Opposition Brief — Mazurek v. Armstrong

No. 96-1104 Supreme Court, U.S.

ee he ae ee

IN THE MAR 28 (997

Supreme Court of the nuited | Srbetes te cee

OCTOBER TERM, 1996

>

JOSEPH MAZUREK, in his official capacity as

Attorney General of the State of Montana,

Petitioner,

JAMES H. ARMSTRONG, M.D.; MARK MILES, M.D.; SUSAN WICKLUND,

M.D.; SUSAN CAHILL, P.A.; MARY STRANAHAN, D.O.; BETH E.

THOMPSON, M.D.; and EDWIN L. STICKNEY, M.D., on behalf of

themselves and their patients throughout Montana, the surrounding

states and Canada and on behalf of a class of performing and referring

physicans,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

BRUCE MEASURE JANET BENSHOOF

Law Offices of Ambrose Measure (Counsel of Record)

P.O. Box 918 SIMON HELLER

Kalispell, Montana 59903-0918 BONNIE S. JONES

(406) 752-6373 The Center for Reproductive

Law & Policy

120 Wall Street, 18th Floor

New York, New York 10005

(212) 514-5534

TURNER GRAYBILI

Graybill, Ostrem, Warner & Crotty

18 Sixth Street North, Suite 200

Great Falls, Montana 5940]

(406) 452-8566

Counsel for Respondents

“

QUESTION PRESENTED

Whether the court of appeals correctly directed the

district court, in considering respondents’ motion for a

preliminary injunction against a Montana abortion statute,

to balance the hardships between the parties, where the

district court had failed to do so previously?

TABLE OF CONTENT

Page

QUESTION PIREERUS MES 550s u sees eu ke een i

TABLES GOP AUTRE GMO® 5.50 63 Se ea ees iv

OPENS BEA a ees eh ewe he ee 1

ADDITIONAL RELEVANT

CONSTITUTIONAL PROVISION ........... ]

COUNTERSTATEMENT OF THE CASE ......... l

REASONS FOR DENYING THE WRIT .......... 8

I. THE ISSUES RAISED IN THE PETITION ARE

NOT YET Rive POR BEViOW, 66s 86 ees 9

A. The Petition For Certiorari Should Be Denied

Because The Court of Appeals Has Not Ruled

On Respondents’ Motion For A Preliminary

OEE cn eS SE eee eee 9

B. The Interlocutory Nature Of The Proceedings

In This Case Makes Review Inappropriate ... 10

C. The Petition Improperly Seeks Determination

Of A Constitutional Issue On Which The Lower

Courts Have Not Yet Ruled ............ 15

ii

ll. THE DECISION OF THE COURT BELOW

DOES NOT CONFLICT WITH CASES

DECIDED BY THIS COURT AUTHORIZING

STATES TO LIMIT THE PERFORMANCE

OF ABORTIONS TO LICENSED

teidearsumg ee eee ae

A. Dicta In This Court’s Cases Indicating

That States May Constitutionally Limit

The Practice Of Abortions To Licensed

Physicians Are Not In Conflict With

The Decision Of The Court Of Appeals... . . 18

B. Respondents’ Bil] Of Attainder Claim

Is Fully Supported By This Court’s

Bill Of Attainder Precedents... _ - ay atone Z

CONCLUSION ....__. Pa ateeig ci: Pitaenes 27

iV

TABLE OF A ORIT.

Cases:

A Woman's Choice-East Side Women’s Clinic

v. Newman, 904 F. Supp. 1434

(S.D. Ind. 1995), appeal stayed,

NO: SPGS Cis Cay, BOM. 2a, FFG) ee ie aS

American Construction Co. v. Jacksonville,

E. @ &.: B. CO. 346 U8 S12 COS) ois

Brotherhood of Locomotive Firemen anc Enginemen

v. Bangor & Aroostook Railroad Co.,

SOF Ue PET CEPT oo ee ee elU See es

Beacon Theaters, Inc. v. Westover,

SIP NI OP CISD 68 a ode wae ele

Birth Control Ctrs., Inc. v. Reizen,

70S: 3.08 Sad fe Ge, SOO 6 as 5 eS

Building & Constr. Trades Council v.

Associated Builders & Contractors,

SUF Si AO LAPORTE eS i el oa Se pe

Carey v. Population Services Int’l,

OSL Cis Ee CERT I REN ee ee KS

City of Akron v. Akron Ctr. for Reproductive Health,

GG2 N.S: OE Clee x kee ce eS 6,

Connecticut v. Menillo, 423 U.S. 9 (1975) .....

Cummings v. Missouri,

TE es Te OR OPE CLO ee ee

Page

18,

EOE ae

Vv

Doe v. Deschamps, 461 F. Supp. 682

(D. Mont. 1976) (three-judge court) ........ 5-6

Doe v. Esch, No. 93-060-GF-PGH

(D. Mont. Nov. 26, ROME eye Se es sen otis 6

Edwards v. Aguillard, 482 U.S. Dre times) oS 25-26

Estelle v. Gamble, 429 U.S. 97 ere, 2. ‘1, 32; 5

Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867) .... 24

Fargo Women’s Health Org. v. Schafer,

BERD Ae SOME HIND) oe in ge 16

Florida Women’s Medical Clinic, Inc. v. Smith,

536 F. Supp. 1048 (S.D. Fla. 1982), appeal

dismissed, 706 F.2d 1172 (itm Cr. 3969)... 19

Gillespie v. United States Steel Corp..,

Pte UR TAU io 15

Hamilton-Brown Shoe Company v. Wolf Bros. & Co..

Me SG. Fa) OGG): ooo oe 10-11, 12

Hodgson v. Minnesota, 497 U.S. 417 iene ss 24-25

International Org. of Masters, Mates & Pilots

v. Brown, 498 U.S. 466 (1991) .........2 15

Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996),

petition for cert. filed, No. 96-148]

wockened Mar, 16,1997). 2 6. so ae

Kassel v. Consolidated Freightways Corp.,

on ie Wee AED i ec ee ee 25, 26

vi

Land v. Dollar, 330 U.S. 731 (1947) ..:.......-. 14

Larson v. Domestic & Foreign Commerce Corp.,

537 U.S. CRs CP 6 ee EEN ee en 13

Michael v. United States, 454 U.S. 950 (1981) ..... 13

Nixon v. Administrator of General Services,

433: U.S. 629 CUT oe 23, 24, 26

Planned Parenthood v. Ashcroft, 482 F. Supp. 679

(W.D. Mo. 1980), aff'd in part & rev'd in part

on other grounds & remanded, 655 F.2d 848

(8th Cir. 1981), aff'd after remand, 664 F.2d 687

(8th Cir. 1981), aff'd in part & rev'd in part

on other grounds, 472 U.S. 476 (1983) ....... 19

Planned Parenthood v. Casey,

ir AA OE RAP ee ea LS, 17, 16, 23

Roe v. Wade, 410 U.S. 113 (2973) 2. 2. va be. 18, 20

Selective Service System v.

