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Carhart Amicus Brief

Carhart Amicus Brief

Page 1: Carhart Amicus Brief


Number of Pages:17

Date Created:May 19, 2006

Date Uploaded to the Library:February 20, 2014

Tags:abortion, Stenberg, Carhart, Jurisprudence, Eighth, birth, interests, Casey, liberty, Nebraska, Congress, Circuit, watch, partial, judicial, Supreme Court, court, EPA, IRS, ICE, CIA

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THE Supreme Court the United States 
Respondents. Writ Certiorari the
 United States Court Appeals
 for the Eighth Circuit
Meredith Liberto
 501 School Street, S.W., Suite 500 
Washington,  20024
 (202) 646-5172 
Counsel for Amicus Curiae 
*Denotes Counsel Record 
SUMMARY THE ARGUMENT ................2
........................................3 The Partial Birth Abortion Ban Act 2003 Constitutional Because 
Congress Drafted Within the 
Confines This Courts Liberty 
Interest Jurisprudence ................	 
The Jurisprudence Liberty
 Interests .....................3	 
The Government May Restrict
 Liberty Interests ...............6	 
The Partial Birth Abortion 
Ban Act 2003 Legitimate
 Restriction and Proper 
Balancing Liberty Interests ....
The Holding Stenberg Carhart 
Contrary This Courts Liberty Interest
 Jurisprudence and Should Overruled .......
CONCLUSION ................................12
 Cases Page
 Carhart Ashcroft, 331 Supp. 508
(D. Neb. 2004) ............................9
 Carhart Gonzalez, 413 F.3d 791 (3rd Cir. 2005) ......2
 Casey Planned Parenthood, 505 U.S. 833 

(1992).............................. 6-7,
 Cruzan Misssouri, 497 U.S. 261 (1990) .......5,
 Eisenstadt Baird, 405 U.S. 438 (1972) .............5
 Griswold Connecticut, 381 U.S. 479 (1965) ......4,
 Lawrence Garner, 539 U.S. 558 (2003) ..........5,
 Linkletter Walker, 381 U.S. 618 (1965) ............12
 Meyer Nebraska, 262 U.S. 390 (1923) ..............
 Palko Connecticut, 302 U.S. 319 (1937) ............5
 Roe Wade, 410 U.S. 113 (1973) .............. passim
 Stenberg Carhart, 530 U.S. 914 

(2000) .............................. passim
Statutes and Rules U.S.C.  1531 ........................... passim
 Supreme Court Rule 37.3(a) .......................1
Supreme Court Rule 37.6 ..........................
Haskell, Martin, M.D., Second Trimester DX, Wks and Beyond, (September 1992 seminar) ........

Judicial Watch, Inc. (Judicial Watch) respectfully submits this brief amicus curiae support Petitioner Attorney General Alberto Gonzalez.  Pursuant Supreme Court Rule 37.3(a), counsel for the parties have consented the filing this amicus brief.1 Letters consent the filing this brief have been filed with the Clerk the Court. 

Judicial Watch public interest organization headquartered Washington, D.C. Founded 1994, Judicial Watch seeks promote accountability, transparency and integrity the law, well ethics and morality public life. Since its inception more than ten years ago, Judicial Watch has filed hundreds lawsuits state and federal courts across the nation pursuit these goals. Judicial Watch participating amicus this case for two primary reasons.  First, the laws this nation rely the proper functioning the courts, including proper balance powers and the judiciarys ability demonstrate restraint. Judicial Watch believes this case important opportunity for the Court clarify its liberty interest jurisprudence.  Second, frequent public interest litigant, Judicial Watch relies consistent application 
Pursuant Rule 37.6, Judicial Watch states that counsel for any party authored this brief whole part, and person entity other than the amicus curiae made monetary contribution the preparation submission this brief. 
constitutional law and precedent its legal advocacy.  The opinion the U.S. Court Appeals for the Eighth Circuit (Eighth Circuit) Carhart Gonzalez, 413 F.3d 791 (3rd Cir. 2005) demonstrates the effect inconsistently applied concepts law and precedent; particular, this Courts opinion Stenberg Carhart, 530 U.S. 914 (2000), which represents departure from precedent and should overruled. 

