Oyez: Planned Parenthood v. Casey, 505 U.S. 833 (1992), U.S. Supreme Court Oral Argument

KENNETH W. STARR, ESQ., Solicitor General, Department of Justice,Washington, D.C.; on behalf of the United States as amicus Curiae,supporting Casey, et al.

{MARSHAL OF THE COURT: The Honorable Chief Justice and the AssociateJustices of the Supreme Court of the United States. Oyez oyez oyez.

All persons having business before the honorable, the Supreme Court of theUnited States, are admonished to draw near and give their attention, forthe Court is now sitting. God save the United States and this honorableCourt.}

CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument {now} in No.91-744, Planned Parenthood of Southeastern Pennsylvania v. Robert P. Casey;91-902, Robert P. Casey v. Planned Parenthood of Southeastern Pennsylvania.Ms. Kolbert.

ORAL ARGUMENT OF KATHRYN KOLBERT ON BEHALF OF THE PETITIONERS

MS. KOLBERT: Mr. Chief Justice{,} and may it please the Court:

Whether our Constitution endows Government with the power to force a womanto continue or to end a pregnancy against her will is the central questionin this case.

Since this Court's decision in Roe v. Wade, a generation of American womenhave come of age secure in the knowledge that the Constitution provides thehighest level of protection for their child-bearing decisions.

This landmark decision, which necessarily and logically flows from acentury of this Court's jurisprudence, not only protects rights of bodilyintegrity and autonomy, but has enabled millions of women to participatefully and equally in society.

The genius of Roe and the Constitution is that it fully protects rights offundamental importance. Government may not chip away at fundamental rights,nor make them selectively available only to the most privileged women.

If the right to choose abortion remains fundamental as established in Roev. Wade, the strict scrutiny standard is applicable, and as this Courtfound in Akron and in Thornburgh, Pennsylvania's onerous restrictions mustfall.

Should this Court abandon strict scrutiny, as urged by the Commonwealth andthe Solicitor, not only might Pennsylvania's egregious intrusions onprivacy stand{,} and a century of this Court's privacy decisions may alsobe dismantled. Equally disturbing, should this Court remove fundamentalprotection for the abortion right, women might again be forced to the backalleys for their medical care{,} with grave consequences for their livesand health.

The Commonwealth argues that this Court may overrule Akron and Thornburghand abandon strict scrutiny and nevertheless preserve Roe's centralmeaning. While politically expedient, this view is certainly not based uponthis Court's privacy jurisprudence. Every other brief filed in this caseagrees that the protection offered by Roe's heightened scrutiny lies at thecore of this important decision. To abandon heightened review is tooverrule Roe.

This Court has repeatedly held that the doctrine of stare decisis is offundamental importance to the rule of law. Fidelity to precedent ensuresthat our law will develop in a principled and intelligible fashion, andthat our guiding rules are founded in law rather than in the proclivitiesof individuals. Accordingly, this Court has established that departure fromprecedent must be supported by some special justification, but no specialjustification exists here.

Only {nine} years ago in Akron, this Court invoked the doctrine of staredecisis and expressly reaffirmed Roe v. Wade. Only {three} years later, inThornburgh, a case that is virtually identical to that before this Courttoday, this Court again found especially compelling reasons to reaffirm Roeand to find Pennsylvania law unconstitutional under the standard of strictscrutiny.

Nothing has changed since that time. Indeed, millions of women continue torely on the fundamental rights guaranteed in Roe v. Wade. The medicalconditions that led this Court to create and establish these fundamentalrights remain the same. This case, the statute, the parties, are nearlyidentical to those in Thornburgh.

Never before has this Court bestowed{, then} taken back a fundamental rightthat has been part of the settled rights and expectations of literallymillions of Americans for nearly two decades. To regress now by permittingStates suddenly to impose burdensome regulations, or to criminalizeconduct, would be incompatible with any notion of principled constitutionaldecision-making.

Roe is both soundly based in the Constitution and sets forth a fair andworkable standard of adjudication. From as early as 1891, this Court hasrecognized that the rights of autonomy, bodily integrity, and equality arecentral to our notions of ordered liberty. Roe lies at the heart of thoseinterests.

While pregnancy may be a blessed act when planned or wanted, forcedpregnancy, like any forced bodily invasion, is anathema to American valuesand traditions. In the same way that it would be unacceptable forGovernment to force a man or a woman to donate bone marrow, or to compelthe contribution of a kidney to another, or to compel women to undergoabortion or forced sterilization, our Constitution protects women againstforced pregnancy. If anything, because forced pregnancy will jeopardize awoman's life or health, the constitutional protections ought to be greater.

The Solicitor tries to draw a distinction between constitutional protectionagainst forced abortion, which he agrees is fundamental, and constitutionalprotection against forced pregnancy, which he maligns, but once this Courtremoves fundamental status from the abortion right, there is no logicalstopping point.

Fundamental status for all reproductive rights, decisions about birthcontrol, pregnancy, sterilization, even high technology aroundreproduction, may also be jeopardized. Particularly where there is nobright line between abortion and some methods of birth control, thefundamental right both to prevent pregnancy and to end pregnancy may be atstake.

Our Nation's history and tradition also respects the autonomy ofindividuals to make life{-}choices consistent with their own moral andconscientious beliefs. Our Constitution has long recognized an individual'sright to make private and intimate decisions about marriage and familylife, the upbringing of children, the ability to use contraception. Thedecision to terminate a pregnancy or to carry it to term is no different inkind.

Both the Solicitor and some Commonwealth amici argue that the Constitutiononly protects private decision-making within families. It is true that therights of privacy have been recognized in the familial context. Forexample, in Griswold{,} the Court found unconstitutional the Connecticutstatute that prohibited married persons from using birth control{,} and inLoving{,} this Court found invalid a Virginia statute that prohibited themarriage of interracial couples.

Nevertheless, this Court has never limited the notions of privacyrecognized in these cases as only arising or belonging to married couples.Indeed, in Eisenstadt and in Carey{,} this Court specifically rejected thisview.

Nor can this Court alter its historic recognition of privacy and deny womenfundamental freedoms because, as the Solicitor argues, the woman is notisolated in her privacy. Surely{,} if the Government cannot requireindividuals to sacrifice their lives or health for others or for othercompelling purposes, it cannot require women to sacrifice their lives andhealth to further the State's interest in potential life.

JUSTICE SANDRA DAY O'CONNOR: Ms. Kolbert, you're arguing the case as thoughall we have before us is whether to apply stare decisis and preserve Roe{against} Wade in all its aspects. Nevertheless, we granted certiorari onsome specific questions in this case. Do you plan to address any of thosein your argument?

