 Louisiana Abortion Statute ................ . . passim La. Acts, 1855, Act 120, §24, p.132............... 27 | Act 26 of the 1991 Louisiana Legislature ......... 2,3,4 | ee ee eee . .28 ma. Tw, MOOG. IBD nn nk 5k vc een cccncacenacck. 28 La. Rev. Stat. $9:124 .......................0.0.. 28 La. Rev. Stat. §9:125 - pcan wiley Cee oi, W.. TOG, RG oo ein vcd c vou d cn natans 4,27 La. Civil Code Article 26 ......................... 27 La. Civil Code Article 90, comment (b).............. 23 La. Civil Code Article 900 ........................ 23 May Petes OF La. Civil Code Article 901 ........................ 23 La. La. La. La. La. La. La. La. xi TABLE OF AUTHORITIES (continued) Page Raven Come Agtinte GB4 ... ww. ccc cce 27 Ciwll Code Articie 1474 ... 2... ccc ccc 27 Cowes Came Arties 1476 . ww. occ ee keen 13 Civil Code Article 1918 ....................... 13 Civil Code Article 2315 .................... ..28 Civil Code Article 2315.2(A) ................... 28 Cae OE Care Gs OR, GR won o's sein ccchuvs weal 13 Code of Civil Proc. art. 732... 2... ce 13 xii TABLE OF AUTHORITIES (continued) Page OTHER SOURCES: Affidavit of Raymond F. Gasser, Pk.D........... 20,21 American College of Obstetricians & Gynecologists Technical Bulletin number 116 - May 1988 ........ 19 Anand & Hickey, ‘Pain and Its Effects in the Human Neonate and Fetus,’”’ 317 New Eng. J. Med. (1987): 1321, 1322, 1325 J: : ae 20,21,22 Boehm & Kazazian, ‘Prenatal Diagnosis by DNA Analysis” in The Unborn Patient 82 (M. Har- rison, M. Golbus and R. Filly eds. 2nd ed. 1991) ...17 55 C.J.S. Marriage §16, 831 (1948) ................. 23 Clark, J., ed. The Nervous System; Circuits of Com- munication. The Human Body. Torstar Books, tg: WG I OE oe on nw On 5 sks Civeawede hk 21 J. Domat, The Civil Law in Its Natural Order, Voll. I, Part I, Prel. Book I. Titl. 2, § 1, Law 6, p. 138 (Strahan Transl. 1837) ....................... 26,27 Fletcher, ‘‘Pain in the Neonate,’”’ 317 New Eng. J. Med. 1321, 1347-1848 .......................... 21 Flower, ‘‘Neuromaturation of the Human Fetus,”’ 10 J. Med. Phil. 237, 242 (1988)............. 20,21,22 Harrison, ‘“‘The Fetus as a Patient: Historical Perspective,” in The Unborn Patient 3 (M. Har- rison, M. Golbus & R. Filly eds. 2nd ed. 1991) ..... 17 xiii TABLE OF AUTHORITIES (continued) OTHER SOURCES: Harrison & Adzick, ‘The Fetus as a Patient.’’ 213 wt te eee i8 Johnson & Toi, “Overview of Obstetrical Sonography”’ in Vol. 2 Diagnostic Ultrasound, (C. Rumack, S. Wilson & J. Charboneau eds. ee 19 The Nervous System; Circuits of Communication in the Human Body 109 (J. Clark ed. 1985) .......... 21 Op. Att’y Gen. No. 91-419 (La. Aug. 23, 1991) ...... 4,5 Report on Human Life Bill, Sub-Committee on Separation of Powers, Committee on the Judiciary, United States Senate (97th Cong. Ist Ee 25,26 Scanlon, ‘‘Appreciating Neonatal Pain.’’ 38 Ad- vanced Pediatrics, 317, 320 (1991)................ 21 Siete Partidas, Part VII, Title XXXIII, Law VIII... .27 Wright & Miller, Federal Practice and Pro- cedure: Civil 2nd §1368 (1990) (‘‘Practice Under EE 3,4 siege fas 8 9 scat So saan Bs a POE cn ee Bg RWS | cE PONE TS £ aes’ 1 Supreme Court of the United States October Term, 1992 EDWIN W. EDWARDS, et al., Petitioners, Vv. SOJOURNER T., et al, Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI Petitioners Edwin W. Edwards, Governor of the State of Louisiana, and Richard P. leyoub, Attorney General of the State of Louisiana, respectfully petition this Court for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit in So- journer T. v. Edwards, 974 F.2d 27 (5th Cir. 1992). OPINIONS BELOW The opinion and judgment of the United States Court of Appeals for the Fifth Circuit is reported at 974 F.2d 27 (5th Cir. 1992). They are reprinted in the appendix hereto, p. A-1, infra. The decision and judgment of the United States District Court for the Eastern District of Louisiana is reported at 772 F.Supp. 930 (E.D. La. 1991). They are reprinted in the appendix hereto, p. A-13 and p. A-17 respectively, infra. JURISDICTION Invoking federal jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343 (a)(3), and 1343(a)(4), Plaintiffs- 2 Respondents brought this suit in the Eastern District of Louisiana. On August 7, 1991, the district court, pursuant to Federal Rule of Civil Procedure 12(c), granted Plaintiffs’ Motion for Judgment on the Pleadings. See p. A-13, infra. Defendants-Petitioners appealed. On September 22, 1992, the Fifth Circuit entered judgment affirming the decision of the district court. See p. A-11, infra. No petition for rehearing was sought. The jurisdiction of this Court to review the judgment of the Fifth Circuit is invoked under 28 U.S.C. § 1254(1). STATUTE & CONSTITUTIONAL PROVISIONS This case concerns Act 26 of the 1991 Louisiana Legislature, the Louisiana Abortion Statute, which ap- pears at A-19, infra. The relevant portion of the Due Pro- cess Clause of the Fourteenth Amendment is “{NJor shall any State deprive any person of life, liberty, or property, without due process of law. . . .’”” U.S. Const. amend. XIV, §1. The Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respective- ly, or to the people.”’ U.S. Const. Amend. X. STATEMENT OF THE CASE A. Course of Proceedings and Disposition in the Court Below On June 18, 1991, Plaintiffs Sojourner T., et al, brought suit in the district court challenging the Louisiana Abortion Statute under the Due Process Clause of the Fourteenth Amendment as interpreted by Roe v. Wade, 410 U.S. 113 (1973), and other constitutional theories and requesting declaratory and injunctive relief. Sojourner T. v. Roemer, 772 F. Supp. 930 (E.D. La. 1991). On July 3, 1991, Dr. Ifeanyi Charles Okpalobi also challenged the Louisiana Me me . a BLL ODA Toe a ay wie 3 Abortion Statute under Roe v. Wade and other constitu- tional theories seeking declaratory and injunctive relief. Ifeanyi C. Okpalobi v. State of Louisiana, Sojourner T. v. Roemer, 772 F. Supp. 930 (E.D. La. 1991). The district court consolidated the cases. Both cases present solely facial challenges because the statute was enjoined before its effective date. At the request of the district judge, cross motions for judgment on the pleadings were filed along with extensive supporting memoranda.! On August 7, 1991, the district court, pursuant to Federal Rule of Civil Procedure 12(c), determined that there was ‘‘no factual issue which could change the result’’ and granted plaintiffs’ Motion for Judg- ment on the Pleadings, declared the Statute unconstitu- tional and enjoined its enforcement. See p. A-13, infra. The court declined to reach other constitutional issues raised by Plaintiffs, ‘‘because under the Roe decision they cannot make any difference in the result.’ See p. A-16, infra. The Notice of Appeal was filed on August 8, 1991. The case was docketed August 14, 1991, in the Fifth Cir- cuit. The case was argued and submitted on February 6, 1992, and on September 22, 1992, the Fifth Circuit affirm- ed the judgment of the district court, citing particularly Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791 (1992). See A-1, infra. B. Statement of the Facts” The Louisiana Abortion Statute, Act 26 of the 1991 Louisiana Legislature, see p. A-19, infra, was passed over 1 Because Rule 12(c) provides that a Motion for Judgment on the Pleadings will be converted into a motion for summary judgment if necessary, petitioners filed extensive affidavits in the record detailing fetal development and discussing the anticipated implementation of the Abortion Statute. 2 The facts of this case are those facts asserted in the Amended Com- plaint which are admitted in the Answer and those ‘‘well pleaded factual allegations in the adversary’s pleadings.’’ C. Wright & A. Miller, Federal Practice and Procedure: Civil 2nd § 1368 (1990) (‘‘Practice Under Rule 4 the veto of the Governor on June 18, 1991. It amends and reenacts LSA-R.S. 14:87, and would have gone into effect September 6, 1991. The Act makes it a crime to ‘‘ad- minister[ ] or prescribe[ ] any drug, potion, medicine, or any other substance to a female”’ or to ‘‘use[ ] any instru- ment or external force whatsoever on a female’’ “with the specific intent of terminating a pregnancy.”’ See p. A-20, in- fra. The Act provides exceptions for the termination of pregnancy (1) ‘‘to preserve the life or health of the unborn child or to remove a dead unborn child;”’ or (2) to ‘“‘save the life of the mother;”’ or (3) when the ‘‘pregnancy is the result of rape;”’ or (4) when the “‘pregnancy .. . is the result of in- cest.’’ See p. A-20, infra. Before an abortion can be perform- ed under the rape and incest exceptions, certain reporting requirements must be met. See p. A-20, infra. Also, abor- tions for reasons of rape and incest must be performed prior to the thirteenth week after conception. See p. A-21, infra. No criminal liability attaches to a woman upon whom an abortion is performed. The Louisiana Statute includes a specific finding that human life begins at conception, but the statute ex- tends the protection of the criminal law only from the onset of pregnancy. Because of questions raised about the ap- plicability of the Statute to the use of contraceptives and the practice of in vitro fertilization, the Louisiana Attorney General issued an advisory opinion, set forth in the appen- dix E hereto, providing an authoritative interpretation of the Statute: It is the opinion of this office that LSA-R.S. 14:87, which prohibits abortions except in specific (footnote 2 continued) 12(c)’’). Because the district court granted the Plaintiffs’-Respondents’ Motion for Judgment on the Pleadings, under Rule 12(c), the well plead- ed factual assertions of the Defendants’-Petitioners’ Answer ‘‘are assumed to be true and all contravening assertions in the movant’s [Plaintiffs’-Respondents’] pleadings are taken to be false.’’ Wright & Miller, Federal Practice and Procedure: Civil 2nd § 1368. See also Na- tional Metropolitan Bank v. United States, 323 U.S. 454 (1945). 5 circumstances, does not prohibit authorized and license[d] medical personnel from prescribing, or administering medicines, drugs, potions, substances or instruments that operate to pre- vent pregency rather than to terminate pregnan- cy. Because IUD’s, oral contraceptives and ‘‘the morning-after-pill” prevent rather than terminate pregnancy, their use is not made illegal by LSA- R.S. 14:87; nor is the process of in vitro fertiliza- tion subject to Act 26 until subsequent to the im- plantation of a fertilized ovum in a female’s uterus. Op. Att’y Gen. No. 91-419 (La. Aug. 23, 1991), p. A-24, infra.3 The facts reveal the following about the Plaintiffs. Plaintiff Sojourner T. is pregnant. Plaintiff James DeGueurce, M.D., performs abortions in Louisiana during the first and second trimesters of pregnency. Plaintiff Calvin Jackson, M.D., performs abortions in Louisiana up to fifteen weeks gestational age. Plaintiff Pamela Brann- ing, M.D., performs abortions in Louisiana. Plaintiff Hope Medical Group for Women provides abortions in Louisiana up to 22 weeks gestational age. Plaintiff Delta Women’s Clinic West provides abortions in Louisiana up to 22 weeks of gestation. Plaintiff Causeway Medical Suite provides abortions in Louisiana up to 22 weeks gestational age. The medical Plaintiffs above perform abortions not falling within the exception for saving the life of the mother. Plain- tiff Dr. Ifeanyi Charles Okpalobi performs abortions in Louisiana. According to Plaintiffs’ complaint (Paragraph 31), over 17,000 abortions were performed in 1988 in Louisiana and a comparable number of women would obtain abor- 3 Because this is a facial challenge, the standard of review announced by this Court in Rust v. Sullivan, 111 S.Ct. 1759, 1767 (1991), is ap- plicable. Alleged application of the Louisiana Abortion Statute to con- traception or in vitro fertilization is outside the scope of this facial challenge because the statute clearly is designed to regulate abortion. 6 tions in 1991. Later term abortions are more dangerous than earlier term abortions. The Louisiana Abortion Statute provides for and encourages rape victims to seek medical attention promptly for the purposes, inter alia, of preventing pregnancy and venereal disease. REASONS FOR GRANTING THE WRIT PRELIMINARY STATEMENT Petitioners recognize that the Court recently denied the petition for certiorari of the Territory of Guam. Peti- tioners submit, however, that because of Louisiana’s status as a state and the assurances of the Tenth Amend- ment, and because of the importance of clarifying what the facial challenge rule is in abortion litigation, their petition should be granted. Since the Court denied the Guam application, it has denied the plaintiffs’ petition for certiorari in Barnes v. Moore, 970 F. 2d 12 (5th Cir. 1992), cert. denied, Dec. 7, 1992, 61 U.S.L.W. 3303, in which plaintiffs challenged Mississippi’s Informed Consent to Abortion law. In Barnes, the Fifth Circuit clearly and forcefully applied the facial challenge rule and upheld the constitutionality of the statute. This Court refused to review its decision. In deny- ing Guam’s application, the Court refused to consider the adequacy of plaintiff’s facial challenge to the Guam statute, although Guam contended that there were at least some post-viability applications of its statute that would be constitutional. In Sojourner T., the courts below com- pletely failed to apply a facial challenge analysis. This Court should accept Louisiana’s petition to consider when and how the facial challenge rule applies in abortion litigation. In 1988 there were more than 1700 abortions per- formed in Louisiana.4 Because Louisiana’s Statute was en- joined before its effective date there is no reason to believe there were fewer abortions in 1991 and 1992. Some of the 4 See paged, supra. 