Reply Brief — Mazurek v. Armstrong

Goprare Goat, 0.3.

, EILRER

= APR 10 1997

No. 96-1104

- OFFICE OF TRE CLERK

In The

Supreme Court of the United States

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 physicians,

Respondents.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

REPLY TO BRIEF IN OPPOSITION

+

JoserH P. Mazurexk

Attorney General of Montana

Cray R. SmitH

Solicitor

Counsel of Record

Justice Building

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

(406) 444-2026

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

Page

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dapat tte co tei EE EEE LOT ITE ee RET: 2

I. THE DECISION BELOW RAISES ONLY A QUES-

TION OF LAW THAT IS FUNDAMENTAL TO

FURTHER LITIGATION OF THE RESPON-

DENTS’ UNDUE BURDEN CLAIM AND THAT

HAS BEEN DECIDED BY THIS AND EVERY

OTHER COURT CONTRARY TO THE COURT

WUE 5 C5 bpd buho bin fovAsoekoneleoee 2

il. THE UNDUE BURDEN STANDARD ADOPTED

IN CASEY DOES NOT LIMIT THE MONTANA

LEGISLATURE’S AUTHORITY TO IMPOSE A

PHYSICIAN-ONLY REQUIREMENT............ 5

Be RS | Ry ee ata shweeeibees eo

TABLE OF AUTHORITIES

CASES

Bangor Punta Operations, Inc. v. Bangor & Aroostook

R.R., 417 U.S. 703 (1974)

California v. Cabazon Band of Mission Indians, 480

OD. BOS CO? i coc cccicdetns bane vesesesseaes

City of Akron v. Akron Center for Reproductive

Health, Inc., 462 U.S. 416 (1983).........

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

Estelle v. Gamble, 429 U.S. 97 (1976) PPE ge Be Te ene

Gillespie v. United States Steel Corp., 379 U.S. 148

v. National R.R. Passenger Corp., 115 S. Ct

961 (1995).

Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833 (1992)

Roe v. Wade, 410 U.S. 113 (1972)

Spears v. Circuit Court, 517 F.2d 360 (5th Cir. 1975) ..

T ea hes LL 7 > “an {nllooe at hetoe “4 ~

[Thornburgh v. American College of Obstetricians &

Gynecologists, 476 U.S. 747 (1986)

LInited States v. General Motors Corp., 323 U.S. 373

SRE Co cwas 25Gb ceed een deaeneeies

Wi1s¢ Lipscomb, 437 U.S. 535 (1978)

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

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No

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TABLE OF AUTHORITIES —- Continued

Page

FEDERAL MATERIALS

United States Constitution

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I a aes a ak wie Fb 0S 64 oss s FE We ek eee l

United States Code

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Ne Gh aa. cao cha twink 4a bee be Dik 4

Rea eC 6 VEAWA KER CEE EA Sa CoA DR oRRLE aS 3

MONTANA MATERIALS

Montana Code Annotated

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CES ROPER 0g as bua ws wince o Sas se cane cde 7

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OTHER STATES’ MATERIALS

Pa. Cons. Stat. tit. 18, § 3205(a)(1)(i) (1990)........... 8

INTRODUCTION

The Petition presents the straightforward issue

whether a state legislature may prohibit persons other

than licensed physicians from performing abortions.

Until the Court of Appeals’ decision below, there existed

no dispute over the States’ discretion to impose such a

limitation, since this Court had recognized that authority

explicitly in Roe v. Wade, 410 U.S. 113, 165 (1972), Connect-

icut v. Menillo, 423 U.S. 9 (1975) (per curiam), and City of

Akron v. Akron Center for Reproductive Health, Inc., 462 U.S.