MS. KOLBERT: Your Honor, I do. However, the central question in the case iswhat is the standard that this Court uses to evaluate the restrictions thatare at issue, and therefore one cannot --

JUSTICE O'CONNOR: Well, the standard may affect the outcome or it may not,but at bottom we still have to deal with specific issues, and I wondered ifyou were going to address them.

MS. KOLBERT: Yes, I am, Your Honor, and I would like in particular toaddress the husband notification provisions, but the standard that thisCourt applies will well establish the outcome in this case for a variety ofreasons.

This Court has already found that under the principles of Roe v. Wade thebulk of the Pennsylvania statute is unconstitutional. There is no questionthat this Court struck down as unconstitutional under strict scrutiny thebias counseling provisions and the 24-hour mandatory delay both inThornburgh and in Akron, the case in {1970 - '83}, and therefore this Courtmust examine first the question of what's the appropriate standard beforedetermining the constitutionality of those other provisions.

The Court cannot alter its historic recognition of privacy and deny womenfundamental freedoms, as I was speaking, because as the Solicitor argues,there is the presence of the fetus.

Surely, if the Government cannot require individuals to sacrifice theirlives or health for human beings who are born for other compellingpurposes, they cannot do so for purposes of {protection --} protectingpotential fetal life.

And if this Court is to reduce the presence of a constitutional rightmerely because of the presence of the fetus, other childbearing decisions,whether they be the right to carry the pregnancy to term or make otherchildbearing decisions will be particularly affected.

Particularly here, as this Court noted in Roe{,} where there is widespreaddisagreement in both a philosophical and a religious sense about when lifebegins, this Court cannot sanction one view to the detriment of women'slives and health; nor can the state of the law in 1868 define or determineconstitutional rights for all future generations.

This Court must look generally to whether a right is reflected in ourNation's history and traditions rather than at whether the activity wasillegal at the time of the adoption of the Fourteenth Amendment. Relyingexclusively on what 50 States have legislated in determining the scope ofliberty would imperil numerous freedoms{,} such as rights recognized bythis Court in Brown, Bolling, Griswold and Loving.

This Court has also recognized as --

JUSTICE ANTONIN SCALIA: Ms. Kolbert, on this last point, {I'm} not surewhat you suggest we look to. You say we should not look to what thepractice was in 1868. Should we look to what the practice was at the timeof Roe or what the practice is today? That is, what the States would do,left to their own devices?

MS. KOLBERT: Your Honor, I believe that you have to look very generally atwhether the Nation's history and tradition has respected interests ofbodily integrity and autonomy{,} and whether there has been a tradition ofrespect for equality of women. Those are the central and core values --

JUSTICE SCALIA: {But not - b}ut not to abortion in particular?

MS. KOLBERT: Well, this Court is -- if the Court was only to look atwhether abortion was illegal in 1868, that is at the time of the adoptionof the Fourteenth Amendment, it would be placed in a very difficultsituation because at the time of the founding of the Nation, at the timethat the Constitution was adopted, abortion was legal.

JUSTICE SCALIA: Pick 1968, I gather you wouldn't accept 1968 either{,} though.

MS. KOLBERT: Well, we think that the Court ought to look generally at theprinciples that this decision protects. That {ought to --} while it isimportant to look -- and I would not urge you to ignore the state of thelaw at different periods of our history, it is only one factor in a varietyof factors that this Court has to look to in determining whether or notsomething is fundamental.

And fundamental status in this instance derives from a history of thisCourt's acknowledgement and acceptance that private, autonomous decisionsmade by women in the privacy of their families ought to be respected andaccorded fundamental status.

Certainly, the anomalous posture of the fact that abortion was {ill - was}legal at the time of the founding of the Constitution and then illegal atthe time of the adoption of the Fourteenth Amendment would place this Courtin a very difficult position, that is, rights may be guaranteed under theFifth Amendment and not the Fourteenth, merely because only the exact stateof the law in 1868 is the factor that the Court accepts.

JUSTICE SCALIA: This is not an antiquarian argument {you're} making. {Imean, y}ou would have made the same argument in 1868. I think you wouldhave said the mere fact that most States disfavor abortion is nojustification for this Court's saying that it is not therefore includedwithin it. You would have made that same argument in 1868.

MS. KOLBERT: I would, and that is the argument that this Court has made inmany instances in rejecting exactly the state of the law prior to thegranting of fundamental status.

That is, this Court, if we were only to look at whether State legislaturesprohibited activity in determining whether or not an activity isfundamental, many of the most precious rights that we now have: rights totravel, rights to vote, rights to be free from racial segregation{,} wouldnot be accorded status because in fact, State legislators have acted toinhibit those rights at the time of the adoption of the FourteenthAmendment.

JUSTICE SCALIA: Some of those are mentioned in the Constitution{,} likeracial segregation.

MS. KOLBERT: Your Honor, this Court has recognized that the rights at issuehere, that is, the rights of privacy, the rights of autonomy{,} flow fromthe {L}iberty {C}lause of the Fourteenth Amendment which is also mentionedin the Constitution.

The debate centers on what is the meaning of that term liberty, and wethink that the precedence of this Court that began at the end of the 19thCentury and have proceeded from this Court to the very present, wouldlogically and necessarily include fundamental rights to decide whether tocarry a pregnancy to term or to terminate that pregnancy.

JUSTICE ANTHONY KENNEDY: I don't question the importance of your arguingthat there is a fundamental right, as {you've} done; however, there is afundamental right to speech{,} and we hear any number of arguments in thiscase on time, place and manner. I don't think our decision on parentalnotice in the Akron case is necessarily inconsistent with a fundamentalright.

But one way of our understanding this fundamental right{} and theirparameters, their dimensions{,} is to decide on a case-by-case basis, andyou have a number of specific provisions here that I think you shouldaddress.

MS. KOLBERT: The critical factor is whether, as a result of its fundamentalstatus, this Court will accord the standard of Roe, that is, strictscrutiny{,} because under that standard there is no dispute among theparties. Under that standard, the bias counseling provisions, the 24{-}hourmandatory delay{,} have been found unconstitutional, and significantly,this Court has also gone so far as to say that the husband consentrequirements, very similar to the husband notification requirements atissue in this case, have also been found unconstitutional --

JUSTICE KENNEDY: I am suggesting that our sustaining these statutoryprovisions does not necessarily undercut all of the holding of Roe v. Wade.

MS. KOLBERT: It is our position, Your Honor, that if this Court were tochange the standard of strict scrutiny, which has been the central core ofthat holding, that in fact, that will undercut the holdings of this Courtand effectively overrule Roe v. Wade.