Minnesota Public Interest Research Group,

SG -U.S.: GEL UES G SG) ioe Saw es be, 2

Smith v. Bentley, 493 F. Supp. 916 (E.D. Ark. 1980)

RIDE SUNG CS EIA ea ee 19

Spector Motor Service, Inc. v. McLaughlin,

SAF SDs POE SS ee ee ce ‘eo

Turner v. Safley, 482 U.S. 78 (1987) ........ ae

United States v. Brown, 381 U.S. 437 (1965) ...... 23

Vii

United States v. General Motors Corp.,

PO Me DIPLOMA Vivace bk fk. 13

United States v. Lovett, 328 U.S. Per CIO) cS 23

United States v. O’Brien, 391 U.S. 367 LeWeeR eeu 24

University of Texas v. Camenisch.

ce gic |) ERIM CO neko oe nea eon. 12

Virginia Military Institute v. United States,

RB Ws Re PORE AAO se the fers 1]

Wallace v. Jaffree, 472 U.S. 38 oc: EERE Ws ett Ee ets 26

Women's Medical Prof’! Corp. v. Voinovich,

911 F. Supp. 1051 (W.D. Ohio 1995),

appeal docketed, Nos. 96-3157 & 96-3159

et Oe, PG, TOO ai er ig 13-14

Wright v. State, 351 So. 2d 708 of eae ae car 19

Constitutional Provisions, Statutes & Rules:

Me BEAD ey 1, 17

Mont. Code Ann. § 37-20-1038 .............__. 2

Mont. Code Ann. § 37-20-104 ................ 3

Mont. Code Ann. § 50-20-102 ..............__. 8

Mont. Code Ann. § 50-20-1038 ..............._. 8

Mont. Code Ann. § 50-20-109 ..__- PRP COED EG

eee Sok. Te SS EN CER Se ee See ee 8

Miscellaneous:

Mary Anne Freedman et al., Comparison of

Complication Rates in First Trimester

Abortions Performed by Physician

Assistants and Physicians,

76 AM. 3. PUB. HEALTH 550 (1986) .......... 7

ROBERT L. STERN ET AL., SUPREME COURT PRACTICE

CFE OG, SIGE ok eR NA ON eee 11, 13

LAWRENCE H. TRIBE,

AMERICAN CONSTITUTIONAL LAW (1988 ed.) .... 23

CHARLES A. WRIGHT ET AL., 17 FEDERAL PRACTICE

& PROCEDURE § 4036 (2d ed. 1988) ...... $3.32

Opinion Letter of State of New York Department

of Health to Donna Lieberman (Dec. 20, 1994) .. 17

Respondents James H. Armstrong, M.D., et al..

respectfully submit the following brief in opposition to the

petition for certiorari filed by Joseph Mazurek, the Attorney

General of Montana (hereinafter "petitioner" or "the

State"), docketed on January 13, 1997.

OPINIONS BELOW

The opinion of the district court is reported at 906 F.

Supp. 561 (D. Mont. 1995). The opinion of the court of

appeals is reported at 94 F.3d 566 (9th Cir. 1996)

ADDITIONAL RELEVANT

CONSTITUTIONAL PROVISION

Article I, Section 10 of the United States Constitution

provides in relevant part:

No State shall . . . pass any Bill of Attainder... .

COUNTERSTATEMENT OF THE CASE.

This case was filed on July 31, 1995, as a

constitutional challenge to Chapter 321 of the 1995

Montana Session Laws, passed as House Bill No. 442

(hereinafter "HB 442") by the Montana Legislature. HB

442 amended the Montana Abortion Control Act with three

criminal restrictions on abortion: (1) a new, specific ban on

the performance of abortions by physician assistanis in

Montana (and hence singling out respondent Armstrong as

the only physician in Montana prohibited from utilizing a

physician assistant for parts of his practice); (2) a

requirement that abortions be performed in a licensed

hospital "after the first 3 months of pregnancy;" and (3)

and a prohibition on soliciting or advertising abortion. See

2

29a-30a.' In addition, HB 442 amended the 1983 Montana

statutory scheme enabling physician assistants to perform

certain approved medical procedures when licensed

physicians apply to supervise them. See 29a (amending

Mont. Code Ann. § 37-20-103).

On September 29, 1995, the district court granted

plaintiffs’ motion for a preliminary injunction against the

second-trimester hospitalization requirement and the

advertising ban. However, the district court severed the

Statute and denied a preliminary injunction against the ban

on the performance of abortions by a physician assistant,

writing:

The court recognizes that the plaintiffs’ challenge

to the "physicians only" provision raises a serious

question, but is not convinced that under [sic] the

balance of hardships is such that the court must

strike the balance in favor of the plaintiffs’ request.

l6a.

On appeal, the court of appeals agreed in part with the

district court:

[W]e conclude, as did the district court, that the

appellants presented a "serious question” requiring

a balancing of the hardships to determine the

appropriateness of preliminary relief.

‘Citations to the Petition are in the form "Pet. ___"; citations to its

appendix are in the form “_ a"; and citations to the appendix to this

Brief are in the form "A-_.” Citations to declarations filed in the

district court are in the form “[Declarant’s surname] Dec. ¢ __";

citations to depositions are in the form "[Deponent’s surname] Dep.

3

7a. However, the court held that the district court did not

comply with the Ninth Circuit’s preliminary injunction

Standards because "[t}he district court . . . did not truly

balance the hardships," 7a, and called special attention to

the failure of the district court to "address the

countervailing hardships to the State, or the absence of

them.” 8a. Accordingly, the court of appeals vacated the

district court’s decision and remanded for further

proceedings. Jd.

Petitioner’s petition for rehearing was denied, and his

Suggestion for rehearing en banc was rejected, with no

active judge of the court of appeals requesting a vote on

whether to rehear the case en banc.

