Cases by Issue - Including Contraceptives

Ayotte v. Planned Parenthood of Northern New England - Oral Argument

Fri, 09 Jan 2009 14:48:56 +0000

Case:

Ayotte v. Planned Parenthood of Northern New England

Media File:

04-1144_20051130-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Kelly A. Ayotte

Chief Justice Roberts: We'll hear argument next in Ayotte versus Planned Parenthood of Northern New England.

General Ayotte.

Mr. Ayotte: Mr. Chief Justice and may it please the Court--

The Court of Appeals struck down New Hampshire's parental notification act on its face based upon a potential application of the act that even respondents concede may only arise in the smallest fraction of cases.

In doing so, the act was rendered ineffective in the overwhelming number of applications where it is unquestionably constitutional, and State officials were denied the opportunity to imply... apply and enforce New Hampshire's act within constitutional limits.

New Hampshire's act can be applied in a manner to protect a minor's health if the rare case arises where a medical emergency occurs that requires an immediate abortion.

In that rare case, if it does arise, where an abortion has to be performed immediately and the child does not want to notify a parent, there is a judicial bypass mechanism available which requires New Hampshire courts to act promptly and without delay and in the best interests of the minor.

Justice Souter: May I interrupt you at this point?

Because there is one thing that I'm not sure that I understand about your position, and one way of reading your brief takes you a step beyond what you have just said.

So I would like to get clear on this.

And I understood your argument to be that given the safeguards such as judicial override, there simply was no... there was no need to read the health exception in, that in fact it was taken care of... any of the issues that might be raised in arguing for the need for health exception in fact were addressed by the statute.

The point at which I'm not clear on your position is... occurs in what you've said on page 11 of your yellow brief, if you could get that out.

Do you have the carry over paragraph on 11?

You go through the kind of a worst case analysis.

And you say, well, you know, assuming that all of the safeguards somehow do not work, finally, in the unlikely event that a parent refuses to waive the 48-hour waiting period and so on, a doctor who performs an emergency abortion under such circumstances would not be subject to either criminal prosecution or civil liability because his or her conduct would not only be constitutionally protected but would be independently justifiable, and then you cite the competing harms.

What do you mean when you say it would be constitutionally protected?

I read that as suggesting that there was indeed a constitutional requirement for some kind of a health exception, but that may not be what you meant.

What do you mean by constitutionally protected?

What are you getting at?

Mr. Ayotte: Justice Souter, in that instance, we did not say that it was an independent constitutional requirement that there be a health exception, but certainly reading this Court's cases, we should apply our act in a manner to protect if that rare case arises where an emergency abortion would come forward.

And, if a physician were prosecuted under those circumstances, we believe not only would he have a statutory ability to say this prosecution is inappropriate given our law, but also given those rare circumstances, we do not think that he, under the Constitution, may be prosecuted.

Justice Souter: And if he said,

"I may not be prosecuted under the Constitution because. "

what follows "because", in your view?

Mr. Ayotte: I may not because New Hampshire's act may not be applied in a manner to ensure that if a minor in that rare circumstance needs an immediate abortion, that she receives that immediate medical care in those circumstances.

Justice Souter: Doesn't that mean because there is a required health exception?

I mean, isn't that what you're saying?

Mr. Ayotte: Justice Souter, not that there is an express requirement of a health exception but that the law cannot be implied in a manner to infringe on the minor's health if that rare emergency case arises.

Justice Kennedy: Your first answer to Justice Souter was that the physician would say you can't be prosecuted under our law.

Do you mean this act that we're looking at here?

Or do you mean the law generally including constitutional protections that this Court has proclaimed?

Mr. Ayotte: Justice Kennedy, in that limited circumstance, we do not believe that the physician would be prosecuted under our parental notification act, given that there is a mechanism--

Justice Kennedy: Because of the text of the act or because of some policy that the attorney general would follow in order just to decline to prosecute?

We want to know what this act says in the instance posed by Justice Souter.

Mr. Ayotte: --Justice Kennedy, with respect to the act itself, assuming it were a life... excuse me, a health emergency short of a life threatening emergency, where a minor did not want to notify her parents and assuming those situations came forward and someone was unable to reach a judge, the act itself provides a mechanism in it that anticipates providing a judge where necessary, and so that would be the ability of a minor in those circumstances to seek a judge.

But if for some reason all of those situations came together and the minor could not seek a judicial bypass in those instances, there is an existing provision of New Hampshire law, our competing harms defense, that we believe protects the physician in those circumstances.

Justice Breyer: Let's just imagine a real circumstance.

A 15 year old walks in 2:00 in the morning on Saturday into the emergency room and the doctor looks at her, she's pregnant, she has this very high blood pressure, whatever.

And the doctor thinks to himself, he thinks, well, immediate abortion, no question, immediately deliver the child.

If I don't, I don't think she's going to die but she'll never have children.

And he's thinking that.

What's supposed to happen?

He calls up Pam Pevagoglio or Pam Livingston and there is no answer.

It's 2:00 in the morning and there is one of those things, leave a message, okay?

Should I call your parents?

No.

They don't know I'm pregnant.

Now, what's supposed to happen?

Mr. Ayotte: Justice Breyer, the physician in those instances could perform the immediate abortion.

Justice Breyer: It doesn't say that in the statute.

It suggests the contrary.

So what is the particular provision of New Hampshire law that tells that... I mean, the doctor... all these things are, you know, questions of probability.

And he doesn't want to risk being prosecuted and he doesn't want to risk losing his license.

And so what particular provision... he happens to have his lawyer with him.

[Laughter]

What does the lawyer say?

Okay?

What's the provision that saves him?

There is no health exemption in this statute.

Mr. Ayotte: Your Honor, his lawyer would advise him, in those circumstances, that the competing harms defense would protect his actions because he needs to act urgently necessary... in an urgently necessary circumstance.

Justice O'Connor: Would it protect him from a civil damages action as well as prosecution in a criminal case?

Mr. Ayotte: Justice O'Connor, by the plain language of the competing harms defense, it also precludes civil liability.

I would also say that that lawyer would also advise him, if given the opportunity, the attorney general is prepared also to issue an opinion describing the applicability of the competing harms defense in this very rare circumstance, should it arise.

Justice Breyer: How do we know?

I mean, what you're saying is fine, but how do we know that that's actually the law?

I mean, there are a lot of people who absolutely in very good faith would say that it isn't competing harm.

They would say that the competing right that the life of the fetus is more important than the possibility of the mother having children in the future herself.

See, there are people in good faith on both sides of this argument.

And so how do we know that the New Hampshire statute is going to do... not the statute, but your competing harms defense is going to do for this particular woman what a health exception would do?

Mr. Ayotte: Justice Breyer, because the harm that is being weighed here is the harm of urgently providing care to this minor who needs it, as opposed to the harm that the act is trying to get at, which is notification of parents.

It's not whether or not the minor can have an abortion.

The minor can always go forward and have an abortion under these circumstances.

So people aren't weighing the right of the fetus, in this instance, to the right of the mother's health.

So the weighing is quite easy.

And if given the opportunity, my office would be prepared to issue an opinion as to the applicability of this defense.

Justice Ginsburg: But, your opinion... that's the real problem here for the doctor who is on the line.

And you said the lawyer would say, oh, you've got this defense of... what do you call it harm--

Justice Souter: Competing harm.

Justice Ginsburg: --Competing harms, a defense... I think that a lawyer who cares about his client would say, defense is not what we want.

What we want is there is no claim, not that you have to put up a defense and maybe the attorney general will give us a letter saying that we come under that defense.

Wouldn't a careful lawyer say, what you need to be protected is that there is no claim for doing what you're doing?

Mr. Ayotte: Justice Ginsburg, in the Simopoulos case considered by this Court, one of the issues that was raised was a medical... the physician was prosecuted for performing an abortion outside the parameters of the Virginia act.

And the physician failed to raise a medical necessity defense.

This Court held that that was sufficient prosecution, that that was okay.

And this would work the same way.

Once the physician raises a competing harms defense--

Justice Stevens: General, may I just point this... suppose the lawyer or the doctor are aware of the legislative history and say, well, generally that's true.

But when you have a legislative history that suggests that the legislature considered this very defense and rejected it in the statute, would then that then give them some concern?

Mr. Ayotte: --Justice Stevens, the legislative history... there certainly was some indication that the legislature did not want a general health exception.

There is no indication in the legislative history that the legislature intended to preclude this narrow category of cases which constitute emergency cases short of that.

Justice Stevens: But if they discussed the issue on the floor of the legislature, why wouldn't they have drafted the precise protection they thought appropriate?

Mr. Ayotte: Your Honor, when they discussed the history on the floor of the House and Senate, they felt that it protected for emergencies and there was no discussion of this narrow category of cases short of death.

Justice Scalia: And you have another point here, don't you, about how general this statute is.

We don't normally interpret statutes this way, that they are totally invalid if any application of them would be unconstitutional.

That's not what we do with statutes normally, is it?

Mr. Ayotte: Justice Scalia, no.

In fact, the analysis, if you look at this one potential application, this... the standard applied by the Court of Appeals in this case goes well beyond even a substantial overbreadth test that is applied by this Court in the first amendment context.

Justice Scalia: In the first amendment.

Chief Justice Roberts: Am I right in reading your briefs that you don't object to a preenforcement challenge to the bypass procedure itself brought by physicians, for example?

Mr. Ayotte: Mr. Chief Justice, no, we do not object in that sense.

We think that is a very good mechanism to bring forth a case given that this Court has granted third party standing to physicians to resolve these types of claims.

And the benefit--

Chief Justice Roberts: And I gather that the debate on the evidence and the circumstances that might arise in that case would be quite similar to the debate in the present context.

In other words, there would be the same discussion between the different physicians about what emergencies arise and in what circumstances and whether that creates a problem and whether you can get to the courts in time and so on.

It would be the same underlying sort of evidence that we have here, right?

Mr. Ayotte: --Mr. Chief Justice, it would, but it would be much more narrowly focused in terms of bringing it as an as applied challenge, this was brought--

Justice Ginsburg: How would it be as applied?

Look at your reply brief at page 3.

And you've made it very clear, and I think that it is helpful that you did, that there could be this preenforcement action by doctors who would not have to wait until faced with an actual medical emergency to bring the suit.

You've talking about this small category of cases, but I take it from what you have read... what the lines I've just read, that you envision a doctor who says, sooner or later, I'm going to have such a case.

Right now, I don't know and I can't know until it's too late to come to any court, so I'm going to bring this preenforcement which you characterized as applied.

But I don't see how its as applied, if if the physician just says, as you put it, I don't have to wait until faced with an actual medical emergency to bring this suit.

So what is the relief, what is the lawsuit that you envision would be proper?

Mr. Ayotte: --Justice Ginsburg, the lawsuit would be a preenforcement as applied challenge and the physician would bring the claim and would say, as applied to me, I perform abortions, I also perform abortions on minors.

I need to perform an abortion in these emergency settings.

The court can issue an order, presuming it's not satisfied with the protections that are set forth in New Hampshire law that I've described.

Justice Ginsburg: Could you do that as a class action?

Mr. Ayotte: Depending on the circumstance, he may be able to.

Justice Ginsburg: What is the circumstance?

All you said here is there coule be a preenforcement challenge by doctors who would not have to wait until faced with an actual medical emergency.

Mr. Ayotte: Justice... I'm sorry.

Justice Stevens: Why isn't that this case?

I don't understand.

Justice Ginsburg: Yes, exactly.

Mr. Ayotte: Justice Stevens, this is not this case because this case was brought as a facial challenge.

Our entire act was struck down based upon that one potential--

Justice Stevens: You mean he has to bring the as applied challenge when he has the patient in his office?

He has to wait until he has the patient in the office, is that what you mean?

Mr. Ayotte: --No, he doesn't.

He can bring it before the patient is in his office and then the court could issue relief which would be much more consistent with the principles of certainly separation of powers and allowing the overwhelming number of our applications of our statutes that are valid to go forward.

Justice Scalia: We're talking about a lawsuit which asks for declaration, not that the entire statute is invalid.

But that, when faced with an emergency of the sort that this discussion has addressed, the physician can go ahead and perform the abortion?

Mr. Ayotte: That's correct, Justice Scalia.

Justice Scalia: Quite a different lawsuit from this one.

Mr. Ayotte: That's quite a different lawsuit and a lawsuit that would be certainly, from the State's perspective, would allow the overwhelming number of applications of this statute where there is no dispute that it works well, to go forward.

Justice Stevens: But in Justice Scalia's case, would not the reason for that relief have to be a finding that the statute is unconstitutional?

You can't just grant the relief because you think it's a good idea.

Mr. Ayotte: Justice Stevens, it would be only in the context of that one particular application as applied to that physician, which would have stare decisis--

Chief Justice Roberts: It would be a finding that the bypass procedure is inadequate which doesn't necessarily implicate the general notification provisions.

Mr. Ayotte: --Mr. Chief Justice, that would be the case.

And certainly if that one application, in that one potential rare case was found not to be valid, then the remainder of the applications can go forward.

And that is how most cases work with respect to as applied relief.

Justice Ginsburg: Then I think what you're saying essentially is that the First Circuit was concerned with this category, wanted to give preenforcement relief to the physician, so what they did was write except that they should have said this statute is not enforceable where there is a risk to the woman's health and it cannot be applied in any such cases.

Where there is a risk to the health, then the statute is okay.

Mr. Ayotte: Justice Ginsburg, the First Circuit went well beyond because it focused on a general health exception, they've now focusing it on an emergency exception.

But certainly the relief should have been as applied.

If I may reserve the rest of my time for rebuttal?

Justice O'Connor: Did you ask that the relief ordered below be more restrictive?

Was that challenged after the judgment was entered?

Mr. Ayotte: Justice--

Justice O'Connor: Did the Court below have a chance to consider tailoring it more narrowly, as you suggest today?

Mr. Ayotte: --Justice O'Connor, we did raise the application of the severance clause below, although the court, both at the district court level and the First Circuit appeared to look at the... the lack of a general health exception as a per se constitutional problem that rendered the statute as a whole invalid.

Justice O'Connor: I just am not clear to what extent you really raised the possibility with the court below of carrying its judgment more narrowly as you're suggesting today should be done.

Mr. Ayotte: Your Honor, we certainly raised the severance issue in the district court.

Justice Ginsburg: You've used this word severance now twice.

Severance is I excised a clause from the statute, but you're not asking for that.

It's not severance.

There is no provision to be severed here.

It's putting a caret mark and adding something to it.

Not taking out any provision, but putting in an additional provision.

Mr. Ayotte: Your Honor, you're correct.

What our position is is that they did not meet the standard that they should have been able to meet for a facial challenge, which would grant as applied relief which would only be invalid in that one potential application.

If I may reserve the rest of my time, with all due respect.

Argument of Paul D. Clement

Chief Justice Roberts: Thank you, General.

General Clement, we'll hear now from you.