To adopt a lesser standard, to abandon strict scrutiny for a lessprotective standard such as the undue burden test or the rationalrelationship test, which has been discussed by this Court on manyoccasions, would be the same as overruling Roe{,} for it is the beauty ofRoe, the protections of Roe flow from the fact that this Court gives, upona proof{,} that particular State regulations interfere with the right.

Roe establishes and creates a burden on Government to come forward with acompelling purpose.

JUSTICE KENNEDY: Well, if you are going to argue that Roe can survive onlyin its most rigid formulation, {that's} an election you can make ascounsel. {I'm} suggesting to you that {that's} not the only logicalpossibility in this case.

MS. KOLBERT: Our position is that Roe, in establishing a trimesterframework, in establishing strict scrutiny, and in also establishing thatthe rights of women and the health interests of women always take precedentover the State's interest in potential life.

Those hallmarks of Roe are central to this case, and are central tocontinuing recognition of the right as fundamental. Should the Courtabandon that {in a} --

JUSTICE O'CONNOR: But did the Court hold that, even after viability of thefetus in Roe?

MS. KOLBERT: What the Court - {what the Cour --}

JUSTICE O'CONNOR: Do you think that was a correct characterization of Roe'sholding that you just gave, that the woman's interest always {--}

{MS. KOLBERT: The wom --}

JUSTICE O'CONNOR: -- takes precedence?

Is that true under Roe, in the latter stages of pregnancy?

MS. KOLBERT: Your Honor, under Roe, after the point of viability, thatis{,} the point when the fetus is capable of survival, the State is free toprohibit abortion{,} but only so long as it is necessary, only so long asthe woman's health interests and life{-}interests are not at stake.

That is, potential fetal life is a recognized value, is a recognized Stateinterest after the point of viability; but when in conflict, when thewoman's health interest is in conflict with those State interests andpotential life, those {womens'} interest, the {womens'} interest{s} inhealth take precedent.

Now admittedly, the question of viability and the viability line is not aspresent in this case as it has been in many of the other cases that thisCourt has seen before here. That is, all of the restrictions that are {at}issue in Pennsylvania attach in pregnancy at the very beginning ofpregnancy, and therefore, the State's interest in protection of fetal lifereally does not {come} into play.

The real issue is whether or not these health interests, that is{,} whetheror not the State's interest{s} in protecting a compelling interest inhealth{,} are present. And frankly, this Court need only look to therecord, that is, need only look to the findings of the district court todetermine that this statute in no way furthers women's health interests.

That{,} in fact, what this statute does is cause a detriment to women'shealth, submit her to increased dangers as a result of delay, as a resultof interference with the doctor/patient relationship, as a result ofpermitting third parties who would injure individuals who are required togive husband notification, that those interests in health are not furtheredin any respect.

The Commonwealth attempts to {characterize} the restrictions at issue hereas reasonable. For the woman who as a result of mandatory husbandnotification provisions will be beaten, or will see her children beaten,the restrictions are not reasonable. For the woman who must travel 200miles on two and three occasions as a result of the act's mandatory delay,the restrictions are not reasonable. For the woman who has become pregnantas a result of marital rape, obtaining information from her doctor that herhusband may be liable for child support{,} is both cruel and oppressive.They are not reasonable.

To find these restrictions reasonable, this Court would have to ignore thefacts placed in evidence in this case{,} which demonstrate that therestrictions were not enacted to improve women's decision making or healthcare.

After listening to the testimony of ten witnesses, including thoseproffered by the Commonwealth, the district court made 387 findings of factand repeatedly concluded that the Pennsylvania restrictions will interferewith the ability of physicians to provide quality medical care{,} and willdelay and discourage the performance of abortion to further no legitimateState interest.

In particular, the lower court found that the mandatory husbandnotification provisions will have dangerous and potentially deadlyconsequences for battered women, likening force notification in a batteringsituation to providing the husband with a hammer with which to beat hiswife.

CHIEF JUSTICE REHNQUIST: Was the husband notification provision the onethat the court of appeals held unconstitutional?

MS. KOLBERT: It was, {Y}our {H}onor.

CHIEF JUSTICE REHNQUIST: And it upheld the balance of the act, is thatcorrect?

MS. KOLBERT: That's right.

The district court found, as well, that bias counseling provisionstransform the physician from the impartial counselor mandated by acceptedmedical standards into a partisan proponent of the State's ideology. Andmandatory delay will increase both the expense and medical dangers ofabortion, yet furthering no legitimate State purpose.

There is no serious contest about the effect of this law. Nor can there be,for under {R}ule 52{,} the district court's findings are not clearlyerroneous. Nor did the fact that this is a facial challenge requirepetitioners to prove that the statute cannot be constitutionally applied toany person.

This Court had repeatedly found statutes facially invalid after looking atfacts like those present here. For example{,} in Hodgson, this Court reliedextensively on district court findings to strike down Minnesota's twoparent notification statute with no bypass, despite the fact that thatstatute had never yet been in effect. The extensive record heredemonstrates that the harms are not speculative nor remote, nor is this aworst{-}case scenario.

The Court should not demand an unwanted child or a woman maimed by anillegal abortion as proof that strict scrutiny is applicable. Pennsylvaniawomen should not be the guinea pigs in the State's experiment withconstitutional law. To find otherwise would totally eviscerate the strictscrutiny standard of review, and would prevent Federal courts fromscrutinizing legislative findings, a central role in the process ofjudicial review.

Let me turn now to -- specifically to the husband notification provision.There is little doubt that these provisions violate the fundamental rightof privacy, marital integrity{,} and equality.

Beginning as early as Danforth, this Court recognized that a husband cannotarbitrarily veto the childbearing decisions of his wife.

Like the Missouri law at issue in Danforth, State{-}mandated communicationbetween husbands and wives violates the autonomy of married women to makepersonal and private decisions, particularly here where a married woman isoften the survivor of martial rape{,} and where the penalty fortransgressing her husband is likely to be physical violence against her orher family members. Government has the obligation to respect her privatedecisions{} not to involve her husband.

The solicitor dismisses the import of the State-imposed harm and believesor claims that the Constitution is not intended to remedy them. But thisapproach seriously ignores that women will be seriously maimed and thatharms will be invoked, and {it's} a callous disregard for their lives andhealth.

While it may be desireable for husbands and wives to share intimacies intheir daily life, {}concepts of this Court developed in the principles ofmarital integrity ensure that the Government cannot decree for thosecouples how that communication should occur. To decree and direct familylife is more destructive of family integrity than permitting families toresolve their differences on their own terms.

