Richard Whalen James Humphreys
IN THE SUPREME COURT OF THE UNITED STATES
R. RHETT HUNTER, ATTORNEY GENERAL FOR THE COMMONWEALTH OF FENWICK, PETITIONER,
v.
MORGAN CARTER, M. D., and FENWICK REPRODUCTIVE HEALTH CENTER, INC., RESPONDENTS.
1986 Term
Docket No. 86-969
ON APPEAL FROM THE UNITED STATES COURT OF APPEALS THIRTEENTH CIRCUIT
BRIEF FOR RESPONDENTS
QUESTIONS PRESENTED
I. WHETHER F • . G.S. ART. XL, SECTIONS 40.20 AND 40.21, UNCONSTITUTIONALLY RESTRICT THE RIGHT OF A PREGNANT WOMAN TO CHOOSE WHETHER OR NOT TO TERMINATE HER PREGNANCY, AS THAT RIGHT IS GUARANTEED TO HE'R BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.
II. WHETHER THE INTERPRETATION OF F.G.S. ART. XXX, SEC. 30.03 SO AS TO CHARACTERIZE VIABLE FETUSES AS "HUMAN BEINGS," IN LIGHT OF THE AMENDMENT TO F.G.S. ART. II, SEC. 2.49, VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.
i
TABLE OF CONTENTS.......................................... ii
TABLE OF AUTHORITIES ••••••••••••• ••• • • ••• ••••••• •••••••• ••• iv
STATEMENT OF CASE.......................................... 1
SUMMARY OF ARGUMENT........................................ 2
ARGUMENT AND AUTHORITY••••••••••••••••••••••••••••••••••••• 5
I. F.G.S. ART. XL, SECTIONS 40.20 AND 40.21, UNCONSTITUTIONALLY RESTRICT THE RIGHT OF A PREGNANT WOMAN TO CHOOSE WHETHER OR NOT TO TERMINATE HER PREGNANCY, AS THAT RIGHT IS GUARANTEED TO HER BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT ••••••••
A. The Due Process Clause Of The Fourteenth Amendment Secures The Right Of A Pregnant Woman To Be Free Of Unjustified State Interference In Her Decision
5
Whether Or Not To Terminate Her Pregnancy........ 5
B. State Regulation Of A Woman's Decision To Terminate Her Pregnancy Is Only Justified If It Serves Compelling Governmental Interests And Is Narrowly Drawn to Further Only Those Interests............ 7
C. The Fenwick Abortion Statute Impermissibly Limits A Pregnant Woman's Right To Terminate Her Pregnancy Because It Lacks A Compelling State Interest And Because It Is Not Narrowly Drawn To Avoid Interference With The Woman's Fundamental Right... 8
1. To The Extent That The Fenwick Abortion Statute Proscribes The Abortion Of A Non­ Viable Class of Fetuses, The Statute Impermissibly Restricts A Pregnant Woman's Right To Choose An Abortion Without The Required Compelling State Interest........... 8
2. The Fenwick Abortion Statute Violates A Pregnant Woman's Constitutional Right To Choose An Abortion Because It Is Not Carefully Tailored To Avoid Unjustified Interference With Her Protected Rights •••••••••••••••••••• 12
ii
II. THE INTERPRETATION OF F.G.S. ART. XXX, SEC. 30.03 SO AS TO CHARACTER;I:ZE VIABLE FETUSES AS "HUMAN BEINGS," IN LIGHT OF THE AMENDMENT TO F.G.S. ART. II, SEC. 2.49, VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT •••••••••••••••• ·• • • • • • • • • • • • • • • • • • • • • • • • • • • • • 1 4
A. Section 2.49 And Its Application Under Sec. 30.03 Constitutes State Action......................... 15
B. The Combined Effect Of The Commonwealth's Construction Of Sec. 2.49 And Sec. 30.03 Concerns A "Liberty" Interest. •••••• •• ••••• ••• ••••• •• ••••. 15
C. Characterizing A Viable Fetus Under Sec. 2.49, As A "Human Being" Under Sec. 30.03, Is Unconstitutionally Vague......................... 16
1. Characterizing "Person" Under Sec. 2.49 As A "Human Being" Under Sec. 30.03 Doe.s Not Give Reasonable Notice That Aborting A Viable Fetus Is Murder ••• •••••••••• ••••• ••• •••••• •• • ••••• 17
2. Even If Sections 2.49 and 30.03 Together Provide Adequate Notice That A Viable Fetus, As Defined In The Statute, Is A "Human Being," Sec. 2.49 Does Not Adequately Define "Fetal Viability."••••••••••••••••••• 19