Mr. Clement: Mr. Chief Justice and may it please the Court--

Attribution:

The Oyez Project

Featured:

Scheidler v. National Organization for Women (NOW) - Oral Argument

Fri, 09 Jan 2009 14:48:59 +0000

Case:

Scheidler v. National Organization for Women (NOW)

Media File:

04-1244_20051130-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Alan Edward Untereiner

Chief Justice Roberts: We'll hear argument first today in Scheidler versus National Organization for Women, and Operation Rescue versus National Organization for Women.

Mr. Untereiner.

Mr. Untereiner: Mr. Chief Justice, and may it please the Court--

In 2003, this Court, through all appearances, brought this case to an end by holding that all of predicate RICO counts found by the jury must be reversed, that the liability judgment must be reversed, and that the injunction must be vacated.

On remand, however, a panel of the Seventh Circuit found a way to keep this case alive.

It held that four of the 121 RICO predicates somehow survived this Court's decision, and it strongly suggested that the Hobbs Act punishes acts or threats of physical violence that have no connection to either robbery or extortion.

Today, we are asking this Court to reverse the erroneous decision below and remand with very explicit instructions that judgment be entered in favor of Petitioners.

Reversal is warranted because of three separate legal errors made by the Seventh Circuit.

First, the lower court failed to obey the clear holdings and remand instructions of this Court.

Second, the Seventh Circuit erroneously held, in conflict with two other Circuits, that the Hobbs Act plausibly can be read to cover freestanding acts or threats of physical violence.

And, third, the Seventh Circuit erred in its previous decision, in 2001, in holding that the racketeering law, RICO, authorizes private injunctive relief.

Justice O'Connor: Counsel, if we were to agree with you on any one of the three questions, would that end the case?

Mr. Untereiner: That's correct, Justice O'Connor.

Because of what the Seventh Circuit also said, that a new trial is not in the cards and the damages verdict is gone and nothing more remains to be done except for the two issues that it outlined, that's correct.

If the Court rules in our favor on any issue, the case is over.

Let me turn to our first point.

The Seventh Circuit's decision is inconsistent with this Court's previous holdings.

This Court's 2003 opinion left no doubt that, quote, RICO predicates must be reversed.

But--

Justice Ginsburg: Yes, but there was a theory that was put to the jury... and it's right there on the special interrogatories... one category was violent acts that obstruct commerce with no connection at all to extortion.

That was there.

And I have a question about your characterization of what the Seventh Circuit did.

It was puzzled.

It says, "Extortion, they all go".

But here are these four that don't involve extortion, and there's no ruling from the Court on those.

Was the Court supposed to assume that the Court made a question... decided a question of statutory interpretation by silence?

Mr. Untereiner: --No.

No, Justice Ginsburg, but the argument was made in this Court, at the petition stage the last time around, that those four counts were, in fact, included in the petitions.

At that time, of course, there was no contrary authority.

The Yankowski opinion of the Ninth Circuit made clear, and I think the language of the Hobbs Act makes clear, that freestanding acts or threats of violence are not covered.

So, we argued, at the petition stage, that those counts were covered.

And then, at the merits stage, the Petitioners asked this Court to reverse and remand for entry of judgment in our favor on all claims and all counts.

The Respondents, at that point, did not argue--

Justice Stevens: Was there any argument on the merits as to those four counts?

Mr. Untereiner: --No, Justice Stevens.

Justice Stevens: No.

Yeah.

Is it conceivable that we overlooked that point?

Mr. Untereiner: Well, we take the Court to mean what it... what it says.

Justice Stevens: But if I just... do you think it's conceivable that we just didn't realize those four points were at issue?

Mr. Untereiner: I think it's possible.

But if the Court did overlook those, I think that would have been something that should have been raised in a rehearing petition in this Court.

Justice Stevens: And do you think we resolved the statutory construction issue that you're now arguing very carefully at this time?

Mr. Untereiner: There's no indication, in the court's opinion, that it resolved it.

It may have assumed that we were right, because we made the argument at the--

Justice Stevens: They may assume it--

Mr. Untereiner: --petition stage--

Justice Stevens: --but there's nothing in the opinion to give any--

Mr. Untereiner: --That's correct.

That's correct, Justice Stevens.

Justice O'Connor: If it's possible, at least, that we just overlooked that aspect in the issuance of our opinion, would it be more helpful to move on to the other two questions at issue here, since they would be determinative?

It's--

Mr. Untereiner: I'd be happy to--

Justice O'Connor: --it's disturbing to think that some court below deliberately was trying to defy what this Court said.

And I'm not sure there is any indication of that.

It may have thought that those issues... those other acts were overlooked, and, therefore, they had some right to deal with it.

But I wonder if we shouldn't focus on the other two legal issues here.

Mr. Untereiner: --I'd be happy to move on, Justice O'Connor, to those two issues.

Our second argument is that the Hobbs Act does not punish freestanding acts or threats of violence.

By "freestanding", we mean unconnected to either robbery or extortion.

And I think that's apparent from the language of the Hobbs Act, which has three clauses.

And the third clause covers acts or threats of violence, quote,

"in furtherance of any plan or purpose to do anything in violation of this section. "

unquote.

So, there needs to be a connection.

There needs to be a violation of this section.

And our position is that that refers back to the principal offenses under section 1951, robbery or extortion.

Now, the Respondent's position is that the mere act of obstructing commerce, or affecting commerce, or, I suppose, even delaying commerce, is a violation of the Hobbs Act.

And I don't think it's possible to read the statutory language that way.

So, we think that argument is clearly foreclosed.

Now, if there's any doubt about that, based on the language of the Hobbs Act, as amended in 1948, one need only look back to the 1946 version of the Hobbs Act, as originally passed.

And there, it... there's no debate that Congress intended to cover acts or threats of physical violence only if undertaken in furtherance of a plan or purpose to commit robbery or extortion.

So, Respondent's position rises or falls on the proposition that in 1948, when Congress recodified and revised all of Title 18 of the U.S. Code, it dramatically expanded the Hobbs Act.

This Court, in reviewing revision and recodification statutes, applies special rules of construction.

It requires the clear statement... or clear expression of intent to make a substantive change; and, if there isn't one, it assumes that no substantive change was intended.

If you look at the revisor's notes to section 1951(a) in the 1948 revision, it's clear that there is no intent to make any substantive change.

So, I think the Court really doesn't need to go any further on that second issue to rule in the Petitioner's favor.

Justice Ginsburg: The question is whether the Court should rule on it, as in a matter of first decision.

We are a court of review.

There was no determination of whether the Hobbs Act included such a category in the Seventh Circuit.

So, the difficulty, the impediment to addressing your position is that however strong it may be, it wasn't resolved below, so why shouldn't we follow the natural order that first the District Court speaks, and then the Court of Appeals, and then it comes here?

Mr. Untereiner: Justice Ginsburg, I understand the concern, but the Seventh Circuit did everything but resolve the issue.

It says it was resolving the issue, but it... at the same time, it said that it rejected our argument based on the rule of lenity.

It rejected our argument based on the over federalization of State crimes.

It said that both... it rejected our plain language argument.

It went on and on to reject all the same arguments we're making in this Court.

So, I think if the case were remanded to the District Court--

Justice Scalia: Excuse me.

How could the... how could the Court of Appeals not have resolved this issue?

How could it possibly have rendered its judgment without resolving this issue?

Mr. Untereiner: --Well, what the... what the Court--

Justice Scalia: Did you raise this issue below?

Mr. Untereiner: --Yes, we did, Your Honor.

We raised it both in the... at the rehearing petitions in the Seventh Circuit and in the initial appeal.

It did resolve the issue, insofar as it held that the Hobbs Act may plausibly be read to cover freestanding acts for threats of violence.

And that holding is in conflict with the decision of the Ninth Circuit and the Sixth Circuit.

Justice Scalia: Excuse me.

Is that how we apply statutes, that if they may plausibly be read a certain way, that's what they mean?

Mr. Untereiner: Well, that is what the--

Justice Scalia: I don't understand how that's a resolution of the question.

Mr. Untereiner: --The Seventh Circuit went out of its way to say it was not finally resolving the question.

But, Justice Scalia, it, again and again, went through our arguments and rejected them.

And then, at the end of its opinion, it said it would be better to read the statute at... take the statute at face value, and that, it suggests, was what Respondent's position was.

So, I think it went as far as it possibly could to resolve the question and reject all of the arguments that are being made here.

So, I think it... to go back to the District Court, it would be a foregone conclusion, and it would just result in further delay.

This case has gone on for almost--

Justice Kennedy: Well, I'm with you--

Mr. Untereiner: --20 years.

Justice Kennedy: --up to the point where you say it went as far as it possibly could.

As Justice Scalia indicates, why didn't it say,

"This is the way the Act must be interpreted. "

period?

So, it didn't go as far as... I'm just quibbling with your... I'm just quibbling with your statement that it went as far as it possibly could.

I don't think it did.

That's the problem.

Mr. Untereiner: Well, yes, it did leave open the possibility that a court might come to the opposite conclusion.

But I think if you're the District Court reading the opinion of the Seventh Circuit, I think it's clear which way you're going to have to come out.

Justice Ginsburg: Why?

Justice Kennedy: We got you off of--

Justice Ginsburg: Were you--

Justice Kennedy: --We got you off of your first point, but I'd like to just loop back to that for a minute, at this point.

Is this imprecision, this ambiguity, grounds for our reading... our insisting on reading our earlier remand and judgment literally and saying that there are no predicate acts... there are no predicate acts that support this judgment?

Mr. Untereiner: Well--

Justice Kennedy: Do... is there some prudential argument for us not to reach this issue and just insist on the wording of our earlier mandate?

Mr. Untereiner: --The Court could certainly come out that way on prudential grounds as a reason to avoid deciding a Hobbs Act issue.

But, in our view, the Hobbs Act question is a fairly easy and straightforward one.

And the Seventh Circuit's opinion is going to create mischief if left untouched.

Justice Ginsburg: --I'm concerned about your characterization, not only of suggesting that there was some attempt to force a particular decision, but I'm reading the Seventh Circuit's remand to the District Court.

It went through your argument, which it said was a substantial one, that no change was intended in the codification.

And it said,

"While these revisions were intended to be formal stylistic changes, it is not beyond the realm of the possible that the revisors may have made certain substantive changes. "

That doesn't sound like they were ruling on it definitively, but they were tipping their hand.

"Not beyond the realm of the possible. "

That was--

Mr. Untereiner: The Seventh Circuit did everything it could to make it seem like a plausible issue, as opposed to a very clear issue that should be resolved in our favor.

It went out of its way to do that.

Justice Scalia: I don't understand how they... how they could dispose of the case without resolving that.

That's my puzzlement.

Mr. Untereiner: Well--

Justice Scalia: How... I mean, can we do that in a case that comes up here, and just say,

"There are good arguments on both sides, it's quite plausible. "

and remand the case without resolving the issue?

[Laughter]

Justice Ginsburg: --They asked the District Court to resolve it.

They said the District Court should resolve it in the first instance, and then they would review it, presumably.

Mr. Untereiner: --That's right, Justice Ginsburg.

But I do think a premise of the remand for further proceedings in the District Court is that it's plausible to read the statute this way.

And I think the Court could, and should, reverse that aspect of the Seventh Circuit's decision.

Justice Stevens: --Of course, the reason they said it was plausible is that... and you may well be right, on the bottom line, and the Government agrees with you, but there are... there's a redundancy in the statute.

There's a phrase in there that could be taken out, and the statute would have exactly the same meaning, if you're correct.

Mr. Untereiner: We don't agree that there... well, perhaps Your Honor could elucidate--

Justice Stevens: It seems to me those words... I forget what the... "commit threats of physical violence".

So, take those words out.

The statute will have the same meaning.

Mr. Untereiner: --I don't think that's right.

I don't think that's right--

Justice Stevens: Oh, really?

Mr. Untereiner: --Justice Stevens.

I think that that does add something.

The argument is being made in this case that those words are superfluous under our reading, but I don't think that's correct.

Justice Stevens: What function do they perform?

What case would it cover that would not otherwise be covered?

Mr. Untereiner: It would cover preparatory acts of violence that do not rise to an attempt.

We gave several examples--

Justice Stevens: That do not rise to an obtaining?

Mr. Untereiner: --No, do not rise to an attempt, an attempted extortion or robbery.

The example we gave... we gave several examples in our blue brief.

One of them is a defendant who wants to rob a factory and--

Justice Stevens: Oh, I see what you're saying.

Mr. Untereiner: --and--

Justice Stevens: You're... I understand.

Mr. Untereiner: --Yes.

Yes.

If I may, I'd like to turn, in my limited time, to the third question, which is the... whether RICO authorizes private injunctive relief.

And we want to make three basic... or I'd like to make three basic--

Chief Justice Roberts: No, we didn't reach that, last time.

Mr. Untereiner: --That's correct, Mr. Chief Justice.

Chief Justice Roberts: Why, if we... if we agree with you on the Hobbs Act, I assume you would not have us reach that third question this time, either.

Mr. Untereiner: That's correct, there would be no need for the Court to reach that issue this time, either.

But I'd like to just say a few words about that provision, because I think we're right on that issue, as well.

And the Court can pick any one of these three grounds to rule in our favor.

We'd be happy with any of them.

Our principal argument on RICO is that RICO's civil remedies provisions were drawn from the antitrust laws, from the Clayton Act and from the Sherman Act before it.

In fact, the treble damages provision of RICO is taken almost verbatim from the Clayton Act and Sherman Act provisions.

This Court, in a long line of cases, held that the Sherman Act does not authorize private injunctive relief.

And that holding... those holdings were based on the provisions on which these RICO remedial provisions were modeled.

And so, we think when Congress took that language, which is essentially identical, at least in the... in the... in the treble damages provision, from the antitrust laws, that it was entitled to assume that they would be read the same way in RICO.

Justice Stevens: But, of course, at the time they did that, the Clayton Act had already been passed.

Mr. Untereiner: That's true, Justice Stevens.

But I think those provisions were carried forward, and Congress... and this Court's cases, again and again, have relied on Congress's use of the... of the Clayton and Sherman Act models.

You've said that's a dominant strand in the legislative history.

Chief Justice Roberts: Your argument's a little inconsistent with the Franklin case, though.

Mr. Untereiner: I'm sorry.

Chief Justice Roberts: Gwinnett... Franklin versus Gwinnett County.

Mr. Untereiner: Mr. Chief Justice, we think that Franklin is distinguishable.

There are two lines of this Court's cases.

Franklin falls into one line.

That's a case where this Court finds a... or acknowledges a private right of action, but where, necessarily, there's no guidance from Congress of what the remedies are.

And in that situation, the Court does apply a presumption that all available remedies are... will be... will be imputed.

In this... in the second line of cases, which is what this case is all about, Congress sets forth a detailed remedial scheme.

And in those cases, I think it's inappropriate... and this Court has said that repeatedly... for courts to add remedies to those schemes which Congress is... has selected.

Now, this is especially true in this case, because Congress relied on those antitrust precursors.