7 plaintiffs herein are physicians who in their complaint ad- mit to performing abortions up to 22 weeks gestational age. Especially in view of the four week margin of error for determining viability found to exist in Webster, abor- tions after viability are performed in Louisiana.® The Court should remand this case to determine if there is any constitutional application of Louisiana’s Statute and whether the authority to protect unborn human life is reserved to the State of Louisiana. For these reasons and as explained below the Court should accept Louisiana’s petition for certiorari. I. The Court Below Failed to Apply the Normal Standard for Facial Challenges, Which Must Be Applied in Cases Involving the Constitu- tional Right to Abortion. Under the facial challenge rule, clearly and forcefully articulated by this Court, the Court of Appeals should have considered whether the Louisiana Abortion Statute had any Constitutional applications.” If so, the Statute should have been upheld against a facial challenge. A. In a Facial Challenge to a Statute, the Plaintiff Has the Burden of Proving That No Applica- tion of the Statute Is Constitutional. 5 See page 5, supra. 6 Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 3055, 3057 (1989). In Webster the Court essentially upheld a provi- sion of Missouri’s statute which created a presumption of viability at twenty weeks by recognizing that there is a four week margin of error in estimating gestational age. 7 The facial challenge issue was raised before the District Court. Memorandum in Support of Motion for Judgment on the Pleadings at 1, Sojourner T. v. Roemer, 772 F. Supp. 930 (E.D. La. 1992) (‘‘[T]he stan- dard of review to be applied must be that used for a facial challenge.”’). The facial challenge issue was also raised before the Court of Appeals. Brief for Appellants Roemer and Guste at 1, Sojourner T. v. Edwards, 974 F.2d 27 (5th Cir. 1992) (‘This is a facial challenge to a statute not yet effective. The standard of review for a facial challenge is whether any circumstance exists under which the Act would be valid.”’). 8 Plaintiffs challenged the Louisiana Abortion Statute on its face. As Justice O’Connor explained in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), a facial challenge requires plaintiffs to show that “ ‘no set of cir- cumstances exists under which the Act would be valid.’ ” Webster, 492 U.S. at 524 (O’Connor, J., concurring in part and concurring in the judgment) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). It is not sufficient in a facial challenge for plaintiffs to demonstrate that a challenged act “might operate un- constitutionally under some conceivable set of cir- cumstances.’’ Jd., quoting Salerno. Plaintiffs must demonstrate that a challenged law is “unconstitutional in every conceivable application.”” Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984). The burden of proof on this point is clearly upon the plaintiffs. B. The Normal Rule for a Facial Challenge Should Apply to Cases Involving Abortion. Procedural rules and principles of adjudication in- cluding the rule for a facial challenge should be applied in a neutral manner. A challenge to a State’s abortion statute should enjoy no special status. In the present case, however, the lower court ignored the direct applicability of the facial challenge rule. It is noteworthy that where the normal rules of pro- cedure have been applied, abortion regulation by the states has generally been upheld. For example, in Connecticut v. Menillo, 423 U.S. 9 (1975), an abortionist with no medical training was prosecuted under a statute which made criminal the performance of an abortion by “‘any person.”’ Id. at 10. As the statute was challenged in the criminal pro- ceedings, the state supreme court struck down the statute on its face on the basis of Roe v. Wade. This Court vacated the decision and remanded the case with instructions to reconsider the case as an applied challenge, noting that the statute had a constitutional application to non-physicians, even though in all other respects it might conflict with Roe. 9 The principle of stare decisis has been a guiding prin- ciple of this Court throughout its history, although with lesser force in constitutional cases. Webster, 492 U.S. at 490 (Rehnquist, C.J., joined by White and Kennedy, JJ.) (plurality opinion). This Court has recently placed great reliance on the doctrine of stare decisis in the abortion context in Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S. Ct. 2791 (1992). See also Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 420 n.1 (1983) (relying explicitly on the doctrine of stare decisis to reaffirm Roe). Unlike the limited application of stare decisis in con- stitutional cases, the principle applies with full force to decisions setting forth adjudication principles, such as the facial challenge rule. Decisions of this Court have clearly applied the facial challenge rule in the abortion context. a. The facial challenge rule is a general principle of law that should be applied in an even- handed, neutral fashion. The facial challenge rule is a rule of general ap- plicability and should be applied in an even-handed, neutral fashion. It has been so applied in non-abortion contexts. See, e.g., United States v. Salerno, 481 U.S. 739 (1987); Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984). The facial challenge rule has also been ap- plied in the abortion context. It was applied in Webster to uphold provisions of the Missouri abortion law at issue. Webster, 492 U.S. at 506-07 (plurality opinion). Justice O'Connor, in Webster, relied on the facial challenge doc- trine to uphold Missouri’s ban on the utilization of public facilities and participation of public employees in the per- formance of abortions not necessary to save the life of the mother. Id. at 524 (O’Connor, J., concurring in part and concurring in the judgment). Justice Kennedy, in Ohio v. Akron Center for Reproductive Health, 110 S. Ct. 2972 (1990), relied on the 10 facial challenge rule to uphold Minnesota’s parental notification statute. Jd. at 2981. Similarly Justices O’Con- nor, Kennedy, and Souter, in the Casey joint opinion, relied on the facial challenge rule in upholding Pennsylvania’s 24-hour waiting period for women seeking abortions after they were offered what Pennsylvania considered to be in- formation necessary for an informed consent. Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S. Ct. at 2826. See also Connecticut uv. Menillo, 423 U.S. 9 (1975) and Rust v. Sullivan, 111 S.Ct. 1759 (1991). 2. Sound jurisprudential and practical reasons support principled adherence to the facial challenge rule. There are sound reasons for the facial challenge rule. Foremost among them is avoidance of deciding hypothetical cases. The concreteness which a case achieves through application of law to real facts not only allows for better decisions as a practical matter, it also more closely comports with the constitutional requirement that there be a case or controversy for federal jurisdiction. This principle was recently applied in Webster v. Reproductive Health Services, 492 U.S. 490, wherein this Court declined to review the preamble to the Missouri abor- tion law—which declared that ‘‘the life of each human being begins at conception’’—until the preamble was ‘‘applied to restrict the activities of the appellees in some concrete way.’ Jd. at 506. — Historically, a facial challenge succeeds only when all possible applications of a law are unconstitutional and the burden is on the plaintiff to prove that result. Only in the area of First Amendment free speech—where a chill on a constitutionally super-protected right must be avoided— has this Court recognized an overbreadth doctrine which allows a statute to be struck down as unconstitutional if it has constitutional and unconstitutional applications. The overbreadth doctrine, however, is not recognized outside the limited context of the First Amendment. Salerno, 11 481 U.S. at 745; Schall v. Martin, 467 U.S. 253, 269 n.18 (1984). In the area of abortion, no less than in any other non- speech area of constitutional law, the concreteness provid- ed by actual application of the law is necessary. 3. The lower court failed to apply facial challenge principles to the Louisiana Abortion Statute. The lower court erred by not considering whether there are any possible constitutional applications of the Louisiana Abortion Statute. The proper question is not whether the Louisiana Abortion Statute would ever impose an “‘undue burden’”’ upon a woman seeking an abortion, but whether it always would. The facial challenge rule requires that the latter test be met, but the facial challenge test was never applied by the lower courts. Nowhere in the present case have the plaintiffs met their burden of proving that the Louisiana Abortion Statute has no constitutional ap- plications. Plaintiffs neither alleged nor attempted to prove that Louisiana’s Abortion Statute has no possible con- stitutioanl applications. The lower courts should have considered, for exam- ple, whether the Louisiana Abortion Statute might be ap- plied after viability, to cases where abortions are sought for reasons of the unborn child’s gender or race or are perform- ed for the purpose of harvesting fetal body parts for transplantation experiments. Clearly, because there are some applications that do not impose an undue burden on women, the Louisiana Abortion Statute should not have been declared unconstitutional in its entirety. The lower court erred both in analysis and outcome. II. The Court Should Grant Review to Consider the Right of the State of Louisiana to Re- Weigh the Interests of the Pregnant Woman and the Unborn Child. 12 A. The Crucial Balancing in Roe of the Rights of the Pregnant Woman Against Only the Poten- tial Life of the Unborn Child Was Wrong and Should Be Re-Examined. A fundamental flaw of Roe is its undervaluation of a State’s interest in protecting unborn human life. According to Roe, a State’s interest is only the protection of potential human life, an interest less compelling than the protection of actual human life. The result is that when the State’s in- terest, declared by Roe to be less than compelling, is measured against the pregnant woman’s purportedly fun- damental right, the woman’s right normally outweighs the State’s interest prior to viability. As Justice Scalia pointed out in his dissenting and concurring opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. at 2875, the Roe Court begged the question of whether the State’s interest was limited to the protection of merely potential human life. Rather than answering the question of when human life begins or deferring to the States’ determination, the Roe Court simply assumed that the unborn child is merely a potential human life. According the unborn child the status of potential life was presented as a concession, but it was really a devaluation. The Court bolstered its position with three propositions, none of which supports Roe’s conclusion. The first, apparently intended as a concession to the States, is that “‘as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.’’ Roe v. Wade, 410 U.S. at 150. From this concession that what the pregnant woman car- ries within her is at least potential life, Roe apparently con- cludes that what the pregnant woman carries within her is at most potential life. It is not logical to equate ‘at least”’ with ‘‘at most,’’ yet that is what Roe does. The second proposition Roe uses to bolster its con- clusion that the unborn child is only potential life is that the unborn are not “‘persons’’ as that term is used in the 13 Fourteenth Amendment. See 410 U.S. at 157-58. However, the most that can be drawn from this proposition is that the Fourteenth Amendment does not invalidate state laws allowing abortion (because the Fourteenth Amendment does not guarantee to the unborn the right to life). See Byrn v. New York, 31 N.Y.2d 194 (1972), appeal dismissed 410 U.S. 949 (1973). It does not follow that the Fourteenth Amendment invalidates state laws proscribing abortion. Further, to draw from this proposition the conclusion that a fetus is merely potential human life is to assume that the Fourteenth Amendment is the only possible source of rights the unborn can have. In other words, to say that the Fourteenth Amendment does not guarantee a right is not to say that the right does not exist at all. The third proposition Roe uses to support its conclu- sion is that in areas other than abortion, the unborn do not have the same rights as persons already born live, and whatever other rights the unborn have are often contingent on live birth. See 410 U.S. at 161-62. But it does not follow from this that an unborn child is not a human life worthy of State protection. If it did, then it could be argued that the lives of minor children are less worthy of protection by the State, because minors’ legal rights are often less than those of persons of majority age.