CONCLUSION •••••••••••• ••••••••••••••••••• ••• •••• •••• •••• ••• 21
CASES:
Be a 1 v. Doe, 432 U.S. 438 ( 19 7 7)........................... 8
Carey v. Population Services International, 4 3 1 u • s • 6 7 8 ( 1 9 7 7 ) •••••••• · • • • • • • • • • • • • • • • • • • • • • • • • • • • 8 , 1 4
The Civil Rights Cases, 109 u.s. 3 (1883).................. 15
Colautti v. Franklin, 439 U.S. 379 (1979) •••••••••••••••••• passim
Connally v. General Construction, 269 U.S. 385 (1925) •••••• 17, 18
Doe v. Bolton, 410 u.s. 179 (1973).. ••••••••••• •• • • •••••••• 13
Duncan v. Flynn, 358 So. 2d 178 (Fla. 1978)................ 18
Eisenstadt v. Baird, 405 U.S. 438 (1972)................... 6
Fenwick Reproductive Health Care Center, Inc. v. Hunter, No. 86-75, slip. (S.D. Fen. March 1, 1986) •••••••••••• passim
Fenwick Reproductive Health Care Center, Inc. v. Hunter, No. 86-110, slip op. (13th Cir. April 12, 1986) ••••••• · 18
Green v. Stanton, 451 F. Supp. 567 (N.D. Ind. 1978)........ 18
Griswold v. Connecticut, 381 U.S. 479 (1965) ••••••••••••••• passim
Ingraham v. Wright, 430 U.S. 651 (1976).................... 16
Keeler v. Amador, 2 Cal. 3d 619, 470 P.2d 617 (1970)....... 18
Kennard v. Louisiana, 92 U.S. 480 (1875)................... 16
Meyer v. Nebraska, 262 U.S. 390 (1923)..................... 6
NAACP v. Alabama, 377 U.S. 288 (1963)...................... 7
Palko v. Connecticut, 302 U.S. 319 (1937).................. 5
Pierce v. Society of Sisters, 268 U.S. 510 (1925).......... 6
Planned Parenthood v. Danforth, 428 U.S. 52 (1979) ••••••••• 8, 10
Rochin v. California, 342 U.S. 165 (1952).................. 16
Roe v. Wade, 410 U.S. 113 (1973) ••••••••••••••••••••••••••• passim
iv
State v. Soto, 378 -N.W.2d 625 (Minn. 1985)................. 18
Thornburg v. AGOG, 54 U.S.L.W. 4618 (1986) ••••••••••••••••• 6, 13
u. s . v. Cohen Grocery, 255 u.s. 81 ( 19 20) ••••••••••••••••• 20
u. s . v. Lau b, 385 u.s. 475 ( 196 6) •••••.••••••••••••••••••• 19
u. s. v. Powell, 423 u.s. 87 ( 1 9 7 5 ) • • • • • • • • • • • • • • • • • • • • • • • • 21
u. s. v. Sullivan, 332 u.s. 689 ( 194 7) ••••••••••••••••••••• 19
u. s. v. Wiltberger, 4 u.s. ( 5 Wheat.) 574 ( 1820) •••••••••• 17
Ex Parte Virginia, 100 u.s. 339 ( 187 9) ••••••••••••••••••••• 15
STATUTES:
CONSTITUTION:
ARTICLES:
Hack & Fanaroff, Changes in the Delivery Room Care of the Extremely Small Infant (<750 Grams), 314 New England Journal of Medicine 660-664 (1986) ••••••••••••••••••••
v
IN THE SUPREME COURT OF THE UNITED STATES
R. RHETT HUNTER, ATTORNEY GENERAL FOR THE COMMONWEALTH OF FENWICK, PETITIONER,
v.
MORGAN CARTER, M. D., and FENWICK REPRODUCTIVE HEALTH CENTER, INC., RESPONDENTS.
1986 Term
Docket No. 86-969
ON APPEAL FROM THE UNITED STATES COURT OF APPEALS THIRTEENTH CIRCUIT
BRIEF FOR RESPONDENTS
STATEMENT OF CASE
On January 10, 1986, the Legislature of the Commonwealth of
Fenwick amended the Fenwick Abortion Statute, F.G.S. Art. XL,
sec. 40.20-40.23, and amended the definition of "person"
contained in F.G.S. Art. II, sec. 2.49. (Record 1) The Governor
of Fenwick signed the amendatory legislation on January 15, 1986,
and it took effect on February 15, 1986. (R.l) The amendments
to the Abortion Statute define a viable fetus as any fetus
weighing 500 grams or more, and prohibit abortion of any viable
fetus unless the mother's life is imperiled. (R.8) The
amendment to Art. II changes the definition of "person" to
include a fetus which has a "reasonable likelih6od of sustained
survival outside the mother's womb, with or without artificial
aid." (R.l6) The Legislature did not change Fenwick's murder
statute, F.G.S. Art. XXX, sec. 30.03, which continues to define
murder as "the actual and intentional killing of a human being."