The husband notification provisions also violate principles of equality.These are provisions that apply to women and women alone. Imposednotification is -- gives a benefit only to men, and as such they violatethe dictates of the {E}qual {P}rotection {C}lause. The legislative schemethat assumes that husbands are capable and authorized to make allindependent decisions but wives are not, reflect an outmoded common lawview that women, once married, lost their legal identities to theirhusbands.

In the days before Roe, thousands of women lost their lives{,} and morewere subjected to physical and emotional scars from back{-}alley andself-induced abortions. Recognizing that, this Court established Roe andestablished fundamental protection for women's childbearing decisions.

We urge this Court to reaffirm those principles today, to adopt the rulingsof this Court in Akron and Thornburgh that used the Roe strict scrutinystandard, and affirm in part and reverse in part, the judgment of the courtof appeals.

I would like to reserve 3 minutes for rebuttal, if there's no furtherquestions from the court.

CHIEF JUSTICE REHNQUIST: Very well, Ms. Kolbert. General Preate, we'll hearfrom you.

ORAL ARGUMENT OF ERNEST D. PREATE, JR., ESQ.ON BEHALF OF ROBERT P.CASEY, ET AL.

MR. PREATE: Mr. Chief Justice{,} and may it please the Court:

This Court granted certiorari on the question of whether five sections ofour Pennsylvania Abortion Control Act are constitutional.

It is the position of Pennsylvania that each of the five provisions isconstitutional under the analysis that was applied by this Court inWebster; that, further, Roe v. Wade need not be revisited by this Courtexcept to reaffirm that Roe did not establish an absolute right to abortionon demand, but rather a limited right subject to reasonable Stateregulations designed to serve important and legitimate State --

JUSTICE HARRY A. BLACKMUN: Mr. Attorney General, I'm not so sure that's soimportant. Roe itself said that{.}

MR. PREATE: That's correct.

JUSTICE BLACKMUN: That this does not provide for abortion on demand. Haveyou read Roe?

MR. PREATE: Yes, I have.

JUSTICE BLACKMUN: Thank you.

MR. PREATE: In our view{,} the accommodations of the woman's right and theState's legitimate interest in the unborn child is best served, short ofoverruling Roe, by employing the undue burden standard for reviewing Stateabortion regulations. However, as we argue in part 2 of our brief, if ourstatute cannot be upheld under the undue burden standard, Roe, beingwrongly decided, should be overruled.

I will now address the specific provisions of our statute and start withthe requirement of spousal notice, which was the only aspect of our lawthat the court of appeals found unconstitutional.

It's important to remember, and perhaps more important in this context thanany other, that the petitioners brought this action as a facial challengeto the statute. In this kind of a challenge it's enough for the petitionersto show -- it's not enough for them to show that the act might beunconstitutional as applied to someone in some hypothetical, worst-casescenario.

Rather, the petitioners must show that the statute could notconstitutionally be applied to anyone. We asked, have they met that burden,and we submit that they have not met that burden. This is a spousal noticeprovision{. I}t is not a spousal consent statute.

JUSTICE O'CONNOR: Now, the provision does not require notification to afather who is not the husband, I take it --

MR. PREATE: That's correct, Justice O'Connor.

JUSTICE O'CONNOR: {--} or notice if the woman is unmarried.

MR. PREATE: It only applies to married women.

JUSTICE O'CONNOR: So what's the interest, to try to preserve the marriage?

MR. PREATE: There are several interests. The interest, of course, inprotecting the life of the unborn child {--}

JUSTICE O'CONNOR: Well then, why not require notice to all fathers? It's acurious sort of a provision, isn't it?

MR. PREATE: It is that, but the legislature has made the judgment that itwanted its statute to apply in this specific instance because it wanted tofurther the integrity of marriages.

JUSTICE O'CONNOR: Would you say that the State could similarly require awoman to notify anyone with whom she had intercourse that she planned touse some means of birth control after the intercourse that operates, let'ssay, as an abortifacient?

{MR. PREATE: Well -- but this statute --}

JUSTICE O'CONNOR: Could the State do that? I mean, it would be the sameState interest, I suppose.

MR. PREATE: The State interest would be {--}

{JUSTICE O'CONNOR: Mmm-hmm.}

MR. PREATE: -- the same, but I think that would be problematic.

I'm not --

JUSTICE O'CONNOR: And why would it be problematic, do you think?

MR. PREATE: I think that {-- I think that} with regard to applying astatute to all women {--}

{JUSTICE O'CONNOR: Mmm-hmm.}

MR. PREATE: -- that it {would - it} might create {a} severe obstacle, anabsolute obstacle to their obtaining an abortion.

JUSTICE O'CONNOR: I don't understand.

MR. PREATE: The undue burden standard, as I understand it, is that whetheror not the regulation would impose such an absolute obstacle, {whether --}not whether it would deter or inhibit some women from obtaining anabortion.

JUSTICE O'CONNOR: Well, we're talking about the provision for notificationin this case under the statute to the husband, and I'm just asking whethera different type of State regulation would have to be upheld under yourstandard.

MR. PREATE: Well, {if the --} if the State had posited its interest asprotecting the life of the unborn{,} then utilizing the rational basisstandard, then I would submit that it could legitimately require that kindof notification to all people.

In this instance, however, we have a different statute. We have a statutethat provides exceptions where exceptions are appropriate{. T}here arefive of them: medical emergency, where the husband is not the father of thechild, where the husband cannot be found, where the pregnancy is the resultof a reported sexual assault, or where the woman{,} in her judgment{,}believes it's likely that she will be physically abused.

Now, petitioners have produced some testimony and made some argument,essentially through one expert, about battered wives, but the testimony wasthat some unknown number were rendered so helpless by their batteringhusbands that they were incapable of checking off a line on the form, thespousal notice form.

We can agree that these women are indeed cruelly burdened, but they're notburdened by the statute, and that's the {-- that's the} compelling point.They're not burdened by the statute, but by the circumstance, and thetragic circumstance, of their lives. We're looking at the statute to see ifthe statute imposes the obstacle. If there is a battering husband that'sinterposed in there, that's a different story.

JUSTICE O'CONNOR: {What's - w}hat's our standard on a facial challenge,whether there's a substantial likelihood of the harm?

MR. PREATE: No, I think you have to ignore {the --} what the petitionershave posited, which is a worst-case analysis scenario, and you have to lookand see {if the Cons --} if it could be constitutionally applied andvalue-tied to anyone, and we submit that in this particular instance{,} therecord reflects that right now, in Pennsylvania, 50,000 abortions, 20percent of those women{,} are married{,} and 95 percent of those womennotify their husbands.