Abortion the most contentious domestic issue today.  Indeed, has been the most contentious domestic social issue for more than thirty years.  Roe Wade did not provide the final word abortion, rather served the starting point for years legal debate. 
The subject matter before this Court partial birth abortion and whether the Partial Birth Abortion Ban Act 2003 (Act) unconstitutional. See U.S.C.  1531. The U.S. Court Appeals for the Eighth Circuit (Eighth Circuit) found the Act unconstitutional based large part this Courts holding Stenberg Carhart. The Eighth Circuits opinion should reversed and the injunction lifted. 
The Partial Birth Abortion Ban Act constitutional because Congress drafted the Act within this Courts liberty interest jurisprudence.  The Act represents legitimate restriction the qualified right abortion because takes into consideration the liberty interests both the woman and the partially born baby and properly balances them. 
Stenberg represents divergence this Courts liberty interest jurisprudence, and should overruled. 

ARGUMENT	 The Partial Birth Abortion Ban Act 2003 Constitutional Because Congress Drafted Within the Confines This Courts Liberty Interest Jurisprudence. 
The Partial Birth Abortion Ban Act (Act) was not passed bubble. fact, Congress considered and passed partial birth abortion bans several prior occasions. During each congressional session, extensive testimony and medical evidence was presented. was also apparent from the hearing transcripts that Congress took great care consider the law and legal implications the ban. What Congress passed 2003 was narrowly tailored law reflective this Courts liberty interest jurisprudence.	 The Jurisprudence Liberty Interests. 
[B]ut for me, give liberty, give death! The impassioned cry Patrick Henry 1775 became call arms, call join the fight against the tyranny and control the English. was against this bloody and hard-fought background that the Founding Fathers boldly proclaimed the unalienable rights Life, Liberty, and the pursuit Happiness the Declaration Independence. For the next two hundred and thirty years, the meaning those words, and liberty particular, would debated, argued over, interpreted and reinterpreted this Court. 
This Court has not compiled exhaustive list liberty interests, but has spoken frequently the subject and set out certain types conduct and actions that have been deemed liberty interests.  The Court held that: 
[W]hile this Court has not attempted define with exactness the liberty thus guaranteed, the term has received much consideration and some the included things have been definitely stated.  Without doubt, denotes not merely freedom from bodily restraint but also the right the individual contract, engage any the common occupations life, acquire useful knowledge, marry, establish home and bring children, worship God according the dictates his own conscience, and generally enjoy those privileges long recognized common law essential the orderly pursuit happiness free men.  
Meyer Nebraska, 262 U.S. 390, 399 (1923). his concurring opinion Griswold Connecticut, 381 U.S. 479, 486 (1965), Justice Goldberg wrote that the concept liberty protects those personal rights that are fundamental, and not confined the specific terms the Bill Rights. Building this idea liberty interests, the Court later equated liberty interests with right personal privacy, guarantee certain areas zones privacy.  See Roe Wade, 410 U.S. 113, 151 (1973).  These personal rights were those fundamental implicit the concept ordered liberty. Id. (quoting Palko Connecticut, 302 U.S. 319, 325 (1937)). 
Continuing build this liberty interest theory, the Court held that the rational continuum and full scope liberty included:
 [T]he right the individual, married 
single, free from unwarranted 
governmental intrusion into matters 
fundamentally affecting person the 
decision whether bear beget child. 
Eisenstadt Baird, 405 U.S. 438, 453 (1972). The following year the Court added the list liberty interests the limited right woman decide whether not terminate her pregnancy.  Roe, 410 U.S. 170. And so, Roe gave birth the qualified liberty interest called abortion. 