(R.l6)
Morgan Carter is staff physician, is a health care facility
located in Fenwick which performs abortions. ( R. 2) On Feb. 1,
1986, the Health Center and Dr. Carter brought an action
challenging the constitutionality of the definition of a viable
fetus contained in F.G.S. Art. XL, as well as the
constitutionality of the application of sec. 2.49 to the Fenwick
murder statute. (R. 2-3) The suit sought declaratory and
injunctive relief. (R.3)
1
On Feb. 15, 1986, Dr. Carter and other employees of the
Health Center were arrested pursuant to the contested provisions
of Fenwick law, for aborting a fetus weighing approximately 605
grams. (R.3) State criminal action is pending the outcome of
this litigation. (R.3)
The Court of Appeals for the Thirteenth Circuit reversed. (R.l9-
21) The case is now before this Court on writ of certiorari.
Jurisdiction is founded on 28 u.s.c. sec. 1251.
SUMMARY OF ARGUMENT
Fenwick's definition of a viable fetus as any fetus weighing
500 grams or more, and its virtual prohibition of abortions
involving a viable fetus, as so defined, violate the fundamental
right of privacy guaranteed to a pregnant woman by the fourteenth
amendment's due process clause.
unconstitutional, first, because it applies to a class of fetuses
whose statistical likelihood of prolonged survival is so low that
they cannot reasonably be termed viable. The Commonwealth may
only regulate the exercise of a constitutionally protected
fundamental right, such as a woman's right to end her pregnancy,
in furtherance of a compelling governmental interest. Fenwick's
compelling interest in protecting potential life attaches only
when a fetus becomes viable. Because the Commonwealth's fixed-
2
which have not yet attained viability, the Fenwick Abortion
Statute lacks the compelling state interest required for
infringement of a constitutionally-protected right.
Second, as to all fetuses of 500 grams or more, Fenwick's
Abortion Statute makes no allowance for individual fact
situations and prevents a pregnant woman's physician from using
his judgment to decide whether a particular fetus is actually
viable. Since the Commonwealth may only constitutionally
prohibit the abortion of fetuses which are, in fact, viable, the
Fenwick Abortion Statute is impermissibly over-inclusive. The
Statute thus contravenes the basic requirement that state
regulations affecting the exercise of a fundamental personal
liberty must be narrowly tailored to avoid undue infringement of
that liberty.
II.
F.G.S. Art. II, sec. 2.49 (sec. 2.49) defines a viable fetus
as a "person." The section also defines "fetal viability" as the
state of a fetus which has "a reasonable likelihood of survival"
after birth. The Commonwealth contends that abortion of a viable
fetus is murder under Art. XXX, sec. 30.03 (sec. 30.03), which
protects "human beings." Respondents challenge this construction
as being unconstitutionally vague in violation of the fourteenth
amendment due process clause.
3
effect of sections 2.49 and 30.03, is state action.
When a state intends to physically restrain and punish
someone, the state's action impinges on a "liberty" interest that
the fourteenth amendment due process clause protects. The
Commonwealth's reading of sections 2.49 and 30.03 involves at
least a prison term for one who violates this scheme. Therefore,
the case at bar concerns a due process/liberty interest.
A statute must be reasonably clear to survive due process
scrutiny. Characterizing a viable fetus under sec. 2. 4 9, as a
"human being" under sec. 30.03, is unconstitutionally vague for
two reasons.
First, sec. 2.49 defines a viable fetus as a "person."
Section 30.03 protects "human beings." Section 30.03 adopts the
common-law definition of "human being." At common law, neither
the term "person" nor "human being" included viable fetuses.
Therefore, characterizing a "person" under sec. 2.49, as a "human
being" under sec. 30.03, does not give reasonable notice that
aborting a viable fetus is murder.
Second, even if characterizing a "person" as a "human being"
gives reasonable notice, the statutory definition of "fetal
viability" is unconstitutionally vague. The definition says a
fetus has attained viability if it has "a reasonable likelihood
of sustained survival" after birth. Statutes are
unconstitutionally vague if they
4
standard. The "reasonable
speculation or morality, a jury could find any fetus viable.
ARGUMENT AND AUTHORITY
I. F.G.S. ART. XL, SECTIONS 40.20 AND 40.21, UNCONSTITUTIONALLY RESTRICT THE RIGHT OF A PREGNANT WOMAN TO CHOOSE WHETHER OR NOT TO TERMINATE HER PREGNANCY, AS THAT RIGHT IS GUARANTEED TO HER BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.