HB 442 is far more than a "physician only” abortion

Statute, as the State seeks to portray it. Beginning in 1977,

respondent Cahill, a physician assistant-certified (P.A.)

licensed to practice in Montana, has performed first-

trimester abortions in Kalispell, Montana, under the

supervision of plaintiff Armstrong, a physician licensed to

practice medicine in Montana. Cahill Dec. 4 10. Since

1983, Cahill has performed abortions under a utilization

plan approved by the Montana State Board of Medical

Examiners ("the Board"), Cahill Dec. § 8, which has

likewise approved approximately ninety P.A.’s to work

under various physicians performing some 200 procedures

with varying degrees of supervision according to the

procedures’ risks. No disciplinary proceedings have ever

been brought before the Board against P.A. Cahill, nor has

she ever been sued for malpractice. Cahill Dec. ¢ 10. The

licensing scheme for P.A.’s contains specific procedures to

insure due process for P.A.’s before areas of their practice

may be removed. See Mont. Code Ann. § 37-20-104.

4

Prior to enforcement of HB 442, P.A. Cahill

performed the majority of first-trimester abortions at Dr.

Armstrong's office; Dr. Armstrong performed some first-

trimester abortions and all the second-trimester abortions.

Cahill Dec. ¢ 12. Under the utilization plan approved and

periodically re-approved by the Board for P.A. Cahill since

1983, Dr. Armstrong was required to be in the office and

available to her while she was performing abortions. Cahill

Dec. ¢ 10.

P.A.’s perform a critical public health function in

Montana; they are authorized to perform a range of some

200 medical procedures and treatments, many of which

pose greater health risks to patients than first-trimester

abortions. For example, P.A.’s are authorized to prescribe

virtually all medications, many of which have much higher

complication (morbidity) rates and much higher mortality

rates than abortion. Cahill Dec. Exh. D; Grimes Dec. ¢

10. Also, P.A.’s are authorized to deliver babies even

without a physician in the office, Cahill Dec. ¢ 10 & Exh.

C, and childbirth involves mortality risks ten times that of

first-trimester abortion. Grimes Dec. 44 7-8. By contrast,

Ms. Cahill’s state-approved utilization plan requires Dr.

Armstrong to be in the office when she performs abortions.

Cahill Dec. ¢ 10.

Abortion providers in Montana are a group that is

hated and targeted by a segment of the public. Respondents

Armstrong and Cahill -- along with other providers in

Montana, such as respondent Wicklund -- have been

targeted by anti-abortion activists, whose stated goal is to

stop them from providing abortions. Armstrong Dec. ¢{

19-22; Wicklund Dec. {¢ 8-15. These activists have

vilified them in newsletters and picketed them at their

offices and church. Armstrong Dec. € 19. The office in

which Dr. Armstrong and P.A. Cahill practice was

5

destroyed by an unsolved arson, which Dr. Armstrong

attributes to anti-abortion extremists. Jd.

The impetus for the legislature to punish Ms. Cahill

and Dr. Armstrong came only after attempts to have them

prosecuted failed. Anti-abortion activists have also sought

to stop Armstrong and Cahill from providing abortions by

enlisting the assistance of Montana government officials. In

1992, anti-abortion representatives of the Montana Right to

Life Association (MRTL) and Flathead Pro-Life (FPL)

sought to have Armstrong and Cahill prosecuted for

violating several provisions of the Montana Abortion

Control Act. Arlette Randash (Executive Director of

MRTZL) and Charles Lorentzen (President of FPL) wrote to

various government officials, asking them to investigate and

prosecute plaintiffs Armstrong and Cahill. Randash asked

the Montana Attorney General to "please investigate and

inform me of what you find” regarding the performance of

abortions by a physician assistant (plaintiff Cahill) working

at Armstrong’s office, allegedly in violation of Mont. Code

Ann. § 50-20-109. Complaint Exh. C. Lorentzen Claimed

that Armstrong and Cahill were violating several provisions

of Mont. Code Ann. § 50-20-109. He Claimed that a letter

sent by Armstrong to other physicians violated subsection

4's prohibition on “soliciting and advertising" abortions:

that the performance of abortions by Cahill violated the

"physician-only” provision of subsection l(a); and that the

performance of second-trimester abortions in Armstrong's

office violated the “hospital-only" requirement of subsection

1(b). Complaint Exh. D.

None of the government officials contacted by

Lorentzen informed him that the "soliciting and advertising”

prohibition of the Montana Abortion Control Act had been

permanently enjoined in 1976. Lorentzen Dep. at 44; see

Doe v. Deschamps, 461 F. Supp. 682, 688-89 (D. Mont.

6

1976) (three-judge court) (enjoining solicitation

prohibition). Nor did they inform him that the second-

trimester hospitalization requirement of the Montana

Abortion Control Act was unenforceable as a result of this

Court’s invalidation of similar statutes. Lorentzen Dep. 44;

see City of Akron v. Akron Ctr. for Reproductive Health,

462 U.S. 416, 438-39 (1983). Nor did the prosecutors

recognize that Montana defined “licensed physician" as

includiag physician’s agents when it enacted the P.A.

statute in 1983. Instead, County Attorney Esch ordered a

criminal investigation of Armstrong and Cahill. Complaint

Exh. G. That investigation was ended by the stipulated

judgment entered by the district court in Doe v. Esch, No.

93-060-GF-PGH (D. Mon. Nov. 26, 1993) (judgment).

See 33a-34a.

Frustrated by their failure to punish Armstrong and

Cahill through the judicial process, the same anti-abortion

activists turned to the Montana Legislature to punish

Armstrong and Cahill. MRTL, through its lobbyist, Tim

Whalen, drafted HB 442 and asked newly-elected

Representative Susan Smith of Kalispell to sponsor the bill.

Smith Dep. 15. She was promised documentation

supporting the legislation’s health basis, but never received

such documentation, either before or after the bill was

enacted. Smith Dep. 22-24. She stated that her reason for

sponsoring HB 442 was MRTL’s request that she do so.

Smith Dep. 15. The legislative hearings were orchestrated

by Whalen and Randash, private individuals acting for anti-

abortion groups, who arranged for all the witnesses for the

bill and distributed a fact sheet accusing Susan Cahill by

name of performing illegal abortions. Randash Dep. 19.

Thus, the legislative record clezrly shows that HB 442 was

enacted with the sole illegitimate purpose of punishing and

inhibiting abortion providers, thereby making abortions

7

more difficult for women to obtain in Montana. Kotte]

Dec. 44 2-8.”

In fact, all health evidence contradicts the claim that

there is any health basis for HB 442. The Board. which

regulates and licenses P.A.’s, opposed HB 442, see 39a:

54a-55a, and the only extant study comparing the

complication rates for first-trimester abortions performed by

P.A.’s with those for first-trimester abortions performed by

physicians found no significant difference. Complaint Exh.

B (Mary Anne Freedman et al., Comparison of

Complication Rates in First Trimester Abortions Performed

by Physician Assistants and Physicians, 76 AM. J. Pus.

