WILLIAM L. WEBSTER, ET AL., APPELLANTS V. REPRODUCTIVE HEALTH SERVICES, ET AL. No. 88-605 In the Supreme Court of the United States October Term, 1988 On Appeal From The United States Court Of Appeals For The Eighth Circuit Brief For The United States As Amicus Curiae Supporting Appellants TABLE OF CONTENTS Interest of the United States Statement Discussion Conclusion INTEREST OF THE UNITED STATES The court of appeals in this case struck down provisions of a Missouri statute that forbid, inter alia, the expenditure of public funds "for the purpose of encouraging or counseling a woman to have an abortion not necessary to save her life" (Mo. Ann. Stat. Section 188.205) and the use of public employees and public facilities "for the purpose of performing or assisting an abortion not necessary to save the life of the mother" (Sections 188.210, 188.215). The United States has placed similar restrictions on the use of public funds and certain publicly-funded programs. See, e.g., The Adolescent Family Life Act of 1981, 42 U.S.C. 300z-10(a); Title X of the Public Health Services Act of 1970, 42 U.S.C. 300a-6; 53 Fed. Reg. 2945 (1988) (to be codified in 42 C.F.R. 59.8(a)(1)). The United States therefore has a direct and substantial interest in the disposition of this case. STATEMENT In 1986, the State of Missouri passed a statute regulating abortions. The first section of the statute contains a general "finding" by the state legislature that "(t)he life of each human being begins at conception," and a requirement that all state laws be interpreted to provide unborn children with all the rights of other persons "subject only to the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court" (Mo. Stat. Ann. Section 1.205.1-2). Among its various other provisions, the statute requires that, prior to performing an abortion on any woman whom a doctor has reason to believe is twenty or more weeks pregnant, the doctor must determine whether the fetus is viable by performing "such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child" (Section 188.029). The statute also provides that no public funds, employees or facilities are to be used for the purpose of "performing or assisting" an abortion or for "encouraging or counseling" a woman to have an abortion (Sections 188.205, 188.210, 188.215). Five publicly-employed doctors and nurses and two nonprofit corporations brought a class action challenging the constitutionality of these and other provisions of the Missouri statute. The district court struck down the provisions (J.S. App. A1-A55) and the court of appeals affirmed (id. at A56-A84). The court of appeals concluded (id. at A59-A60) that the requirement that doctors perform viability tests is an unconstitutional legislative intrusion on a matter of medical skill and judgment. The court also struck down (id. at A64) Missouri's declaration that life begins at conception on the grounds that "the statute is simply an impermissible state adoption of a theory of when life begins to justify its abortion regulations." The court of appeals rejected (ibid.) Missouri's reliance on the declaration's caveat requiring compatibility with the Constitution and Supreme Court precedent on the grounds that a mere recitation of the Supremacy Clause "cannot * * * validate state laws that are in fact incompatible with the constitution." /1/ The court of appeals struck down Missouri's ban on the use of public funds for "encouraging or counseling a woman to have an abortion not necessary to save her life" (Mo. Ann. Stat. Section 188.205) as both void for vagueness and as violating the right to abortion guaranteed by Roe v. Wade, 410 U.S. 113 (1973). /2/ "(T)he statute is vague," the court stated (J.S. App. A68), "because the word 'counsel' is fraught with ambiguity; its range is incapable of objective measurement." Furthermore, the court held (id. at A70), the prohibition "is an unacceptable infringement of the woman's fourteenth amendment right to choose an abortion after receiving the medical information necessary to exercise the right knowingly and intelligently." The court rejected as "completely inapt" (id. at A72) the analogy drawn by the State of Missouri between its ban on the use of public funds to encourage or counsel abortions and the bans on the use of public funds to perform or assist abortions upheld in Harris v. McRae, 448 U.S. 297 (1980), and Maher v. Roe, 432 U.S. 464 (1977). "Missouri," the court contended (J.S. App. A72), "is not simply declining to fund abortions when it forbids its doctors to encourage or counsel women to have abortions. Instead, it is erecting an obstacle in the path of women seeking full and uncensored medical advice about alternatives to childbirth." The court of appeals also struck down Missouri's prohibition on the use of public facilities and public