416, 447 (1983). It is therefore perhaps unsurprising the

Respondents devote only three pages to the question

presented, instead focusing on the assertion that the

Court’s intervention now would be premature and on a

lengthy, but for instant purposes immaterial, analysis of

their claim under the Bill of Attainder Clause, U.S. Const.

art. I, § 10. The Petitioners do not contest the proposition

that this Court ordinarily refrains from entertaining

issues except where a final judgment has entered. How-

ever, this is not an ordinary case; it is a paradigm of a

lower federal court departing from a well-marked path in

an area of exceptional public policy sensitivity. The Court

of Appeals’ error is one of law that should be rectified

now rather than later to avoid unnecessary litigation over

an issue long since resolved by this Court.

¢

ARGUMENT

I. THE DECISION BELOW RAISES ONLY A QUES-

TION OF LAW THAT IS FUNDAMENTAL TO FUR-

THER LITIGATION OF THE RESPONDENTS’

UNDUE BURDEN CLAIM AND THAT HAS BEEN

DECIDED BY THIS AND EVERY OTHER COURT

CONTRARY TO THE COURT OF APPEALS.

The Respondents argue that “[t]he lower court’s rul-

ings 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

‘n”) at

13. However accurate their characterization of the prelim-

legal issues presented.” Resp’ts Br. in Opp’n (“Opp

inary injunction process might be in other situations, the

Court of Appeals’ determination was neither hasty nor

fact-bound. The court was concerned not with factual

nuance but with the standard by which the Respondents’

undue burden claim under Planned Parenthood of South-

eastern Pennsylvania v. Casey, 505 U.S. 833 (1992), was to

be assessed. It thus found the District Court’s analysis

concerning the purpose of Mont. Code Ann.

§ 50-20-109(1)(a) (1995) “unduly confined” (Pet. App. 6a)

and remanded for a factual assessment “of the totality of

circumstances surrounding the enactment of [the physi-

cian-only requirement] [ ] and whether that statute in fact

can be regarded as serving a legitimate health function”

(id. 7a). The Court of Appeals itself made no factual

findings. The heart of the opinion below is a purely legal

determination that physician-only requirements like

Montana’s are not per se valid and that a searching

inquiry into legislative motivation, together with an evi-

dentiary examination of the extent to which the physi-

cian-only restriction achieves its health-related objective,

is mandated under Casey’s undue burden test.

This Court has exercised its authority under 28 U.S.C.

§ 1254(1) to review rulings other than in connection with

a final judgment “where [the ruling] is fundamental to

the further conduct of the case.” United States v. General

Motors Corp., 323 U.S. 373, 377 (1945); accord Gillespie v.

United States Steel Corp., 379 U.S. 148, 153 (1964). The

issue in General Motors was whether certain expenditures

and losses could be recovered in addition to the actual

fair rental value of property condemned by the United

States; the district court had rejected an offer of proof by

the plaintiff in that regard, but the court of appeals con-

cluded the additional amounts were recoverable and

remanded for trial over their amount. In Gillespie the

question was whether the Jones Act, 46 U.S.C. § 688,

provided the exclusive remedy with respect to claims

arising from the death of a seaman - a question that arose

in an interlocutory appeal from the district court’s deci-

sion striking allegations from a complaint seeking recov-

ery under state law wrongful death provisions.

Consequently, in both cases issues whose determination

could have awaited later certiorari proceedings following

final determination of the cases were addressed because

they were central to orderly and efficient resolution of the

controversies and involved only questions of law other-

wise warranting review. See also Estelle v. Gamble, 429 U.S.

97 (1976) (whether court of appeals properly reversed

district court’s judgment dismissing complaint for failure

to state a claim); Bangor Punta Operations, Inc. v. Bangor &

Arvostook R.R., 417 U.S. 703 (1974) (same).

The circumstances here are even more compelling.