® Certainly not all persons enjoy every right, but a non-person has no rights. To sum up: Roe’s conclusion that the State's countervailing interest is in the protection of merely poten- tial human-life, rather than actual human life, is not sup- ported by logic. As will be shown below, there are compell- ing reasons for a State to conclude that the unborn child is an actual human life, not merely a potential human life. This Court should grant a writ of certiorari so there can be a re-balancing of the competing interests of the pregnant 8 There are many examples of this under Louisiana law. Minors general- ly do not have the capacity to contract, or to make a will or an inter vivos donation. La. Civ. Code arts. 1918 and 1476. Nor do minors have the legal capacity to sue or be sued in civil actions. La. Code of Civ. Proc. arts. 683 and 732. 14 woman and the unborn child, without Roe’s thumb on the scales. B. Principles of Stare Decisis, Properly Understood, Should Not Preclude Reconsidera- tion of Roe and The Re-Balancing of the Com- peting Interests in the Abortion Decision. In Planned Parenthood of Southeastern Penn- sylvania v. Casey, 112 S. Ct. 2791 (1992), this Court re- affirmed the ‘essential holding” of Roe v. Wade. Though Justices O’Connor, Kennedy and Souter expressed some doubts about the correctness of Roe, they apparently believed that the doctrine of stare decisis required them to put aside their doubts.9 The joint opinion in Casey misconstrued the doctrine of stare decisis. A proper understanding and application of the doctrine leads to the conclusion that this Court should reconsider Roe. Recently in Payne v. Tennessee, 111 S.Ct. 2597 (1991), this Court summarized the accepted view of stare decisis: Adhering to precedent “‘is usually the wise policy, because in most matters it is more important that 9 See, e.g., 112 S.Ct. at 2808 (‘‘[T]he reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis."’); 2812 (‘Within the bounds of normal stare decisis analysis, then, and subject to the considerations on which it customarily turns, the stronger argument is for affirming Roe’s central holding, with whatever degree of personal relunctance any of us may have, not for overruling it.’’); 2817 (‘We do not need to say whether each of us, had we been Members of the Court when the valuation of the State interest came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions. The mat- ter is not before us in the first instance, and ... we are satisfied that the immediate question is not the soundness of Roe’s resolution of the issue, but the precedential force that must be accorded to its holding.’’). 15 the applicable rule of law be settled than it be settled right.’’ Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 447, 76 L.Ed.815 (1932) (Brandeis, J., dissenting). Nevertheless, when governing decisions are unworkable or are badly reasoned, “‘this Court has never felt con- strained to follow precedent.” Smith v. Allwright, 321 U.S. 649, 665, 64 S.Ct. 757, 765, 88 L.Ed. 987 (1944). Stare decisis is not an inexorable com- mand; rather, it “‘is a principle of policy and not a mechanical formula of adherence to the latest decision.” Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604 (1940). This is particularly true in constitutional cases, because in such cases “correction through legislative action is practically impossible.’ Burnet v. Coronado Oil & Gas Co., supra, 285 U.S., at 407, 52 S.Ct., at 447 (Brandeis, J., dissenting). 111 S.Ct. at 2609-10. In his concurring opinion in Payne, Justice Scalia, joined by Justices O’Connor and Kennedy, explained the reasons behind the doctrine of stare decisis. Though Justice Scalia was speaking of Booth v. Maryland, 482 U.S. 496 (1987), which this Court overruled in Payne, his statements apply equally to Roe v. Wade: [Stare decisis], to the extent it rests upon anything more than administrative convenience, is merely the application to judicial precedents of a more general principle that settled practices and expectations of a democratic society should generally not be distrubed by the courts. It is hard to have a genuine regard for stare decisis without honoring that more general principle as well. A decision of this Court which, while not overruling a prior holding, nonetheless announces a novel rule, contrary to long and unchallenged practice, and pronounces it to be the Law of the Land—such a decision, no less than an explicit 16 overruling, should be approached with great cau- tion. It was, I suggest, Booth, and not today’s decision, that compromised the fundamental values underlying the doctrine of stare decisis. Payne, 111 S.Ct. at 2614 (Scalia, J., concurring). Application of the majority opinion in Payne, and of Justice Scalia’s concurrence, leads to the conclusion that this Court should revisit Roe to decide what it did not decide in Casey, namely whether Roe was decided correctly in the first place. Roe was a constitutional decision. Hence, the normal doctrine of ‘‘more important that the law be settled than it be settled correctly’”’ does not apply. On the contrary, because legislative correction of Roe is virtually impossible, this Court should not avoid reconsidering the correctness of Roe. This is particularly so where, as shown in Casey, four justices plainly believe Roe was wrongly decided and three more have intimated that it was.10 Another reason this Court should re-examine Roe is that Roe was the kind of decision Justice Scalia, joined by Justices O’Connor and Kennedy, spoke of in his concur- rence in Payne quoted above. Though Roe did not overrule prior case law, it ‘“‘announce{d] a novel rule, contrary to long and unchallenged practice, and pronounce{d] it to be the Law of the Land ....’’ That novel rule, of course, was that States may not proscribe abortion, at least not before viability. In doing so, Roe outlawed a “long and un- challenged practice’ of a majority of the States in proscrib- ing abortions.!! Thus, Roe itself ‘‘compromised the fun- damental values underlying the doctrine of stare decisis,” that ‘the settled practices and expectations of a democratic society should generally not be disturbed by the courts.” Payne, 111 S.Ct. at 2614 (Scalia, J., 10 See n. 9, supra. 11 See Roe v. Wade, 410 USS. at 118 n.2 (citing statutes from 30 States proscribing abortion except those performed for the purpose of saving the mother’s life). 17 concurring). This Court should not shy away from reconsidering a wrong constitutional decision under the incorrect belief that stare decisis prevents this Court from doing so, par- ticularly when that decision itself violated the fundamental principles underlying the doctrine of stare decisis. This Court should grant this writ of certiorari to answer the question left unanswered by Casey, namely, whether Roe was correctly decided in the first place. C. Louisiana’s Determination That Actual Human Life Begins Jn Utero and Its Decision to Protect Such Life Accords With Modern Scientific Knowledge Available Since Roe v. Wade. 1. Modern developments in embryology and fetology establish the humanity of the unborn child. In 1973, when Roe v. Wade was decided, the unborn child was a veritable stranger to the scientific and medical community. Only since 1973 have new techniques permit- ted scientists to know and observe what is occurring in utero as the human being develops from conception to birth.!2 Biological advances now permit the scientific in- vestigator to look at a human’s building blocks to deter- mine not only what happens at a molecular level, but also when it happens.!3 New technology in ultrasound and real time ultrasound allows visualization of the unborn child in utero with such superb clarity that diagnosis and treat- ment of fetal disorders that were not even recognized to 12 Harrison, “The Fetus as a Patient: Historical Perspective” in The Unborn Patient 3 (M. Harrison, M. Golbus & R. Filly eds. 2nd ed. 1991). 13 For a listing of the many biological technological advances and discoveries that have revolutionized man’s knowledge of the developing human being, see Boehm & Kazazian, “Prenatal Diagnosis by DNA Analysis” in The Unborn Patient 82 (M. Harrison, M. Golbus & R. Filly eds. 2nd ed. 1991). 18 exist in 1973 can now be successfully performed. !4 The very creation of a new medical subspecialty of maternal-fetal medicine attests to the great leap of knowledge as respects the unborn child over the last two decades. As technology continues to evolve, the capabilities of science and medicine have increased. Physi- cians are improving the quality of unborn patient care on an almost daily basis and in the process increasing and im- proving their knowledge of the humanity of the unborn child. 2. Ultrasound enables us to observe the humanity of the unborn child. Today, in stark contrast to 1973, there is no serious dispute or lack of scientific consensus that unborn children are human beings. Individual human life begins at concep- tion. Scientists accept this statement as scientific fact, physicians accept it as medical fact, and pregnant women accept it as a natural fact. With the marvelous technological advances in ultra- sound and in utero photography during the last decade, the visual proof of the humanity of the unborn child is available for all to see. Ultrasounds are routinely perform- ed in obstetrical offices every day, permitting physicians and parents alike to witness the facts of growth and development of that distinctly unique and separate human 14 Two physicians from the Fetal Treatment Program and the Depart- ment of Surgery, University of California, San Francisco, California recently wrote about the fetus as a patient. They stated: Prenatal diagnosis has undergone an explosion of growth in the last decade. The primary impetus for this rapid expan- sion has come from the widespread use of prenatal ultrasonography. After the first reports of in utero ultrasonographic diagnosis of congenital anomalies in the 1970s, increasingly sophisticated equipment and experience in interpretation led to the accurate prenatal diagnosis of a growing number of surgical lesions. Harrison & Adzick, ‘The Fetus as a Patient’ 213 Ann. Sur. 279 (1991). 19 individual present within the womb.15 Fact: After the union of the sperm and the ovum there is a cell formed that is a living, genetically unique and distinctly human individual. During the first week of life, this new individual journeys down the fallopian tube to reach the uterus where it attaches to the uterine wall. Fact: In the third week the heart forms and begins to beat. Before the end of the first month after conception, beginnings of the mouth, brain, heart, gut and limbs can be identified. Fact: There is electrical activity in the human brain six weeks after conception. By the end of the second month of life the face is distinctly human in appearance, there are ten fingers and ten toes and all the nerves and blood vessels are present. Ninety-nine percent of the muscles are also present. Fact: By the end of the third month all organ systems of the body are present and functional. At five months there are distinct fingerprints on the digits. During the last two months of pregnancy the unborn baby attains his or her birth size and prepares for life outside the uterus. The moment the individual is outside the uterus, he or she converts in name only from a fetus to a newborn. Fact: That fetus/newborn has the same unique, living, feel- ing body before birth as after birth, regardless of whether he or she was inside the uterus for only three months or as 15 Today, between 60% and 100% of mothers in North America, Great Britain and Western Europe have a sonographic examination during pregnancy. See Johnson & Toi, ‘“Overview of Obstetrical Sonography”’ in Diagnostic Ultrasound, Vol. 2 (C. Rumack, S. Wilson & J. Charboneau eds. 1991). Interestingly, it is noted in American College of Obstetri- cians & Gynecologists technical bulletin, number 116—May 1988 that obstetrical ultrasound has been in clinical use some 15 years. Fifteen years prior to 1988 was the year 1973, the year Roe v. Wade was decid- ed. A.C.0.G. Technical Bulletin 116 (1988). 20 many as nine months.!6 The Roe Court could not have known that society was on the verge of tremendously important technological advances and innovations as concerns the scientific truths about the humanity of the unborn child. 3. There is evidence of fetal pain. Recent evidence also establishes that the human fetus perceives pain. Research done over the last few decades contradicts earlier studies which concluded that perception or localization of pain was not present in either the human fetus or newborn. It is now clearly recognized that the neural pathways for pain may be traced from the sensory receptors in the skin to sensory areas in the cerebral cortex. These sensory receptors begin appearing around the mouth of the developing child in the seventh week of gestation and spread to the rest of the face, the palms of the hands and the soles of the feet by the eleventh week, to the trunk and parts of the arms and legs by the fifteenth week, and to all cutaneous and mucous surfaces by the twentieth week.17 The development of neurotransmittors between the sen- sory fibers and interneurons in the dorsal horn of the spinal cord first appear during the sixth week of gestation. 