And, beyond that, section 16 of the Clayton Act, which expressly authorizes private injunctive relief, is... has no analog in RICO.

Now, Congress thought about including a provision like section 16 of the Clayton Act when it considered RICO.

Again and again, proposals were made, but Congress did not adopt those proposals either during the consideration of RICO or shortly thereafter.

If there are no further questions, I'd like to reserve the balance of my time for rebuttal.

Argument of Lisa Schiavo Blatt

Chief Justice Roberts: Thank you, Counsel.

Ms. Blatt.

Ms Blatt: Thank you, Mr. Chief Justice, and may it please the Court--

It is the position of the United States that the physical violence clause of the Hobbs Act requires an intended robbery or extortion, and that private parties, under RICO, cannot obtain injunctive relief.

Justice Stevens: Would you not--

Justice O'Connor: Would you tell us what... which one of these questions, in your view, we ought to address, first and foremost?

If the answer to any of them is favorable to Petitioner's position, I guess that's the end of the case.

Ms Blatt: That's right.

We think what would be appropriate is to recognize that the... this Court's decision last time around did contain a sweeping statement at the end that all the predicate acts must be reversed.

At the same time, the issue of the physical violence clause was not briefed by the parties, it was not discussed in this Court's opinion, it was not discussed in the Seventh Circuit's opinion.

And "law of the case" type principles are discretionary, and this Court has the discretion to reach the two other issues in the case.

Now, the RICO issue is more squarely presented, because there's an actual holding by the Seventh Circuit on that point.

It's also an issue on which the Circuits are divided.

It's important and recurring, and it's been before this Court twice.

At the same time, the Court also has discretion to clean up, or clarify, the Hobbs Act issue.

There was a remand.

And although there's no holding by the Seventh Circuit, there was a remand that was predicated and based on an assumption that the plaintiffs had raised at least a substantial question.

And this Court has discretion to say that was an error of law, because, under the plain language, the physical violence clause is linked to robbery or extortion.

That's plain on the statute, because it requires that the physical violence be in furtherance of a violation.

Justice Ginsburg: Even though two U.S. attorneys, years back, did predicate cases on there being a discrete crime of obstructing commerce through violent means.

Ms Blatt: That's correct.

And those prosecutions were inconsistent with the written guidance of the Department of Justice in a longstanding interpretation of the Hobbs Act, at least since 1965, that it required an intended robbery or extortion.

Justice Stevens: --Ms. Blatt--

Ms Blatt: And--

Justice Stevens: --can I identify a concern?

I'd like you to help me out on it.

I... that language, if you construe it the way the other side does, it would cover certain violent conspiracies that would merely obstruct interstate commerce that we could all be concerned about today.

Are there other criminal statutes on the book that fill that gap?

Ms Blatt: --Yes.

18 U.S.C. 2332(b), subsection (g), is a laundry list of Federal statutes, and it's a good source of reference for the type of Federal statutes that cover violence where there's a distinct Federal interest.

Justice Stevens: So that you're saying, in substance, that you don't need to read the Hobbs Act the way they do in order to protect the public from the kind of harms that the... they would read the statute as covering.

Ms Blatt: That's correct.

There's a lot of statutes on the books that apply to bombing in public places, violence against communication facilities, computer, transportation, energy, airports, any kind of mass transportation.

And that... 18 USC 2332... it's a long list of statutes.

There's also the arson statute and the bombing statute, the use of any explosives in a... in a... in a facility that's used in interstate commerce.

And the Government has brought thousands and thousands and thousands of Hobbs Act prosecutions, and, but for those two, the only two that we can identify, all of our prosecutions have been linked to robbery or extortion.

And if I could address the superfluous point, we don't think the clause is superfluous either, for two reasons.

It applies to a defendant who injures innocent bystanders during a robbery.

Now, the defendant has committed the crime of robbery, but he's also committed the separate crime of using violence against any person in furtherance of that robbery.

So, there could be cumulative punishment based on that offense, and there would be--

Justice Kennedy: What do you mean?

It's a separate--

Ms Blatt: --two separate offenses.

Justice Kennedy: --a separate offense?

Ms Blatt: It's a separate offense for--

Justice Kennedy: So you charge two counts for violating the same section?

Ms Blatt: --Yes, because there's two distinct harms.

There's not only the business, as the victim of the robbery, but there's the innocent bystanders who were injured or killed during the course of that robbery, and that would be two separate... and then there's another way it's not--

Justice Kennedy: Two separate violations, each of which violates the same statute?

Ms Blatt: --Yes, that's right.

Justice Breyer: Is it... you just... on your list, I had the impression, but tell me if I'm right or wrong, that there's a specific statute dealing with abortion clinics now, though there wasn't when this case began.

Ms Blatt: Yes, the--

Justice Breyer: So that if--

Ms Blatt: --FACE Act.

Justice Breyer: --Operation Rescue did the same kind of thing now that they did then, the Petitioners in... the plaintiffs in this case would be able to get relief under that statute.

Is that right or wrong?

Ms Blatt: That's absolutely correct.

The FACE Act, which was passed in 1994, gives private parties a right for damages and injunctive relief for blocking access to clinics.

That would... that would cover this specific case, and then there's the more general statutes I was speaking about earlier.

But there is a specific right to injunctive relief, and I think the plaintiffs in this case tried to add claims under the FACE Act, but they were... they were denied the ability to do that.

The second way it's not superfluous is the example given by Petitioners, in that it applies to a defendant, for instance, who tries to enlist another person in a robbery, but the neighbor, or the... excuse me, that person just refuses.

The physical violence clause would apply to that situation regardless of whether that conduct also qualifies as an attempt.

Justice Ginsburg: Ms. Blatt, your time is almost over, so, on the injunction part, what remedies are available to the United States under your reading of the provision?

Injunctive relief, yes.

What about... is there any monetary relief that the United States can seek under RICO?

Ms Blatt: Well, 1964(a) addresses equitable relief, and the Government can get things like disgorgement under (a).

But as far as damages are concerned--

Justice Ginsburg: Yes.

Ms Blatt: --no.

This Court held, in the Cooper case, which is an antitrust case that was talked about in the Flamingo decision recently, the United States is not a person who is able to sue under the antitrust laws, because... the general background principle that the United States is not a person.

And we think it's highly relevant that, after this Court repeatedly held that private parties cannot get injunctive relief, that the United States cannot get damages under the antitrust laws, Congress, in the Clayton Act, passed two express provisions of Government damages action... that was in 1955, and now it's a treble damages action... as well as an express private injunctive action.

And, thus, there was this menu of remedies in the antitrust laws of express Government equitable, express Government damages, express private treble damages, and then Government damages.

But Congress, in RICO, only picked up two of them.

It picked up an express, a right for the attorney general to seek injunctive relief and other equitable relief, and it picked up an express right for private parties only to seek treble damages.

In light of the holding after holding after holding, we identified six cases that were... that were rendered before the passage of RICO, and the Cooper decision, which said the Government cannot seek damages.

We think it's very clear that when Congress borrowed from the antitrust laws, but did not pick up those two express rights, that the governing principle is that when Congress borrows a statute that's been definitively construed, Congress adopts that judicial construction along with the statute.

And it's particularly relevant because of those two express provisions.

And RICO is... just contains that structure that was there in the Sherman Act, with the express public equitable action and the express private treble damages action.

If there are no question, we'd ask the Court to, if it wants, to reach--

Justice Kennedy: I have... just have one question.

If we were to adopt the Petitioner's first suggestion that we should simply have a strict reading of our mandate, would that cause problems, so far as people interpreting our precedent and indicating that, by implication, we've reached this Hobbs Act question?

Ms Blatt: --No, I don't think so.

I think in the... I don't think so.

The Court could apply just straightforward "law of the case" principles and say,

"Regardless of whether we actually reached the four predicate acts, our judgment spoke clearly that the injunction had to be vacated. "

Justice Stevens: Regardless of whether we knew what we were doing, we said it.

[Laughter]

Ms Blatt: And that's why we think it's appropriate for the Court to say, just like the Court did in the recent per curiam Eberhart, that generally courts are supposed to follow this Court's mandates, and they're supposed to articulate their concerns to facilitate resolution by this Court, and then leave it up to this Court to clarify an earlier decision.

Justice Scalia: Except if they think we didn't know what we were doing.

I--

Ms Blatt: I think that--

Justice Scalia: --they ignore it if they... if they think that we didn't know what we were doing.

Ms Blatt: --Well, they could have--

Justice Stevens: Only when it's perfectly clear that we didn't know it.

[Laughter]

Ms Blatt: --We do think that the judgment did sweep more broadly than the circumstances--

Justice Stevens: You don't think there's even an arguable basis for saying we resolved the statutory question that's presented now, do you?

Ms Blatt: --No, because usually the Court doesn't decide important... the construction of a Federal statute, a Federal criminal statute, without discussing it.

It was... I don't want to say "buried in footnotes", but it was mentioned in the footnotes at the petition stage the second time around, and then it dropped out of the case.

And even the United States didn't discuss it--

Justice Stevens: But it's not mentioned in the opinion.

Ms Blatt: --It's not mentioned in the opinion.

It's not mentioned in the briefs, at the merits stage.

It was not mentioned by the Seventh Circuit.

At the same time, the court, at the end, did say that all of the predicate acts had to be reversed.

Thank you.

Argument of Erwin Chemerinsky

Chief Justice Roberts: Thank you, Ms. Blatt.

Mr. Chemerinsky.

Mr. Chemerinsky: Good morning, Mr. Chief Justice, and may it please the Court--

The Seventh Circuit did exactly the right thing in this case.

It sent the case back to the District Court and asked the District Court to determine whether an injunction could remain, based on the four counts of physical violence and threats of violence, and asked the District Court to determine whether or not the Hobbs Act applies to physical violence and threats of violence apart from extortion and robbery.

This made great sense.

No court, in this long litigation, had yet discussed the meaning of the Hobbs Act and whether it applies to physical violence and threats of violence apart from extortion and robbery.

There's already been a good deal of discussion about what this Court meant in its prior decision.

I think you find clarification if you look at page 399 of your prior decision, where the Court lists the predicate acts that it was considering.

And if you add up the numbers, it adds to 117 predicate acts, but if you go to the jury's verdict, the special interrogatories, they found 121 acts.

What was omitted from the Supreme Court's listing last time were the four counts of physical violence and threats of violence in violation of the Hobbs Act.

Justice Souter: Well, that's true, but don't you have the further difficulty that we didn't nearly reverse with respect to the... to the Hobbs Act violations, or to the listed ones.

We made it clear.

We said, expressly, that the judgment had to be reversed, which seems to sweep everything within it, doesn't it?

Mr. Chemerinsky: No, Your Honor.

What this Court did was reverse and remand for further consideration, consistent with the decision of this Court.

Since this Court had not considered the--

Justice Souter: But, I mean, that's what we always say.

And it may be that there is absolutely nothing to do, at that point, except enter judgment for one side and be done with it.

Mr. Chemerinsky: --But this Court has been clear that it only decides the issues that it speaks to.

It's not plausible, Your Honor, that this Court was deciding a major unresolved issue of Federal criminal law without ever speaking to the question--

Justice Souter: Well, I think... I think, you know, your argument is fine, but the trouble is, if the question is,

"Did the Seventh Circuit honor the judgment of this Court? "

I think there's a pretty good argument that it not... that it did not, based upon the fact that we, in effect, summed up everything we were purporting to say with the phrase that the judgment itself had to be reversed.

Mr. Chemerinsky: --Except, Your Honor, this Court has said that it doesn't decide issues that weren't presented to it.

And if you look at page 397--

Justice Scalia: He's not talking about the deciding of issues; he's talking about reversing a judgment.

You don't have to go into what the issues are in order to follow that instruction.

The judgment is reversed.

And if there were issues that should have been resolved in order to reverse the judgment, and that weren't, it would seem to me that your remedy would not be to say to the Court of Appeals,

"Well, the Supreme Court didn't mean what it said. "

or,

"didn't know what it was doing. "

but, rather, to move for reconsideration here.

Mr. Chemerinsky: --No, Your Honor.

Rehearing is to issues that were decided by this Court.

This Court clearly did not speak to the meaning of the Hobbs Act.

And so, it was completely appropriate for the Seventh Circuit to say that this Court considered the issues, in terms of what extortion was about, whether the injunction is permissible under civil RICO.

If you look at the--

Justice Scalia: Are you saying you couldn't... you couldn't file a motion for rehearing on the ground that the Court neglected to address four points that were made very... you made nothing of them in the... in the argument or in the briefs.

It was almost not considered at all.

Do you mean that when a judgment is issued that is so clearly, in your view, erroneous, you can't come to the Court and say,

"The judgment is erroneous, you forgot to address these issues? "

I hope you can do that in a motion for rehearing.

Mr. Chemerinsky: --But, Your Honor, it's not required to present it that way.

And I think what's incorrect about your phrasing is, it was Petitioners that did not present this.

It was the same Petitioners last time.

They presented to this Court the questions as to the meaning of RICO.

In fact, if you look at page 397 of your prior decision, it clearly states that there were two issues presented, what RICO.

I think it was completely appropriate, then, for Respondents to say this Court didn't deal with the four issues in... concerning whether violence and threats of violence are separately from the Hobbs Act.

And it was then permissible to say to the Seventh Circuit,

"These remain as a basis for relief. "

Justice Scalia: They would have to say not just that.

They would have to say,

"The court did not deal with those four issues, and, therefore, its judgment was erroneous. "

They would have to say that in order to... in order to act the way they did--

Mr. Chemerinsky: Your Honor--

Justice Scalia: --because our judgment was "reverse".

Mr. Chemerinsky: --Your Honor, if this Court had entered judgment for Petitioners, which it could have, then you would be correct.

But, instead, what this Court did, as I said, is reverse and remand for consideration.

And the Seventh Circuit--

Chief Justice Roberts: Do we look... do we... do we typically enter judgment, ourselves?

Mr. Chemerinsky: --No, typically you don't.

But it is certainly permissible and possible for this Court to do so.

Chief Justice Roberts: When was the last time we did that?

Mr. Chemerinsky: I don't know the answer to that, Your Honor, other than, of course, as a court, this Court obviously could enter judgment for Petitioners.

The fact that this Court said--

Justice Stevens: Well, I don't think we would actually enter judgment.

We'd... we might reverse with instructions to have the lower court enter judgment, but we wouldn't enter the judgment ourselves.

Mr. Chemerinsky: --Your Honor, the Court could certainly, and, more likely, would do what you say.

It could also affect the judgment--

Justice Stevens: The mandate, in this case, remanded, is that what you--

Mr. Chemerinsky: --That's correct, Your Honor.

Justice Stevens: --So further proceedings--

Mr. Chemerinsky: That's right.

Justice Stevens: --consistent with the opinion.

Mr. Chemerinsky: And my only point is, since this Court clearly said it was dealing with 117 of the acts, and clearly did not mention the four counts of violence and threats of violence under the Hobbs Act--

Chief Justice Roberts: Well, it also said, in the last paragraph,

"all of the predicate acts supporting the jury's verdict. "

Mr. Chemerinsky: --That's right.