A. The Due Process Clause Of The Fourteenth Amendment Secures The Right Of A Pregnant Woman To Be Free Of Unjustified State Interference In Her Decision Whether Or Not To Terminate Her Pregnancy.
By the amendment, on January 15, 1986, of F.G.S. Article XL,
Sec. 40.20-40.23 ("the Abortion Statute"), the Commonwealth of
Fenwick placed itself in square conflict with the United States
Constitution, as that document has been interpreted by this
Court. Past decisions of the Court remove any doubt that the
Constitution, through the Fourteenth Amendment, limits the power
of state governments to interfere with those essential personal
liberties which are protected, both expressly and through
implication, by the first ten amendments. See Griswold v.
Connecticut, 381 U.S. 479 (1965).
Through its due process clause, the fourteenth amendment
mandates state solicitude for those constitutional guarantees
which have been found "implicit in the concept of ordered
liberty," Palko v. Connecticut, 302 u.s. 319, 324-325 (1937), or
"so rooted in the traditions and conscience of our people as to
be ranked as fundamental." Snyder v. Massachusetts, 291 u.s. 97,
105 (1934).
A lengthy line of decisions by this Court establishes that
the sphere of personal liberties safeguarded by the fourteenth
amendment includes a right to privacy, and that this right to
privacy secures the most personal and sacred life choices-- those
relating to marital and family life, and, ultimately, to the
decision whether or not to have children. Meyer v. Nebraska, 262
U.S. 390 (1923); Pierce v. Society of Sisters, 268 u.s. 510
(1925); Skinner v. Oklahoma, 316 u.s. 535 (1942); Griswold v.
Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 u.s.
438 (1972).
A woman's right to terminate a pregnancy is of such moment
that it, too, shelters beneath the protective arm of the
fourteenth amendment. In Eisenstadt v. Baird, 405 u.s. at 453,
the Court used the equal protection clause to invalidate a
Massachusetts law which imposed a criminal penalty for the
distribution of contraceptives, saying:
If the right of privacy means anything, it is the right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
(Emphasis in original.)
Roe v. Wade, 410 u.s. 113, 153 (1973), established that the
right of personal privacy is a "fundamental" right, protected by
the due process clause of the fourteenth amendment, and that its
scope "is broad enough to encompass a woman's decision whether or
not to terminate her pregnancy." See also Thornburg v. American
College of Obstetricians and Gynecologists, 54 U.S.L.W. 4618,
6
4625 (1986).
B. State Regulation Of A Woman's Decision To Terminate Her Pregnancy Is Only Justified If It Serves Compelling Governmental Interests And Is Narrowly Drawn To Further Only Those Interests.
This Court, in Roe v. Wade, 410 u.s. at 153, emphasized the
importance of a woman's right to make this extraordinarily
personal and sensitive choice:
The detriment that the State would impose upon the pregnant woman by denying [her right to choose to end her pregnancy] is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Ma­ ternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care .•• In other cases ••• the additional difficulties and continuing stigma of unwed motherhood may be involved."
Because Fenwick's Abortion Statute limits a woman's
constitutionally-protected right to choose whether or not to
terminate a pregnancy, it is subject to the scrutiny required by
this Court's decisions in matters involving the exercise of
fundamental rights. Only a state interest which is, by its
nature, "compelling," may constitutionally override an
individual's exercise of a fundamental right. Roe v. Wade, 410
U.S. at 155~ See also, Griswold v. Connecticut, 381 U.S. at 497
(Goldberg, J., concurring). Furthermore, state regulation
affecting a fundamental right must be narrowly tailored so as not
to unnecessarily constrain exercise of the protected right.
Roe v. ~vade, 410 _u.s. at 155~ NAACP v. Alabama, 377 U.S. 288,
307 (1963).
This Court has made it plain that this degree of scrutiny
applies to laws curtailing a woman's right to choose an abortion:
7
Where a decision as fundamental as that whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests.
Carey v. Population Services International, 431 U.S. 678, 686
(1977).
C. The Fenwick Abortion Statute Impermissibly Limits A Pregnant Woman's Right To Terminate Her Pregnancy Because It Lacks A Compelling State Interest And Because It Is Not Narrowly Drawn To Avoid Interference With The Woman's Fundamental Right.
1. To The Extent That The Fenwick Abortion Statute Proscribes The Abortion Of A Non-Viable Class Of Fetuses, The Statute Impermissibly Restricts A Pregnant Woman's Right To Choose An Abortion Without The Required Compelling State Interest.