HEALTH 550 (1986)). Further, Cahill, the only physician

assistant affected by HB 442, has performed early abortions

under Dr. Armstrong’s supervision safely in Montana for

over eighteen years. Cahill Dec. ¢ 9; Armstrong Dec. {

16. Since HB 442 applies to all abortions, it covers both

surgical and medical abortions, thus severely handicapping

the ability of Montana physicians to use P.A.’s in medical

abortion clinical trials. See Brown Dec.

HB 442 is a narrow criminal law that does not even

pretend to regulate the authority of any of the other

physician assistants in Montana who provide a wide array

of other types of medical care that pose greater health risks

than a first-trimester abortion. Cahill Dec. €€ 10, 15:

Armstrong Dec. ¢ 18. Indeed, on its face, the Montana

Concerned that the Attorney General might not adequately defend HB

442, Whalen sought to intervene on behalf of state representative

Richard Simpkins because of the Attorney General’s “outspoken

political position with respect to the issue of abortion and the so-called

right of women to abort their unborn children without restriction, ”

Simpkins Aff. ¢ 5, and not because of the Attorney General's positions

On women’s health.

8

Abortion Control Act statute, which HB 442 amends,

contains an explicit statement of its purpose and intent to

prevent abortions

The legislature reaffirms the tradition of the state

of Montana to protect every human life, whether

unborn or aged, healthy or sick. In keeping with

this tradition and in the spirit of our constitution,

we affirm the intent to extend the protection of the

laws of Montana in favor of all human life.

It is the intent of the legislature to restrict abortion

to the extent permissible under decisions of

appropriate courts or paramount legislat'on.

Mont. Code Ann. § 50-20-102 (statement of purpose); §

50-20-103 (legislative intent of Montana Abortion Control

Act).

REASONS FOR DENYING THE WRIT

The petition for a writ of certiorari should be denied

because this case is in a procedural posture in which there

has not even been a preliminary decision favorable to the

respondents. Further, the State has failed to establish any

of the factors that weigh in favor of a grant of certiorari

The decision of the court below is in conflict neither with

the decisions of this Court nor with the decisions of other

United States courts of appeals. Further, no important

question of federal law is raised by this case "that has not

been, but should be, settled by this Court,” Sup. Ct. R.

10(c). Accordingly, the petition should be denied.

9

1. THE ISSUES RAISED IN THE PETITION

ARE NOT YET RIPE FOR REVIEW.

A. The Petition For Certiorari Should Be

Denied Because The Court of Appeals Has

Not Ruled On Respondents’ Motion For A

Preliminary Injunction.

The procedural posture of this case makes it

particularly inappropriate for review by this Court. The

decision of a court of appeals is not ripe for certiorari

review when that court has deferred disposition of the

motion before it until the conclusion of further proceedings

in the district court. Indeed, as set forth at Point I(B)

below, this Court typically does not grant certiorari in cases

involving appeals from preliminary injunctions; and in this

case, the district court has yet to complete its assessment

under the preliminary injunction standard. This Court

explicitly addressed this situation in Brotherhood of

Locomotive Firemen and Enginemen v. Bangor & Aroostook

Railroad Co., 389 U.S. 327 (1967). In that case. a petition

for certiorari had been preceded by the following events:

The District Court entered contempt orders,

imposing substantial fines for alleged violation of

its restraining order. The Court of Appeals ruled

on various legal issues presented to it but

remanded to the District Court to consider whether

there had in fact been a contempt, and, also, if

there was a contempt, whether it was "of such

magnitude as to warrant retention, in part or to any

extent, of the coercive fine originally provided for

in contemplation of an outright refusal to obey.”

Id. at 327-28. In response to the petition for certiorari. this

Court stated the following:

10

Petitioners seek certiorari to review the adverse

rulings made by the Court of Appeals. However,

because the Court of Appeals remanded the case, it

is not yet ripe for review by this Court. The

petition for a writ of certiorari is denied.

Id. at 328.

Like the petition in Brotherhood, the Petition in this

case not only involves a non-dispositive motion, but the

court of appeals has not yet even ruled on that motion. To

the contrary. after concluding that the lower court used

improper standards in denying injunctive relief, the court of

appeals remanded the matter for further proceedings. See

8a. The court of appeals explicitly concluded that "it would

be inappropriate to address the propriety of a preliminary

injunction without the benefit of the district court’s

balancing of the hardships in light of this opinion." /d. In

short, Petitioner asks the court to address a motion for

preliminary injunction as to which the district court has not

yet properly balanced the hardships and on which the court

of appeals has not ruled. The prematurity of this request is

strikingly illustrated by the fact that if the petition is

granted, respondents will be in the difficult position of

defending the decision of the court of appeals before this

Court without even knowing if that decision ultimately leads

to a grant or denial of their motion for preliminary

injunctive relief.

B. The Interlocutory Nature Of The Proceedings In

This Case Makes Review Inappropriate.

Absent extraordinary circumstances, this Court will not

grant certiorari to review a lower court decision prior to

final judgment in the case. Hamilton-Brown Shoe Company

1]

v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916) (the

Supreme Court’s "jurisdiction to review the judgments and

decrees of the circuit court of appeals by certiorari. . . is a

jurisdiction to be exercised sparingly ... And, except in

extraordinary cases, the writ is not issued until final

decree.") See also Virginia Military Institute v. United

States, 113 S.Ct. 2431, 2432 (1993) (Scalia, J., concurring)

("We generally await final judgment in the lower courts

before exercising our certiorari jurisdiction."); Estelle v.

Gamble, 429 U.S. 97, 114 (1976) (Stevens, J., dissenting)

(referring to Court’s "normal practice of denying

interlocutory review"); ROBERT L. STERN ET AL., SUPREME

COURT PRACTICE 196 (7th ed. 1993) (discussing Court’s

ordinary practice of denying interlocutory review);

CHARLES A. WRIGHT ET AL., 17 FEDERAL PRACTICE AND

PROCEDURE § 4036 at 27 (2d ed. 1988) (footnotes omitted)

(Court’s grant of certiorari before final judgment is "rare").

Accordingly, here, where the lower courts have not yet

even rendered an interlocutory order favorable to

respondents, review by this Court is perforce premature.

Sound reasons underlie this Court’s restraint with

respect to interlocutory review. First, the granting of

certiorari prior to final judgment may engage the Court in

wholly unnecessary decisionmaking:

[M]any orders made in the progress of the suit

become quite unimportant by reason of the final

result, or of intervening matters. Clearly,

therefore, this court should not issue a writ of

certiorari to review a decree of the circuit court of

appeals on appeal from an interlocutory order,

unless it is necessary to prevent extraordinary

inconvenience and embarrassment in the conduct of

the cause.