18 It was once believed that lack of myelination of the nervous system in premature and newborn babies rendered 16 The facts recited in the accompanying text are taken from the Af- fidavit of Raymond F. Gasser, Ph.D., included as part of the record in the district court and included herein as Appendix H. 17 Anand & Hickey, ‘‘Pain and Its Effects in the Human Neonate and Fetus,’ 317 New Eng. J. Med. 1321, 1322 (1987); Flower, ‘‘Neuromaturation of the Human Fetus,” 10 J. Med. Phil. 237, 242 (1988). 18anand & Hickey, supra, at 1322; Flower, supra, at 242. 21 them incapable of pain perception. However, this has been scientifically proven false. First, even in adults, pain im- pulses are carried through unmyelinated and thinly myelinated fibers. Lack of myelinization merely means a slower conduction velocity in the nerves or central nerve tracts. This is offset completely by the shorter interneuron and neuromuscular distances traveled by the impulse.!9 Moreover, quantitative neuroanatomical data has shown that the sensory nerve tracts that carry pain sensa- tion undergo complete myelinization during the second and third trimesters of gestation.2° Electroencephalographs (EEG’s) of the unborn and the newborn can now demonstrate the functional matura- tion of the cerebral cortex from about 20 weeks gestation to 27 weeks gestation. Well defined periods of quiet sleep, active sleep and wakefulness can be seen occurring in utero beginning at 28 weeks gestation.2! Additionally, physiological responses to painful stimuli, such as cardiorespiratory changes, have been documented in newborns of various gestational ages.22 The unborn child is not only capable of experiencing pain, it does in fact feel pain. Behavioral changes associated with pain, including purposeful withdrawal of a limb and distinct facial expressions have been observed in very 19The Nervous System; Circuits of Communication in the Human Body 109 (J. Clark ed.1985); Anand & Hickey, “‘Pain and Its Effects in the Human Neonate and Fetus,”’ 317 New Eng. J. Med. 1321, 1322 (1987): Flower, ‘‘Neuromaturation of the Human Fetus,’’ 10 J. Med. Phil. 237, 242 (1988). See also Scanlon, ‘‘Appreciating Neonatal Pain,” 38 Advanc- ed Pediatrics 317, 320 (1991). 20 Anand & Hickey, supra, at 1322. } Appendix H, affidavit of Raymond F. Gasser, Ph.D at p. 5. 22 See Fletcher, ‘Pain in the Neonate,’”’ 317 New Eng. J. Med. 1321, 1347-1348 (1987). 22 premature newborns (less than 30 weeks gestation).23 Advances in the scientific arena have conclusively shown that the traditional view widely held in the early 1970’s that the unborn (and the newborn) was not capable of experiencing pain and did not feel pain is wrong. Any view, indeed any decision, predicated in the least on the no- tion that the unborn child is insensitive to or immune from pain is outmoded and must be revisited and revised. D. Louisiana’s Abortion Statute Is an Ap- propriate and Reasonable Exercise of Authori- ty Reserved to the States by the U. S. Constitution. There are three reasons why Louisiana’s Abortion Statute is an appropriate exercise of authority reserved to the States by the U.S. Constitution. First, the Constitu- tion, including especially the Tenth Amendment, permits States to regulate and even to proscribe acts of individuals in other areas encompassed by the right to privacy recognized in Roe. There is no principled reason for regula- tion or proscriptioin of abortion to be treated differently. Second, Louisiana’s recognition of the humanity of unborn children is consistent with the recognition of unborn human life accorded by the laws of most other States. Finally, Louisiana’s protection of unborn human life is con- sistent with Louisiana’s own unique civil law tradition, which from Roman times has proscribed abortion. ;. This Court has recognized other areas where States may legislate notwith- standing individual privacy rights. 23 Anand & Hickey, supra, at 1325; Flower, supra, at 242. | | | 23 The soe Court held that a pregnant woman’s right to have an abortion was simply part of the right of privacy im- plied by the Constitution. 410 U.S. at 153. This right to privacy is said to extend ‘‘to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” areas ‘“‘involving the most in- timate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy | Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. at 2807. Yet in other areas encompassed by the right of privacy, this Court has recognized the States’ right to regulate and in some cases to proscribe the “private” acts of individuals. Consenting adults might make the intimate and per- sonal decision to practice bigamy or polygamy. Yet this Court has held that the Constitution does not prevent government from proscribing bigamy or polygamy, even when polygamy is part of the exercise of one’s religion. Reynolds v. United States, 98 U.S. 145 (1879). Similarly, first cousins might make the intimate and personal decision to marry one another. Under the common law, first cousins could validly marry. 55 C.J.S. Marriage § 16, at 831 (1948). However, Louisiana, like many other States, prohibits such marriages. La. Civ. Code art. 90.24 No court has ever held that such State interference in the intimate and personal decision of first cousins to marry violates the Constitution.25 24 First cousins are “[clollaterals within the fourth degree.”’ See La. Civ. Code art. 90, comment (b); see also id, arts. 900 and 901 (defining degrees as used to describe consanguinity). 25 Today, if first cousins living in a State that proscribes their marrying one another want to marry, they have to travel to, and perhaps take up domicile in, a State that permits their marrying. Before Roe v. Wade, a woman living in a State that proscribed abortion who nonetheless wanted an abortion had to travel to a State that permitted abortion. If the former situation does not impermissibly burden the right to make a personal and intimate decision, then neither did the latter. 24 An adult homosexual might make the intimate and personal decision to commit sodomy with another adult homosexual, in the privacy of the home. Yet the intimate and personal character of such a choice did not stop this Court from permitting States to criminalize homosexual sodomy. Bowers v. Hardwick, 478 U.S. 186 (1986). A biological father of a child born of another man’s wife might have a protected familial interest in developing a relationship with the child. Yet according to Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333 (1989), a State can deprive the biological father of the right to visit his child. Three of the dissenting justices in Michael H. v. Gerald D. admitted that a State could deprive the biological father of visitation rights if it were in the best in- terest of the child. See 491 U.S. at ____, 109 S.Ct. at 2359 (Brennan, J., dissenting, joined by Marshall and Blackmun, JJ.). It is ironic that this Court permits States to regulate and even to proscribe activity in these private areas, yet bars States from proscribing abortion. The State’s interest in proscribing abortion is more compelling than its interest in proscribing activities in these other private areas. As Roe itself recognized, abortion involves the destruction of an embryo or fetus, and therefore is “inherently different’’ from other areas where the privacy of individuals is at stake. For this reason, ‘‘{t]he pregnant woman cannot be isolated in her privacy.” Roe, 410 U.S. at 159. In short, if States can constitutionally proscribe polygamy, marriage between first cousins, homosexual sodomy, and similar acts resulting from intimate and per- sonal decisions, then there is no principled reason why States should not be able to proscribe abortion as well. If anything, because abortion results in the destruction of human embryonic or fetal life, States have a greater in- terest in proscribing it than they do in proscribing these other acts. Z Louisiana’s determination that actual 25 human life begins in utero accords with the recognition of unborn human life in the law of most states. Louisiana is not alone in its recognition of the humanity of the unborn child. Thirty-nine states and the District of Columbia have recognized that human life begins at conception, and if it were not for this Court’s holdings in Roe and Casey many of those states would ac- cord legal protection to unborn human life.26 Nine states define by statute the killing of an unborn child to be a form of homicide, regardless of the stage of pregnancy. Six states declare that killing the unborn after quickening is homicide, and five more make killing after viability a form of homicide. New York’s penal law punishes as homicide killing after 24 weeks of pregnancy.2? In upholding Roe’s factual finding that the unborn child is only potential human life, the Court acted without a full factual record and relied on scientific data predating its 1973 Roe decision. The Court’s conclusion that the human embryo and fetus are not actual human life is at odds with the determination made by the great majority of state legislatures which have considered the humanity of the unborn and found that unborn human life is entitled to legal protection even if such protection cannot be said to be mandated by the United States Constitution. The only official finding made by the United States Congress regarding the humanity of the unborn child was in a 1981 report of the Sub-Committee on the Separation of Powers, U.S. Senate Committee on the Judiciary, which found that as a matter of scientific fact that life begins at conception. The Committee found: ‘‘...today the facts are 26 See Appendix F, infra. 27 See Appendix G, infra. 26 beyond dispute. Physicians, biologists, and other scientists agree that conception marks the beginning of the life of a human being....’’28 In view of scientific developments since 1973, the determination made by the great majority of state legislatures which were equipped to and did investigate the facts relating to the humanity of the unborn child, and the overwhelming importance of the issue to the country, the Court should consider anew the underlying scientific facts and the constitutional balancing of competing interests. 3. Louisiana’s unique legal system has historically afforded legal protection to the unborn child. The Roe Court believed that statutes proscribing abortion were a relatively recent phenomenon. Roe, 410 U.S. at 715. While that may or may not have been true in the other forty-nine states under their common-law tradi- tion, it was not true in Louisiana, which has a civil law tradition unique in this Nation. Since Roman times, the civil law has recognized and protected the life of the un- born. Louisiana’s Abortion Statute at issue here is a con- tinuation of this venerable tradition. The depth of this tradition reflects the compelling nature of Louisiana’s in- terest in protecting the life of the unborn.29 In the criminal arena, under Roman law, a woman who procured her own abortion was ‘punished as a Murderer.”’ J. Domat, The Civil Law in Its Natural Order, Vol. I, Part I, Prel. Book I. Titl. 2, § 1, Law 6, p.138 (Strahan Transl. 1837). Similarly, Louisiana law before 28 Report on Human Life Bill, Sub-Committee on Separation of Powers, Committee on the Judiciary, United States Senate (97th Cong. 1st Sess. 1981) p. 7. 29 Much of the following discussion is not original. Another appellant before the Court of Appeals in this case, District Attorney Harry Con- nick, set forth the history of the civil law's and Louisiana’s recognition of the life and rights of the unborn in greater detail in his appellate brief. 27 1805 decreed the death penalty for all those, including the pregnant woman, who procured or performed the abortion of a living unborn child. The Siete Partidas, Part VII, Title XXXIII, Law VIII. In 1855, over ten years before the adoption of the Fourteenth Amendment, Louisiana enacted a strict abortion statute. Under this statute, anyone who administered or caused to be administered anything to a woman for the purpose of procuring an abortion or premature delivery was to be imprisoned at hard labor for between one and ten years. La. Acts, 1855, Act 120, § 24, p. 132. A successor of this statute was in effect at the time this Court decided Roe v. Wade, 410 U.S. at 118 n.2 (citing La. Rev. Stat. §14:87). Louisiana’s current statute criminalizing abortion reflects a tradition with deep roots. Likewise in the civil arena, the civil law that is Loui- siana’s unique legacy has recognized the life of unborn children and legal rights accruing to them. As far back as Roman times, those who were conceived but not yet born were accorded the right to inherit. J. Domat, supra. That tradition continues to this day, and is now reflected in Louisiana Civil Code articles 954 (governing intestate suc- cessions) and 1474 (governing testate successions). Article 26 of the Louisiana Civil Code embodies the same tradition: An unborn child shall be considered as a natural person for whatever relates to its in- terests from the moment of conception. If the child is born dead, it shall be considered never to have existed as a person, except for purposes of actions resulting from its wrongful death. As long ago as 1923, a Louisiana court recognized a cause of action for the wrongful death of an unborn child, even though the child was not born alive. Johnson v. South New Orleans Light & Traction Co., No. 9,048 (La. App. Or. Cir. 1923), writ denied, No. 26,443 (La. 1942) (unreported 28 decisions). In the later case of Danos v. St. Pierre, 402 So.2d 633 (La. 1981) (on rehearing), the Louisiana Supreme Court approved of the Johnson court’s ruling. What is notable about Louisiana’s providing a right to recover for the wrongful death of a stillborn child is that the right depends on the decedent having been a person. When Danos was decided, Louisiana Civil Code article 2315 permitted recovery for the wrongful death of a person. Danos, 402 So.2d at 637.39 Defendants argued that the un- born were not persons, hence their death did not give rise to a cause of action for wrongful death. T.1e Danos court evidently disagreed with this argument.3! Today, with the advent of in vitro fertilization, Loui- siana has passed legislation to adapt its venerable and uni- que civil law tradition to new circumstances. La. Rev. Stat. §§ 9:121 et seg. This legislation recognizes that the in vitro fertilized ovum is a “juridical person,” id. §§ 9:123, 124 and 125, with “certain rights granted by law,” id. § 9:121. Though the legislation and the technology necessitating it are new, the reverence for and interest in protecting em- bryonic life reflected in the legislation are ancient. 