In Roe v. Wade, 410 u.s. at 162, the Court recognized a
state interest in protecting "the potentiality of human life."
While this state interest exists "throughout the course of the
woman's pregnancy," Beal v. Doe, 432 u.s. 438, 446 (1977), the
pregnant woman's constitutional right of privacy confines and
outweighs this interest for most of the term of her pregnancy.
Not until the fetus attains "viability" does a state acquire a
"compelling" interest sufficient to warrant outright prohibition
of most abortions. Roe v. Wade, 410 u.s. at 163.
In Roe v. Wade and in subsequent cases, this Court took
great pains to define viability. The Court in Roe said a fetus
"becomes 'viable'" when it is "potentially able to live outside
the mother's womb, albeit with artificial aid." Id. at 160. To
be viable, a fetus must have "the capability of meaningful life
outside the mother's womb." Id. at 163 (emphasis added.)
See also Planned Parenthood of Central Missouri v. Danforth, 428
8
U.S. 52, 63 (1976). Mere "momentary survival" will not suffice.
Colautti v. Franklin, 439 u.s. 379, 387 (1979).
In adopting a weight-based definition of fetal viability,
Fenwick relied heavily on a study of the survival rates of very­
low-birth-weight infants done at MacDonald Hospital for Women at
University Hospitals of Cleveland. Fenwick Reproductive Health
Care Center, Inc. v. Hunter, No. 86-75, slip op. (S.D. Fen. Mar.
1, 1986), Appendix lB. (R.l0-11) Close scrutiny of this study
discloses a picture of low-birth-weight neonatal mortality which
is markedly different from that which the Fenwick legislature
advanced to justify sec. 40.2l's definition of viability.
During the three-year study (July 1, 1982 to June 30, 1985)
researchers analyzed the morbidity and developmental outcome of
98 live births involving infants weighing 750 grams (about 1.6
pounds) or less. Hack & Fanaroff, Changes in the Delivery Room
Care of the Extremely Small Infant (<750 Grams), 314 New England
Journal Medicine 660-664 (1986). Only 20 of the studied infants
survived, all with active respiratory support and prolonged
intensive care treatment. Id. at 661, 663-664 (mean length of
hospital stay--137 days; mean cost of care--$158,800).
Moreover, the survival rate of infants born with weights of
<700 grams was extremely low. All 56 of the studied infants who
died in the hospital delivery area weighed <700 grams. Id. at
661, Table 1. Additionally, of the 22 infants with <700 gram
birth weights who were intubated and mechanically ventilated,
only seven survived. Id. at 661. Just seven of the 78 live
9
culminated in survival. See id.
Significantly, the MacDonald Hospital study does not reveal
how many very-low-birth-weight infants during the survey period
were stillborn, although there apparently were some. See id.
(criteria for determining "live birth"). This failure to
tabulate stillbirths skews the infant survival rates for all
weight classifications upward. In any event, neither this study,
nor any of the other medical data relied on by the Commonwealth
in amending its abortion statute, discloses what relationship, if
any, the survivability of a natural-born infant has to the
viability of a fetus at a similar gestational age or fetal
weight.
concept," Planned Parenthood of Central Missouri, 428 U.S. at 64,
not readily susceptible of probabilistic determination. Colautti
v. Franklin, 439 U.S. at 396. Indeed, different physicians
ascribe different percentile chances of survival outside the womb
to the term "viability." See id. at 396, n.l5 (testimony of
physicians that statistical chance of survival must be "certainly
at least two to three percent~" "ten percent or better~"
selection of "particular percentage figure" is "misleading").
Assuming, arguendo, that a state may adopt an "objective"
statutory definition of viability, Fenwick's characterization of
a viable fetus as a fetus weighing 500 grams or more injects
state regulation into abortion decisions involving an
10
"meaningful life" is so statistically slight that they cannot
reasonably be termed viable. Consequently, no "compelling" basis
exists for the Commonwealth's' intervention in decisions affecting
this group of fetuses.
That some fetuses at, or even below, a specified weight
might survive if born alive, See, e.g., Fenwick Reproductive
Health Care Center, Inc. v. Hunter, No. 86-75, slip op., Appendix
lB. (R.ll) (citing case of 440 gram premature infant which
survived), cannot justify setting an arbitrary weight-based
benchmark of fetal viability. The Commonwealth may not "carve[]
out a new time period during pregnancy when there is a remote
possibility of fetal survival outside the womb, but the fetus has
not yet attained the reasonable likelihood of survival that
physicians associate with viability." Colautti, 439 U.S. at 393.