And the question, of course, is, What does "all" refer to here?

And I would say, if you go back to page 399, it lists the predicate acts that it's referring to and there--

Chief Justice Roberts: No, it says--

Mr. Chemerinsky: --117--

Chief Justice Roberts: "# all the predicate acts supporting the jury's finding of a RICO violation. "

Mr. Chemerinsky: --But, Your Honor--

Chief Justice Roberts: So, it's quite clear what "all" was referring to.

Mr. Chemerinsky: --But, Chief Justice Roberts, then the assumption would have to be that this Court was deciding the four counts, in terms of violence and threats of violence, even though it wasn't presented in the cert petition, even though it wasn't briefed, and even though it was never discussed in this Court's opinion.

And I think it was quite logical for the Seventh Circuit to say the appropriate thing to do is to let the District Court decide whether any injunctive relief was appropriate, based on those four counts; and, if so, what that provision of the Hobbs Act means.

Justice Ginsburg: Mr. Chemerinsky, if we turn from what this Court did, or did not, think about last time around to what those four counts were, would I look to find out what were those four acts of violence that remain in the case?

I could not find, in any of the papers before us, any specific definition of what those acts of violence were.

I mean, the jury was given... I don't know what... was it a dozen possibilities?

And they found four.

But which four, we have no idea.

Mr. Chemerinsky: But, Your Honor, that would be a reason why this case should go back to the District Court, because that's the judge who tried the case.

Justice Ginsburg: But he... but wasn't this tried to a jury?

That was a jury that made those findings.

Mr. Chemerinsky: Yes--

Justice Ginsburg: And the jury is no longer sitting.

Mr. Chemerinsky: --But the judge presided over the jury trial, and the judge could identify if there were four acts of violence and threats of violence to obstruct interstate commerce.

Justice Ginsburg: He knows that there were four acts.

He knows that he... under his instructions, the jury could pick 12.

How could he know which four the jury homed in on?

Mr. Chemerinsky: But, Justice Ginsburg, he doesn't need to know which four.

What he needs to determine is, Did the record that was presented to the jury support the finding that there were four acts of violence and threats of violence?

And we'd suggest that--

Justice Ginsburg: But does it... when what turns on that finding is injunctive relief, the judge might very well be influenced by what those particular acts were.

He might say one set of four was not adequate to issue this injunction, but another set of four would be.

And we just don't know... we don't know what those acts were.

The jury is not to be called back.

The Seventh Circuit said "no more evidence".

So, if we get down to those four acts, how can we say those are sufficient to uphold an injunction, when we don't even know what the acts were?

Mr. Chemerinsky: --But the traditional rule is to interpret the jury's verdict in a way that's most favorable to its conclusion.

And so, here what the judge has to decide is, based on the record, were there four acts of violence or threats of violence to obstruct interstate commerce?

And we'd suggest it would be quite easy for the judge to identify four such acts.

Justice Scalia: Well, you say "most favorable to its conclusion", but did the jury conclude that there should be an injunction?

Mr. Chemerinsky: No, of course, but--

Justice Scalia: That's up to the judge.

Mr. Chemerinsky: --but the jury--

Justice Scalia: So, I mean, the principle that you interpret a verdict in the manner most favorable to its conclusion has no application here at all.

Mr. Chemerinsky: --But, Your Honor, the jury did find, in special interrogatory 4(e), that there was violence and threats of violence and if... to obstruct interstate commerce.

Also here, remember the judge held a separate hearing after the jury verdict, before issuing injunction.

And if, on the basis of the evidence that he heard during the trial in that special hearing, he found four acts of violence and threats of violence, he then has to decide what injunctive relief is appropriate.

And, of course, he would also, consistent--

Justice Scalia: Excuse me.

You mean it's up... I don't understand that.

The judge, in order to issue the injunction, becomes a second factfinder, and he can find four... he can pick four out of the twelve, perhaps four that the jury had not picked?

Mr. Chemerinsky: --Your Honor, since this is an injunction, he is allowed to consider the evidence that he heard, since he was sitting in an equitable matter.

And so, there were actually two presentations--

Justice Scalia: So, he can... he can actually make a finding.

And it... and it could be that the jury found that eight of them weren't valid, and the judge, in order to issue an injunction, can contradict the jury and say,

"You know, I find that other four? "

Mr. Chemerinsky: --Well, when it comes to injunctive relief, the judge can hold a separate hearing, and that's exactly what happened here.

And I believe the issue for the judge on remand would be, Were there four acts of violence or threats of violence to obstruct interstate commerce?

And I think the record clearly indicates there were.

The judge said, here,

"There is enough evidence, to fill this courtroom, of illegal acts by the Respondents. "

Justice Ginsburg: But the Seventh Circuit in its most recent expression said,

"It may well be that the judge will decide that those four predicate acts. "

--as opposed to 121 going in, four...

"were not sufficient to support certainly a nationwide injunction, but perhaps not any injunction. "

Mr. Chemerinsky: That's correct, Your Honor.

That's why it was appropriate for the Seventh Circuit to remand the case to the District Court, because if the court were to conclude that an injunction is not appropriate, then anything that would be said about the meaning of the Hobbs Act or about civil RICO would then just be an advisory opinion.

And that's why this Court, we believe, should also send the case back to the District Court.

But if it reaches the meaning of the Hobbs Act or civil RICO, we believe that this is a situation there the plain meaning of the statute clearly controls.

Chief Justice Roberts: Is there anything that... under your reading of the Hobbs Act, that isn't covered by the FACE Act?

Mr. Chemerinsky: Well, yes, Your Honor.

The nature of the relief is certainly different under the Hobbs Act than under the FACE Act.

Also, of course, at the time this action was brought, 19 years ago, the FACE Act didn't exist.

Chief Justice Roberts: No, I know.

But in terms of the... we now have specific legislation addressed to the specific context.

And all of the acts that you're complaining of in the original suit are actionable under the FACE Act, aren't they?

Mr. Chemerinsky: That's correct, Your Honor.

Justice Breyer: I'd like you to get to the meaning of the Hobbs Act.

Mr. Chemerinsky: Yes, sir.

Justice Breyer: And I'll try to focus my own thoughts on this by saying two objections to what you're arguing, related, that when they passed the Hobbs Act, it had a section 2, and section 2 said,

"This is an Act that forbids robbery and extortion, all involving interstate commerce. "

"And robbery/extortion involve property. "

Then it had a section 5.

And section 5 said,

"This Act forbids physical violence or threats of violence related to section 2. "

Now, all that happened since then is, there was a recodification.

And the recodification wasn't meant to change anything substantive.

Second and related point Enmons.

For 35 years, working people in this country have thought they had a right to strike, free of the Hobbs Act.

And your interpretation, as the AFL CIO points out, will gut the right to strike.

Now, those are two strong arguments against you, and I'd like to hear your response.

Mr. Chemerinsky: Thank you.

And I'll address them, first and then second.

As to the first point, you correctly quote the 1946 statute, but the 1948 revision was approved by Congress, and it specifically says

"robbery or extortion or attempts so to do. "

comma,

"or physical violence or threats of violence. "

This Court has said, in cases like United States versus Ron Pair, that commas have to be given meaning.

This Court, in many cases, such as FCC versus Pacifica, said, "or" must be given meaning.

There is--

Chief Justice Roberts: Well, we've also said that we don't assume a substantive change from a recodification.

Mr. Chemerinsky: --But, Your Honor... the statute has been approved by Congress.

It is that which is authoritative.

And this Court has said, in other cases, like United States versus Wells, and State Farm versus Tashire, that revisors notes are often erroneous.

This Court has said the cardinal rule of statutory construction is that the plain language must be followed.

Chief Justice Roberts: So, your argument requires us to assume that Congress intended a substantive change when it recodified the Hobbs Act.

Mr. Chemerinsky: That's right.

This... my argument is that the plain language makes clear that Congress did enact a substantive change.

And, indeed, to interpret the law as Petitioner suggests, would render the words about

"physical violence or threats of violence. "

as mere surplusage.

And so, for example, some of the illustrations that were mentioned earlier, one was about the possibility of a planned pride and attempt.

But, in a model penal code, section 5.01, it's clear that any substantial step is sufficient for an attempt that--

Chief Justice Roberts: Who... who's enacted the model penal code?

Mr. Chemerinsky: --I mention the model penal code as just something that's regarded as an authoritative definition with regard to criminal law.

There's many jurisdictions around the country, including at the Federal level, consistently saying a substantial step is sufficient for an attempt.

Another example that was mentioned was the subordinate enforcer.

Would the subordinate enforcer would be likely considered part of a conspiracy or an accomplice?

Justice Ginsburg: Mr. Chemerinsky, the problem that I have, and Justice Breyer expressed, is, we have the revisor's notes that suggest,

"I was just getting rid of extra words. "

"I was making this a tighter provision. "

And there's not anything to indicate that Congress considered any change in the substance of the Act.

Mr. Chemerinsky: Your Honor, there is almost no legislative history for the 1948 revision.

All there is, as you rightly say, is the revisor's notes.

But this Court has said that the revisor's notes are not authoritative.

And this Court has said, on so many occasions, that--

Justice Ginsburg: But here's a... the revisor telling us,

"I did this, and I did this to clean up the Act, to make it less wordy. "

Mr. Chemerinsky: --Yes.

But even if that's regarded as authoritative, this Court has so often said legislative history cannot justify ignoring plain meaning.

And, given the comma and the word "or" and the fact that, otherwise, the words "by physical violence" would have no meaning--

Justice Scalia: Let me--

Mr. Chemerinsky: --that's the plain meaning.

Justice Scalia: --let me talk--

Justice Souter: Well--

Justice Scalia: --about the comma.

I don't... I don't... I don't understand your argument on that point.

I mean, it says,

"Whoever, in any way or degree, obstructs, delays, or affects commerce or the movement or any article or commodity in commerce by robbery or extortion or attempts or conspires to do so. "

comma... that's the comma you're talking about?

Mr. Chemerinsky: Yes.

Justice Scalia: "# or threatens physical violence to any person or property. "

but it continues,

"in furtherance of a plan or purpose to do anything in violation of this section. "

Now, the only thing that this section has, prior to that statement, said to be a violation is obstructing/delaying by robbery, extortion, or attempt or conspiracy to robbery or extortion.

Mr. Chemerinsky: No, Your Honor.

Two points here.

First, it says "a plan".

It's clear, there is... it's a plan to obstruct, interfere, or affect commerce.

The others, Your Honor, you quickly skipped over--

Justice Souter: --No, but--

Justice Scalia: "Plan to do anything in violation of this section. "

which is not just obstructing commerce, but obstructing it by robbery, extortion, or attempt or conspiracy to robbery or extortion.

Mr. Chemerinsky: --No, Your Honor.

I think that does deprive the comma or the word "or" meaning.

And, in fact, it deprives the title of meaning, because the title here can be used when the title makes clear that it's about violence to obstruct interstate commerce.

I'd also point out some words--

Justice Breyer: But that's a jurisdictional hook, isn't it?

When you see something in a criminal statute that forbids "affecting commerce by", that means that Congress wants to prevent the conduct that will follow the words "by", and it needs a jurisdictional hook, so it puts in "affecting commerce".

That's how I've always understood the Federal criminal code.

Am I--

Mr. Chemerinsky: --Yes.

Justice Breyer: --wrong in that?

Mr. Chemerinsky: Yes, Your Honor.

Here, what it's saying is that Congress is prohibiting

"plans to obstruct commerce by robbery or extortion or physical violence or threats of violence. "

And, Justice Scalia, when you read the statute to me, some of the words that were skipped over quickly were the words "so to do".

Notice it says

"with regard to robbery or extortion or attempts to do so. "

comma.

If they meant violence and physical violence to only refer to extortion or robbery, as they did with "attempt", then "so to do" could have been put into that clause, as well.

Justice Scalia: What is... what meaning do you give to the phrase

"in furtherance of a plan or purpose to do anything in violation of this section? "

Under your interpretation, you could just drop that... drop that phrase completely.

Mr. Chemerinsky: Not at all, because it makes clear that Congress didn't mean, here, to criminalize every act of violence that occurs.

It has to be, in order to be actionable, a

"plan of physical violence to obstruct interstate commerce. "

That's why this doesn't apply--

Justice Scalia: But that's not a violation of the section.

1951.

Mr. Chemerinsky: --No, Your Honor.

What is a violation of 1951--

Justice Scalia: --is obstructing it by robbery or by extortion or by attempt or conspiracy to robbery or extortion.

Mr. Chemerinsky: --I disagree, because I think then it does reduce the words

"physical violence or threats of physical violence. "

to mere surplusage.

Justice O'Connor: Well, no, because the--

Justice Souter: --Well, what do you say to the response--

Justice O'Connor: --the counsel for the Government explained that if, in the course of committing a robbery, some bystander is physically injured, it's covered.

Mr. Chemerinsky: No, Your--

Justice O'Connor: I mean, that's understandable, isn't it?

Mr. Chemerinsky: --No, Your Honor.

The reason is, if somebody is injured in the course of a robbery, that's already punished as part of the robbery.

In fact, the Federal sentencing guidelines make clear that harms that are caused while committing a crime are punished as a part of that crime.

You--

Justice Scalia: If you're--

Mr. Chemerinsky: --don't need to--

Justice Scalia: --convicted--

Mr. Chemerinsky: --include that language.

Justice Scalia: --of the crime, but you cannot be indicted as a separate crime.

This makes it a separate offense.

Mr. Chemerinsky: But, Your Honor--

Justice Scalia: You're saying we... you can use it to aggravate the punishment for some other offense, but this does... this does something quite beyond that.

It says it is a separate offense.

Mr. Chemerinsky: --But, Your Honor, for every criminal law, injuries that are committed by those who are engaged in the criminal activity are punished as a part of that criminal act.

Now, Justice Breyer, your second--

Justice Souter: --Well, you say they are punished as a part of the act, but Justice Scalia's point is still true, it only goes to punishment.

The way this is written, it may be charged as a separate offense.

Mr. Chemerinsky: --But, Your Honor, there would be no need to charge a separate offense.

If you look at 1951(b)--

Justice Souter: Well, I... I mean, one is... I'm attempted to say, "Well, tell Congress that".

If they want to create a separate offense, they can do it.

Mr. Chemerinsky: --No, Your Honor.

If you look at section 1951(b), where it defines "robbery" and "extortion", it already includes "violence" in the definition of "robbery" and "extortion".

There would be no need for Congress to separately--

Justice Souter: But isn't the reasonable reading of that,

"violence in the course of achieving... for the purpose of achieving the object in question. "

as opposed to, in effect, a "by blow against a bystander"?

Mr. Chemerinsky: --No, Your Honor, I don't think so, since the statute defines 1951(b), specifically to include acts of violence, then all the things we're talking about after the crime would already be part of what's prohibited by the statute.