30 Louisiana law is the same today. Louisiana Civil Code article 2315.2(A)} provides, ‘‘If a person dies due to the fault of another, suit may be brought by [certain] persons to recover damages which they sus- tained as a result of the death ....”’ 31 In Roe, this Court minimized the significance of state laws permit- ting parents of a stillborn child to recover for the child’s wrongful death, under the belief that ‘‘[s]uch an action ... would appear to be one to vin- dicate the parents’ interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life.” Roe, 410 U.S. at 163. This is yet another area where Roe’s reasoning does not apply to Louisiana. As the preceding discussion makes clear, under Louisiana’s civil law system, the existence of a cause of action for the wrongful death of a stillborn child depends on the child’s having been a person while in utero. This is inconsistent with Roe’s view “‘that the fetus, at most, represents only the potentiality of life.’ 410 U.S. at 163. : 29 One of the cornerstones of Roe was the idea that abortion statutes were relatively new, and thus not accord- ed the weight of tradition. Regardless of whether this idea was true as to the other forty-nine states, it is not true as to Louisiana. Louisiana’s unique legal system, rooted in Roman law, reflects this State’s ancient, compelling, and perhaps uniquely strong interest in protecting embryonic and fetal life. CONCLUSION In his Reasons for Judgment District Judge Duplan- tier said he regretted that he was compelled to follow the Roe majority and not Justice White’s dissent wherein Justice White expressed his dismay that the Supreme Court could peremptorily strike down the existing abortion statutes of most states. Justice White decried the effect of Roe in these terms: “The upshot is that the people and the legislatures of fifty states are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the othe hand.”’ Roe v. Wade, 410 U.S. at 223. See, Appendix A-14. In his special concurrence to the Fifth Circuit’s affir- mation, Judge Garza expressed his concern over Casey. He felt compelled to follow Roe and Casey, but he made his opi- nion very clear: Because a decision to permit or proscribe abor- tion is a political choice, I would allow the people of the state of Louisiana to decide this issue for themselves. Twenty years have passed since Roe was decided in 1973. Millions of unborn lives have been lost. The decisions of countless state legislatures have been swept aside because of the Court’s adherence to Roe. The United States Constitution establishes that in our republican form of government important policy decisions such as who will ; ee ee 30 live and who will die, when and under what circumstances, should be made by the elected representatives of the people acting through their legislatures and the Congress. We respectfully ask that Roe be reconsidered, and in that reconsideration that proper deference be given to the role of the states in our constitutional system. For the reasons set out in Section I, this Petition should be granted to decide that the facial challenge rule applies in abortion cases, and the case should be remanded to determine the constitutional applications of the Loui- siana Abortion Statute. For the reasons set out in Section II, the Court should reconsider its decision in Roe uv. Wade, and recognize the State of Louisiana’s right to consider the competing interests of the pregnant woman and the unborn child. RICHARD P. IEYOUB, Attorney General M. PATRICIA JONES, Asst. Atty. Gen LA DEPT. OF JUSTICE Office of Atty. Gen. State Capitol—22nd Floor Baton Rouge, La 70806 (504) 342-7013 JAMES BOPP, JR.., Special Asst. Atty. Gen. 191 Harding Avenue P. O. Box 8100 Terre Haute, IN 47808-8100 (812) 232-2434 * Counsel of Record December 18, 1992. Respectfully submitted, ROBERT E. WINN,* Special Asst. Atty. Gen JOY G. BRAUN, Special Asst. Atty. Gen. 3500 Place St. Charles 201 St. Charles Avenue New Orleans, LA 70170 (504) 582-1500 A-1 APPENDIX A IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 91-3677 FILED SEP 22 1992 SOJOURNER T, on Behalf of Herself and All Others Similarly Situated, ET AL., Plaintiffs-Appellees, versus EDWIN W. EDWARDS, As Governor of the State of Louisiana, ET AL., Defendants-Appellants. ERRRERERRESEREREREREREEEEESEEERSSEEEES EERE DR. IFEANYI CHARLES OKPALOBI, Plaintiff-Appellee, versus RICHARD P. IEYOUB, Attorney General of the State of Louisiana, ET AL., Defendants-Appellants. Appeal from the United States District Court for the Eastern District of Louisiana Before JOLLY, and EMILIO M. GARZA, Circuit Judges, and SHAW, District Judge.* E. GRADY JOLLY, Circuit Judge: *Chief J udge of the United States District Court of the Western District of Louisiana, sitting by designation. A-2 This suit challenges the Louisiana Abortion Statute, which criminalizes performing abortions except under very limited circumstances. In the district court, the plaintiffs argued that the Statute is preempted by federal law, that the Statute is unconstitutional under Roe v. Wade, 410 U.S. 113 (1973), that the Statute is unconstitutional under Griswold v. Connecticut, 381 U.S. 479 (1965), and that the Statute is void for vagueness. The state of Louisiana defended the Statute arguing that Roe v. Wade has been overruled sub silentio by Webster v. Reproductive Health Services, 109 S.Ct. 3040 (1989), and its progeny. The district court struck down the Statute, holding that because Roe v. Wade is still good law, the Statute is unconstitutional. The same arguments are presented to us that were made in the district court. After this case was argued before us, the Supreme Court, in Planned Parenthood of Southeastern Pennsylvania uv. Casey, 60 U.S.L.W. 4795, Nos. 91-744 & 91-902 (June 29, 1992), reaffirmed the essen- tial holding of Roe v. Wade. Because the Louisiana statute is clearly unconstitutional under Casey, we affirm the district court’s order. I Sojourner T., et al., brought this suit in federal district court challenging the Louisiana Abortion Statute. They argued that the statute is preempted by the Food, Drug and Cosmetic Act! and by FDA regulations approv- ing the use of certain contraceptives. They also argued that the statute violates the Commerce Clause and that it is un- constitutional under Roe v. Wade and Griswold v. Con- necticut. They requested declaratory and injunctive relief. 1 21 U.S.C. § 360K (1988). A-3 Dr. Okpalobi, also seeking declaratory and injunc- tive relief, challenged the Louisiana statute on vagueness grounds. The district court consolidated these two cases. Motions for judgment on the pleadings and suppor- ting memoranda were filed by all parties. Pursuant to Fed. R. Civ. P. 12(c), the district court granted the plaintiffs’ motion for judgment on the pleadings on the grounds that under Roe v. Wade, the Louisiana Abortion Statute is un- constitutional. The state appeals. II The Louisiana Abortion Statute was passed on June 18, 1991.2 It amends and reenacts LSA-R.S. 14:87. The Statute makes it a crime to ‘‘administer{] or prescrib[e] any drug, potion, medicine, or any other substance to a female”’ or to “‘us[e] any instrumental or external force whatsoever on a female’ ‘“‘with the specific intent of terminating a pregnancy.” The Statute provides exceptions when: (1) the physician terminates the pregnancy in order to preserve the life or health of the unborn baby or to remove a dead unborn child; (2) the physician terminates the pregnancy to save the life of the mother; (3) pregnancy is the result of rape; and (4) pregnancy is the result of incest. Before an abortion can be performed under the rape and incest excep- tions, certain reporting requirements must be met. For ex- ample, the victims must report the rape or incest to law en- forcement officials. Also, abortions performed on rape and incest victims must be performed within the first thirteen weeks of pregnancy. No criminal liability attaches to a woman seeking or procuring an abortion. 2 1991 La. Acts 26. A-4 II] In urging us to uphold the Statute, the state con- cedes that Roe v. Wade has not been expressly overruled. Instead, the state argues that Roe has been overruled sub silentio by Webster and its progeny. On the other hand, Sojourner, et al., argue that we should avoid deciding this case on constitutional grounds. Instead, we should affirm the district court on the grounds that the Statute is preempted by FDA regulations and by the Food, Drug and Cosmetic Act. They also present alter- native arguments: we should affirm the district court on the grounds that the Statute violates the Commerce Clause, on the grounds that the Statute is unconstitutional under Griswold, or on the grounds that the Statute is un- constitutional under Roe. Their argument that the Statute is preempted by federal law, that the Statute violates the Commerce Clause, and that the statute is unconstitutional under Griswold is contingent on their particular reading of the Statute. They argue that the Statute criminalizes the use of contraceptives in Louisiana that act after concep- tion. They argue that if we entertain doubts about this con- struction of the Statute, we should, before reaching the other issues in this case, certify to the Louisiana Supreme Court the question of whether the Statute criminalizes the use of certain contraceptives. Dr. Okpalobi argues that the Statute is unconstitu- tionally vague. His vagueness argument emphasizes the elusiveness of the definitions of the rape and incest excep- tions. He also argues that this court should certify to the Louisiana Supreme Court the question of whether the Act violates the right to privacy guaranteed by Article 1, Sec- tion 5 of the Louisiana Constitution. A-5 IV Below, the plaintiffs challenged the facial validity of the Statute. Thus, we must determine whether the plain- tiffs are correct that the Statute cannot be construed and applied without infringing upon constitutionally protected rights. Rust v. Sullivan, 111 S.Ct. 1759, 1767 (1991). The district court found that Roe v. Wade is still good law and that the Louisiana Abortion Statute clearly transgresses those constitutional rights, as enunciated in Roe v. Wade, of women who seek an abortion. The Supreme Court recently reaffirmed the essential holding of Roe v. Wade in Casey. Casey, 60 U.S.L.W. at 4798. In Casey, the Court held that a woman has a right to chose to have an abortion before viability and that legisla- tion restricting abortions before viability must not place an under burden on that right. Jd. ‘‘An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viabili- ty.’’ Id. at 4807. The Court held that before viability, a State’s interests are not strong enough to support a pro- hibition of abortion. Jd. at 4798. Thus, the Louisiana statute is clearly unconstitutional under Casey. V Sojourner, et al urge us to avoid deciding this case on constitutional grounds and to affirm the district court on the grounds that the Statute is preempted by FDA regula- tions and the Food, Drug and Cosmetic Act, arguing that we must, when possible, decide a case on statutory rather than constitutional grounds. We can, of course, affirm the district court’s judgment on any grounds supported by the record. Mangaroo uv. Nelson, 864 F.2d _= 1202, A-6 1204 n.2 (5th Cir. 1989). Furthermore, we acknowledge that it is usually true that if a case can be decided either on statutory or constitutional law, we should address the statutory issue first. Harris v. McRae, 448 U.S. 297, 306-307 (1980). We do not think, however, that the facts and the procedural posture of this case warrant the applica- tion of this jurisprudential principle. The plaintiffs brought a facial challenge to the constitutionality of the Statute. The district court entered a judgment on the pleadings on the grounds that the Statute was unconstitutional under Roe v. Wade. It did not address the preemption issue. There was no trial or hearing to develop the record with respect to the several crucial factual and legal issues that underlie the premption arguments, including whether cer- tain contraceptives act after contraception, and if so, whether the Statute criminalizes the use of these con- traceptives. Additionally, we are not applying a new inter- pretation of the Constitution to decide this case; we are on- ly applying the clear holding of Casey. Therefore, the facts and posture of this case do not obligate us to reach the statutory issue first.3 Similarly, Dr. Okpalobi urges us to avoid deciding . the case on federal constitutional grounds by certifying the question to the Louisiana Supreme Court whether, because it invades the right of privacy, the Statute is unconstitu- tional under the Article 1, Section 5 of the Louisiana Con- stitution. Because Dr. Okpalobi raises this issue for the first time on appeal, we do not address it. Honeycutt v. Long, 861 F.2d 1346, 1352 (5th Cir. 1988). Planned Parent- hood of Louisiana, as amicus curiae, argues that we should abstain from deciding this case because there is a pending 3 Since we decide this case on the grounds that the Statute is un- constitutional under Casey, Sojourner's motion to certify the question of whether the Louisiana Abortion Statute criminalizes the use of cer- tain contraceptives is denied. A-7 state court challenge to the Statute under the Louisiana Constitution.