By statutorily fixing an unreasonably low and unrealistic
weight standard for the determination of fetal viability, Fenwick
has trespassed in that "undefined penumbral or 'gray' area prior
to the stage of viability." Colautti, 439 U.S. at 391. This,
Roe v. Wade forbids. State limitations on a woman's choice
between abortion and childbirth, prior to the time when the fetus
is viable, transgress the woman's fundamental right to make that
decision privately and without state interference. Roe, 410 u.s. -
at 163. F.G.S. Art. XL, sec. 40.20 and 40.21, are therefore
unconstitutional for lack of the compelling governmental interest
required by Roe.
11
2. The Fenwick Abortion Statute Violates A Pregnant Woman's Constitutional Right To Choose An Abortion Because It Is Not Carefully Tailored To Avoid Unjustified Interference With Her Protected Right.
The principle that state regulation which inhibits the
exercise of a fundamental right must be "narrowly drawn to
express only the legitimate state interests at stake," Roe v.
Wade, 410 U.S. at 155, requires invalidation of Fenwick's weight-
based statutory definition of viability. This Court addressed
the possibility that a state would define a viable fetus in this
manner in Colautti v. Franklin, 439 u.s. at 388-389, saying:
Viability is reached when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus' sustained survival outside the womb, with or without artificial support. Because this point may differ with each pregnancy, neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability-­ be it weeks of gestation or fetal weight or any other single--as the determinant of when the State has a compelling interest in the life or health of the fetus."
(Emphasis added.)
importance of the privacy interest at issue, underlay the Court's
admonition. A doctor's judgment that a particular fetus is or is
not viable rests upon consideration of several factors, including
gestational age, fetal weight, the woman's health, and the
quality of available medical facilities. Id. at 395-396. The
determination is both problematical and situation specific. Id.
at 396.
weighed against the pregnant woman's right to control her own
12
character of this liberty interest:
Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman's decision-~with the guidance of her physician and within the limits specified in Roe--whether to end her pregnancy."
Thornburg v. American College of Obstetricians and Gynecologists,
54 u.s.L.w. at 4625.
Regardless of the mean chance of survival for fetuses in a
particular intrauterine weight class, there will always be some
fetuses whose chance of survival is, in fact, below the mean,
even substantially so. Indeed, Fenwick's legislature clearly
realized that its definition of viability would outlaw the
abortion of some non-viable fetuses. See Fenwick Reproductive
Health Care Center, Inc. v. Hunter, No. 86-75, slip op., Appendix
lB. (R.l3-14) Fenwick's establishment of a fixed-weight
measure of viability, applicable to all pregnancies, thus denies
an attending physician "the room he needs to make his best
medical judgment," Doe v. Bolton, 410 u.s. 179, 192 (1973), and
prevents some indeterminate number of women who bear non-viable
fetuses from freely exercising their right to end their
pregnancies.
Roe and its progeny forbid the statutory implementation of a
rigid, "bright-line" formula for viability. Because the
Commonwealth of Fenwick has adopted just such an inflexible
definition of viability, the Commonwealth's abortion statute
violates the fundamental precept that regulations burdening the
13
decision whether to bear or beget a child must be narrowly drawn.
Carey v. Population Services International, 431 U.S. at 686.
F.G.S. Art. XL, sec. 40.20 and 40.21, thus violate the due
process clause of the fourteenth amendment.
II. THE INTERPRETATION OF F.G.S. ART. XXX, SEC. 30.03 SO AS TO CHARACTERIZE VIABLE FETUSES AS "HUMAN BEINGS," IN LIGHT OF THE AMENDMENT TO F.G.S. ART. II, SEC. 2.49, VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.
On February 15, 1986, an amendment to Art. II, sec. 2.49
(sec. 2.49) of the Fenwick General Statutes changed the statutory
definition of "person." Section 2.49 reads:
The term "person" includes all individuals who have attained fetal viability or any other more mature level of development. "Fetal viability" means that the fetus has a reasonable likelihood of sustained survival outside the womb, with or without artificial aid.
Also, Fenwick's murder statute says, "Murder is the actual and
intentional killing of a human being." F.G.S. Art. XXX, sec.
30.03 (sec. 30.03).
The Commonwealth contends that if someone performs an
abortion on a viable fetus under sec. 2.49 then he is guilty of
killing a "human being" under sec. 30.03. Dr. Carter and the
Health Center maintain that the combined effect of sections 2.49
and 30.03 is unconstitutional on due process/vagueness grounds.
The due process clause of the fourteenth amendment says:
"[N]or shall any State deprive any person of life, liberty, or
property, without due process of law." Traditional due process
jurisprudence consists of a two-part threshold test (whether the
action in question is state action; and whether the controversy
involves a "life," "liberty," or "property" interest), and an
14
analysis of what process is due. The Court must apply this
analysis to the statutory interpretation in the case at bar.