employees acting within the scope of their employment "to perform or assist an abortion not necessary to save the life of the mother." Mo. Stat. Ann. Sections 188.210, 188.215. The court distinguished this Court's cases holding that the government need not provide funding for elective abortions on the grounds that "'(t)here is a fundamental difference between providing direct funding to effect the abortion decision and allowing staff physicians to perform abortions at an existing publicly owned hospital.' " J.S. App. A75 (quoting Nyberg v. City of Virginia, 667 F.2d 754, 758 (8th Cir. 1982), appeal dismissed, cert. denied, 462 U.S. 1125 (1983)). The court noted (J.S. App. A79) that all of the public facilities' costs in providing abortion services, including the costs of employees' services, are recouped when the patient pays. Hence, the court stated (id. at A75), the question at issue is not whether the state is required to fund abortions but whether "the state creates an undue burden or obstacle to the free exercise of the right to choose an abortion" when it prohibits the use of public facilities and public employees to perform or assist abortions. With respect to the ban on the use of public facilities, the court stated (J.S. App. A76) that "such a prohibition could prevent a woman's chosen doctor from performing an abortion because of his unprivileged status at other hospitals or because a private hospital adopted a similar anti-abortion stance. Such a rule could increase the cost of obtaining an abortion and delay the timing of it as well." With respect to the ban on using public employees to perform or assist abortions within the scope of their employment, the court stated (id. at A79) that "the state is declaring that even women who can afford abortions cannot obtain them through the assistance of public employees, for no other expressed reason than the state's desire to discourage abortions. This obstacle to exercise of the right to choose abortion cannot stand absent a compelling state interest; Missouri's desire to discourage abortions is not sufficient justification." Accordingly, the court struck down both prohibitions. DISCUSSION The State of Missouri appeals from a final judgment of the court of appeals striking down several sections of a Missouri statute, including provisions that forbid the expenditure of public funds "for the purpose of encouraging or counseling a woman to have an abortion not necessary to save her life" (Mo. Ann. Stat. Section 188.205) and the use of public employees and public facilities "for the purpose of performing or assisting an abortion not necessary to save the life of the mother" (Sections 188.210, 188.215). /3/ Since the court of appeals issued a final judgment holding these portions of the Missouri statute "to be invalid as repugnant to the Constitution * * * of the United States" (28 U.S.C. 1254(2)), this case properly falls within the Court's appellate jurisdiction. /4/ The federal questions presented by this case are substantial and should not be resolved by the Court without plenary consideration. Accordingly, probable jurisdiction should be noted. 1. Missouri's prohibition on the use of public funds to encourage or counsel a woman to have an abortion not necessary to save her life is not unconstitutionally vague. This Court has stressed that civil statutes are not to be held to the same standards of precision as criminal statutes, Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-499 (1982), and Missouri's prohibition on the use of public funds does not impose any criminal penalties and can only be enforced by injunctive action. See J.S. 3; Mo. Stat. Ann. Section 188.220. Furthermore, the statute is "not so vague that 'men of common intelligence must necessarily guess at its meaning.' " Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973) (citation omitted). As the State of Missouri explains (J.S. 25), the statute "does not prohibit the use of public funds to provide information regarding abortions or to inform a woman of the options she may have to cope with an unwanted pregnancy." Rather, the statute only forbids the use of public funds for "encouraging or counseling a woman to have an abortion" (Mo. Stat. Ann. Section 188.205 (emphasis added)). In other words, the statute prohibits the use of public funds for advising a particular woman that she should have an abortion not necessary to save her life. "(A)lthough (that prohibition) may not satisfy those intent on finding fault at any cost, (it is) set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with." CSC v. Letter Carriers, 413 U.S. 548, 579 (1973). The court of appeals was also mistaken in holding that the Missouri statute violates the right of pregnant women to have an abortion. Missouri has merely declined to encourage abortions