Since 1973, the Court has confirmed the liberty interest abortion and extended the concept liberty interest include such actions as: the liberty interest refusing medical treatment, Cruzan Misssouri, 497 U.S. 261, 278-79 (1990); and the liberty interest engaging homosexual sexual conduct, Lawrence Garner, 539 U.S. 558, 567 (2003). each these cases, the Court based its decision the particular act conduct being one encompassing the most intimate and personal choices person may make lifetime, choices central personal dignity and autonomy, are central the liberty protected the Fourteenth Amendment. Casey Planned Parenthood, 505 U.S. 833, 851 (1992). The Court further held Casey that at the heart liberty the right define ones own concept existence, meaning, the universe, and the mystery human life.  Id. the Courts most recent abortion case, the majority opinion held that the Nebraska Partial-Birth Abortion Ban would considered in light the Constitutions guarantees fundamental individual liberty which offers basic protection the womans right choose. Stenberg Carhart, 530 U.S. 914, 921 (2000). The Court opted not revisit those legal principles, but instead apply them Nebraskas Partial-Birth Abortion Ban. However, there further mention liberty liberty interests the Courts majority opinion, nor were those principles liberty applied. The Government May Restrict Liberty Interests. 
Even while expanding the list liberty interests, the Court has always been careful note that even the most fundamental liberty interest may restricted certain circumstances. abortion cases, the Court has recognized states interest protecting women from inherently hazardous procedures, maintaining safety precautions for all medical procedures and the important and legitimate interest potential life. Roe, 410 U.S. 
150. Later Roe, the Court held: some point pregnancy, these respective interests become sufficiently compelling 
sustain regulation the factors that govern the abortion decision. We, therefore, conclude that the right personal privacy includes the abortion decision, but that this right not unqualified and must considered against important interests regulation. 
Id. 154. 
The competing and compelling interests the State were further clarified and strengthened Casey Planned Parenthood. upholding most the state restrictions contained the Pennsylvania Abortion Control Act, the Court held: 
[This] confirmation the States power restrict abortions after fetal viability, the law contains exceptions for pregnancies which endanger the womans life health. And [confirming] the principle that the State has legitimate interests from the outset the pregnancy protecting the health the woman and the life the fetus that may become child. 
Casey, 505 U.S. 846. The Court found that the requirements informed consent, 24-hour waiting period, and parental consent were legitimate governmental restrictions. 
Governmental restriction liberty interests also legitimate when the liberty interests individuals groups individuals clash. liberty can defined broadly individuals autonomy self that includes freedom thought, belief, expression, and certain intimate conduct, inevitable that liberty interests will clash. Lawrence, 539 U.S. 562. The law weighs balances the liberty interests involved and attempts resolve the conflict way that best respects the liberty interests both parties. 
One the factors considered this weighing liberty interests whether one persons liberty interest causes harm another persons liberty interest.  For example, Lawrence Texas, 539 U.S. 558, 567 (2003), the Court found liberty interest persons freedom choose his her sexuality, and the actions associated with that choice. This liberty interest does not, however, include the freedom engage forcible sexual conduct sexual conduct with minors.  Clearly, individuals liberty interest bodily integrity and  the protection minors outweighs any one persons liberty interest engaging whatever sexual behavior she prefers. one person, group peoples liberty interests, can ride roughshod over another person group people. dissenting opinion Cruzan, Justice Stevens noted that our Constitution presupposes respect for the personhood every individual, and nowhere strict adherence that principle more essential than the judicial branch. Cruzan, 497 U.S. 356 (Stevens, J., dissenting).	 The Partial Birth Abortion Ban Act 2003 Legitimate Restriction and Proper Balancing Liberty Interests. accordance with the above-mentioned principles, the Act legitimate governmental restriction and proper balancing liberty interests.  Generally speaking, partial birth abortion performed from weeks gestation. Several the doctors testifying the congressional hearings the matter testified that they use partial birth abortion through the 32nd week and beyond. Carhart Ashcroft, 331 Supp. 508, 827 (D. Neb. 2004) (testimony Dr. Martin Haskell, House hearings), see also Second Trimester DX, Wks and Beyond, Martin Haskell, M.D., September 1992 seminar).2 also generally understood that while there determinative moment viability common all fetuses, viability understood exist weeks gestation. Carhart, 331 Supp. 915-16 (testimony from doctors during House hearings). Logically, this means that many, not most, partial birth abortions are being performed viable fetuses. The Court held, and later reaffirmed, that the States compelling interest potential life strongest post-viability; the Act itself focuses mainly post-viable fetuses. clear that Congress was operating well within this Courts precedent.3 Dr. Haskells presentation available at: Based, part, the medical opinion the American Medical Associationand theAmerican College Obstetricians and Gynecologists, Congress concluded that partial-birth abortion was never medically 