A. Section 2.49 And Its Application Under Sec. 30.03 Constitute State Action.
In order for the fourteenth amendment due process clause to
apply to a deprivation of life, liberty, or property, the
deprivation must be the effect of state action. The Civil Rights
Cases, 109 u.s. 3, 13 (1883). Since the fourteenth amendment
applies only to state action, this Court must decide whether the
Commonwealth's application of sections 2.49 and 30.03 constitutes
state action.
is legislative, executive, or judicial action, or a combination
of the three. The particular classification is unimportant for
this inquiry because any action that is legislative, executive,
or judicial is state action: "A state acts through its
legislative, its executive, or its judicial authorities. It can
act in no other way." Ex Parte Virginia, 100 u.s. 339, 347
(1879). Therefore, the Commonwealth's construction of the
combined effect of sections 2.49 and 30.03 is state action.
B. The Combined Effect Of The Commonwealth's Construction Of Sec. 2.49 And Sec. 30.03 Concerns A "Liberty" Interest.
For this Court to have power to scrutinize state action
under the due process clause, the state action must also involve
the deprivation of a "life," "liberty," or "property" interest.
Therefore, the Court must also decide whether prosecution under
section 2.49 and 30.03 concerns a "life," "liberty," or
15
This Court has held on several occasions that the fourteenth
amendment liberty interest includes freedom from bodily restraint
and punishment. Ingraham v. Wright, 430 U.S. 651 (1976); Rochin
v. California, 342 u.s. 165 (1952). The Court found due
process/liberty interests in a case involving state punishment
and restraint as minor as the spanking of mischievous high school
students. Ingraham, 430 U.S. at 674. In the case at bar, the
state punishment and restraint for murder involves at least a
prison term. (Supplemental record.) Therefore, this case
concerns deprivation of a liberty interest that the fourteenth
amendment due process clause protects.
c. Characterizing A Viable Fetus Under Sec. 2.49, As A "Human Being" Under · Sec. 30.03, Is Unconstitutionally Vague.
In a fourteenth amendment due process case, the Court must
determine what process is due, given the facts of the particular
case. To comply with due process requirements, a statute must
supply notice and an opportunity for a fair hearing by a court of
competent jurisdiction. Kennard v. Louisiana, 92 U.S. 480
(1875}. Thus, the Court's inquiry in a due process challenge of
a statutory scheme is whether that scheme fails to provide
adequate notice and a fair hearing by a court of competent
jurisdiction.
In the case at bar, Dr. Carter and the Health Center
challenge the Commonwealth's characterization of a viable fetus
as a "human being" on vagueness grounds. As such, Dr. Carter and
16
survives for consideration by this Court is whether the above
characterization fails to provide sufficient notice.
In resolving the notice issue, the Court must analyze the
definition of "notice" in a criminal statutory-vagueness context.
"Notice" requires that a statute inform citizens that specified
action is a crime before they take such action so they can order
their affairs according to the duties the law places on them.
Connally v. General Construction, 269 u.s. 385 (1925).
The question before the Court now is even more specific:
Whether the Commonwealth, in defining "person" to include a
viable fetus, failed to inform citizens that aborting a viable
fetus constituted murder of a "human being." Dr. Carter and the
Health Center contend that the Commonwealth failed.
Section 30.03 is a criminal statute. Therefore, in
construing the combined effect of sections 30.03 and 2. 49, this
Court must employ the highest and strictest standards of
construction in judging the statutes' ambiguity:
The rule that penal laws are to be construed strictly, is, perhaps, not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislature, not in the judicial department. It is the legislature, not the court which is to define a crime, and ordain its punishment.
U. S. v. Wiltberger, 4 U.S. (5 Wheat.) 574, 575-76 (1820).
1. Characterizing "Person" Under Sec. 2.49 As A "Human Being" Under Sec. 30.03 Does Not Give Reasonable Notice That Aborting A Viable Fetus Is Murder.
17
The legislature of Fenwick created a statutory scheme (Art.
XL, sections 40.20-40.23) forbidding the abortion of a viable
fetus, and providing for the punishment of one who violates the
scheme. The Commonwealth now contends, however, that it can
create a new offense--murder--out of the same facts by construing
sec. 2.49 to say that a fetus is a "human being" without any
legislative direction to do so. This is the basis on which the
court of appeals below ruled in favor of Dr. Carter and the
Health Center. Fenwick Reproductive Health Center v. Hunter, No.
86-110, slip op. at 2-3 (13th Cir. April 12, 1986).
At common law, neither the term "person" nor "human being"
included fetuses. Green v. Stanton, 451 F. Supp. 567 (N~D. Ind.
