# Opposition Brief — Crawford v. Roe (No. 07-1491)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1526%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

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No. 07-1491 FILED
a JUN 2 6-208
IN THE
S oat OF THE CLERK
Supreme Court of the Wnt "
Aside from the fact that the State’s reliance on Maher is so
clearly unfounded, the Court should decline review on this issue
for prudential reasons. The State raised Maher in its brief
opposing plaintiffs’ motion for summary judgment in the
district court, but then abandoned it on appeal to the Eighth
Circuit. It was thus never addressed by the Eighth Circuit even
though the State belatedly tried to raise it again in an
unsuccessful petition for rehearing. See supra n.4. Under these
circumstances, this Court should decline to consider it. See
Adickes v. S.H. Kress & Co., 398 U.S. 144, 148 n.2 (1970)

Connecticut's decision to pay the costs of childbirth
but not abortion for indigent women. In so doing,
this Court explained that Connecticut “may have
made childbirth a more attractive alternative,
thereby influencing the woman’s decision, but it . .

imposed no restriction on access to abortions that
was not already there.” 432 U.S. at 474. In short,
this Court upheld the regulation because it “place[d]
no obstacles absolute or otherwise in the pregnant
woman’s path to an abortion.” Jd. In contrast, the
MDC Policy does create an “absolute” obstacle. As
the Eighth Circuit found, and the State conceded, the
Policy makes non-therapeutic abortion “entirely
unavailable” to women once they are in the custody
of the MDC. Pet’r App. All. This critical distinction
renders insupportable the State’s contention that the
MDC’s Policy is “no different” than the Medicaid
regulation upheld in Maher, and that the Policy
simply advances a state preference for childbirth in a
similar fashion, Petr Br. 5. Thus, the Eighth
Circuit's decision —- that the MDC’s Policy
unconstitutionally bans abortion for incarcerated
women — is consistent with Maher and with this
Court’s decisions invalidating state laws that go well
beyond discouragement to. effectively prohibit
abortion. See Maher, 432 U.S. at 473-74 (explaining
that Connecticut funding regulation was “different in
kind from the laws invalidated in our previous
abortion decisions,” for example those’ that

(“Where issues are neither raised before nor considered by the
Court of Appeals, this Court will not ordinarily consider
them.”); see also Hoover v. Ronwin, 466 U.S. 558, 574 n.25
(1984) (holding that where respondent raised arguments for the
first time in a response to petitioner's motion for rehearing in
the court of appeals it was untimely and _ precluded
consideration).

“interposed an absolute obstacle”) (internal quotation
mark omitted).

CONCLUSION

For the foregoing reasons, the State’s petition
for a writ of certiorari should be denied.

Respectfully submitted,

THOMAS M. BLUMENTHAL
Counsel of Record

165 North Meramec Avenue

6% Floor

St. Louis, Missouri 63105

(314) 727-2266

Cooperating Attorney for the

ACLU of Eastern Missourt Fund

DIANA KASDAN

TALCOTT CAMP

LOUISE MELLING

STEVEN R. SHAPIRO

American Civil Liberties
Union Foundation

125 Broad Street, 18 Floor

New York, New York 10004

(212) 549-2633

ANTHONY E. ROTHERT

ACLU of Eastern Missouri Fund
454 Whittier Avenue

St. Louis, Missouri 63108

(314) 652-3111

June 26, 2008

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1526%3A2. Public record. Not legal advice.