Therefore, only 1 percent of the women are not, in Pennsylvania, notifyingtheir husbands now, and the act's not even in effect. There is no broadpractical effect in the Pennsylvania statute to prohibiting abortion forthose women.

If the act goes into effect, some of those 1 percent of women will thenhave to notify their husband{s}, and the result will be they will resolvetheir difficulties amicably. There will be some who will then take the {--there will be some who will then take the} exception, because they don'twant to notify their husband. {There may be a - t}hey may be battered,there may be a spousal rape, there may be -- they can't find their husband.

So what we're doing is reducing that set of women down {into} severalsubsets{,} and the petitioners' burden in a facial challenge is toestablish, you see, that there's a broad practical impact. They have notmet that burden.

JUSTICE JOHN PAUL STEVENS: No, but General, may I ask you a question. Is itnot true, therefore, that the only people affected by the statute, thisvery small group, are people who wouldnot otherwise notify their husbands?

MR. PREATE: I'm not sure I got all of that question, Justice Stevens.

JUSTICE STEVENS: Well, you've demonstrated that the public interest is in avery limited group of people, {that} the few women who would not otherwisenotify their husbands, and those are the only people affected by thestatute.

MR. PREATE: That is correct.

JUSTICE STEVENS: Everyone in that class, should we not assume, would notnotify her husband but for the statute.

MR. PREATE: That is correct. {That --} in that 1 percent, not everyonewould want to notify, and there are exceptions.

JUSTICE STEVENS: {Would - t}hey would not without the statute.

MR. PREATE: They would not without the statute, but there are exceptions,several of them -- four.

JUSTICE STEVENS: No, they'd only -- you've already taken the exceptionsinto account in narrowing the group very - {very --} to, you know, 1percent, or whatever it is.

MR. PREATE: Justice {Stevens} --

JUSTICE STEVENS: You aren't suggesting there's no one {affect --} whosedecision will be affected by the statute.

MR. PREATE: Well, that's the point. On this record, which is what we haveto go on, there is nothing established by the petitioners as to how manythere are in that category.

JUSTICE STEVENS: Well, if there's no one affected by the {-- if there's noone affected by the} statute, what is the State interest in upholding thestatute?

MR. PREATE: The State interest in upholding the statute is the protectionof the life of the unborn and the protection of the marital integrity, andto ensuring of communication, the possibility - {we're} not asking --

JUSTICE KENNEDY: But not if the statute has no effect. As a general matter,when we're dealing with rational basis review, we ask{,} whom does the lawaffect, and so it seems to me that you have to justify the law based on theeffect of this 1 percent who would not otherwise -- and you may have anargument.

MR. PREATE: And -- and --

JUSTICE KENNEDY: It's a very strange argument to say that the law doesn'taffect 90 percent of the people so we're not concerned with the law. I'venever heard that argument.

MR. PREATE: {We've not - w}e're not in any way advocating that, because wethink that the law is rational. If you look at the State interests that aretrying to be pursued here -- protecting the life of the unborn, protectingthe marriage, ensuring the possibility of communication -- this statuterationally advances it.

It may not advance it in every single instance, but that is not the test.The test is, does it generally rationally advance the interest that theState is trying to protect? In this instance, it does.

But by the sheer numbers that we have demonstrated -

{JUSTICE SCALIA:} General Preate, I thought we were talking, not rationalbasis but undue burden. Are they the same thing?

MR. PREATE: No, they are not {--}

{JUSTICE SCALIA: Okay.}

MR. PREATE: -- Justice Scalia.

JUSTICE SCALIA: How do I go about determining whether it's an undue burdenor not? What {-- you know, what} law books do I look to?

MR. PREATE: {Well, t}his is a quantitative analysis, Justice Scalia{, andy}ou begin by ascertaining under undue burden the {inc}-- whether it is asignificant increase in cost such that it broaden the impacts, {it}prohibits women from having abortion{,} or whether it bans abortion.

JUSTICE SCALIA: I suppose it depends on how important I would think it is,that a husband of a wife know before a fetus that he co-generated bedestroyed.

{MR. PREATE: I think that --}

JUSTICE SCALIA: Would that be part of it?

MR. PREATE: That would be part of the analysis {that's} done on theweighing side, after you establish {whether or not - there - not --}whether or not there is in fact -- in the first instance, the thresholdquestion is what is the broad practical impact? If there is no broadpractical impact, it's minimal, as is in {Pennsylvania's} statute, then youreach the question of the weighing that's involved.

{That the --}

JUSTICE SCALIA: Well, it depends. I mean, if the impact is only minimal,but also the interest involved is only minimal, then I suppose it is anundue burden, and I guess that again leads you to how much weight you placeon that kind of an interest.

MR. PREATE: {Well, a}s I understand it, Justice Scalia, what {you're}talking about is if there is no undue burden, that is, {there's} no broadpractical impact in the initial analysis, then you determine whether or notthe statute rationally furthers the State's interest{s}.

It's a rational basis test in the second phase of it.

And under the rational basis test, which would be the same rational basistest that some members of this Court have applied in Webster, you come tothe conclusion that Pennsylvania's spousal notice section does pass undueburden analysis, and it does pass rational basis analysis.

JUSTICE STEVENS: May I ask you a question about your understanding of theundue burden test.

Do you think it refers to the number of persons burdened by the law on theone hand or the severity of the burden on a particular individual affectedby the law on the other hand?

{MR. PREATE: I think --}

JUSTICE STEVENS: Which is the right analysis?

MR. PREATE: I think{,} Justice Stevens, in the initial application, {itappli --} it's a quantitative analysis, whether there is a broad practicalimpact here. The fact that it might --

JUSTICE STEVENS: In other words, {you're saying - it's} the number ofpersons affected is your answer --

MR. PREATE: The number of persons affected --

JUSTICE STEVENS: Regardless of how severe the burden on a particularindividual?

MR. PREATE: As the test has been posited, the question of whether or not--

JUSTICE STEVENS: {I'm just - I'm} asking you to explain to me what yourconception of the test that {you're} asking us to adopt is.

MR. PREATE: It may be that some women would be deterred to some degree, butthat is not sufficient to create an undue burden.

JUSTICE STEVENS: {It's} the number of women affected?

MR. PREATE: Initially, {it's} the number of women affected, the broadpractical impact of it{, if anything} --

JUSTICE O'CONNOR: How about as applied to a specific woman?