12

American Construction Co. v. Jacksonville, T. & K. W Ry.

Co. , 148 U.S. 372, 384 (1893). In addition, as Justice

Stevens has noted, the Court’s "violation of its normal

practice of denying interlocutory review . . . [may] ill

serve(] the interest of judicial economy." Estelle, 429 U.S.

at 114-15 (Stevens, J., dissenting). Finally, in

controversial cases such as this one, a grant of certiorari

before final judgment may undesirably prevent the parties

from fully developing and adjusting their positions. See

WRIGHT, supra, § 4036 at 20-21 (discussing grant of

certiorari prior to judgment in court of appeals).

Accordingly, the interlocutory nature of a ruling is "itself

alone . . . sufficient ground for the denial of the application

{for certiorari]." Hamilton-Brown Shoe, 240 U.S. at 258.

Petitioner asks this Court to review the court of

appeal’s reversal and remand of the district court’s partial

denial of Respondents’ preliminary injunction motion. A

motion for preliminary injunction has the limited purpose of

maintaining the status quo until the outcome of a trial on

the merits, and the findings of fact and rulings of law made

in the determination of that motion are not binding at trial.

University of Texas v. Camenisch, 451 U.S. 390, 395

(1981). Moreover, a motion for a preliminary injunction is

often made in haste on the basis of incomplete evidence and

arguments and without all of the formal procedures of a

trial. See id. Thus, the Petition embodies all of the

Court’s reasons for denying interlocutory review: the

decision of the court of appeals was made without the

benefit of a complete factual record or fully developed

arguments; its opinion does not represent its final

determinations on the merits of the case; and the relevance

of that opinion may be changed by the progress of the case.

Nor does this case fali within the limited circumstances

in which this Court has granted certiorari to review

13

interlocutory decisions. Such review is only appropriate

where the issue of law presented: is clear-cut: would

otherwise qualify as a basis for certiorari: and is

fundamental to the further conduct of the case. Michael v.

United States, 454 U.S. 950, 951-52 (1981) (White, J.,

dissenting); ROBERT L. STERN ET AL., SUPREME COURT

PRACTICE 196 (7th ed. 1993). See also United States v.

General Motors Corp. , 323 U.S. 373, 377 (1945.)

(reviewing lower court decision which presented a discrete

issue of law on which the federal courts were in conflict,

and which was "fundamental to the further conduct of the

case"). These circumstances are not present here.

This Court has granted certiorari prior to final judgment

to review particularly clear-cut issues. See, é.g., Larson v.

Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949)

(certiorari granted to consider whether allegation of tortious

conduct by agent of sovereign made the suit one against the

agent individually, rather than the sovereign). This case

does not yet present such clearly-framed questions

According to Petitioner, the Court of Appeals erred in: (1)

holding that Respondents have established a fair chance of

success on their "undue burden" claim: and (2) construing

the purpose prong of Planned Parenthood v. Casey, 505

U.S. 833 (1992), to require anything more than a rational

basis examination of a statute’s purpose. The lower court’s

rulings were made in the unique context of considering

preliminary injunctive relief, which requires the courts to

weigh a variety of legal and factual considerations and

make hasty evaluations as to the nature and merit of the

legal issues presented. In addition, a court’s application of

the undue burden test is a very complicated, and often fact-

laden, task. See, e.g., A Woman’s Choice-East Side

Women’s Clinic v. Newman, 904 F. Supp. 1434 (S.D. Ind.

1995) (applying undue burden test), appeal stayed, No.

3965 (7th Cir. Jan. 22, 1995); Women’s Medical Prof’l

14

Corp. v. Voinovich, 911 F. Supp. 1051 (W.D. Ohio 1995)

(same), appeal docketed, Nos. 96-3157 & 96-3159 (6th Cir.

Feb. 8, 1996). In these circumstances, the issues on which

Petitioner seeks review simply cannot be found to be

"clear-cut."

Second, as set forth below at Points II, this case would

not in any event satisfy the factors that weigh in favor of

granting certiorari. As the district court in this case noted,

there is a "paucity of case law addressing the precise issue

presented in this case." 20a. The courts have simply not

yet decided, either directly or by analogy, whether under

Casey a state may constitutionally pass a law prohibiting the

previously legal practice of abortion by a qualified

nonphysician medical provider. Moreover, the lower courts

in this case have not yet ruled on that issue except to

conclude that on the facts thus far presented, the complaint

presents a serious question. With only this finding of

possible success and the lack of other law addressing the

matter, this case does not create a real conflict among the

courts or present important federal anestions which warrant

review at this stage of the proceedings.

Finally, the issues addressed by the court of appeals are

not so fundamental to further proceedings in the case as to

merit interlocutory review. Such review has been granted

where the issue presented went to the very nature of the

proceedings or to the court’s jurisdiction over those

proceedings. See, e.g., Land v. Dollar, 330 U.S. 731

(1947) (certiorari granted where court of appeals reversed

district court’s dismissal of case on basis of lack of

jurisdiction); Beacon Theaters, Inc. v. Westover, 359 U.S.

500 (1959) (certiorari granted to review lower court rulings

depriving party of right to jury trial). The issues presented

by the Petition do not go to the nature of the proceedings,

but to the merits of Respondents’ claims.

15

Interlocutory review has also been granted where the

lower courts have ruled on the ultimate merits of a party’s

claims. See, ¢.g., Gillespie v. United States Steel Corp.,

379 U.S. 148 (1964) (certiorari granted where district court

struck certain claims from complaint); Estelle, 429 U.S. 97

(certiorari granted where court of appeals reversed district

court dismissal of case on the merits). Neither lower court

in this case has made anything more than a preliminary

assessment of the merits of Respondents’ claims. On the

contrary, as discussed below, the court of appeals has not

yet even disposed of Respondents’ preliminary injunction

motion.’ Thus, the Petition fails to establish that this case

falls within one of the narrow categories in which this

Court grants certiorari on an interlocutory order.

C. The Petition Improperly Seeks Determination Of

A Constitutional Issue On Which The Lower

Courts Have Not Yet Ruled.

Petitioner seeks a determination from this Court that

Respondents have no chance of success on their undue

burden claim. This request is inappropriate for a number

of reasons in addition to those already discussed. First.