The Act also properly balances the liberty interests issue during partial birth abortion. articulated above, the Courts liberty interest jurisprudence has declared qualified right abortion protected due process under the Fourteenth Amendment. The womans liberty interests include the freedom engage sexual conduct, the freedom use contraception, and the qualified freedom decide whether terminate her pregnancy.  The womans liberty interest must, however, have some reasonable boundaries moral and lawful society. For example, should the woman choose abort her fetus, but due premature labor she delivers health and living baby instead, the womans liberty interest does not extend her right have the baby killed. fact, 2002 Congress passed the Born-Alive Infants Protection Act make this point crystal clear.  The womans qualified liberty interest limited choosing whether not terminate her pregnancy and not right dead baby. 
Partial birth abortion brings second set liberty interests into play that the other methods abortion not: the liberty interests the partially born baby.  This longer fetus encapsulated within its mother.  This baby which, the words the American Medical Association (AMA), has an autonomy which separates from the right the woman choose treatments for her own body. Stenberg, 530 U.S. 965 (quoting AMA Board Trustees Factsheet 1222 (June 1997)).  Roe 
necessary, and, therefore, was impossible for the Act create undue burden.  Judicial Watch will leave the subject undue burden for other amici discuss. 
and Casey, therefore, simply are not relevant here.  This independent, autonomous person who, the words Justice Stevens, should accorded the respect presupposed the Constitution. Cruzan, 497 U.S. 355, dissenting. That respect includes all the protections and liberty interests accorded every person. such, partial birth abortion should viewed balancing the liberty interests accorded the woman, and the liberty interests the partially born baby. womans qualified liberty interest abortion cannot greater than the babys liberty interest life, even partially born baby. 
II.	 The Holding Stenberg Carhart Contrary This Courts Liberty Interest Jurisprudence and Should Overruled. 
Liberty finds refuge jurisprudence doubt. Casey, 505 U.S. 844.  Yet doubt precisely what the Court infused into its liberty interest jurisprudence Stenberg Carhart. Instead relying its liberty interest jurisprudence its undue burden theory, the majority held that the ban was unconstitutional because Nebraska failed convince that a health exception never necessary preserve the health women. Stenberg, 530 U.S. 937-38.  Gone any reference liberty interests, personal privacy interests, undue burden. Now legislature must demonstrate substantial medical authority that proves under set circumstances partial birth abortion ever necessary for the health the woman. Stenberg, 530 U.S. 853. 
Stenberg represents divergence from this Courts liberty interest jurisprudence and the Court should take this opportunity overrule Stenberg. difficult not recall Justice Blacks timely concern for the judiciary and its ability restrain itself: collection the catchwords and catch phrases invoked judges who would strike down under the Fourteenth Amendment laws which offend their notions natural justice would fill many pages.  Perhaps the clearest, frankest and briefest explanation how this due process approach works ... invoke the Due Process Clause strike down state procedures laws which can not tolerate. 
Griswold, 381 U.S. 513 (Black, J., dissenting) (quoting Linkletter Walker, 381 U.S. 618, 631 (1965)). 
The result Stenberg before this Court: the Eighth Circuit was handcuffed Stenberg and its erroneous holding. Stenberg fails apply the Courts liberty interest jurisprudence and must overruled.  

For the foregoing reasons, Judicial Watch respectfully urges the Court reverse the Eighth Circuits injunction against the enforcement the Partial-Birth Abortion Act and overrule Stenberg Carhart, 520 U.S. 914 (2000). 
May 22, 2006 
Respectfully submitted,
            Meredith Liberto
 501 School Street, S.W.
 Suite 500
 Washington, 20024
(202) 646-5172
Counsel for Amicus Curiae 
*Denotes Counsel Record