MR. PREATE: As applied to a specific woman? Let's say there is such a womanwho has been battered, {and} psychologically battered, {and - but --} andso the exception doesn't work in her instance.

JUSTICE O'CONNOR: Right, let's suppose that.

MR. PREATE: Let's posit that. In that instance, of course, {that's} aworst{-}case scenario, {that's} not the way you test facial challenges, inthat instance, the law would work.

You would test this statute as applied in the lower courts, and that womanwould then be --

JUSTICE O'CONNOR: And {you'd} apply an undue burden test there on theas-applied challenge, do you suppose?

MR. PREATE: No, I would think that --

JUSTICE O'CONNOR: No?

MR. PREATE: No. I would think that you would be asking the court to give{the - give} full reign to the interests that you have.

The woman would have, under rational basis analysis test, a libertyinterest protected by the Fourteenth Amendment, or under the undue burdenstandard, would have a limited right --

JUSTICE O'CONNOR: I {would've} thought you would look at the burden of thelaw as applied to the woman.

MR. PREATE: And I think that you would look to that, but {you're} askingthe court, in an as-applied mechanism to give full effect to your right,the {statute's} given. It is a given that it burdens you. So you can't justlook at the burden in the as-applied context, but you must {-- you must}look at it in that context {as} giving full reign to your right{.}

{That's} what the woman would be seeking from the district court or for acourt of common pleas, in asking the court, in applying this spousal noticesection to her particular instance because she didn't have one of theexceptions to check off because {she's} psychologically or economicallypressured.

JUSTICE SCALIA: But in the facial context, I don't understand what you --so there are two undue burden tests.

There is one at the facial level in which we consider the statute {ingross} and decide whether, all things considered in the generality ofapplications, the {burden's} undue.

And then we have a second wave of application of the undue burden test{case-by-case}, so that even though the law facially may be okay, it may beinvalid in its particular application because of -- is that what you aresaying?

MR. PREATE: In the second instance, as applied it --

JUSTICE SCALIA: {I'm} worried about the first one, not the second one. Ithought the --

MR. PREATE: In a facial challenge, Justice Scalia, {you're} looking at notthe {worst-case} scenario hypothesis, but whether this act could be appliedconstitutionally to anyone, and {that's} --

JUSTICE SCALIA: Any single case, not {in gross}, to any single case. Isn'tthat the normal situation?

To challenge a statute facially{,} you have to show that it can never beconstitutionally applied, isn't that right?

MR. PREATE: That's correct.

JUSTICE SCALIA: {Well, but that's} not looking at it {in gross}.

{MR. PREATE: Well, we -}

JUSTICE SCALIA: {That's} asking whether there is any single case where awoman would not be unduly {burdened}.

MR. PREATE: In this particular instance, we find that there is no undueburden in our statute, anywhere in our statute, and if the undue burdentest is, as applied or understood by this Court causes our statute to fall,then we ask this Court to adopt rational basis as the appropriateanalysis.

JUSTICE O'CONNOR: {Do you think - d}o you think that compelling speechrequires any kind of First Amendment analysis?

MR. PREATE: Compelling --

JUSTICE O'CONNOR: Speech. The State is compelling a woman to say somethingto her husband.

MR. PREATE: We are asking that she --

JUSTICE O'CONNOR: Does that invoke any First Amendment concerns?

MR. PREATE: Not in our view, {under} this statute --

JUSTICE O'CONNOR: {Mmm-hmm.} I would have thought perhaps compelling speechwould get us right into a First Amendment area.

MR. PREATE: In this particular instance, this statute, we feel {that --}causes notification, but {it's - there's} a legitimate State interestinvolved in furthering that interest.

JUSTICE O'CONNOR: In other words, the doctor{,} to say certain things tothe patient, do you think {that's} really commercial speech there?

MR. PREATE: Yes, I do, Justice O'Connor{, I think that that's commercial}--

JUSTICE O'CONNOR: Why is that? When the doctor is giving professionaladvice to the patient, you think {that's} commercial?

MR. PREATE: That is commercial. The petitioners already do that right now.They already tell their patients, the physicians and the counselors{,} thatthere are medical risks associated with this procedure.

JUSTICE O'CONNOR: I wouldn't have thought that was commercial speech. Whatdo you rely on?

MR. PREATE: In Zauderer{, and in - and in - and --}

JUSTICE O'CONNOR: But {that's} advertising, {that's} different.

MR. PREATE: {-- and i}n Pennsylvania's general informed consent law,applying to every single contact between {a} doctor and a patient, there isthe same information {pre --} that must be presented and that is, thedoctor must tell the patient about the medical risks of the procedure andthe alternatives to it.

JUSTICE O'CONNOR: Well, it might meet a First Amendment test, but {I'm}wondering how you get to commercial speech on that kind of advice?

MR. PREATE: {Well, w}e think that {-- we think that there's --} with theinterests involved, {with --} the statute furthers those interests and thatit can legitimately require the husband to be notified because of theinterests involved.

I see that my time is running short, and I {want to devote some --} makesure the Solicitor General has some time to respond.

We think that Pennsylvania has developed an intelligent statute that fullycomports with the {D}ue {P}rocess {C}lause of the Fourteenth Amendment.

{It's} a statute that is carefully drafted{,} and {it's} been amended toreflect the teachings of this Court's jurisprudence since Roe. We ask thisCourt to overturn Akron and Thornburgh's strict scrutiny approach as beingunwarranted extensions of Roe.

On the facial challenge, {where the --} whereby the petitioners must showthat there are no set of circumstances under which these provisions can bevalid, the petitioners have utterly failed to do so, done in {in} no smallmeasure by, as the record demonstrates{,} and as indicated in {the - thecourt - } the Third Circuit Court of Appeals' opinion, {by} their ownrational practices{,} which this statute {mon --} mirrors.

JUSTICE DAVID H. SOUTER: Mr. Preate, because you have a little time left,{there's} one point on which I guess I never fully followed your argument,and I wonder if {you'd} go back to it.

You got to the point, you were arguing about the number of instances, thepercentage of instances in which the spousal notification would in factmake a difference in the behavior of the parties involved. And as I recall,you got it down to about 5 percent to begin with who would not otherwise, 5percent of the women who would not otherwise give notice to their spouses.

{And t}hen from that 5 percent{,} you subtracted some number for those, Iguess subject to medical emergencies, those subject to the certificationthat they would be physically abused, and I think by that process ofelimination you got it down to about 1 percent who would actually beaffected by the {imposi - by the} stricture of the statute, is that right?