Justice Breyer: Mr.--

Mr. Chemerinsky: It could already be charged--

Justice Breyer: --I want to give you a chance, because you're quite right in thinking that I'm moved, in large part... or worried, in large part... not about this language, but about the change in Federal criminal law.

And the change in Federal criminal law, if you're right, way beyond this case, would transform virtually every threat of violence made anywhere in the United States into a serious Federal crime.

At the least, it would... and make a major change in threats of violence on the picket line.

And those are two aspects of the same thing.

And I'm worried about the upsetting of expectations way outside the context of this case and making a major change in Federal labor law, for example.

Mr. Chemerinsky: --Let me start labor law and then go more generally.

Section 1951(c) has a specific provision that makes clear that the Hobbs Act was not meant to change the protection of labor unions.

And, in fact, every one of the statutory references in 1951(c) is to a statute protecting labor unions.

Enmons specifically says--

Justice Breyer: What does it... 1951(c) says what?

Mr. Chemerinsky: --It lists... it says

"nothing in this statute is meant to alter the protections of. "

and then it lists a whole number of statutes, and those are all statutes that protect labor unions.

Justice Breyer: Yeah, but I... then perhaps I... that's an old statute, 1951(c), isn't it?

Is it something brand new?

Mr. Chemerinsky: Well, this is the Hobbs Act.

Justice Breyer: Yeah.

Mr. Chemerinsky: Section 3--

Justice Breyer: All right.

What is it--

Mr. Chemerinsky: --of the Hobbs Act.

Justice Breyer: --Well, the case that interpreted the Hobbs Act, which is Enmons--

Mr. Chemerinsky: Right.

Justice Breyer: --seems to rely, for the labor union exemption, on the fact that a threat of violence in effort to obtain legitimate wages is not within the Act.

But if we read "legitimate wages" out of the Act, then I guess we would be left with "the threat of violence".

Mr. Chemerinsky: No, Your Honor.

And the reason is, Enmons says there's a special legislative history of the Hobbs Act specifically about labor.

And Enmons concluded that if the violence is part of a strike to pursue lawful union activities, it is not actionable under the Hobbs Act.

Nothing that this Court would decide here would change that specific protection of unions, one that's codified in the statute.

As to your former question, nor would ruling in favor of Respondents here change the criminal laws you suggest.

The statute would only apply to a plan to obstruct interstate commerce by physical violence or threats of violence.

Your Honor, this is an interpretation--

Justice Breyer: No, the... it's not a... that's wrong.

It says "affect commerce".

Mr. Chemerinsky: --Right.

Justice Breyer: And, therefore, we have the instance of any threat of violence that affects commerce becomes a Federal crime subject to 20 years of imprisonment.

And, of course, in today's world, as you know, I believe almost everything affects commerce.

And if I'm even close to being right, this is a major incursion of Federal law, serious criminal Federal law, into what could be fairly minor matters of State criminal law.

Mr. Chemerinsky: No, Your Honor, because of the importance of the word "plan".

And this goes to my answer to Justice Scalia earlier.

The fact that it has to be a plan to obstruct or affect interstate commerce is an important limitation here.

And it's key to remember that this is the position that the United States Government took for at least 25 years... from the Franks case, in 1974, to the Milton case, in the Fourth Circuit in 1998, the Yankowski case, in 1999... and it hasn't had those effects.

But if it does, Your Honor, then the appropriate solution is for Congress to change the statute, but not for this Court to ignore the plain meaning of the law.

The final issue that was presented concerns the RICO statute.

Here, section 1964(a) clearly authorizes courts to have jurisdiction to issue injunctions.

Unlike the Sherman Act provision that only authorized Government to seek injunctive relief, section 1964(a) allows Federal courts of jurisdiction, in any instance.

This Court has said, in many instances, as Chief Justice Roberts pointed out, such as Franklin versus Gwinnett County, that when Federal courts have jurisdiction, they retain equitable power unless Congress expressly stripped that authority.

So--

Chief Justice Roberts: Well, your friend's answer was that that was an implied right of action case; and, therefore, the remedies had not been spelled out; and so, you assume the broader remedies.

What's wrong with that answer?

Mr. Chemerinsky: --No, Your Honor, because this Court has said, in any instance, Federal courts have equitable power unless Congress has expressly stripped it of that power.

United States versus Umansky would be an example where this Court said that, as well as the language from Franklin versus Gwinnett County.

And that's especially true here, where Congress, in the RICO statute, specifically said that it should be broadly construed.

This Court, in Sedima versus Imrex, said especially as to the remedial provision, section 1964, this should be broad construction.

Justice Ginsburg: As you read it, can a private party get a preliminary injunction?

Mr. Chemerinsky: No, Your Honor, in terms of the Government specifically authorized by 1964(b) to get a preliminary injunction.

And the reason for that is, generally the Government can't get injunctions to stop criminal activity.

1964(b) was added for that.

But I'd say 1964(a), to go to your specific question, would authorize anyone to be able to go to the Federal court to use any of the Federal court's inherent powers.

Justice Ginsburg: So, a private party could get an... not only permanent, but preliminary--

Mr. Chemerinsky: Yes, Your Honor.

Justice Ginsburg: --injunction.

Mr. Chemerinsky: Yes.

1964(b) was added because of the traditional common law rule that the Government generally can't get such injunctions.

Our position is simple.

We believe that the Hobbs Act was changed precisely to deal with the situations where there might be a radical animal activist group that might be blowing up restaurants that serve meat, or clothing stores, or where there might be situations where racists were blowing up businesses owned by blacks or Jews.

That's what the Hobbs Act does.

And the RICO statute provides, as Congress intended, a broad remedial scheme.

Justice Scalia: Mr. Chemerinsky, I... you said earlier that our... that we "reversed and remanded".

That was not in our opinion, though, as it sometimes is,

"Therefore, you know, the case is remanded. "

It doesn't say that.

Our opinion here just says "reversed".

Mr. Chemerinsky: Right.

But, Your Honor, this case--

Justice Scalia: It just says--

Mr. Chemerinsky: --obviously was sent back--

Justice Scalia: --"# reversed".

Mr. Chemerinsky: --to the Seventh Circuit.

And the Seventh Circuit then had to interpret what this Court decided.

And--

Justice Scalia: I see.

And they interpreted "reversed" to mean "remanded".

Mr. Chemerinsky: --Because this Court had not considered--

Justice Scalia: I see.

Mr. Chemerinsky: --the four acts--

Justice Scalia: I see.

Mr. Chemerinsky: --of violence and threats of violence.

Justice Scalia: So, that enabled them to say that what we meant was not "reversed", but "reversed and remanded".

Mr. Chemerinsky: What this... what the Seventh Circuit did was look at this Court's opinion and see that the statement of the issues, on page 397--

Justice Scalia: They didn't look at the last line of our opinion, which said "reversed".

Mr. Chemerinsky: --But, Your Honor, that would then assume that this Court decided an issue about the meaning of the Hobbs Act that was never presented in the cert petitions, never briefed, never addressed in the opinion.

Justice Ginsburg: They made the assumption that this Court has an obligation to reason why, and there was no reason why given as to those four counts.

Mr. Chemerinsky: That's right.

No discussion whatsoever, Your Honor.

Justice Scalia: It's a broad principle.

Whenever a Court of Appeals thinks that we haven't really resolved all the issues in the case, they can ignore our order that says "reversed".

Mr. Chemerinsky: Of course not, Your Honor.

What the Seventh Circuit had to decide was, What about the four counts of violence or threats of violence that were found by the jury?

Since they weren't ever discussed, the Court of Appeals did exactly the right thing, sent it back to the District Court to decide whether an injunction is still appropriate; and, if so, what the Hobbs Act means.

Thank you.

Chief Justice Roberts: Well, Congress never discussed the change in the Hobbs Act that you're proposing, in 1948.

[Laughter]

Mr. Chemerinsky: That's true.

But it's unusual that, in 1948, Congress actually passed that statute.

And so, that's binding.

Here, the Seventh Circuit--

Justice Stevens: We also actually entered a mandate, too.

[Laughter]

Mr. Chemerinsky: --Yes, that's true.

Thank you very much.

Rebuttal of Alan Edward Untereiner

Chief Justice Roberts: Thank you, Mr. Chemerinsky.

Mr. Untereiner, you have 3 minutes remaining.

Mr. Untereiner: Thank you, Mr. Chief Justice.

I just want to make a few very quick points.

First, I heard Mr. Chemerinsky say that the third clause was unnecessary in the Hobbs Act, because robbery and extortion necessarily involve acts or threats of violence.

I just would like to point out that the Hobbs Act also covers official extortion, which does not require acts or threats of violence.

Secondly, on the Enmons point that Justice Breyer was asking about, you're quite right, Justice Breyer, that to accept the other side's position would effectively overrule Enmons.

Enmons did not rely, in any way, on section 1951(c), had nothing to do with the Court's analysis.

If you look at section 1951(c), which is reprinted in the Scheidler blue brief at page 2(a), you'll see that it just refers to some labor statutes.

It says that the Hobbs Act is not meant to repeal, modify, or affect those laws.

But those laws don't protect violent conduct, so that's a red herring.

And, number three, I'd just like to point out that in this Court's last decision in this case, the Court made clear that coercion is not covered by the Hobbs Act.

But under the Respondent's reading, some acts of coercion would, in fact, be covered by the Hobbs Act.

Finally, we'd just like to reiterate our request that, if the Court rules in our favor, it make very clear, in remanding the case, that judgment should be entered in favor of Petitioners.

Thank you.

Chief Justice Roberts: Thank you, Counsel.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Scheidler v. National Organization for Women (NOW) - Oral Argument

Fri, 09 Jan 2009 14:50:42 +0000

Case:

Scheidler v. National Organization for Women (NOW)

Media File:

01-1118_20021204-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Roy T. Englert

Justice Stevens: We'll hear argument in case Number 01-1118, Scheidler against the National Organization of... of Women.

You may proceed.

Mr. Englert, Jr.: Thank you, Justice Stevens, and may it please the Court:

This case comes to the Court in a remarkable posture.

If you agree with the Hobbs Act arguments in the blue briefs, you should reverse the jury verdicts and direct entry of judgment for the defendants.

But even if you believe the arguments in the red and gray briefs, you should still reverse, but for a new trial.

And whatever you do on the Hobbs Act, you should reverse the RICO injunction because RICO simply does not authorize private injunctive relief.

Now, why do I say so starkly that even respondents and the Government's theories require reversal of the jury verdict?

Because the attempts in those briefs, to salvage the theory of plaintiffs' case, concede that someone must obtain the victim's property for the offense of extortion to be shown.

And the whole reason the Court granted cert on the Hobbs Act issue was to review the Seventh Circuit's holding directly contrary to those concessions that, quote, a loss to, or interference with the rights of the victim is all that is required, closed quote.

Likewise, the jury was instructed that all it had to find was that the defendants caused someone, quote, to give up a property right, closed quote.

You will find in the red and gray briefs very elaborate efforts to suggest meanings of obtain and property under which the record in this case supposedly could support a finding that petitioners obtained some abstract form of property from the clinics or women.

But no defense of the Seventh Circuit's holding and the jury instructions that substituted the phrases, interference with and give up for obtaining.

So there ought to be no question that some form of reversal is required.

Now, the reason why there should be reversal for the entry of judgment for the defendants, and not just for a new trial, is that respondents and the Government's brief-formulated conceptions of obtaining and property are wrong.

The essence of the theories is that petitioners obtained control over the use and disposition of clinic assets.

To refer to that as obtaining property of another... the language of the Hobbs Act... is an awfully broad use of language.

It's a far cry from the New York law on which the Hobbs Act was based.

Justice Kennedy: I suppose in some instances one competitor can buy another competitor's firm and just close it up in a regular business transaction, and that... that would be obtaining it in that sense.

Now, of course, I recognize that title transfers, et cetera, et cetera.

Here the result is about the same.

Mr. Englert, Jr.: No, Your Honor.

Respectfully, it's not.

My clients don't have the clinic's property today as they would if they had, in fact, obtained it.

They may have temporarily interfered with some use of it.

Justice Kennedy: Let's assume that the... that the boycott or... or the protests are sufficient to close it down.

They have obtained it in a certain sense in that they have obtained... they have secured for themselves the use that they want of it, i.e., no use.

Mr. Englert, Jr.: That is a sense of the word obtain, but it's not the sense relevant for interpreting the Hobbs Act for several reasons.

One is the Hobbs Act has historical predecessors that this Court has said should be looked to in interpreting its terms.

Justice Scalia: You... you concede it's a sense of the term obtained?

I mean, would you really speak of obtaining somebody's property when you... when you interfere with that person's use of it?

Mr. Englert, Jr.: Well, I certainly don't... I'm sorry, Justice Scalia.

I certainly don't concede it's a relevant sense of obtain.

Because of... because of the Hobbs Act historical antecedents, because of the rule of lenity, because of the very odd use of language, for all those reasons, that's not how the Court should interpret obtain.

But more important than any of those things is the implications of such a theory.

When Carry Nation went into saloons with her axe and destroyed property, she certainly interfered with the property owner's unfettered use and control over disposition of his assets, and that's exactly what she intended to do.

Was that extortion?

The civil rights boycott of white merchants that the Court considered in Claiborne Hardware certainly affected the ability of the boycotted merchants to use their property and involved isolated acts of violence as well.

Was that extortion?

These aren't hypothetical concerns.

Justice Stevens: Of course, that... extortion wasn't charged in that case, was it?

Mr. Englert, Jr.: No, Your Honor, but were the Court to uphold the theory in the red and gray briefs, which wouldn't support the judgment, but if the Court were to uphold that theory, it certainly could be charged the next time the facts of Claiborne Hardware come along.

Justice Scalia: One must wonder why it wasn't charged.

Mr. Englert, Jr.: Yes.

Justice Stevens: Because it was a State case it wasn't... the reason... reason it wasn't charged.

It grew up through the Mississippi court system, if I remember correctly, didn't it?

Mr. Englert, Jr.: Well, my... that's correct, of course, Justice Stevens.

But my fundamental point is not that one case was or wasn't charged as... as extortion.

It's if you uphold the theory of the red and gray briefs, it can be charged as extortion in the future.

And that's actually happened to People for the Ethical Treatment of Animals.

It's happened to other animal rights groups.

Because of these implications, the Southern Christian Leadership Conference joined the amicus brief of the Seamless Garment Network at the cert stage.

Disability rights groups that conduct protests have joined the Seamless Garment Network brief at the merits stage.

Activists of all stripes and their admirers... Daniel and Philip Berrigan, Nat Hentoff, Martin Sheen--

Justice O'Connor: But are we talking about actions that constitute the commission of some kind of criminal offense in the process?

Mr. Englert, Jr.: --Oh, yes.

Justice O'Connor: Yes.

Mr. Englert, Jr.: Oh, yes.

Trespass.

Justice O'Connor: Yes, and other things, destruction of property and so forth, I suppose.

Mr. Englert, Jr.: Oh, yes, Justice O'Connor.