The Court of Appeals concluded that the Respondents

had stated a claim under the Due Process Clause of the

Fourteenth Amendment, specified the standards under

which that claim is to be resolved, and remanded for

further proceedings consistent with those standards. It

did so, however, without reference to this Court’s con-

trary decisions in Roe, Menillo and Akron or the uniform

body of contrary decisional authority in state and lower

federal courts. The Court of Appeals further did so with-

out considering the utter anomalousness of its reliance on

Casey — i.e., holding that a State may be precluded by the

undue burden standard from requiring abortions to be

performed by physicians notwithstanding the fact Casey

found no impermissible burden in a statutory mandate

that physicians give certain portions of a pre-abortion

advisement. The lower court’s ruling thus presents only a

question of law and structures the remainder of the litiga-

tion in a manner clearly incompatible with settled, bind-

ing precedent. Review should occur now. See Thornburgh

v. American College of Obstetricians & Gynecologists, 476

U.S. 747, 755 (1986) (finding appellate jurisdiction under

28 U.S.C. § 1254(2) absent because “the judgment is not

final{[ ] and . . . the case is remanded for further develop-

ment of the facts” but nonetheless granting review by

certiorari).

II. THE UNDUE BURDEN STANDARD ADOPTED IN

CASEY DOES NOT LIMIT THE MONTANA LEG-

ISLATURE’S AUTHORITY TO IMPOSE A PHYSI-

CIAN-ONLY REQUIREMENT.

The Respondents contend that no decisions support

“the proposition that a State, having once authorized a

medically competent nonphysician to perform abortions,

may subsequently withdraw that authorization solely to

achieve the impermissible purpose, and with the uncon-

stitutional effect, of making abortion less accessible to

women.” Opp’n at 19-20. Stripped of its rhetoric, there-

fore, the Respondents’ position is that this Court’s abor-

tion-related decisions do not allow States to adopt

legislation whose effect is to impose more stringent lim-

itations on the performance of abortions without, at least

potentially, running afoul of the undue burden standard

in Casey — even though the restriction itself has been

found by this Court to be conctitutionally permissible.

The Respondents’ theory ignores the fact that Roe

and later abortion decisions by this Court have been

directed at giving guidance to States about what is, and

what is not, constitutionally permissible and thereby

facilitating adoption of valid abortion-related statutes.

Part XI of Roe, which “summarize[d]” and “repeati[ed]”

the holdings in earlier sections of the opinion, thus

referred to “the State” repeatedly, and it seems plain the

Court meant not merely Texas but any State. 410 U.S. at

164-66. One of those holdings, of course, authorized stat-

utes or regulations that limit performance of abortions to

“a physician currently licensed by the State” and pro-

scribe abortions by all others. Id. at 165. The joint opinion

in Casey reiterated its fidelity with the “essential holding”

of Roe, 505 U.S. at 873, and nothing in the later opinion

suggests that Roe’s approval of physician-only require-

ments was to be compromised by the undue burden

standard. It is accordingly odd for the Respondents to

contend the Montana legislature was disabled by that

standard from imposing such a requirement merely

because, in the past, one class of nonphysicians had been

recognized by the Montana Board of Medical Examiners

as statutorily eligible to perform abortions.

The oddness of the Respondents’ position with

respect to the Montana statute stems from an unwilling-

ness to express forthrightly its fundamental predicate:

Any State’s physician-only requirement is subject to chal-

lenge under the Due Process Clause where a claim is

made that certain types of abortions can be performed

competently by nonphysicians and that the State’s refusal

to authorize such performance unduly burdens access to

abortions. The actual breadth of their position is reflected

in the assertions that “this Court has recognized that

advances in medicine may result in invalidation of previ-

ously valid restrictions on abortion” and that Roe “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 procedures and with authority to

prescribe virtually any drug.” Opp’n at 20-21.