MR. PREATE: That is not correct, Justice -

{JUSTICE SOUTER: Okay.}

MR. PREATE: -- you start with the 1 percent because 95 percent of 20percent is 1 percent. {You're} talking about 500 women that --

JUSTICE SOUTER: {Well, you're} talking about all women, but the spousalnotification applies only to married women.

MR. PREATE: {That's} correct.

JUSTICE SOUTER: {What's} the percentage of married women? Well, your timeis up.

MR. PREATE: Sorry. Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Preate.

{General Starr, we'll hear from you.}

ORAL ARGUMENT OF KENNETH W. STARR ON BEHALF OF THE UNITED STATES ASAMICUS CURIAE SUPPORTING THE RESPONDENT

GENERAL STARR: Thank you{,} Mr. Chief Justice, and may it please the Court{:}

In view of what has been discussed, let me address{,} very briefly{,} threepoints.

The first is the standard of review which has been the subject ofconsiderable discussion. In a number of its cases over the last 20 years inthe abortion area, the Court has articulated the governing standard ofreview in different ways. And as a result, there is confusion in the law asto how legislatures, if they choose, can legislate, and how judges are tojudge in this extraordinarily sensitive and divisive area.

In our view, the correct articulation of that standard is to be found inthe Webster plurality opinion. That standard has deep roots. It finds itsroots in a long line of due process cases that do not involve libertyinterests which, by virtue of the nation's history and its legaltraditions, rise to the level of fundamental rights to a free people.

This is the process of analysis that is quite familiar to the Court, verylengthily laid out by Justice Harlan in his dissent in Poe {v.} Ullman, andthen adumbrated in his concurring opinion in Griswold against Connecticut.

Second, and relatedly, with all respect, we do not believe that staredecisis considerations weigh against the {Court's} providing that neededclarification as to the standard.

This {is} not an issue -

JUSTICE STEVENS: {May I ask you - m}ay I ask you one rather basicquestion?

GENERAL STARR: Certainly.

JUSTICE STEVENS: It effects the standard of review and everything else.

What is the position of the Department of Justice on the question whether afetus is a person within the meaning of the Fourteenth Amendment?

GENERAL STARR: We do not have a position on that question and this Courthas not addressed, or at least there is no Justice at this Court --

JUSTICE STEVENS: {But it's addressed in Roe - i}t's addressed in Roe{, and--}

GENERAL STARR: That, that, that is correct.

And it does seem to me that ultimately that is an extraordinarily difficultquestion which this Court need not address, and it need not address it inthis case.

JUSTICE STEVENS: {I understand} we need not address it. I'm just interestedto know --

GENERAL STARR: We do not have a position.

JUSTICE STEVENS: Does the United States have a position on that question?

GENERAL STARR: We do not, because we think it would be an extraordinarilydifficult and sensitive issue by virtue of a number of questions that wouldflow from that, including equal protections and so forth.

JUSTICE O'CONNOR: Well, the Court decided that in Roe, did it not?

GENERAL STARR: The Court did, in fact, decide that there is a very keeninterest on the part of the State in what the Roe Court called potentiallife, and that's my --

JUSTICE O'CONNOR: Yes, but said the fetus is not a person under theFourteenth Amendment.

GENERAL STARR: Well I think that that is the necessary consequence of Roev. Wade.

{JUSTICE O'CONNOR: Mmm-hmm.}

GENERAL STARR: But I think that the key point is that a number of theJustices of this Court have said that regardless of that legal question,that constitutional question, that the State does have a compellinginterest in the potential life, in fetal life, and that that interest runsthroughout pregnancy.

JUSTICE SCALIA: We did not say in Roe that a State could not have aposition on whether a fetus is a person, did we?

GENERAL STARR: Certainly the Court --

JUSTICE SCALIA: We said that the Constitution takes no position on whethera fetus is a person, and {--} or that it does take a position that a fetusis not protected by the Constitution.

GENERAL STARR: The Court seemed to admit of the possibility of Stateregulation to protect the unborn at all stages.

JUSTICE SCALIA: Including State regulation on the basis of the people'sdetermination within that State that a fetus is a person {--}

{GENERAL STARR: That it --}

JUSTICE SCALIA: {-- and t}here's nothing in Roe that says a State may notmake that judgment, if it wishes.

GENERAL STARR: That it says, that the State may, if it sees fit, that theState does have -- I think Roe goes this far.

Roe says that there is a legitimate interest of the State in the potentiallife in utero throughout pregnancy, and then the nature of that interestchanges and becomes stronger over time. But it did, in fact, say that thereis a legitimate interest.

And there has been an expression by a number of the Justices of this Courtto suggest that that interest is, indeed, a compelling interest on the partof the State {--}

JUSTICE SOUTER: Is that also not the position of the Government of theUnited States {--}

{GENERAL STARR: That is --}

JUSTICE SOUTER: -- that it is a compelling interest throughout pregnancy?

GENERAL STARR: That is our position, that there is a compelling interest.

JUSTICE STEVENS: And what is {the} context {-- w}hat is the textual basisfor that position in the Constitution? Is there any?

GENERAL STARR: Well I think that, if I may, Justice Stevens, it seems to methat it goes to the recognition that we all do, that there is in fact anorganism.

As{} Justice -{}

JUSTICE STEVENS: I'm asking what is the textual basis in the Constitution?You argue very vigorously {that} there's no textual basis supporting youropponent{'}s position.

What is the textual basis for your position that there's a compellinginterest in something that is not a person within the meaning of theFourteenth Amendment?

GENERAL STARR: The State has {an} --

JUSTICE STEVENS: What is the textual basis for it?

GENERAL STARR: The State has an interest in its potential citizen, it doesnot have to be granted, have the basis in the Constitution.

Justice Stevens, it is my view that the State can look out and say we, aswe have historically, regulate and legislate in the interest of those whowill come into being, who will be born.

It is an interest that every member of this Court has said in potentiallife. {There's no - that is a big --}

JUSTICE STEVENS: That's not responsive to my question. My question is whatis the textual basis in the Constitution. If you're going to say there isnone, fine, that's perfectly all right.

GENERAL STARR: I think it's in the nature of our system. And if nothingelse, the Tenth Amendment, Justice Stevens, suggests that {individ - that}the State can order its relationships in ways that reflect the morality ofthe people, within limits.

JUSTICE SCALIA: General Starr {--}

GENERAL STARR: There's a determination to -- I'm sorry.

JUSTICE SCALIA: Why does there have to be something in the Constitution?There's nothing in the Constitution that requires the State to protect theenvironment, is there?

GENERAL STARR: Of course not.

JUSTICE SCALIA: And yet that can be a compelling State interest, may itnot?