Justice O'Connor: Yes.

Mr. Englert, Jr.: There's never been any doubt in this case--

Justice O'Connor: I mean, we're not talking about conduct that is lawful here.

Mr. Englert, Jr.: --We are not talking about extortion, but we are talking about some things that could be punished much less severely.

It has never been disputed in this case, from the opening statement through the closing statement of the trial or in the earlier phases of the case, that there were trespasses.

There could be in particular circumstances--

Justice O'Connor: --more than that.

In some cases, assaults and so forth.

Mr. Englert, Jr.: --Well, fair enough except the... the jury verdict really is quite at rejection of petitioners' proof in many respects rather than supporting it.

But, yes, Justice O'Connor.

I really don't want to fight with you on that particular point.

But... but let's--

Justice O'Connor: --I think to paint the picture that we're talking about, just pure speech is... is not the case.

Mr. Englert, Jr.: --No, but that's why I used the examples of Carry Nation and Claiborne Hardware which weren't pure speech either.

There was certainly violence in those cases, but not extortion.

Justice O'Connor: Would you say coercion?

One of the questions was, well, coercion... if that's defined as using compulsion to force a person to do or not do something that she otherwise would do or not do, does this conduct fit that crime?

Mr. Englert, Jr.: Yes.

Justice O'Connor: That crime--

Mr. Englert, Jr.: And that's a very important point supporting our position because Congress at one point had coercion as a predicate act in the Anti-Racketeering Act of 1934 and, at the request of organized labor, took it out.

In the Hobbs Act, in the passage of the Hobbs Act in 1946, again, organized labor lobbied to make sure that coercion was not part of the Hobbs Act.

Coercion is a different crime from extortion, and interfering with someone's rights is the crime of coercion under the Model Penal Code, under New York law, under various other bodies of law, but it's not the crime of extortion.

Justice Kennedy: --Just... just on the obtain point, which I... I agree with you is of great relevance here, if... if a group trespasses on property and... and remains there for a period of days, can it be said that they're obtaining the use of the property, or is... is that too much of a stretch?

Mr. Englert, Jr.: I think it's a stretch, Justice Kennedy, but even if it weren't a stretch, it still wouldn't be a Hobbs Act violation for a different reason.

There must be consent to the obtaining of property or... of another, and simply going in and engaging in adverse possession doesn't necessarily entail consent.

Justice Kennedy: Well, suppose you withdraw in order to avoid confrontation.

I suppose if A robs B, and B turns over the wallet, in a sense there's consent, not... not the kind of consent that the law would ever recognize.

It's a consent in a... just from the standpoint that there's a voluntary act in handing over the... the wallet.

Mr. Englert, Jr.: Well, that actually--

Justice Kennedy: You make your... you make your muscles move and that's about it.

Mr. Englert, Jr.: --Yes.

Words can be stretched to make lots of things into lots of things that the law doesn't want them to be.

And in fact, the common law distinction between robbery and extortion, which are both Hobbs Act predicates, is one is with consent and the other is without.

So robbery is a classic example of something that you could stretch the word of consent to cover, but it isn't extortion.

Justice Breyer: I guess it's obtaining property if a group of people through criminal means tell an owner of a business precisely and in detail how he has to run his business.

Mr. Englert, Jr.: Oh, I don't think so, Justice Breyer.

Justice Breyer: No?

In other words, if... if, say, you have a group of terrible criminals, and they say here is what... we're going to kill you unless you do the following, and then they say, today you serve X and tomorrow you serve Y, and you send the money over to Z, and you do all these different things; in other words, they run the business.

Mr. Englert, Jr.: If it--

Justice Breyer: Now, why haven't they obtained that business?

Mr. Englert, Jr.: --In the hypothetical example you just gave me, they most certainly have obtained property.

You said send the money over to Z.

Justice Breyer: Because I said... say... I regretted putting that in the hypothetical the instant I did.

Unknown Speaker: [Laughter]

Justice Breyer: I'm simply looking for an example of a group of criminals who will tell a property owner, a businessman, exactly and precisely how to run his business in a way that he doesn't want to run it.

Now, why isn't that obtaining the property called the business?

I mean, that's what the SG I think is suggesting basically.

Mr. Englert, Jr.: --And the SG is wrong because that's not what obtaining property meant under the New York law in 1946.

It... it's a stretch of words.

It's a modern concept of property.

Justice Breyer: It's like a theft of services.

I mean, you go in and you... there was a... years ago a person who figured out how to whistle various tones into the telephone so that it would connect people without charge.

All right.

Now, hasn't that person stolen the use of the telephone?

Mr. Englert, Jr.: Yes.

Justice Breyer: Yes.

And... and a person who tells the telephone company owner, I want you to go and provide the services to A, B, and C, hasn't he stolen those services?

Mr. Englert, Jr.: Well, that's getting to be more of a stretch, but probably yes, under United States v.--

Justice Breyer: Then... then the difference between that and a person who tells the business owner to provide his services to A, B, C, D, and E, whom he doesn't want to, that doesn't seem a difference.

Mr. Englert, Jr.: --No.

There is a major difference, with respect, Justice Breyer.

Saying do provide services to A, B, C, D, and E is quite different from saying don't provide services to A, B, C--

Justice Breyer: That's what I wondered, and what is the difference there?

Mr. Englert, Jr.: --The difference is that A, B, C, D, and E have obtained the services in one case and they have... and no one has obtained any property in the other case, exactly the words of the Hobbs Act.

Justice Souter: Except that services is not property, and the one thing that is common in both the negative and the positive examples is the obtaining of control.

It's... it's... it seems to me it's... it's the control that's important when he says serve A, B, and C. It isn't property that he has obtained.

It's... it's an action.

It's a service.

Mr. Englert, Jr.: Justice Souter--

Justice Souter: And that's true in each case.

Mr. Englert, Jr.: --if I've understood you correctly, that's even more support for our position because the words of the Hobbs Act are obtaining of property from another.

So if all of Justice Breyer's examples--

Justice Souter: No, no--

Mr. Englert, Jr.: --property--

Justice Souter: --I... I agree with you on that point, but I... I guess I'm saying that if you concede in the one case, I don't see why you... you really don't have to concede in... in the other case because the one thing that is common to each is control, and there is no property in a tangible sense that is obtained in... in the positive service examples.

Mr. Englert, Jr.: --No. With respect, what is common is not control.

It's acquisition.

It's obtaining.

That's what obtaining means.

The Solicitor General's own brief on page 21 in footnote 11 says that's what obtaining means.

And--

Justice Souter: And what does one obtain?

One obtains, in each case, control--

Mr. Englert, Jr.: --But control--

Justice Souter: --i.e., direction.

Mr. Englert, Jr.: --I apologize, Justice Souter, for interrupting, but control is not property.

Property is property.

Justice Souter: My point is if you are conceding that Justice Breyer's positive examples would fall within the statute, I don't see why you don't have to concede that the negative example, i.e., don't serve, doesn't also fall--

Mr. Englert, Jr.: The--

Justice Souter: --on... on your own theory.

Mr. Englert, Jr.: --I don't think so, respectfully, Justice Souter.

The distinction I draw is that in the words of the statute, one involves obtaining property, and the other doesn't, on the assumption that the services are property.

If they aren't property, I win the case for a different reason.

Justice Stevens: What do you do with the New York case involving a work stoppage?

Do you agree with that case, or do you think it's wrong?

The one the Solicitor General cites in his brief, the... the old 1890 case involving a stop... a strike, I guess, is what you'd say.

Do you think that case would... would be decided the same way under your view?

Mr. Englert, Jr.: I... I think so, Justice Stevens, but the case is not immediately coming to mind.

I'm sorry.

I... I do think the New York courts construed rather strictly the obtaining of property, and the Solicitor General's more expansive cases are from long after 1946.

Justice Stevens: It's People against Barondess, decided in 1892.

It was under the... under the New York statute, which I think everyone agrees was the model for the Federal statute.

Mr. Englert, Jr.: Yes, Your Honor.

Justice Stevens: It seemed to me there was no obtaining in the very literal sense that you used the term, but there was merely acquisition of control of the operation in that.

And I'm not quite sure how you come out on... on those facts.

Mr. Englert, Jr.: Well, Your Honor, I'm... I'm, as I stand here, blanking on those facts.

I... I believe the New York courts did construe obtaining of property rather strictly in that case and in every other pre-1946 case, but I can't... I apologize.

I can't give you an intelligent discussion of that right at this moment.

I'd like to turn to the RICO injunction issue, if I may.

It's very straightforward.

I plan to address it only briefly.

First, this Court has held in several cases that section 7 of the Sherman Act and section 4 of the Clayton Act, both worded almost identically to section 1964(c) of RICO, did not authorize private injunctive relief.

The dissent in Paine Lumber contended that courts had inherent power to grant injunctions--

Justice O'Connor: The language of the acts, though, is a little different than this, isn't it?

Mr. Englert, Jr.: --Well, very, very slightly different, Justice O'Connor.

Justice O'Connor: The analogy may not be perfect because the language differs.

Mr. Englert, Jr.: Very slightly, but the... where there's a world of difference and not a slight difference is between section 16 of the Clayton Act and section 1964 of RICO.

And in section 16 of the Clayton Act, Congress authorized private injunctive relief.

No language remotely resembling section 16 appears in section 1964 of RICO, but all of the language from the statutes this Court held didn't authorize injunctive relief with very tiny variations appears in RICO.

Besides the obvious statutory language borrowed from the Clayton and Sherman Acts, as this Court has recognized throughout its cases, the statutory evolution of RICO presented Congress with repeated opportunities expressly to provide private parties with injunctive relief under RICO.

Every such proposal failed before and after the final enactment of RICO.

The court below dismissed the reliance on legislative history on the theory that this Court would not ascribe any significance to legislative inaction.

But ironically the very day the Seventh Circuit decided this case, this Court was hearing argument in Chickasaw Nation v. United States, and the opinion of the Court in that case reiterated the longstanding principle... with which some members of the Court disagreed, but the longstanding principle in majority opinions... that courts ordinarily will not assume that Congress intended to enact statutory language that it has earlier discarded in favor of other language.

Justice Stevens: Would you clarify one thing on the... on the rejected amendment?

Was it voted down or withdrawn?

I can't remember.

Mr. Englert, Jr.: It was actually passed unanimously by the Senate, but then the House didn't take a vote on it.

Justice Souter: But we don't know why they--

Mr. Englert, Jr.: I'm sorry.

I... Justice Stevens, I... I've misspoken slightly.

Excuse me.

The... the post-RICO effort--

Justice Stevens: --Well, no.

I'm talking about the one before enactment.

The post... the later statute is a little less persuasive.

Mr. Englert, Jr.: --The pre-RICO effort was withdrawn.

The pre-RICO effort was withdrawn by Representative Steiger on the ground that it would complicate matters too much to take it up at that stage of the legislation, but it was very important.

He'd come... come back again with it next year.

But he recognized that the statute didn't have private injunctive relief in it in his floor statements.

Justice Souter: At the... on the second round, when... when the Senate passed and the House didn't, there's no explanation in the House record, is there?

Mr. Englert, Jr.: Nothing that sheds tremendous light on this except for Representative Steiger's--

Justice Souter: Yes.

Mr. Englert, Jr.: --own statements.

Justice Souter: It would... it would be... I... the trouble I'm having is I don't have any trouble seeing the argument your way.

The... the reason I'm... at this point, I'm not convinced is that you do have in subsection (c) the language referring... it says may.

What is it?

May sue... I can't... yes, may sue therefor.

And we've got the general presumption that all appropriate remedies go with a cause of action.

And I'm... I'm wondering if in a case in which it's uncertain what to infer, either from the legislative record in... on intent, or from the textual record here, whether the presumption not to carry the day in a case of doubt--

Mr. Englert, Jr.: It shouldn't because, as is pointed out at pages 7 and 8 of the Operation Rescue reply brief and correctly so, this Court has two lines of cases: one when Congress doesn't specify the remedies.

That's cases like Franklin v. Gwinnett County which was an implied right of action case, and like Califano v. Yamasaki.

And a different line of cases saying, when Congress does specify remedies, they're intended to be exclusive.

A line of cases that... that--

Justice Souter: --Well, it... may I tell you the reason I wasn't convinced on that is that if... if Congress were... were specifying in the text here choices among ordinary remedies, I think that would be a very strong argument.

The reason it seems less strong here is that the choices that... or the... the remedies that Congress has specified are extraordinary remedies, e.g., right in this section.

What is specified is treble damages, not damages.

If they had simply said can get damages, I think it would be a slam-dunk, but... but what they did was... was to specify something out of the ordinary, and I'm not sure that that carries the implication that ordinary remedies, consistent with what it specifies, are... are meant to be excluded.

Mr. Englert, Jr.: --Well, Justice Souter, this Court said over and over again that it did carry that implication when the exact same language was used in the Sherman and Clayton Acts.

The Paine Lumber case, the D.R. Wilder Manufacturing case, a whole host of antitrust cases.

Justice Souter: And I just don't remember this.

Does... does the... does Clayton use the phrase, sue therefor?

Mr. Englert, Jr.: Oh, yes.

Justice Souter: I have to go back and look.

Is that the term of art that's in there?

Mr. Englert, Jr.: Oh, yes.

Oh, yes.

The... the language of Sherman and Clayton is in the appendix to the Scheidler blue brief--

Justice Souter: Yes.

I just... I just didn't go back and look.

That is the phrase?

Mr. Englert, Jr.: --It is.

It is.

The terms that differ are quite trivial, and some sections are separated into different subsections.

That's about all the difference there is.

I'd like to reserve the balance of my time for rebuttal.

Justice Stevens: Mr. Solicitor General.

Argument of Theodore B. Olson

Mr. Olson: Justice Stevens, and may it please the Court:

The right to control a business, whether or not for profit, is a well-recognized and longstanding interest in property.

When that control is surrendered in response to unlawful force, whether motivated by economics, politics, or ideals, the extortionist has attained his objective, and the Hobbs Act has been violated.

Justice Kennedy: Well, under that definition, I suppose that anytime protesters trespass on property, they've obtained the use of that property and there's a Hobbs Act violation--

Mr. Olson: If--

Justice Kennedy: --Hobbs Act predicate violation?

Mr. Olson: --If there's an unlawful use of force or threats or violence, Justice Kennedy, whether it be in the form of trespassing... and the aim... which this Court recognized 8 years ago in this... in this very predecessor case was to shut down the clinics.

If that aim is achieved, the control of the property has been transferred from the owner of those clinics to the extortionist.

Justice Kennedy: Well, if... if that's... if that's a strained reading of obtained, shouldn't we be... take counsel of... that there's a... serious First Amendment consequences... consequence if we adopt that extensive definition?

Mr. Olson: As Justice Souter said in... in the dissent, which you joined, in the earlier case, the First Amendment is not an issue in this case, and it can be dealt with in particular circumstances in particular cases where it arises.