1978) (under Indiana law, unborn not a "person"); State v. So to,
378 N.W.2d 625 (Minn. 1985) (fetus not a "human being"); Duncan
v. Flynn, 358 So. 2d 178 (Fla. 1978) (fetus not a "person");
Keeler v. Amador, 2 Cal. 3d 619, 470 P.2d 617 (1970) (fetus not a
"human being"). The Fenwick legislature broke with the common
law, and statutorily changed the legal definition of "person" to
include a viable fetus. Sec. 2.49. Yet, the Fenwick legislature
enacted the murder statute (sec. 30.03) before it amended sec.
2.49. ( Supp. record.) Therefore, the legislature adopted the
common-law definition of "human being" in the murder statute.
See Connally, 269 u.s. at 391. The statutory definiton of
"person" in sec. 2.49 is, thus, not the same as the common-law
meaning of "human being" in sec. 30.03.
In order to uphold a statute against a due process/vagueness
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challenge, the Court must find that the statute is "so precise
and unambiguous that the ordinary person can know how to avoid
unlawful conduct • " u. s. v. Sullivan, 332 U.S. 689, 693
(1947). The Court in Sullivan went on to say, "[I]n determining
whether such statutes meet that test, they should be given their
fair meaning in accord with the intent of [the legislature]."
Id. at 694 (emphasis added).
When the legislature enacted sec. 30.03, it was undoubtedly
aware that the common-law meaning of "human being" did not
include a viable fetus. The Commonwealth is now asking this
Court to amend Fenwick's murder statute by construction so that
the class it protects--"human beings"--includes viable fetuses.
This, the Court may not do: "Crimes are not to be created by
inference. They may not be constructed~ pro tunc." U. S. v.
Laub, 385 U.S. 475, 487 (1966). Therefore, defining "human
being," under sec. 30.03, to include viable fetuses violates the
due process clause of the fourteenth amendment.
2. Even If Sections 2.49 And 30.03 Together Provide Adequate Notice That A Viable Fetus, As Defined In The Statute, Is A "Human Being," Sec. 2.49 Does Not Adequately Define "Fetal Viablity."
Section 2.49 defines an individual who has attained "fetal
viability" as a "person." The section also defines fetal
viability as the state of a fetus which "has a reasonable
likelihood of sustained survival" after birth. Dr. Carter and
the Health Center contend that the legislature did not define
"fetal viability" with adequate certainty, therefore making the
term "person" unconstitutionally vague with respect to abortion.
19
F.G.S. Art. XL, sec. 40.21 provides a definition of "fetal
viability": "For the purposes of this Article a fetus is viable
if its fetal weight is equal to or greater than 500 grams."
(Emphasis added.) However, this definition--by its very terms-­
applies only to Article XL of the Fenwick Code. The murder
statute (sec. 30.03) is in Article XXX. The sec. 2.49 definition
of "fetal viability" is in Article II. Therefore, this Court
must examine the definition of "fetal viability" as to sections
2.49 and 30.03 independently of the definition of "fetal
viability" in Art. XL, sec. 40.21.
This Court has held that if a statute defines a crime in
terms that are not sufficiently certain, then the statute
impermissibly delegates legisiative power to courts and juries.
U. s. v. Cohen Grocery, 255 U.S. 81, 89 (1920) (construing
federal statute in respect of fifth amendment due process
clause). An impermissible delegation occurs when a statute
employs pliable and ambiguous words. Id. In Cohen Grocery, the
Court found that the phrase "unreasonable and unjust" price for
sugar, was unconstitutionally vague. Id.
In the case at bar, the sec. 2.49 definition of fetal
viability as "reasonable likelihood of sustained survival"
invites juries to base their determination of fetal viability on
speculation or morality. Under the sec. 2.49 definition of fetal
viability, no doctor can perform any abortion and feel confident
that no jury would find that he terminated a fetus that had a
"reasonable likelihood of sustained survival" after birth. See
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U. s. v. Powell, 423 U.S. 87, 93 (1975). Therefore, even if
sections 2.49 and 30.03 provide adequate notice that a viable
fetus, as defined in the statute, is a "human being," the sec.
2.49 definition of "fetal viability" is constitutionally vague.
CONCLUSION
F.G.S. Art. XL, sections 40.20 and 40.21 unconstitutionally
impinge on a woman's right to decide whether to terminate her
pregnancy, and (2) the interpretation of F.G.S. Art. II, . sec.
2.49 and Art. XXX, sec. 30.03 to characterize a viable fetus as a
"human being" under Fenwick's murder statute is
unconstitutionally vague. Therefore, Respondents ask this Court
to affirm the court of appeals below.
Respectfully submitted,
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