GENERAL STARR: Yes. As I have said, the Constitution does not seek to orderand to ordain.

These are interests in which the State can have, and our nature ofgovernment --

JUSTICE SCALIA: All that Roe says is that the Constitution does not protectthe fetus under the Fourteenth Amendment. It does not say that a State maynot choose to do so.

GENERAL STARR: It doesn't even go so far, it seems to me.

JUSTICE SCALIA: Or that if a State chooses to do so, it is not a compellingState interest.

{GENERAL STARR: I think it calibrates it.}

JUSTICE SCALIA: There's nothing in Roe that contradicts that.

GENERAL STARR: I think {that}, Justice Stevens, it is, in fact, the natureof our governmental structure. I know no -- I do know of prohibitions thatthe Constitution sets forth.

I do not know of particular provisions, other than, indeed, perhaps theTenth sheds light on this.That this is a matter that ultimately is, and I think this is quiteimportant in terms of analyzing what Pennsylvania has done here.

What Pennsylvania has said, in effect, is that we will not prohibitabortion, save for gender{-}selection abortions. Our colleagues on theother side believe that Roe v. Wade forbids that, that it protects thatdecision.

It does not prohibit; it has seen fit to regulate. That is very much in thetradition of the Western democracies.

JUSTICE BYRON R. WHITE: {Well,} what is the standard? {Y}ou started out totell us what the standard was?

GENERAL STARR: We believe it was articulated, Justice White, by the Websterplurality.

JUSTICE WHITE: Well{,} what is it?

GENERAL STARR: It is the rational basis standard.

And that is the standard that has been articulated by this Court in avariety of decisions and by a variety of Justices of this Court, in itsabortion jurisprudence.

JUSTICE WHITE: And under that standard, you would think all of theprovisions that are at issue here should be sustained.

GENERAL STARR: Exactly.

JUSTICE SOUTER: And so would complete prohibition, wouldn't it?

GENERAL STARR: Complete prohibition that had no exception for the life ofmother, I think could raise very serious questions under --

JUSTICE SOUTER: But subject, subject to that --

GENERAL STARR: The protection of life.

JUSTICE SOUTER: Subject to that exception, it would cover complete pro --it would justify complete prohibition.

GENERAL STARR: I think it best not to answer these in the abstract. We lookto the specific interests of the State as it has articulated thoseinterests.

For example --

JUSTICE SOUTER: Well I'll grant you that, but you're asking the Court toadopt a standard and I think we ought to know where the standard would takeus.

GENERAL STARR: I think the rational basis standard would, in fact, allowconsiderable leeway to the States, if it saw fit.

JUSTICE STEVENS: Well, General Starr --

GENERAL STARR: Through the democratic --

JUSTICE STEVENS: That's not really a fair answer. Rational basis under youranalysis: there's an interest in preserving fetal life at all times duringpregnancy.

It's rational, under {view --} your view. Ergo{,} it follows that a totalprohibition, protected by criminal penalties, would be rational, it wouldmeet your standard.

GENERAL STARR: I don't think so. The common law, the common --

JUSTICE STEVENS: {W}hy not? {Why} -- what is your rational basis standardif not the traditional one?

GENERAL STARR: {The - o}urs is the traditional one. But under thattraditional analysis there must, in fact, be a rational connection with alegitimate State interest, and the State cannot proceed in an arbitrary andcapricious fashion, in my view. If I may complete this, I think this is animportant part of the answer.

It would be arbitrary and capricious. It would, moreover, deprive anindividual of her right to life{,} if there were not an emergencyexception. And even in Roe v. Wade, the Texas statute at issue thereprovided for that exception. It would be quite at war withour traditions,as embodied in the common law, not to provide, at a minimum, for that kindof exception.

JUSTICE STEVENS: No, but what you're saying is the rational basis standard,which normally just requires a reason that is legitimate to support it, canbe overcome in some cases by countervailing interest, which is not thenormal rational basis standard.

GENERAL STARR: Well, may I respond{?}

CHIEF JUSTICE REHNQUIST: Yes, you may.

GENERAL STARR: I think that the traditional rational basis test does, infact, analyze the ends. It looks at the ends and the means. And itrequires, in fact, that the State not conduct itself in an arbitrary andcapricious fashion. That is the ultimate insight of the rational basistest.

I thank the Court.

CHIEF JUSTICE REHNQUIST: Thank you, General Starr. Ms. Kolbert, you have 3minutes remaining.

REBUTTAL ARGUMENT OF KATHRYN KOLBERT ON BEHALF OF THEPETITIONERS

MS. KOLBERT: Mr. Chief Justice, I'd like to address two points veryquickly. The first is in response to this last dialogue with General Starr.

Recognition of a State's interest in fetal life as compelling throughoutpregnancy would denigrate and restrict the ability of women at all stagesof pregnancy to have an abortion. And certainly{,} in the only exceptionthat {}Mr. Starr and the {Attorney - the} Solicitor General has laid outfor this Court, is in the very rare instance where only the life of thewoman would be excluded from a ban.

Bans of second trimester abortions, bans of certain classes of women havingabortions, bans that would prevent women who have serious and long lastinghealth needs to have abortions, would be significantly approved by thisCourt if the rational basis standard were adopted, precisely because of aformulation that the State's interest is compelling throughout pregnancyand sufficient to override any liberty interests, any interests of thewoman to choose or not choose a pregnancy.

And, in fact, that is why this Court must go back to the hallmark of Roe.That is{,} again reaffirm that the right to choose abortion is fundamental.And only when the Government can show a compelling purpose -- as recognizedin Roe that is, a compelling purpose after the point of viability -- shouldit be able to sustain a statute.

The second point I wanted to raise goes to the question of therights{-}by{-}numbers approach articulated by the Commonwealth. It is ourview that the husband notification statute applies to every single marriedwoman in Pennsylvania.

That the rights of autonomy, the rights of communication within the family,are infringed because those communications are subject to criminalprosecution, and subject to independent district attorneys subpoenaingwomen and probing the communications between husband and wife.

JUSTICE O'CONNOR: Are there First Amendment values at stake there, do youthink?

MS. KOLBERT: Your Honor, I do believe there are, not only in this section,but in the bias counseling provisions as well. Clearly, we've set forth inour brief why we believe this is not commercial speech. But in bothinstances, the Court is forcing the physician to be the proponent of itsideology, and also to communicate information about the abortion decision.

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Kolbert.

MS. KOLBERT: Thank you.

CHIEF JUSTICE REHNQUIST: The case is submitted.

(Whereupon, at 10:56 a.m., the case in the above-entitled matter was submitted.)