* This argument was also raised for the first time on appeal, and we therefore do not address it. United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 840 n.13 (5th Cir. 1975), cert. denied, 425 U.S. 944 (1976). VI In conclusion, we hold that the Louisiana statute, on its face, is plainly unconstitutional under Casey because the statute imposes an undue burden on women seeking an abortion before viability. The order of the district court is therefore AFFIRMED. 4 Apparently, the state court action was stayed pending the outcome of this suit. 5 Because we decide the case on the grounds that the Statute is un- constitutional under Casey, we do not reach the appellees’ arguments that the Statute violates the Commerce Clause, that the Statute is un- constitutional under Griswold, or that the Statute is unconstitutioonal- ly vague. A-8 EMILIO M. GARZA, Circuit Judge, concurring specially: I agree with Judge Jolly that “the Supreme Court, in Planned Parenthood of Southeastern Pennsylvania v. Casey, . . . reaffirmed the essential holding of Roe v. Wade’’! and that “the Louisiana [Abortion] Statute is clearly unconstitutional under Casey.’ See Planned Parenthood v. Casey, ___ U.S. ___, 112 S.. Ct. 2791, 2804, 120 L. Ed.2d 674 (1992) (‘After considering the fundamen- tal constitutional question resolved by Roe, principles of in- stitutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade [that a woman has the right to terminate her pregnancy before viability] should be retained and once again reaffirmed.’’). Accordingly, I concur in J udge Jolly’s opinion. Casey, nonetheless, causes me concern. “The issue is whether [abortion] is a liberty protected by the Constitu- tion of the United States.” Jd. at 2874 (Scalia, J., dis- senting). Two essential facts seem apparent: ‘‘[T]he Con- stitution says absolutely nothing about [abortion], and. . . the longstanding traditions of American Society have per- mitted [abortion] to be legally proscribed.’’? Id.. (footnote omitted) (citation omitted). Casey ‘‘decorate[s] a value 1 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). . slip op. at 2. 3 Compare Roe, 410 U.S. at 138-42, 93 S. Ct. at 719-21 (historical review of abortion laws in America) with Michael H. v. Gerald D., 491 U.S. 110, 121-28, 109 S. Ct. 2333, 2341-44, 105 L. Ed. 2d 91 (1989) (overview of presumption of legitimacy) and Bowers v. Hardwick, 478 U.S. 193, 191-95, 106 S. Ct. 2841, 2844-46, 92 L. Ed. 2d 140 (1986) (brief history and list of sodomy laws in America). " A-9 judgment‘ and concealjs] a political choice.” Jd. at 2875. If this assessment is correct, the Court’s reaffirmance— whether viewed as a good or bad result—has accelerated the Court “towards systematically eliminating checks upon its own power; and [at least with Roe and Casey] it [has] succumbfed] [to this temptation].’’ Jd. at 2874. Because the decision to permit or proscribe abortion is a political choice, I would allow the people of the State 4 The joint opinion states: “‘Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest.” Casey, 112 S. Ct. at 2806. I do not agree with the joint opinion’s articulation of the issue. First, States legislate morality every day in the form of criminal statutes. For example, “‘[a] person commits an offense if he ... intentionally or knowingly causes the death of an individual,’’ see Tex. Pen. Code Ann. § 19.02 (West 1992), is the legal formulation of the commandment: “Thou shall not kill.’’ See Bowers v. Hardwick, 478 U.S. at 196, 106 S. Ct. at 2846 (‘‘The law, however, is constantly based on no- tions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts [would] be very busy indeed.’’). Second, the underlying constitutional issue is not ‘‘whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter,”’ but whether States have the constitutional power to make this ontological choice. For example, States choose for ontological reasons, to protect the lives of their citizens. In this instance, “liberty’’ gives way to protection of human life. See Casey, 112 S. Ct. at 2859 (Rehnquist, C.J., dissenting) (‘‘To look ‘at the act which is assertedly the subject of a liberty interest in isola- tion from its effect upon other people [is] like inquiring whether there is a liberty interest in firing a gun where the case at hand happens to in- volve its discharge into another person’s body.’ "’ (quoting Michael H. v. Gerald D., 491 U.S. at 124 n.4, 109 S. Ct. at 2342 n.4 (1989))). The ultimate question—if one accepts the joint opinion’s view that viability is critical—is whether States have the constitutional authority to decide for themselves whether viability makes an ontological difference. A-10 of Louisiana to decide this issue for themselves.5 Nonetheless, I acknowledge that Casey controls, and therefore, I concur. 5 See Michael H., 491 U.S. at 122, 109 S. Ct. at 2341 (‘Whenever the Judiciary [realizing that the present construction of the Due Process Clause represents a major judicial gloss on its terms, as well as on the anticipation of the Framers, strikes down legislation adopted by a State], it unavoidably preempts for itself another part of the govern- ance of the country without express constitutional authority.’’ (quoting Moore v. East East Cleveland, 431 U.S. 494, 544, 97 S. Ct. 1932, 1958, 52 L. Ed. 2d 531 (1977))). A-11 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 91-3677 FILED SEP 22 1992 D.C. Docket No. CA-91-2247-H & CA-91-2422-H SOJOURNER T, on Behalf of Herself and All Others Similarly Situated, ET AL.., Plaintiffs-Appellees, versus EDWIN W. EDWARDS, As Governor of the State of Louisiana, ET AL.., Defendants-Appellants. KRKKKKAKKKKKKKKKKKKKKKKKKKKKKKKKKKKEKES DR. IFEANYI CHARLES OKPALOBI, Plaintiff-Appellee, versus RICHARD P. IEYOUB, Attorney General of the State of Louisiana, ET AL., Defendants-Appellants. Appeal from the United States District Court for the Eastern District of Louisiana Before JOLLY, and EMILIO M. GARZA, Circuit Judges, and SHAW, District Judge.! ISSUED AS MANDATE: OCT 14 1992 1 Chief Judge of the United States District Court of the Western District of Louisiana, sitting by designation. A-12 JUDGMENT This cause came on to be heard on the record on ap- peal and was argued by counsel. ON CONSIDERATION WHEREOPF, It is now here ordered and adjudged by this Court that the judgment of the District Court in this cause is affirmed. IT IS FURTHER ORDERED that defendants- appellants pay to plaintiffs-appellees the costs on appeal to be taxed by the Clerk of this Court. September 22, 1992 A-13 APPENDIX B OPINION OF THE DISTRICT COURT UNITED STATES COURT OF APPEALS EASTERN DISTRICT OF LOUISIANA SOJOURNER T, ET AL CIVIL ACTION VS. NO. 91-2247 BUDDY ROEMER, AS GOVERNOR OF THE STATE OF LOUISIANA, ET AL SECTION ‘“H”’ CONSOLIDATED WITH DR. IFEANYI CHAS. OKPALOBI VERSUS NO. 91-2422 STATE OF LOUISIANA, ET AL SECTION ‘“H”’ REASONS FOR JUDGMENT When the pleadings demonstrate that there is no fac- tual issue which could change the result, any party may move for judgment on the pleadings. Fed. R. Civ. P. 12(c). At my first meeting with counsel on the day after the first of these two consolidated actions was files, I suggested that this case would meet the test. After consideration of motions for judgment on the pleadings and extensive sup- porting memoranda filed by all of the parties, I have con- cluded that no facts which could be developed at a trial could change the legal result dictated by Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973). Therefore, for the following A-14 reasons, the motions for judgment will be entered declaring Act 26 of the 1991 Louisiana Legislature unconstitutional and enjoining its enforcement. Justice White’s dissenting opinion in Roe v. Wade, 410 U.S. at 222-23, 93 S. Ct. at 763, includes the following statement, with which I wholeheartedly agree: The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its ac- tion, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of 50 States are constitutionally disentitled to weigh the relative importance of the continued ex- istence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. However, the majority opinion in Roe, not Justice White’s dissent, is still the law of this land. The Constitu- tion of the United States means what the Supreme Court states that it means at any given time. Just two years ago, in Webster v. Reproductive Health Services, the appellants and the United States Department of Justice as Amicus Curiae urged the Court to overrule Roe; Justice Scalia in his concurring opinion did likewise. The Court declined to do so, I quote from the Chief Justice’s opinion: ‘“This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause, id. at 164, and we leave it undisturbed.’’ Webster v. Reproductive Health Services, 492 U.S. 490, 521, 109 S. Ct. 3040, 3058 (1989). The Court has still not revisited Roe. A-15 The Texas statute held unconstitutional in Roe is in all pertinent respects identical to the Louisiana statute under attack here. Thus Roe in effect declares the Lou- isiana statute unconstitutional. Even though the Supreme Court has thus far explicitly refused to overrule Roe, counsel for defendants urge that I should anticipate that it will now do so. The Supreme Court has repeatedly held that I have no such authority: Needless to say, only this Court may overrule one of its precedents. Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535, 103 S. Ct. 1343, 1344, 75 L. Ed. 2d 260 (1983). . .. unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower court, no matter how misguided the judges of those courts may think it to be. Hutto v. Davis, 454 U.S. 370, 375 (1981). Defendants contend that a decision upholding the constitutionality of the Louisiana statute under attack would not amount to the overruling of Roe. They argue that Webster and two later Supreme Court decisions! have effectively overruled Roe, sub silentio. There are persuasive authorities cited in support of the right (arguably, the du- ty) of a lower court to decline to apply Supreme Court precedent when the Court in later decisions has itself de facto overruled that precedent, although not expressly. The temptation to apply that principle is great, especially when I agree with the result which would follow. But I cannot conclude that Roe has been overruled by implication in the face of an explicit refusal in Webster to overrule it express- ly. A lower court cannot decide that a Supreme Court de- 1 Hodgson v. Minnesota, _____ U.S. , 110 S. Ct. 2926 (1990); Ohio v. Akron Center for Reproductive Health, ___ U.S. ___, 110 S. Ct. 2972 (1990). A-16 cision has been overruled de facto when in three cases in the past two years the Supreme Court has declined the oppor- tunity to overrule that decision de jure. No one could seriously argue that in cases after Roe the Court has acted sub silentio? as to the Roe decision. Every judge in the United States takes an oath to uphold the Constitution as it is interpreted by the U.S. Supreme Court. No judge in the United States enjoys the luxury of applying his or her own interpretation of the U.S. Constitution with respect to an issue which the United States Supreme Court has previously decided. No judge in the United States can overrule Roe v. Wade; only the Supreme Court can do so. Other issues are raised by the pleadings and in memoranda. I do not consider them, because under the Roe decision they cannot make any difference in the result. I- recognize that if the Supreme Court overrules Roe v. Wade, one or more of these issues may have to be con- sidered on remand. It matters not what my personal opinion may be as to whether the United State Constitution nullifies the ac- tion of elected state legislators in prohibiting abortions under certain circumstances. I am bound by my oath of of- fice to decide that under the existing Supreme Court inter- pretation, the Louisiana statute under attack is unconstitutional. Disposition of claims for attorney’s fees is deferred until the conclusion of the litigation. 