What the Respondents miss, however, is that Roe

established a per se rule permitting States to prohibit

performance of abortions by nonphysicians because phy-

sicians reasonably may be assumed to be most competent

to perform abortions. Roe, in other words, stands for the

proposition that such restrictions are inherently appropri-

ate and need not be revisited whenever a nonphysician

feels aggrieved by them. Cf. California v. Cabazon Band of

Mission Indians, 480 U.S. 202, 215 n.17 (1987). Indeed,

were the assumption untrue, there would be no reason

for Respondent Cahill to be supervised by a physician

like Respondent Armstrong - an “agency” relationship

the Respondents agree must exist. Opp’n at 17 (contend-

ing that no decision of this Court “has approved the

criminalization of abortion by a nonphysician under the

direct supervision of a physician, and under the auspices

of a state medical board, by a competent medical pro-

vider”); see Mont. Code Ann. § 37-20-101(c) (1995)

(requiring physician named in physician assistant’s utili-

zation plan to “submit a statement to the board [of medi-

cal examiners] that he will exercise supervision over the

physician assistant-certified in accordance with any rules

adopted by the board and will retain professional and

legal responsibility for the care and treatment of his

patients”); id. § 37-20-403(1) (“[i]n establishing protocol, a

physician assistant-certified must be considered the agent

of the supervising physician with respect to all duties

delegated to the physician assistant-certified under the

utilization plan”).! Logically extended, moreover, the

' The Respondents remark that “[b]ecause 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.” Opp’n at 20.

Although the precise import of this point is elusive, it is

undisputed that Armstrong as a supervising physician is

Respondents’ theory would make competency to perform

an abortion an affirmative defense to prosecution under a

physician-only statute — an unprecedented intrusion on

the rights of States to control medical practice. See, e.g.,

Spears v. Circuit Court, 517 F.2d 360, 368 (5th Cir. 1975)

(rejecting habeas corpus claim by midwife convicted for

performing abortion); Wright v. State, 351 So. 2d 708, 711

(Fla. 1977) (affirming conviction of nurse under physi-

cian-only statute).

Finally, the Respondents have chosen to ignore the

Petition’s analysis concerning the rational basis standard

applied by the Casey joint opinion when upholding Penn-

sylvania’s requirement that certain portions of the patient

advisement be given by a physician. 505 U.S. at 884-85.

This silence is telling since there is simply no accom-

modating a result which permits a State to mandate that a

physician be responsible for explaining, inter alia, “[t]he

nature of the proposed procedure or treatment and of

those risks and alternatives that a reasonable patient

would consider material to the decision of whether or not

to undergo the abortion” (18 Pa. Cons. Stat. § 3205(a)(1)(i)

(1990)) and simultaneously prohibits a State from requir-

ing that only a physician perform the ensuing abortion.

Such a result would be even comtrary to Akron which,

after striking down a physician advisement requirement

treated no differently than other supervising physicians under

the challenged statute — i.e., no physician assistant can include

within a utilization plan the performance of abortions. The

challenged legislation, despite the Respondents’ focus on

Cahill, affects all physician assistants who may wish to perform

abortions.

substantively identical to one later upheld in Casey, reit-

erated that “States may mandate that only physicians

perform abortions.” 462 U.S. at 447. The Respondents’

position on the merits, like the Court of Appeals’ deci-

sion, can be credited only if almost twenty-five years of

precedent are placed aside.?

°

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

JoserH _P. Mazurek

Attorney General of Montana

Cray R. SmirH

Solicitor

Counsel of Record

Justice Building

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

(406) 444-2026

April 1997

2 As mentioned earlier, the Respondents devote far more

attention in their opposition to the Bill of Attainder claim raised

below than to the undue burden claim relied upon by the Court

of Appeals in vacating the District Court’s denial of a

preliminary injunction. Opp’n at 21-27. The former claim, while

appropriate for consideration by the Court of Appeals on

remand if its judgment is reversed, is immaterial to the question

presented. See, e.g., Lebron v. National R.R. Passenger Corp., 115 S.

Ct. 961, 965-66 (1995); Yee v. City of Escondido, 503 U.S. 519,

534-38 (1992); Wise v. Lipscomb, 437 U.S. 535, 547 (1978).