Petitioner asks the Court to make a constitutional!

determination which may not be necessary to resolution of

this case. Spector Motor Service, inc. v. McLaughlin, 323

*By contrast, in the cases in which this Court has reviewed a decision

on preliminary injunctive relief, the court of appeals had already ruled

that a preliminary injunction either was or was not warranted. See

e.g., Building & Constr. Trades Council v. Associated Builders &

Contractors, 507 U.S. 218 (1993) (certiorari granted where court of

appeals reversed district court’s denial of preliminary injunction and

ordered entry of that injunction); /nrernational Org. of Masters, Mates

& Pilots v. Brown, 498 U.S. 466 (1991) (certiorari granted after court

of appeals affirmed district court’s issuance of preliminary injunction)

16

U.S. 101, 105 (1944) ("If there is one doctrine more deeply

rooted than any other in the process of constitutional

adjudication, it is that we ought not to pass on questions of

constitutionality . . . unless such adjudication is

unavoidable."). The courts below have only ruled that

Respondents have shown a "fair chance” of success. Thus,

those courts may yet decide that Respondents have failed to

prove their claims. Further, the determination Petitioner

now seeks has not yet been made or rejected by the lower

courts, but will be made or rejected by the district court on

remand. That determination can be more appropriately

made after summary judgment or trial than after ruling on a

motion for preliminary injunction. See Fargo Women’s

Health Org. v. Schafer, 113 S. Ct. 1668, 1669 (1993)

(O’Connor, J., concurring in denial of stay) (emphasizing

fact-intensive nature of undue burden test).

Il. THE DECISION OF THE COURT BELOW DOES

NOT CONFLICT WITH CASES DECIDED BY

THIS COURT AUTHORIZING STATES TO

LIMIT THE PERFORMANCE OF ABORTIONS

TO LICENSED PHYSICIANS.

The State argues that the finding of the court below

that plaintiffs have a "fair chance of success" on the merits

of their case is per se incorrect because decisions of this

Court have indicated that States may limit the performance

of abortions to licensed physicians. But this argument

misses the mark for two reasons. First, Montana gives

certain broad agency rights to all licensed physicians to

augment their practices by utilizing P.A.’s. Second,

Montana explicitly licensed a trained non-physician --

respondent Cahill, a physician assistant-certified -- to

perform abortions. HB 442 is a criminal statute that

terminated her ability to do so with the purpose and effect

fa ec salle

17

of imposing a substantial obstacle in the path of women

seeking abortions.*

Moreover, the statute’s termination of Cahill’s legal

ability to perform abortions, after the attempts to prosecute

her and Armstrong failed, was motivated by a desire to

punish her, and in fact imposed a traditional punishment

upon her, and therefore violates the Bill of Attainder Clause

of Article I, Section 10 of the United States Constitution.

Thus, even assuming arguendo that the Montana Legislature

acted within the constitutional bounds of Roe v. Wade, 410

U.S. 113 (1973), and Planned Parenthood vy. Casey, 505

U.S. 833 (1992), in enacting HB 442, it violated a distinct

“Before HB 442, the Montona Legislature expressly extended that

scope of practice of physicians to include the right to use state-approved

P.A.’s to perform enumerated state-app-oved procedures. HB 442 is a

restriction on respondent Anastrong’s right to practice medicine. Thus,

contrary to the State’s suggestion, Pet. 19 & n.5, a finding that

plaintiffs have a fair chance of success on the merits is irrelevant to

other state laws restricting the practice of abortions to licensed

physicians. Further, this statute was enacted with the impermissible

purpose of impeding access to ‘abortion services, and with the

impermissible effect of eliminating one qualified abortion provider.

Also, as set forth at Point II(B) below, these statutes -- unlike HB 442

-- were not intended as punishment of an individual abortion provider,

and therefore do not implicate the Bill of Attainder Clause.

Finally, it is not at all clear that other state statutes prohibit a

physician from utilizing a physician assistant to perform first-trimester

abortions under the physician’s supervision. For example, the New

York State Health Department has construed its statute limiting the

practice of abortion to licensed physicians, together with its |ater-

enacted statute regarding practice of physician assistants, to permit

physician assistants to perform abortions. Opinion Letter of State of

New York Department of Health to Donna Lieberman (Dec. 20, 1994)

at 1 (opining that physician assistant statute "supersedes the physician

requirement of the [New York] Penal Law and permits PAs to perform

abortions”).

18

constitutional provision entirely unrelated to whether or not

States may limit the practice of abortions to licensed

physicians. Accordingly, the court below properly held that

plaintiffs have a fair chance of success on the merits.

A. Dicta In This Court’s Cases Indicating That

States May Constitutionally Limit The Practice

Of Abortions To Licensed Physicians Are Not In

Conflict With The Decision Of The Court Of

Appeals.

HB 442 is not rendered constitutional simply because

this Court has stated in dicta that "it is permissible for the

States to impose criminal sanctions on the performance of

an abortion by a nonphysician.” City of Akron v. Akron

Ctr. for Reproductive Health, 462 U.S. 416, 430 n.12

(1983) (citing Connecticut v. Menillo, 423 U.S. 9, 11

(1975)). No Supreme Court decision has approved the

criminalization of abortion by a nonphysician when the

abortion is performed under the direct supervision of a

physician, and under the auspices of a state medical board,

by a competent non-physician medical provider. Indeed,

Menillo spoke not simply of a right to choose an abortion

performed by physicians, but of "a woman’s right to a

clinical abortion by medically competent personnel."

Menillo, 423 U.S. at 10 (emphasis added). Because Cahill

is "medically competent” to perform an abortion under the

supervision of a physician, her continuing ability to do so

falls squarely minder the protection of Roe and Casey.

Moreover, none of the statements in this Court’s

opinions, or other court opinions, affirming the authority of

States to limit the performance of abortions to physicians,

applies to circumstances like those of this case. In Menillo,

for example, the Court was reviewing the conviction of a

19

layman who “ha[d} never had any medical training.” 423

U.S. at 9. Similarly, no lower federal court opinions hold

that a State may bar a physician from utilizing a properly

trained medical professional from performing abortions

under his supervision, in the context of an elaborate State

licensing scheme that gives all other physicians the right to

utilize their agents to perform other medical procedures of

equa! risk. Rather, these cases simply reiterate that a state

may limit the performance of abortions by nonphysicians,

either in dicta or in contexts unrelated to the performance

of abortions by competent nonphysician medical providers.

See Birth Control Ctrs., Inc. v. Reizen, 743 F.2d 352, 364

(6th Cir. 1984) (holding that because Michigan rule did not

impose requirement of special physician expertise, it was

consistent with Roe); Florida Women’s Medical Clinic, Ine.

v. Smith, 536 F. Supp. 1048, 1057 (S.D. Fla. 1982)

(rejecting challenge "if one has been made" to regulation

mandating that first-trimester abortions be performed by a

licensed physician), appeal dismissed, 706 F.2d 1172 (11th

Cir. 1983); Smith v. Bentley, 493 F. Supp. 916, 927 (E.D.