8/7/91 /s/ Adrian Duplantier Judge 2 Sub silentio. Under silence; without any notice being taken. Black’s Law Dictionary 1428 (6th ed. 1991). A-17 APPENDIX C JUDGMENT OF THE DISTRICT COURT UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SOJOURNER, T., ET AL CIVIL ACTION VERSUS NO. 91-2247 BUDDY ROEMER, AS GOVERNOR OF THE STATE OF LOUISIANA, ET AL SECTION “H” CONSOLIDATED WITH DR. IFEANYI CHAS, OKPALOBI VERSUS NO. 91-2422 STATE OF LOUISIANA, ET AL SECTION ‘H”’ JUDGMENT Considering the court’s Reasons for J udgment filed in the record this date, and further considering the court’s direction as to entry of judgment; IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiffs and against defendants, declaring Act 26 of the 1991 Louisiana Legislature unconstitutional and enjoining defendants from enforcing said statute. i A-18 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the disposition of the claims for at- torney’s fees is hereby deferred until the conclusion of the litigation. New Orleans, Louisiana, this 7th day of August, 1991. /s/ Adrian Duplantier UNITED STATES DISTRICT JUDGE A-19 APPENDIX D ACT 26 OF THE 1991 LOUISIANA LEGISLATURE HOUSE BILL NO. 112 BY: REPRESENTATIVE SAM THERIOT, SENATOR BARES, REPRESENTATIVE DIMOS, LANCASTER, LABORDE, SITTIG, HIGGINBOTHAM, ACCARDO, ACKAL, DIEZ, DONELON, GLOVER, GUIDRY, HAIK, HERRING, LEBLANC, LEMOINE, MARTIN, STELLY, AND STINE AND SENATORS MCPHERSON, PICARD, CRAIN, SAUNDERS, BRINKHADS, AND POSTON AN ACT To amend and reenact R.S. 14.87, relative to abortion; to define and prohibit abortions; to provide for ex- ceptions; to provide for penalties; and to provide for related matter. Be it enacted by the Legislature of Louisiana: Section 1. Legislative findings and purpose. Life begins at conception. It is declared to be the public policy of the state of Louisiana that it has a legitimate compelling interest in protecting, to the greatest extent possible, the life of the unborn from the time of conception until birth. We also af- firm our belief that life begins at conception and that life thereafter is a continuum until the time of death. In furtherance of this compelling interest we declare it A-20 to be a reasonable and proper exercise of the police power of the state to prohibit and otherwise reasonably regulate, through the imposition of criminal penalties, the perfor- mance of abortions. Section 2. R.S. 14:87 is hereby amended and reenacted to read as follows: § 87. Abortion A.(1) Abortion is the performance of any of the following acts, with the specific intent of terminating a pregnancy. (a) Administering or prescribing any drug, po- tion, medicine, or any other substance to a female; or (b) Using any instrument or external force whatsover on a female. (2) This Section shall not apply to the female who has an abortion. B. It shall not be unlawful for a physician to perform any of the acts described in Subsection A of this Section if performed under the following circumstances: (1)The physician terminates the pregnancy in order to preserve the life or health of the unborn child or to remove a dead unborn child. (2) The physician terminates a pregnancy for the express purpose of saving the life of the mother. (3) The physician terminates a pregnancy which is the result of rape as defined in either R.S. 14:42, R.S. 14:42.1, or R.S. 14:43 and in which all of the following requirements are met prior to the pregnancy termination: (a) The rape victim obtains a physical ex- amination and/or treatment from a physician other A-21 than the physician who is to terminate the pregnancy within five days of the rape to determine whether she was pregnant prior to the rape and to prevent pregnancy and veneral disease, unless the rape victim is incapacitated to such a degree that she is unable to obtain this examination. If the victim is unable to ob- tain the examination due to such incapacity, then an examination shall be performed within five days after the incapacity is removed; and (b) The rape victim reports the rape to law en- forcement officials within seven days of the rape unless the victim is incapacited to such degree that she is unable to report the rape. If the victim is unable to report the rape due to such incapacity, then a report shall be made within seven days after the incapacity is removed; and (c) The abortion is perforraed within thirteen weeks of conception. (4) The physician terminates a pregnancy which is the result of incest as defined in R.S. 14:78, provided the crime is reported to law enforcement of- ficials and the abortion is performed within thirteen weeks of conception. C.(1) Prior to the performance of any abortion under Subsection (B)(3) or (B)(4) of this Section, the physician who is to perform the abortion shall obtain from the victim a statement in writing verifying that she has obtained the physical examination and shall obtain written verification by a law enforcement of- ficial that the victim reported the rape to law enforce- ment officials as required under this Section. (2) Every physician who conducts a physical ex- A-22 amination of a rape victim within five days of the rape shall immediately upon written request of either the victim or the physician who is to perform the abortion on the victim, provide to the victim or the requesting physician written verification of his examination. (3) Every law enforcement official who receives a report of a rape victim within seven days of the rape or receives a report of incest shall immediate- ly, upon written request of either the victim or the physician who is to perform the abortion, provide to the victim or requesting physician written verification of the report which was made to the official. D. As used in this Section, the following words and phrases are defined as follows: (1) ‘Law enforcement official or officer’ means any peace officer or agency empowered to en- force the law in criminal matters within his or its respective jurisdiction, including but not limited to a state police officer, sheriff, constable, local police of- ficer, and district attorney. (2) ““Physician” means any person licensed to practice medicine in this state. (3) “Unborn child’”’ means the unborn off- spring of human beings from the moment of concep- tion until birth. (4) “Conception” means the contact of sperm- atozoan with the ovum. E.(1) Whoever commits the crime of abortion shall be imprisoned at hard labor for not less than one nor more than ten years and shall be fined not less than ten thousand dollars nor more than one hundred thousand dollars. (2) This penalty shall not apply to the female who has an abortion. A-23 Section 3. If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Act which can be given effect without the invalid provisions, items or applications, and to this end the provisions of this act are hereby declared severable. Section 4. This act shall become effective upon signature by the governor or, if not signed by the governor, upon expiration of the time for bills to become law without signature by the governor, as provided in Article III, Sec- tion 18 of the Constitution of Louisiana. /s/ SPEAKER OF THE HOUSE OF REPRESENTATIVES /s/ PRESIDENT OF THE SENATE GOVERNOR OF THE STATE OF LOUISIANA VETOED: June 14, 1991 /s/ Buddy Roemer [emblem] A-24 APPENDIX E OPINION OF THE LOUISIANA ATTORNEY GENERAL State of Louisiana Department of Justice Williamn J. Guste, Jr. Baton Rouge Attorney General 70804-9005 September 24, 1991 OPINION NO. 91-419 Honorable John M. Mamoulides District Attorney Parish of Jefferson Jefferson Parish Courthouse Annex Building—5th Floor Gretna, Louisiana 70053 Dear District Attorney Mamoulides: In your letter of August 5, 1991, you requested an opinion of this office. You asked the following questions concerning Act 26 of 1991 relating to abortion: Es What is the definition of wregnancy? Does the Act apply to the -prescription, ad- ministration and use of the oral contraceptive pill, the intrauterine device (IUD), and the morning- after pill? What is the effect of the Act on the process of in vitro fertilization as regulation [sic] by La. R.S. 9:121-133? Consistent with the answer we filed in Sojourner, et A-25 al vs. Roemer, et al, No. 91-2247 on the docket of the United States District Court for the Eastern District of Lou- isiana, we respond to your questions as follows: LSA-R.S. 14:87, as amended by Act 26, provides in pertinent part as follows: §87 Abortion A. (1) Abortion is the performance of any of the following acts, with the specific intent of ter- minating a pregnancy: (a) Administering or prescribing any drug, po- tion, medicine, or any other substance to a female; or (b) Using any instrument or external force what- soever on a female. 1. Although Act 26 defines ‘‘conception’”’ as the con- tact of spermatozoon and ovum, and it defines ‘‘unborn child’ as the unborn offspring of human beings from con- ception until birth, the Act does not define the term ‘pregnancy’. It is not necessary that it do so. In inter- preting a statute, words and phrases should be used in their context and should be construed in accordance with common and approved usage. See LSA-R.S. 1:3 and LSA- R.S. 14:3. Thus the term pregnancy must be given its customary meaning. Within the medical profession, pregnancy is understood to refer to a woman’s condition after implanta- tion of a fertilized ovum. It is defined as ‘‘the condition of having a developing embryo or fetus in the body, after the union of an ovum and spermatozoon.’’! The term ‘‘em- lSee Dorland’s Illustrated Medical Dictionary 1349, 543 (27th Ed. 1988); Williams Obstetrics 8-10 (18th Ed. 1989). Both Dorland’s and A-26 bryo”’ is commonly and appropriately used to describe the unborn child once the embryonic disc forms at about the eighth day after contact of ovum and spermatozoon. The embryonic period extends until about the eighth week, after which the developing human is known as a fetus.2 Because implantation of the fertilized ovum occurs on ap- proximately the sixth day after union of ovum and sper- matozoon, it is clear that the embryo is not considered by medical experts to exist until some time after implantation of the fertilized ovum. In everyday medical usage the term pregnancy is equated with implantation.4 Implantation in the fallopian tube or other extra uterine site is referred to as a tubal or ectopic pregnancy. The important point is that the Act makes criminal only those actions taken with the specific intent of terminating a pregnancy, unless done for the health of the unborn child, to remove a dead unborn child, to save the life of the mother, or in certain cases of rape and incest. Footnote continued. Williams were used and relied upon by the U.S. Supreme Court in Roe v. Wade, 410 U.S. 113 at 130, 160; 93 S.Ct. 705 at 716, 730 (1973). 2 K. Moore, Before We Are Born, Basic Embryology and Birth Defects I (2nd Ed. 1983). # See Dorland’s, supra note 1 at 824. 4 See Williams Obstetrics 8-10 (18th Ed. 1989); U.S. Department of Health and Human Services regulations define pregnancy as follows: §46.203 Definitions: ((b) ‘“‘Pregnancy’’ encompasses the period of time from confirma- tion of implantation (through any of the presumptive signs of pregnan- cy, such as missed menses, or by a medically acceptable pregnancy test), until expulsion or extraction of the fetus.) Protection of Human Subjects, 45 C.F.R. §46:203 (1990). See also, Complaint, Para 42, Sojourner et al vs. Roemer et al, U.S.D.C, E.D. La. CA 91-2247. A-27 Therefore, anything done which has operative effect before implantation is not affected by or subject to the criminal provisions of Act 26. 2. Our examination and analysis of Act 26 leads us to conclude that the Act does not apply to the prescription, administration and use of the oral contraceptive pill, the in- trauterine device (IUD), and the morning-after pill.5 The Act proscribes, with criminal sanctions, only the ad- ministering or prescribing of any drug, potion, medicine or other substance or use of any instrument or external force on a female with the specific intent of terminating a pregnancy. The oral contraceptive pill, IUD and morning- after pill operate and have their effect prior to implanta- tion, i.e., prior to pregnancy. Therefore, Act 26 will have no effect on the prescribing, administering or use of such drugs or devices.