The issue here is if the use of force--

Justice Kennedy: Well, the... there's always a First Amendment implication in a protest case.

There's... at this point there is a First Amendment issue in the case because of the broad definition you're proposing, it seems to me.

Mr. Olson: --Well, it was the question that was presented that was not accepted by this Court.

Question 3, I think it was, or 4 in the... the one Scheidler petition was not accepted by this Court.

Justice Scalia: Well, but the point... the point is... the point is not whether there's a First Amendment violation here.

The point is whether the interpretation of the word obtain that the Government is... is suggesting we adopt does not threaten to... to bring us constantly into difficult situations where we're going to have to try to sort out whether that definition doesn't sail too close to the wind with respect to First Amendment rights.

Mr. Olson: I submit, Justice Scalia, that that is not going to be the... the problem that this Court or any courts are going to have to face.

First of all, the definition of property as controlling a business has been accepted for a long time.

Now, the only question that is--

Justice Scalia: You... you... do you agree that your interpretation would have been applicable to the civil rights sit-ins?

Mr. Olson: --Under some circumstances, it could have if illegal force or threats were used to prevent a business from operating.

Justice Scalia: Do you--

Mr. Olson: In many--

Justice Scalia: --Do you agree that it would be applicable to many labor picketing situations--

Mr. Olson: --Well, they--

Justice Scalia: --where they obstruct entrance?

Mr. Olson: --This... this Court specifically carved out an exemption in... in the Enmons case with respect to legitimate labor objectives--

Justice Scalia: No, but--

Mr. Olson: --and made it--

Justice Scalia: --The exception wasn't with regard to labor objection.

What... what is there in the statute that... that enables you to make an exception for labor picketing?

Mr. Olson: --What... what this Court--

Justice Scalia: What language of the statute enables you to separate labor?

Mr. Olson: --Well, I... I can't pull a specific piece of the language out of the statute, but this Court said nearly 20 times in the Enmons case that the Hobbs Act was not intended to cover achievement of legitimate collective bargaining demands, and because the Court did not want to--

Justice Scalia: It said any legitimate demands--

Mr. Olson: --No, it--

Justice Scalia: --elsewhere.

It didn't always limit it to just legitimate collective bargaining demands, did it?

Mr. Olson: --I... I take that the Court, because it said over 15, nearly 20 times legitimate collective bargaining demands, legitimate union objectives--

Justice Scalia: Because that's what was involved in the case.

But why would you separate legitimate collective bargaining demands from other legitimate demands?

What is there possibly in the word obtain that could cause you to separate legitimate collective bargaining demands from legitimate demands that you... that you refrain from doing something else?

Mr. Olson: --I... I can only submit, Justice Scalia, that it seemed to me a clear implication of the words used by the Court and the fact that the Court emphasized that it was... that we were dealing with... the Court was dealing with the extraordinary... the potential extraordinary change in Federal labor law, that that phrase was emphasized over and over again.

Neither this Court--

Justice Scalia: So... so you say we simply made a labor law exception to the extortion statute.

Mr. Olson: --In the... in the context of the history--

Justice Scalia: Just... just out of nowhere, a labor law exception.

Mr. Olson: --No, not out of nowhere, Justice Scalia.

There was a long history of--

Justice Scalia: You give me no language in the statute that would justify it.

Mr. Olson: --What... what the statute... what the language of the statute does... and here's... here's where... what I would emphasize.

The language of the statute specifically makes it unlawful and makes no exception for... for whether the... whether the... the petitioner... the... the protester, or the... or the alleged extortionist is motivated by ideals or politics or wanting to shut down a business or a... or a boycott of Israel or... this is a classic use of force and extortion in the organized crime setting.

The use of force or threats to take over a labor union or a business--

Justice Breyer: But it says there, to obtain control.

To obtain control.

Mr. Olson: --Yes.

Justice Breyer: Fine.

What I don't understand is whether there isn't a line somewhere between obtaining control in the sense of taking over a business for a period of time, shutting down a business, and just telling the owner of the business to do one single thing once that the blackmailer... but not the owner... wants to do.

Mr. Olson: Let me--

Justice Breyer: There's a spectrum that falls within that word control or the word taking over that if you push it to an extreme, the Hobbs Act becomes a coercion statute in respect to a business owner.

Mr. Olson: --It... the question, it seems to me, was answered in part by this Court in the earlier NOW case by saying that the extortionist doesn't have to gain a financial benefit or take possession.

Now, the... the robbery and larceny statutes at common law required the taking and acquiring of possession.

Justice Breyer: I take where you're going is that it is a coercion statute in respect to a businessperson insofar as you ask the owner of the business to do something that he doesn't want to do.

Mr. Olson: That's... that's part of it, yes.

And the answer to the question about obtaining--

Justice Breyer: If I think that's too extreme, is there any stopping place?

Mr. Olson: --Well, there... there is a stopping point, is whether at the end of the day, through the threats or the... the actions of the extortionist, that property interest that was held by the victim of the extortion has been transferred to the hands of the extortionist in the sense that the aim has been accomplished.

The aim was to shut down the clinics.

That was the attempt, and to the extent that that was or was attempted to be accomplished, that control--

Justice Ginsburg: General Olson--

Justice O'Connor: --Mr.... yes, Mr. Olson.

If... if we agreed with your view... and I'm not sure we will... about property including the right to control business assets, it does not, I assume, cover some personal right of somebody to obtain services in the clinic.

And I guess the jury verdict covered both.

Could the jury verdict be upheld here even if the Court agreed with your view?

Mr. Olson: --We... we have not addressed that, Justice O'Connor.

I do--

Justice O'Connor: Well, I'm asking you to.

Mr. Olson: --I do... I do agree.

I think that it would have to be sent back to the Seventh Circuit for a remand to examine that question.

The jury instruction did have the component to which you refer which we would characterize as a liberty interest of a right of an individual.

And that was--

Justice Ginsburg: And we have no idea what the jury went on.

There were three pieces, and one involved the people who worked in the clinic.

One involved the women who were served by the clinic, and the third involved the clinic operation.

And that was exactly the question that I wanted to ask you.

Is your bottom line a new trial?

Because the charge doesn't match the theory you're putting forward.

Mr. Olson: --I think that... I think that at the end of the day, although we haven't briefed it and the Government is interested in the definition of extortion, at the end of the day that might have to be the result because the general... generalized verdict does not make a distinction between that which we contend is property right which was obtained by the extortionist or... or was attempted to be obtained--

Chief Justice Rehnquist: Well, you wouldn't want us to send it back without resolving the extortion issue, would you?

Mr. Olson: --That's... no, I--

Chief Justice Rehnquist: You want us to send it back so it is... it is... the jury is given a charge only on the extortion theory that you're... that you're delivering.

Then it comes back up and then we will resolve the issue.

Mr. Olson: --Well, I... the question presented, in connection with the Hobbs Act, I think is answered this way.

Where unlawful... which this Court should articulate, we hope, in its opinion.

Where unlawful force is used to arrest sufficient control of a business to stop the performance of its services, the Hobbs Act has been violated because control of the business, a property right has been acquired.

I... I may have 1 minute left to just mention one thing with respect to the... the RICO provision.

Congress created a private right to damages for RICO violations by intentionally copying language from the antitrust laws that this Court had repeatedly held did not confer a right to seek injunctive relief.

This Court has said that Congress was aware of the antitrust history, was copying it, intended to copy it, and was presumed to know the consequences of what Congress was doing.

Justice Stevens: Of course, at the time the statute was enacted, a private litigant could get relief, injunctive relief, under the antitrust laws, not under the... not under the section 7 of the Sherman Act, or section 4 of the Clayton Act, but under whatever the other number is.

Mr. Olson: Section 16.

Justice Stevens: But the question is really whether the first section of the RICO gives us authority.

Mr. Olson: Well, may I answer that, Justice Stevens?

Justice Stevens: Sure.

Mr. Olson: It seems to me that in the context of the language that the... that Congress knew would not create a right, and knowing... Congress knowing that section 16 did specifically create such a right, and knowing that this Court had said that when a right is created and remedies specifically provided, the Court... the Court will not expand.

The Court will accept what Congress has done.

And Congress did not adopt and in fact rejected the opportunities or... or failed to accept the opportunities to adopt precisely the remedy that would have had that result.

Justice Stevens: Thank you, Mr. Olson.

Ms. Clayton.

Argument of Fay Clayton

Mr. Clayton: Justice Stevens, and... and may it please the Court:

I'd like to begin with the RICO issue, if I may, and then turn to the Hobbs Act questions.

The stark contrasts between the antitrust law and RICO prove the... prove why private injunctions are available.

When it comes to damages, we agree that the language is virtually the same, treble damages and so forth.

But when you look at the injunction provisions, they are radically different.

In the antitrust law, Sherman IV, all the injunction provisions were put in a single paragraph giving the Government the exclusive duty to enforce.

That is not... that was not copied in RICO.

In RICO, Congress took out permanent injunctions, put them in section 1964(a), a separate, unrestricted section.

Not only did it give the duty to the Government, it didn't even mention the Government.

Justice Scalia: But in the next section, it did mention the Government and said that the Government shall have the authority to... to use the injunctive provisions mentioned in the first section.

Right?

Mr. Clayton: No, Your Honor.

Justice Scalia: And then in the third section, it gives private individuals a right to damages, but does not mention that they have the right to use the first... first section.

Mr. Clayton: Justice Scalia, of course, you are correct about section (c).

Section (c) does give standing to private parties, and gives them these extraordinary new remedies, treble damages and legal fees, which they could never get without a statutory grant.

But section (b) does not give the Government the right to use permanent injunctions.

It only talks about preliminary relief.

It takes that one section of Sherman IV out, and the other part, the permanent injunctions in Sherman IV, are now, under RICO, put in a wholly different provision, the unrestricted section (a).

The natural reading of section (a), which says all these permanent remedies, including the injunction that our trial court granted here, went against future criminal activity.

Section (a) in an... unrestricted language makes that available to the court to restrain violations of section 1962, the very violations that section (c)--

Justice Ginsburg: Section (a) says what the court may grant.

It doesn't say who has authority to ask the court to do that.

And in the... the provision (b), it empowers the Government and the Government only to ask for preliminary injunctive relief.

It's a strange thing.

Why would Congress withhold the power to seek a preliminary injunction and yet give that party the right to seek a permanent injunction?

Mr. Clayton: --That's a question that we have pondered for a long time, and... and I think the Motorola brief, which explains... a very important brief... why preliminary injunctions should be available to everybody, makes a good argument for that.

But we don't have to address that question here.

My own thinking is that section (b) gives the Government something that it wouldn't have had without the statutory grant because preliminary injunctions require one... one element that permanent ones don't, the irreparable harm to the victim.

And the Government, suing as sovereign, doesn't have property that's harmed.

And if you look at the Wollersheim case, they recognize that was a plausible reason for why section (b) is there.

Justice Scalia: But you're just addressing the second sentence of section (b).

There is a first sentence which says, the Attorney General may institute proceedings under this section.

Mr. Clayton: That's right.

Justice Scalia: Now--

Mr. Clayton: That's right.

Justice Scalia: --that... that gives the Attorney General the power to institute proceedings under (a).

Mr. Clayton: Your Honor, it doesn't... excuse me, Justice Scalia.

Section (b) does not say the Attorney General may institute proceedings under section 1964(a).

It says under this section which is section--

Justice Souter: What else could it mean?

What else could it mean?

Mr. Clayton: --It means section 1964 as a whole, Your Honor, and in section (c) private parties are given the right to sue, which is another way of saying the very same thing.

In fact--

Justice Breyer: As I... sorry.

--I was going to say in the American Stores case, this Court construed the very same language in the Clayton Act, sections 15 and 16.

Mr. Clayton: Institute proceedings, sue for in the other.

And the Court said both of them mean both the Government and private parties may go and get injunctive relief including divestiture.

It's just two ways of saying the same thing.

The Government is thought to institute proceedings.

It's bringing them as a sovereign.

Private parties are suing for.

It's just the traditional language.

Certainly those phrases don't bear the weight of the argument that institute proceedings means this party and only this party has access to those unrestricted remedies of section 1964(a).

Justice Breyer: And I looked... I mean, I couldn't make too much out of the fact that you take the language from the Clayton Act which says the Attorney General may institute proceedings in equity, and you move it to section (b) and just change it to say, he may institute proceedings under this section.

That's the only difference with the Clayton Act that I could find.

So I looked up the history.

In the history, it looks as if there were five different bills floating around, and things didn't... weren't all that straightforward.

It got a little mixed up.

And you have in the House several Congressmen getting up and saying they made a mistake in the Senate.

They didn't include this.

They should have.

And then there were four more bills floating around, and the ones who wanted to include it said, send it all to the Judiciary Committee, let them work it out, and they never worked it out.

I mean, that's... that's the thrust of it that I... that I got out of that.

Maybe it was just a mistake.

Well, if it was a mistake, you're the... you have another law.

You can bring it under the... you could get an injunction I guess under the Abortion Act, the Abortion Clinics Act, or... it seemed to me this one... they made a mistake.

Well, they made it.

Mr. Clayton: Well, Justice Breyer, even if someone made a mistake, the bill, as it stands, is what Congress voted on, and what the President signed.

It is that bill that we interpret.

And we all agree... this Court has said on many occasions that--

Justice Scalia: I'm with you on that.

Mr. Clayton: --I know you are, Justice Scalia.

[Laughter]

Perhaps the only thing.

And you've often commented on how there are probably as many reasons for congressional action or inaction as there are Members of Congress.

But the fact is the bill makes a very... it's a very radically different structure from the antitrust law.

Private... I mean, permanent injunctions are unrestricted, and under the traditional jurisprudence, Califano... when we... we assume all traditional remedies are available unless... unless there's the clearest command.

There's not even a hint here.

Maybe it was a mistake.

It was certainly not a clear command to do the opposite.

And as my... petitioners have pointed out, the only time private injunctions were voted on, they passed unanimously.

Why didn't they put it in there?

I think it would have been redundant, and the Court doesn't like surplusage.

If they had said in section (c), and private parties can get permanent injunctions, then the courts would have been trying to figure out, well, what did they mean in section (a).

That has to mean something different.

They didn't say again the Government could get permanent injunctions in section (b).

That would have been redundant too.

But everybody agrees the Government can get permanent injunctions.

In any event, this Court's jurisprudence teaches us--

Justice Scalia: Don't you think it's--

Justice Stevens: --We don't agree on whether they get it pursuant to section (a) or section (b), though.

Mr. Clayton: --The Scheidler brief, the opening brief, says that section (b) gives the Government unrestricted access to the remedies in section (a).

That's the way they've put it.

I don't read... if... if that's the case for the Government, the same applies to private parties.

By parity of reasoning, anyone with standing... and it's strict standing for private parties.

You've got to be injured in your business or property.

Justice Scalia: But... so you say private parties have the power to require... to ask the court to order a person to divest himself of any interest, direct or indirect?

Do you know of any other situation in which a private party can... can cause the... the divestiture of a business?