Ark. 1980) (three-judge court) (invalidating, as applied to

physicians, Arkansas statute that criminalized abortion

nerformed by "anyone," but observing that it could still be

applied to “laymen"); Planned Parenthood v. Ashcroft, 483

F. Supp. 679, 684-85 (W.D. Mo. 1980) (application of

Missouri statute to "nonphysician performing an abortion on

another person" was not challenged in case challenging

application of statute to self-induced abortions) (emphasis in

original), aff'd in part & rev'd in part on other grounds &

remanded, 655 F.2d 848 (8th Cir. 1981), aff'd after

remand, 664 F.2d 687 (8th Cir. 1981), aff'd in part &

rev'd in part on other grounds, 472 U.S. 476 (1983); see

also Wright v. State, 351 So. 2d 708, 710 (Fla. 1977)

(addressing only severability of physician requirement, not

its substantive validity). None of these cases lends support

to the proposition that a State, having once authorized a

20

medically competent nonphysician to perform abortions,

may subsequently withdraw that authorization solely to

achieve the impermissible purpose, and with the

unconstitutional effect, of making abortion less accessible to

women.

This Court in Roe wrote that a state "may define the

term ‘physician’ . . . to mean only a physician currently

licensed by the State... .". 410 U.S. at 165. But a State

is not free to define physician in one way for medical

practice generally, and another way for those physicians

who decide to provide abortion services. Because Montana

has, in its 1983 statute regulating physician assistants,

elaborately set forth a definition of a physician’s scope of

practice that includes P.A.’s, it should not now be heard to

argue that it has one definition of "licensed physician" for a

single doctor in the State -- Dr. Armstrong -- and another,

broader definition that applies to the hundreds of other

physicians in the State.

Finally, this Court has recognized that advances in

medicine may result in invalidation of previously valid

restrictions on abortion. For example, in City of Akron,

462 U.S. at 438-39, this Court held that it is

unconstitutional to require all second-trimester abortions to

be performed in hospitals -- something the Roe Court spoke

of approvingly. Roe, 410 U.S. at 163; see also Akron, 462

U.S. at 435-36 (chronicling dramatic increase in safety of

second-trimester abortions since Roe). Similarly, Roe did

not anticipate that early abortions could be performed with

pills; but today first trimester abortions are performed not

only surgically but medicaliy. Roe also did not anticipate

that mid-level health care professionals would be utilized

throughout the United States to work with physicians as

physician extenders, performing a wide range of medical

21

procedures and with authority to prescribe virtually any

drug.

B. Respondents’ Bill Of Attainder Claim Is Fully

Supported By This Court’s Bill Of Attainder

Precedents.

The same purpose analysis that establishes a likelihood

of success for respondents on their undue burden claim

establishes a likelihood of success on the bill of attainder

claim. Under either claim, HB 442 does not serve a

‘legitimate health function."

In discussing the purpose inquiry to be conducted on

remand by the district court, the court below wrote that HB

442 must be scrutinized to determine "whether that statute

in fact can be regarded as serving a legitimate health

function." 7a. The court of appeals held that "the district

court's view of its ability to consider the purpose or effect

of the legislation was unduly confined for the purpose of

determining whether appellants have a fair chance of

ultimate success." 6a. This broader purpose inquiry

establishes that respondents have a high probability of

succeeding on their bill of attainder claim: this claim

exactly fits this Court’s bill of attainder jurisprudence,

which seeks to protect disfavored individuals or Classes of

individuals -- like Communists or abortion providers --

from legislative punishment. Thus, an independent reason

that the petition should be denied is that HB 442’s purpose,

properly scrutinized, supports a meritorious claim not only

under Casey but under the Bill of Attainder Clause. The

largely undisputed evidence that HB 442 was enacted solely

to punish respondent Cahill and serves no legitimate health

function establishes a likelihood of success both as to

>9

respondents’ undue burden purpose claim, and respondents’

claim that HB 442’s purpose is punitive.

The district court did not apply the correct

constitutional standards governing bill of attainder claims.

Indeed, the district court’s review of plaintiffs’ bill of

attainder claim is so deferential and perfunctory that it

renders the bill of attainder clause a nullity. Although few

statutes have been invalidated as bills of attainder, the facts

in this case fit the motivational, functional and historical

tests for establishing legislative punishment under bill of

attainder doctrine like a glove. HB 442 is a criminal statute

singling out the only P.A. who provides abortions in

Montana and removes only her authorization to practice the

core specialty of her profession. In the context of an

elaborate regulatory scheme licensing P.A.’s to do surgical

and other procedures, only one procedure -- abortion -- was

singled out. The State Board of Medical Examiners, which

licenses Cahill and other P.A.’s, told the Montana

Legislature it opposed HB 442 because it "isolated" one

group of health care providers, and "singled out" that

group. See 54a-5S5a.

Respondents Cahill and Armstrong fulfill the three

elements necessary to prove a bill of attainder: specificity,

punishment, and lack of a judicial trial. Selective Service

System v. Minnesota Public Interest Research Group, 468

U.S. 841, 847, 852 (1984). The court of appeals

appropriately remanded the case to the district court for

determination of whether respondents have a fair chance of

success of meeting these elements in their challenge to HB

442. Only the “punishment” preng is in dispute.°

As to specificity, the law targets only Ms. Cahill’s ability to perform

abortions under Dr. Armstrong’s supervision; no other physician has

(continued...)

23

In Nixon v. Administrator of General Services, 433

U.S. 425 (1977), the Court described three tests for what

constitutes "punishment" necessary to defeat a law under

the Bill of Attainder Clause: the historical test; the

functional test; the motivational test. Jd. at 473, 475-476,

478; Selective Service System, 468 U.S. at 852.

Respondents satisfy all three tests. yet only one of must be

met to prevail. Jd., 468 U.S. at 847, 852: see also

LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW

652-55 (1988 ed.).

The historic test asks whether a statute imposes a form

of punishment or disability that has been historically

condemned as an attaint. Selective Service System, 468

U.S. at 853. Stripping an individual of her vocation, as

HB 442 does to Ms. Cahill, is a traditional punishment. As

pointed out by this Court in Nixon, legislative enactments

barring individuals or groups from a particular vocation are

historically a form of punishment condemned by the Bill of

Attainder Clause. Nixon, 433 U.S. at 474-75; Cummings v.