® 3. We have also been asked what effect Act 26 will have on efforts by women to become pregnant through the process of in vitro fertilization. In Louisiana in vitro fer- tilization is regulated by La. R.S. 12:121-133. As is evident from those statutes and the common understanding of in > The criminal sanctions of the Act do apply to the administering or prescribing of any drug which has its operative effect after the onset of pregnancy, i.e., after implantation. Thus, drugs, including RU 486, when administered or prescribed for use after implantation are prohibited under the Act. 6 Williams, supra, at note 4, at 922-923, 929 and 931. How and when some oral contraceptives and the IUD work is a matter of considerable debate. The question debated is whether ‘’the pill’ and “the IUD” sup- press ovulation (the release of the ovum) thereby preventing conception (as defined by Act 26 as contact of the spermatozoon and ovum) or whether they act to prevent implantation, or whether they act both to suppress ovulation and prevent implantation. For the purpose of Act 26, the debate need not be resolved, because Act 26 has no effect until after implantation of a fertilized ovum. A-28 vitro fertilization, it is a process intended to ultimately result in pregnancy. There is no pregnancy, however, dur- ing the process and Act 26 does not apply until after the successful implantation of a fertilized ovum. Act 26 reaffirms Louisiana’s longstanding position that life begins at conception and Louisiana’s policy of pro- tecting to the greatest extent possible the life of the unborn child from conception until birth. However, in order to pro- ve the elements of the crime of abortion as defined by Act 26, a prosecutor must prove beyond a reasonable doubt that someone other than the woman with child acted with the specific intent of terminating a pregnancy. Because medical tests to determine whether conception has occur- red are not reliable until a time following sexual intercourse coincident with implantation, it would not be possible to prove the requisite specific intent for actions taken prior to the time of implantation, i.e., prior to pregnancy. In enacting Act 26 the Legislature effectively reinstated Louisiana’s criminal law regarding abortion as it existed before the United States Supreme Court’s 1973 decision in Roe v. Wade. In reenacting its prior law, the Legislature used more modern language for its definition of abortion, made explicit the exception for protecting the life of the mother and the exemption of the pregnant woman from prosecution, and added exceptions for abortion per- formed in cases of rape and incest under certain cir- cumstances. The new statute also provides a financial penalty in addition to the one to ten years imprisonment which was provided in the prior law. The pre-Roe v. Wade definition of abortion contained in LSA-R.S. 14:87 was the performance of certain acts ‘‘with the intent of procuring premature delivery of the em- bryo of (sic) fetus.’’ The recently enacted Act 26 also A-29 extends the protection of the criminal law to the embryo and fetus by prohibiting the termination of a pregnancy ex- cept under certain specified conditions. The new statute takes the same approach and is in accord with Louisiana’s law prohibiting abortion as it existed prior to 1973.7 In consideraing the application of LSA-R.S. 14:87, we note that the guidelines of LSA-R.S. 14:3 apply. That section provides as follows: The article of this code cannot be extended by analogy so as to create crimes not provided for herein; however in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision. This rule of stricti juris, or strict construction, requires that a criminal statute be strictly construed in factor of the accused. We must adhere to that rule of interpretation. (See State v. Young, 357 So.2d 503 (La. 1978); State v. Sloan, 139 La. 881, 72 So. 428 (1916). It is the opinion of this office that LSA-R.S. 14:87, which prohibits abortions except in specific circumstances, does not prohibit authorized and licenses (sic) medical per- sonnel from prescribing, or administering medicines, 7 Use of the more modern language in the current statute also avoids the problem of possible dismissal of a prosecution because the informa- tion or indictment refers to an embryo when evidence might establish that the pregnancy was far enough along so that a fetus was actually aborted. See, e.g., State v. DORE, 227 La. 282, 79 So.2d 209 (1955). See also, Rosen v. La. State Board of Medical Examiners, 319 F.Supp. 1217 (E.D. La. 1970). A-30 drugs, potions, substances or instruments that operate to prevent pregnancy rather than to terminate pregnancy. Because IUD’s, oral contraceptives and ‘‘the morning-after pill’ prevent rather than terminate pregnancy, their use is not made illegal by LSA-R.S. 14:87; nor is the process of in vitro fertilization subject to Act 26 until subsequent to the implantation of a fertilized ovum in a female’s uterus. Yours very truly, /s/ WILLIAM J. GUSTE, JR. Attorney General WJG,Jr./gbs A-31 APPENDIX F States Recognizing That Human Life Begins at Conception Alabama: Trent v. State, 15 Ala. App. 485, 488, 73 So. 834, 836 (1916) (interpreting state abortion law) (‘‘ ’does not the new being from the first day of its uterine life, acquire a legal and moral status that entitles it to the same protection as that guaranteed to human beings in extrauterine life?” ’) (quoting from the 1911 Transactions of the Medical Association of Alabama) Wolfe v. Isbell, 291 Ala. 327, 331, 280 So.2d 758, 761 (1973) (rejecting viability requirement in wrongful death action where death occurs after live birth): [T]he more recent authorities emphasize that there is no valid medical basis for a distinction based upon viability, especially where the child has been born alive. These [decisions] proceed on the premise that the fetus is just as much an in- dependent being prior to viability as it is after- wards, and that from the moment of conception, the fetus or embryo is not a part of the mother, but rather has a separate existence within the body of the mother. Eich v. Town of Gulf Shores, 293 Ala. 95, 98-99, 300 So. 2d 354, 356-57 (1974) (rejecting live birth requirement in wrongful death action) (stating that ‘‘the paramount purpose of our wrongful death statutes ... is the preserva- tion of human life” and holding that “‘it is illogical to allow liability to depend on whether death from fatal injury oc- curred before or after live birth’”’) A-32 Alabama Constitutional Convention Call (S.J. Res. 9, 1980 Ala. Acts 396): [A]pplies to the Congress . . . to call a convention for the sole and exclusive purpose of proposing an amendment to the Constitution that would pro- tect the lives of all human beings including un- born children at every stage of their biological development and providing that neither the United States nor any state shall deprive any human being, from the moment of fertilization, of the right to life without due process of laws, nor shall any state deny any human being, from the moment of fertilization, the equal protection of the laws, except where pregnancy results from rape or incest; or where abortion is necessary to save the life of the mother; or where testing revealed abnormality or deformity of the fetus. Arizona: Nelson v. Planned Parenthood Center of Tucson, 19 Ariz. App. 142, 505 P.2d 580, 586 (1973) (construing state abortion law): One cannot gainsay a legislative determination that an embryonic or fetal organism is ‘life.’ Once begun, the inevitable result is a human being, bar- ring prior termination of the pregnancy. Ariz. Rev. Stat., §13-1103(A)(5) (West. 1989) (defining offense of manslaughter to include ‘Vk]nowingly or recklessly causing the death of an unborn child at any state of its development by any physical injury to the mother of such child which would be murder if the death of the mother had occurred’’) A-33 Summerfield v. Superior Court, 144 Ariz. 467, 476, 698 P.2d 712, 721 (1985) (‘‘this statute [§13-1103(A)(5)] is in the section traditionally associated with the killing of per- sons (manslaughter) and .. . it refers not to a fetus but to an unborn child’’) Ariz. Rev. Stat., §13:702(D)(10) (West 1989) (death of an unborn child “‘at any stage of its development” an ag- gravating circumstance for purposes of sentencing) Arkansas: Ark. Const., Amend. 68, §2 (‘[t]he public policy of Arkansas is to protect the life of every unborn child from conception until birth, ... .’’) Arkansas Constitutional Conventiion Call (Res. of Feb. 17, 1977, H.R.J. Res. 2): Requests Congress to call a convention to pro- pose a constitutional amendment which would provide that every human being subject to the jurisdiction of the United States or any state shall be deemed from the moment of fertilization to be a person and entitled to the right of life; pro- vides that Congress and the states shall have con- current powers to enforce such an amendment. Ark. Code Ann., §5-13-201(A)(5) (1991 Supp.) (amen- ding first degree battery statute to include physical in- juries to pregnant woman resulting in miscarriage or stillbirth) California: Cal. Pen. Code, §187(a) (West 1988) (‘‘[mJurder is the unlawful killing of a human being, or a fetus, with malice A-34 aforethought’’) People v. Apodaca, 78 Cal. App. 2d 479, 486, 142 Cal. Rptr. 830, 835 (1978) (§187 ‘‘gives to all persons of common intelligence ample warning that an assault on a pregnant woman without her consent for the purpose of unlawfully killing her unborn child can constitute the crime of murder’’) Cal. Civ. Code, §29 (West 1982) (‘‘[a] child conceived but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth’’) Scott v. McPheeters, 33 Cal. App. 2d 629, 634, 92 P.2d 678, 681 (1939) (it is ‘‘an established and recognized fact by science and by everyone of understanding” that ‘“‘an unborn child is a human being separate and distinct from its mother’’) Connecticut: Conn. Gen. Stat., Ann. §53-31(a) (1985) (‘[t]he public policy of the state and the intent of the legislature is to pro- tect and preserve human life from the moment of concep- tion’’) (rep. by P.A. 90-113, §4 (1990)) Simon v. Mullin, 34 Conn. Sup. 139, 147, 380 A.2d 1353. 1357 (1977) (rejecting viability requirement in wrongful death action where death occurs after live birth) (‘‘[t]he development of the principle of law that now per- mits recovery by or on behalf of a child born alive for prenatal injuries suffered at any time after conception, without regard to the viability of the fetus, is a notable il- lustration of the viability of our common law’’) A-35 Delaware: Scott v. State, 49 Del. 401, 409-10, 117 A.2d 881, 835-36 (1955) (characterizing abortion law as one which defines an offense against the lives and persons of individuals) Delaware Constitutional Conventioin Call (Res. of May 23, 1978, H.R. Con. Res. 9): Requests Congress to call a convention to pro- pose a constitutional amendment that would pro- tect the lives of all human beings, including un- born children at every stage of their biological development. District of Columbia: Bonbrest v. Kotz, 65 F. Supp. 138, 140 (D. D.C. 1946) (recognizing cause of action for prenatal injuries) (‘‘[f}rom- the viewpoint of the civil law, and the law of property, a child en ven- tre sa mere is not only regarded as [a] human be- ing, but as such from the moment of conception—which it is in fact’’) Greater Southeast Community Hosp. v. Williams, 482 A.2d 394, 396 (D.C. Ct. App. 1984) (rejecting viability requirement in wrongful death acticn where death occurs after live birth) (refer- ring to “established medical fact that a fetus is a person separate from its mother’’) Florida: Day v. Nationwide Mut. Ins. Co., 328 So.2d 560, 561 (1976) (rejecting viability requirement in case of prenatal injuries) (quoting with A-36 approval Prosser, Handbook of the Law of Torts, §55 at 336 (4th ed. 1971)): Viability of course does not affect the question of the legal existence of the foetus, and therefore of the defendant’s duty; and it is a most unsatisfac- tory criterion, since it is a relative matter, depen- ding upon the health of the mother and child and many other matters in addition to the stage of development. Certainly, the infant may be no less injured; and all logic is in favor of ignoring the stage at which it occurs.! Georgia: Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 504-05, 93 S.E.2d 727, 728 (1956) (rejecting viability re- quirement in case of prenatal injuries) (‘‘{i]f a child born after an injury sustained at any period of its prenatal life can prove the effect on it of a tort, it would have a right to recover’) (a dissent characterized majority opinion as holding, in effect, ‘’that an infant becomes a ‘person’ from the moment of conception, with the right to sue for a tor- tious injury after its birth”), id. at 506, 93 S.E.2d at 729 Morrow v. Scott, 7 Ga. 535, 587 (1849) (‘ijn ... general, a child is to be considered as in being, from the time of its conception, where it will be for the benefit of such child to be so considered’’) Gulf Life Ins. Co. v. Brown, 181 G. App. 72, 74, 351 S.E. 2d 267, 269 (1986) (‘‘unquestionably, Georgia cases show a clear tendency toward placing a high premium on ! To which to the Fifth Edition of Prosser & Keaton (1984) adds: “With recent advances in embryology and medical technology, medical proof of causation in these cases has become increasingly reliable, which argues for eliminating the viability or other arbitrary developmental require- ment altogether.”’ Jd. at 369. A-37 human life and an unmistakable willingness to recognize a fetus as a person at a time prior to actual delivery’’) Idaho: Nash v. Meyer, 54 Idaho 283, 301, 31 P.2d 273, 280 (1934) (construing state abortion law) (criminal abortion statute intended “‘to discourage abortions because thereby the life of a human being, the unborn child, is taken’’) Blake v. Cruz,, 108 Idaho 258, 261, 698 P.2d 315, 323 (1984) (Bistline, J., concurring in part and dissenting in part) (“[tJhis Court recently committed itself to the proposi- tion that an unborn child is_a person in being,” citing Volk v. Baldazo, 103 Idaho 570, 651 P.2d 11 (1982) (rejecting live birth requirement in wrongful death action where death oc- curs after viability)) Idaho Constitutional Convention call (S. Con. Res. 132, 45th Legis. 2d Sess., 1980 Idaho Sess. Laws 1005): Request| Js that the Congress . . . call a constitu- tional convention for the specific and exclusive purpose of proposing an amendment .. . [to pro- vide that): [a] From the moment of conception a person shall be guaranteed all perscnal! rights extended to all individuals under the constitution and laws of the United States of America and t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1850%3A1. Public record. Not legal advice.