in any respect, and this Court has already held that the states are not precluded from making "a value judgment favoring childbirth over abortion, and * * * implement(ing) that judgment by the allocation of public funds." Mather v. Roe, 432 U.S. at 474. The court of appeals stated (J.S. App. A72) that Missouri is impermissibly "erecting an obstacle in the path of women seeking full and uncensored medical advice about alternatives to childbirth." The State, however, has simply chosen itself not to advise women to have abortions not necessary to save their lives. Women are still free to make a contrary choice and to seek out medical advice consonant with their decision. But the State will not, and need not, pay for that advice. "There is a basic difference," this Court has noted (Maher v. Roe, 432 U.S. at 475), "between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy." The decision below conflicts in these respects with the decision of the Ninth Circuit in Planned Perenthood v. Arizona, 718 F.2d 938 (1983), appeal after remand, 789 F.2d 1348, aff'd, 479 U.S. 925 (1986). At issue in that case was an Arizona statute providing that "(n)o state money may be spent * * * by contract, grant or otherwise, on abortions, abortion procedures, counseling for abortion procedures or abortion referrals" (718 F.2d at 942 n.1) /5/ The Ninth Circuit held (id. at 946-949) that the prohibition on the use of state of funds for "counsling for abortion procedures" was not unconstitutionally vague. The court further held (id. at 944) that, although "the Statement of Arizona may not unreasonably interfere with the right of Planned Parenthood to engage in abortion or abortion-related speech activities, * * * the State need not support, monetarily or otherwise, those activities." In light of this conflict and the considerations noted above, Question Four of the State of Missouri's Jurisdictional Statement presents a substantial federal question. 2. The court of appeals' conclusion (J.S. App. A79) that Missouri's prohibition on the use of public facilities and public employees to perform or assist abortions must be supported by a "compelling state interest" runs directly counter to this Court's statement that it is "abundantly clear that a State is not required to show a compelling interest for its policy choice to favor normal childbirth" (Maher v. Roe, 432 U.S. at 477). In essence, the court of appeals has held that the Constitution compels Missouri to go into the abortion business provided only that Missouri can break even or turn a profit doing so. This Court has stressed (id. at 474), however, that a woman's "freedom to decide whether to terminate her pregnancy * * * implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds." The same principle applies when the State chooses to implement its value judgment by the allocation of public facilities and the services of public employees. Thus, in Poelker v. Doe, 432 U.S. 519, 521 (1977) (per curiam), the Court upheld a city's prohibition on the performance of abortions in city hospitals noting that "the constitutional question presented here is identical in principle with that presented by a State's refusal to provide Medicaid benefits for abortions while providing them for childbirth." /6/ In light of this conflict with Poelker v. Doe, Questions Five and Six of the State of Missouri's Jurisdictional Statement also present substantial federal questions. 3. Title X of the Public Health Services Act of 1970, 42 U.S.C. 300 et seq., authorizes the federal government to make grants to public and private nonprofit entities to establish and operate family planning projects. Section 1008 of the Act expressly states that "(n)one of the funds appropriated under this (title) shall be used in programs where abortion is a method of family planning" (42 U.S.C. 300a-6). In 1988, the Department of Health and Human Services passed regulations setting standards for compliance by family planning programs with Section 1008. See 53 Fed. Reg. 2922 (1988). Under those regulations, both "counseling concerning the use of abortion as a method of family planning" and "referral for abortion as a method of family planning" are forbidden. 53 Fed. Reg. 2945 (1988) (to be codified in 42 C.F.R. 59.8(a)(1)). /7/ The Adolescent Family Life Act of 1981 (AFLA), 42 U.S.C. 300z et seq., authorizes federal funds to support demonstration projects designed to discourage adolescent pregnancy and to provide care for pregnant adolescents. The AFLA restricts the awarding of grants to "programs or projects which do not provide abortions or abortion counseling or referral" (42 U.S.C. 300z-10(a)). /8/ Both programs, thus, forbid any award of funds to programs that perform or counsel abortions. Title X and AFLA programs accepting federal funds may not perform or counsel abortions even if those services are fully paid for by the client or by nonfederal funds obtained from other sources. /9/ A summary affirmance of this case, or a dismissal of the State's appeal for want of a substantial federal question, would thus cast doubt on the constitutionality of both the Adolescent Family Life Act and Title X and its implementing regulations. These federal programs should not be so impaired without full consideration by this Court of the underlying constitutional issues. 