Missouri, 71 U.S. (4 Wall.) 277 (1867) (barring clergymen

from ministry in the absence of subscribing to a loyalty

oath); United States v. Lovett, 328 U.S. 303 (1946) (barring

named individuals from government employment); United

States v. Brown, 381 U.S. 437 (1965) (barring communist

party members from offices in labor unions). The court of

appeals decision to remand to the district court is consistent

with these cases.

*(...continued)

ever applied to utilize a P.A. to perform abortions in Montana. See 25a

n.4 (district court observation that "Susan Cahill is the only physician

assistant-certified who presently performs abortions in the State of

Montana."). Petitioner has not disputed that HB 442 eliminates Ms.

Cahill’s vocation and punishes her without a judicial trial.

24

The functional test asks whether the law, "viewed in

terms of the type and severity of burdens imposed,

reasonably can be said to further nonpunitive legislative

purposes." Nixon, 433 U.S. at 475-476; see also Selective

Service, 468 U.S. at 853-54. The only "nonpunitive"

purpose proffered by the State is the purpose of promoting

health. The court of appeals properly rejected the district

court’s belief that it was unable to "impugn" this alleged

purpose.

The district court made no analysis of the type and

severity of this law, which is to be balanced against the

degree to which a law might further a nonpunitive end.

The severity of this prohibition is complete. Susan Cahill

cannot, ever, perform abortions in Montana. In contrast to

this case, in Nixon there were circumstances mitigating the

severity of the law: the Court noted that President Nixon

was compensated for his papers, 433 U.S. at 475, had

complete access to them, id. at 481 n.46, there was a time

limit on retention, id. at 481, and that the law did not affect

the core of his job. Similarly, in Selective Service, 468

U.S. at 850-51, the Court found the selective service

registration statute not as prohibitive as the statutes

prohibiting vocations in Cummings and Ex parte Garland,

71 U.S. (4 Wall.) 333 (1867), because students.could

register late, and still get financial aid without being

penalized.

The Bill of Attainder Clause is one of the few

constitutional provisions that on its face mandates rigorous

scrutiny into intent, for the "very nature of the

constitutional question requires an inquiry into legislative

purpose." United States v. O’Brien, 391 U.S. 367, 383

n.30 (1968). The phrase "reasonably furthers,” in cases

involving constitutional scrutiny, means more than low-level

rational basis scrutiny. For example, in Hodgson v.

Prk bat ae certains: tater ailiSa

25

Minnesota, 497 U.S. 417 (1990), this Court struck down an

abortion law requiring notice to both parents because,

looking at the evidence, it found that the law "does not

reasonably further any legitimate state interest." Jd. at 450.

The Court found further that the statute was not only

ineffective in achieving legitimate state goals, but was

actually counterproductive in some family situations. Jd. at

450-51. See also Turner vy. Safley, 482 U.S. 78, 97-99

(1987); Carey v. Population Services Int ‘l, 431 U.S. 678,

716 (1977) (Stevens, J.. concurring in part and concurring

in the judgment).°

The third test for what constitutes "punishment" is the

motivational test, which is an inquiry into whether the

legislative intent was punitive. Selective Service, 468 U.S.

at 852. In Bill of Attainder cases, like undue burden

purpose cases, see Jane L. v. Bangerter, 102 F.3d 1112.

1116 (10th Cir. 1996), petition Sor cert. filed, No. 96-1481

(docketed Mar. 18, 1997), the purpose inquiry is part of the

constitutional test. Therefore, as under the Establishment

Clause, see Edwards v. Aguillard, 482 U.S. 578, 586-87

‘In Kassel v. Consolidated Freightways Corp., 450 U.S. 662. 670

(1981), this Court conducted a similar examination under the Commerce

Clause of whether an Iowa law restricting certain trucks would further

an ostensible health and safety purpose. The Court reviewed

approvingly a 14-day district court trial on safety comparisons which

concluded that the prohibited 65 foot trucks were as safe as 55 foot

trucks. /d. at 667-68. Moreover, just like the burden this law would

impose by rerouting women in Montana, the Supreme Court found the

lowa restriction irrational because rerouting trucks around Iowa would

have the effect of Causing more accidents. Jd. at 674-75. Further,

unlike in Kassel, in which lowa at least presented some evidence on

Safety, the State in this case has never presented any evidence showing

how the existing P.A. scheme harmed women or how the health of

women would be promoted by excluding Ms. Cahill from providing

abortions.

26

(1987); Wallace v. Jaffree, 472 U.S. 38, 56 (1985),

"primary purpose" should be the defining standard.

As shown by plaintiffs’ unrebutted evidence, the facts

leading up to this legislation, the elaborate state P.A.

licensing scheme, the opposition to the bill by the State

Medical Board, the discriminatory design of the statute, the

unusual manner in which it was introduced and passed, the

statements of the sponsor, and the detrimental impact on

women’s health, all prove that HB 442 has an invalid

purpose to block access to abortion by punishing

respondents Cahill and Armstrong.

Moreover, the question of whether HB 442 actually

furthers the asserted goal of protecting women’s health is

one the district court must independently examine not just

under the functional test, but as further evidence of the

statute’s true purpose. Under the Commerce Clause, for

example, in the Kassel case, the Court found that the design

of the statute (exempting trucks carrying Iowa livestock)

and its inevitable effect were both proof of an impermissible

protectionist purpose. Jd., 450 U.S. at 676-77.

Under Nixon’s motivational test, the purpose of HB

442 is not to further women’s health in Montana, but to

carry Out the punitive goals of the Montana Right to Life

Association and other anti-abortion groups who had

previously sought to achieve their goals by asking the

Executive Branch (law enforcement authorities) to prosecute

respondents Cahill and Armstrong for precisely the same

acts made criminal by HB 442.

Because respondents’ Bill of Attainder claim is entirely

consistent with this Court’s cases construing the Bill of

Attainder Clauses, the court of appeals properly vacated the

district court’s decision and instructed it to balance the

hardships. Thus, all the factors that this Court considers in

deciding whether to grant certiorari indicate that the petition

should be denied.

CONCLUSION

For all the foregoing reasons, the petition for a writ of

certiorari should be denied.

Dated: March 28. 1997.

BRUCE MEASURE

Law Offices of

Ambrose Measure

P QO. Box 918

Kalispell, MT 59903

(406) 752-6373

TURNER GRAYBILL

Giaybill, Ostrem.

Warner & Crotty

18 Sixth St. North

Great Fails, MT 5940]

Respectfully submitted,

JANET BENSHOOF

(Counsel of Record)

SIMON HELLER

BONNIE S. JONES

The Center for

Reproductive Law &

Policy

120 Wall St., 18th FI

New York, NY 10005

(212) 514-5534

Counsel for Respondents