4. Question Seven of the State of Missour's Jurisdictional Statement asks this Court to reconsider, and upon reconsideration to overrule, its decision in Roe v. Wade, supra. The United States has stated its views on this issue in our brief as Amicus Curiae in Thornburgh v. American College of Obstetricians and Gynecologists, Nos. 84-495 and 84-1379. /10/ We note that this case is free of procedural defects and implicates a number of the legislative choices foreclosed by Roe v. Wade. Accordingly, if the Court is prepared to reconsider Roe v. Wade, this case presents an appropriate opportunity for doing so. CONCLUSION Probable jurisdiction should be noted. Respectfully submitted. CHARLES FRIED Solicitor General DONALD B. AYER Deputy Solicitor General MICHAEL K. KELLOGG Assistant to the Solicitor General NOVEMBER 1988 /1/ Judge Arnold dissented (J.A. App. A83-A84) from this aspect of the decision below, contending that Missouri's declaration of when life begins should be upheld "insofar as it relates to subjects other than abortion," such as "creating causes of action against persons other than the mother" for wrongful death or bringing fetuses within the protection of the criminal law. /2/ The court of appeals also struck down the related provisions forbidding any public employee within the scope of his public employment to encourage or counsel a woman to have an abortion not necessary to save her life and forbidding the use of any public facilities for that purpose. See Mo. Stat. Ann. Sections 188.215, 188.220. The State of Missouri has not appealed from those aspects of the judgment below. /3/ The United States does not have statutes or regulations implicated by the issues raised in Questions One, Two, or Three of the Questions Presented by the State of Missouri in its Jurisdictional Statement. We do not address those issues at this time. /4/ Although Section 1254(2) was repealed by Pub. L. No. 100-352, Section 2(a), 102 Stat. 662, which was signed by the President on June 27, 1988, the repeal did not take effect until September 25, 1988 (Section 7, 102 Stat. 664), and does "not * * * affect the right to review or the manner of reviewing the judgment or decree of a court which was entered before such effective date" (ibid.). The judgment of the court of appeals in this case was entered on July 13, 1988 (see J.S. App. A56). /5/ Another provision in the same statute had the effect of precluding an entire organization from receiving state funds if even one of its programs provided abortion-related services through the use of non-governmental funds (718 F.2d at 941 n.1). Following a remand for further factfinding, the Ninth Circuit struck down this provision as an unconstitutional penalty on protected activity. 789 F.2d 1348 (1983). This Court summarily affirmed, although three Justices would have noted probable jurisdiction and set the case for oral argument. 479 U.S. 925 (1986). No provision similar to the second provision in the Arizona statute is at issue in this case. /6/ The suit in Poelker v. Doe was filed by an indigent who could not afford to pay for her abortion. The prohibition at issue in that case, however, applied whether or not the pregnant woman was able to pay. 432 U.S. at 520; id. at 524 (Brennan J., dissenting). /7/ The constitutionality of the Title X regulations is currently before three courts of appeals. The regulations have been permanently enjoined by two district courts. Massachusetts v. Bowen, 679 F. Supp. 137 (D. Mass. 1988), appeal pending, No. 88-1279 (1st Cir.); Planned Parenthood Federation v. Bowen, 680 F. Supp. 1465 (D. Colo. 1988), appeal pending, No. 88-2251 (10th Cir.). They have been upheld by one district court. New York v. Bowen, No. 88-701 (S.D.N.Y. June 30, 1988), appeal pending, No. 88-6204 (2d Cir.). /8/ The constitutionality of the funding provisions of the Adolescent Family Life Act was recently upheld against a facial attack under the Establishment Clause in Bowen v. Kendrick, No. 87-253 (June 29, 1988). /9/ These restrictions, however, apply only within the Title X or AFLA program itself. They do not apply to separate programs that may be related to the Title X and AFLA programs through a parent organization. Compare n.5, supra. /10/ We attach a copy of our brief in Thornburgh for the convenience of the Court and the parties.