Mr. Clayton: Justice Scalia, it's not automatic.

The court in its discretion might do it or might not, but it must--

Justice Scalia: I understand that, but to put that power and... and to request it in the hands of a power... of a private party seems to me extraordinary.

Mr. Clayton: --It's been in the hands of private parties under the antitrust law for more than a half century before RICO was passed, and the courts have had no problem exercising their discretion to my knowledge.

In fact, in the American Stores case, this Court pointed out how the very same remedy sought by the Government and sought by private parties, the Government might get it, and the private party might not.

Furthermore, any... any injunctive relief--

Justice Scalia: You can understand it in the context of the antitrust laws where the divestiture is the only way to prevent the... the monopolization, but to use that as a punishment for... for extortion is, it seems to me, quite... quite bizarre.

Mr. Clayton: --And then I think the court wouldn't grant it to the private party, and they certainly wouldn't grant it unless it was designed to remedy the particular injury that the private party suffered to their business and property by virtue of a 1962 violation.

It would be very strange, indeed, Your Honor, to remove from private parties who are deputized to be a... private attorneys general, supplement the Government resources, to take away this powerful core injunctive remedy and instead make them sue for treble--

Justice Scalia: But the divestiture... you say the divestiture should never be... should never be used by the courts.

Mr. Clayton: --No, I don't, Your Honor.

I think that the district courts are--

Justice Scalia: It could... could simply destroy an organization as the punishment for... for extortion as you--

Mr. Clayton: --The court would only do that in an extreme case, I am sure.

Maybe they would never give it to a private party, but it would be up to the... but the private party may seek it.

Section (a) doesn't say they automatically get it.

Justice Ginsburg: --Then it's even odder that they don't... the private party can't seek that preliminary injunction even if they can show irreparable injury.

Justice Kennedy: To give the extraordinary power of ordering divestiture and not giving a party who is irreparably injured the authority to go into court and say, stop now... temporarily--

Mr. Clayton: I... I agree, Your Honor, and even though that's not an issue that the Court has to resolve in this case, I think the Motorola brief makes an excellent case for why... since this is a very special remedy, it's not an exclusive list.

Congress didn't mean to deprive private parties or anyone else of any of the traditional remedies.

The Califano rule is clear.

Unless there's a clear command to deny it, it's available.

I don't think section (b)... remember, it doesn't even have that duty language.

One other point I'd like to make is when the antitrust laws were written, there was no merger of law in equity.

To go in... when someone had a right to get damages, they had to go into the law court which could only give money damages.

It couldn't give injunctions.

That had changed by the time RICO passed.

And Congress knew that.

Congress knew the Federal courts had the ability to design any appropriate remedy to fix the wrong, barring the clearest command.

There's no clearest command.

Justice O'Connor: --Well, you do agree, though, I guess that were efforts to include language authorizing the obtaining of injunctions by private petitioners, and that was not adopted by Congress.

Mr. Clayton: But they were passed unanimously.

They didn't get in I believe because it would have been surplusage.

It would have been redundant, and we don't like that in statutes.

Justice O'Connor: Well, we don't know.

Mr. Clayton: We don't know, Your Honor, and we can... and as the Court has said in Central Bank and Solid Waste, one never... it's a thin reed to rest an interpretation on what Congress might have had--

Justice Breyer: And they have a long, long discussion of the battle, and everybody says, without any opposition, that this isn't there.

You would have thought if it was surplusage, somebody would have gotten up and said, well, it is.

Mr. Clayton: --Well, I think that's what Representative Steiger said.

The... in fact, we quoted him.

It's ambiguous.

Justice Breyer: I don't know.

Mr. Clayton: But it's certainly not the clear command to the contrary.

Justice Kennedy: Well, you have two... two difficult and major arguments here.

Mr. Clayton: I'd like to turn to it.

Thank you, Justice Kennedy.

Justice Kennedy: I... I would like to hear your comments on obtaining property.

Mr. Clayton: I would like to turn to those.

I think we all agree that property includes both tangible things and intangible things.

Of course, in this information age, some of our most important property is intangible.

So the question, of course, is how does one obtain it.

One obtains it by obtaining control over it or dominion over it, as this Court explained in the Carpenter and Green case.

Remember in Carpenter... now, this is a mail fraud case that had the same phrase, obtain property.

Mr. Winans, the Wall Street Journal reporter, the On the Street column, was held to have wrongfully obtained property.

Now, he had already received the information.

Justice O'Connor: Do you think that it includes liberty interest deprivation?

Mr. Clayton: No.

No, Your Honor, I don't.

We do not believe... but sometimes they--

Justice O'Connor: Then what happens to a generalized verdict no matter how you define this--

Mr. Clayton: --Your Honor, the verdict here is based only on property.

If you look at the Hobbs Act instruction, it required that the respondents be made to part with property, not part with liberty interests.

If a newspaper publishes an editorial, it has a liberty interest, a First Amendment right, to do it, but it also has a property right.

Justice Breyer: --Yes, but it defined property.

It says you can find a violation, other things... all the other... all the other requirements being met.

You have to say that the doctors, nurses, or other staff or clinics themselves give up a property right.

The term property right means anything of value--

Mr. Clayton: Right.

Justice Breyer: --including a woman's right to seek services from the clinic, the right of doctors or nurses to perform their jobs, the right of the clinic to provide medical services free from wrongful threats.

Mr. Clayton: Right.

Justice Breyer: Now, your brief I think, more or less, seemed to concede that... that at least two out of those three parts were certainly wrong.

Mr. Clayton: Oh, no.

Justice Breyer: You don't.

I mean, then... then do we have to decide... is this... is--

Mr. Clayton: No, no.

No, Your Honor.

What we believe is that to find property in any one of those aspects of property... there are three aspects of property: the clinic's right to control its equipment and buildings and so forth, the women's right to spend their money, and the contract among... between the two parties.

Extortion of any one of them proximately injures all of them because it's two sides of the same coin.

If the clinic is forcibly... through threats of violence, the clinic is forcibly closed, now the women who have appointments, which are contracts, bilateral contracts, they can't get in.

It's a... it's two sides of the same coin.

So to extort the property of the clinic is to proximately injure the women in her business or property, which is... the standing comes under RICO.

This is something that petitioners have never even challenged at the trial court--

Justice Breyer: --All right.

So... so in other words, this instruction is correct that it's... it's--

Mr. Clayton: --It is, Your Honor.

Justice Breyer: --So a... a woman's right to seek services is property which, if they say, I don't want you, the clinic, to serve the woman so the woman can't get the services, that is obtaining property?

Mr. Clayton: It is under these circumstances where she has an actual agreement with the... the clinic.

She's not just going shopping.

Each woman who went to these clinics had an actual appointment for a particular service at a particular time.

When I have an appointment with my doctor for a biopsy, I have a property right in seeing my doctor at that time.

Justice Scalia: What have you obtained control of?

What have you obtained control of?

Mr. Clayton: Just as in the Carpenter case, you've obtained control of the right to do business and the intangible rights that come out of business, the exclusive rights.

Justice Scalia: Obtaining control means... means nothing at all if... if whenever you deprive somebody of... of a right, you say you obtain control of the right that... that you've deprived them of.

I mean, everything becomes an obtaining of property.

Mr. Clayton: When one uses a demand to make one cede their control over property... this is my pen.

This is my property.

It has ink and plastic.

But I also have a right to use it for writing.

And if someone puts a gun to my head and says, if you use that pen, I'll shoot you, they have taken my property.

They've taken my control.

Justice Scalia: If I... if I say to you, don't... don't use that pen, or I'll do something unlawful and you don't use the pen, I have obtained the pen.

Mr. Clayton: You have obtained control.

Justice Scalia: In... in ordinary parlance, I have obtained the pen.

Mr. Clayton: Your Honor, in the Florida Prepaid case, in the Craft case, in the Drye case, this Court made crystal clear the essence of intangible... and, for that matter, tangible property is the rights that come out of it, especially the right of control.

The right to control my pen, the right of the clinics to control their--

Justice Breyer: Or what about the right to perform a job?

Let's think of a labor strike.

Mr. Clayton: --Absolutely.

Justice Breyer: And... and think of the strike, my goodness, where people can't get into the factory.

And... and somebody comes out and says, you've... you've interfered under the Hobbs Act and have obtained property; namely, my right to perform my job is interfered with.

The person at the soda fountain... you've heard the litany.

Mr. Clayton: Right.

Justice Breyer: There are the soda fountain... the sit-ins.

The soda jerk who wouldn't serve the black customers.

Well, this... this is interfering with my right to perform my job.

I mean, this seems... you have another statute that you can sue under.

But a lot of... a lot of people who don't like these various demonstrations don't, and they'll all be in under the Hobbs Act and... and RICO and so forth.

I'm rather concerned about this problem.

I'd like you to address it.

Mr. Clayton: I'd like to address those, Justice Breyer.

Let's start with the soda joke... jerk example.

Martin Luther King didn't tell his followers to go into the Woolworth's and bash the people around and forcibly prevent the white people from getting service.

Justice Scalia: No, but just obstructing... just obstructing... you've used the term violence several times.

That's not what the instruction required.

Mr. Clayton: It--

Justice Scalia: As... as your argument to the jury itself indicated, it was enough if they obstructed the entrance and failed to part like the Red Sea--

Mr. Clayton: --Not true.

Justice Scalia: --if somebody wanted to go in.

Mr. Clayton: Justice Scalia, that is not correct.

We... the instruction required that the respondents be made to give up property.

We... and... and question 12 ensured that a mere blockade or sit-in... question 6 on the jury form asked the jury if any of the predicate acts they found was based on a mere blockade and sit-in.

The jury said no.

I told the jury don't include in your predicate acts... I told them... anything that was based on mere speech, or mere presence, or the message.

It had to be something that involved force or violence, the wrongful use of fear--

Justice Scalia: I... I am reading the closing argument on behalf of the clinic plaintiffs at the trial, and it says, in every issue we've shown you the property rights of the clinics and the women were extorted under RICO.

Even a few hours of deprivation of legal rights will satisfy the RICO act of extortion.

There is one way, I guess, in which you don't have the element of force in a blockade, and that would be if the blockaders did something that they were specifically instructed that they should never do, that is, politely move aside, part like the Red Sea, and let a woman through.

But you know that never happened.

No witness ever testified to that.

No witness... not defense, not plaintiff... ever said that any of the blockaders were instructed to let women through.

In other words, you told the jury that you could find an offense here under the Hobbs Act by the mere blockade.

It wasn't smacking people around.

It was just not letting people in.

Mr. Clayton: --No, Your Honor.

If the jury had found a mere... first of all, that was argument.

The jury follows instructions not argument, as the Weeks case from this Court has held.

But the evidence supported--

Justice Scalia: So you're... you're changing your position here.

Mr. Clayton: --No, Your Honor.

Justice Scalia: I see.

Mr. Clayton: When we made... we made that argument, but we also told the jury that if they were basing any predicate acts on the mere presence and a mere blockade, mere sit-in, they had to put yes to question 6.

They put no because we showed them that they had to find that any predicate act needed an element of force or violence.

And that's what PLAN did.

It used these--

Justice Kennedy: Well... well, but still... still it seems to me that your... your theory doesn't depend on violence.

Your theory is that you're obtaining... or that the defendants here were obtaining property because they prohibited its use.

That's your theory.

Mr. Clayton: --Yes, Your Honor, by... by wrongful means.

That's correct.

Justice Kennedy: And... and so... so long as the means were wrongful, the obtaining definitional problem still remains, and I think you should address that.

Mr. Clayton: I'd like... yes, I'd like to go back to the Carpenter case.

Mr. Winans had the information, but then he wrongfully obtained it.

How did he wrongfully obtain it?

When he exercised dominion or control over it.

This Court said he... he wrongfully obtained it when he deprived... that was this Court's word... deprived the Journal of its right to control that property.

In the Green case, the same way.

The--

Justice Ginsburg: How about Carry Nation?

I... you would concede, I take it, based on your argument that if RICO had been around then and the Hobbs Act, that she would have been in violation.

Mr. Clayton: --I would, Your Honor, if she had been doing it to get consent, to get the business to change its ways, which I guess she was.

Yes, that's not the lawful way.

If my client, the National Organization for Women, organized people to go to Augusta Golf Course and tear up the greens until they let women members, that would be extortion.

Justice Scalia: But it is... it is strange to think of Carry Nation, that notorious extortionist.

I mean, you know, that's just not the crime involved.

There... there's a crime there, but is it extortion?

Mr. Clayton: Your Honor, the Hobbs Act doesn't give exemptions for motives, as this Court has repeatedly held.

There's no more a motive requirement there than there is under RICO.

Justice Ginsburg: What's the difference between--

Justice Stevens: --Ms. Clayton, may I ask you one question?

I just... I... I want to be sure I heard you correctly.

There's a definition of property in the instructions, a three-part definition, at page 158.

Did you tell us that that instruction was not objected to?

Mr. Clayton: Oh, no, I don't believe I said that.

Justice Stevens: I just misunderstood you.

Mr. Clayton: The... the petitioners had offered a definition of... of extortion that was part with property, and they didn't define it.

So at the trial... at the pretrial stage, that was all they offered.

They didn't object then.

During the course of trial, they made numerous objections.

I can't say they never objected.

They didn't timely object.

And their original view of what extortion meant was part with property, which is the same I think as give up property.

Justice Ginsburg: What is the difference between coercion and extortion?

Mr. Clayton: The difference is whether property is being attacked.

When you coerce somebody to give up their First Amendment right, that might be coercion, but since it's not focused on property, it's not extortion.

Justice Scalia: What would you coerce them to do that is not the giving up of property?

Give me an example.

Mr. Clayton: To stop speaking.

You don't have property in your speech.

Liberty interests are not the subject of extortion, but... but property interests are.

Every extortion is a coercion.

Justice Souter: Shouldn't we draw the line this way?

Instead of speaking as, for example, the Solicitor General did and some of the cases do about obtaining control, isn't the way to... to adhere to the line between the liberty and property distinction to say that you extort if you gain control in a way which prevents them from doing business, i.e., engaging in a property exercise, but you do not extort if you gain control simply in the way they do business, i.e., their choice of whom to serve?

If we draw that distinction, then the old sit-ins in the lunch counter weren't there to stop them from doing business.

They wanted them to do business.

They wanted them to do business with them.

Whereas, the case which I think you have is a case that could be argued that the point of it was to stop the business, period, and that gets into property and crosses the line from liberty to property.

Would you accept that distinction?

Mr. Clayton: Not quite, Justice Souter.

I certainly agree that the... that the sit-in protesters were not extorting anybody because they were trying to change people's mind by persuasion, not by intimidation.

But I believe if you look at the old--

Justice Souter: Well, they wanted a... I mean, but they... the--

Mr. Clayton: --They--

Justice Souter: --their immediate object was to get the sandwich or the Coke.

So that was easy.

Mr. Clayton: --But... okay, that... that may be right.

But when we look at the old organized crime, the classic organized crime extortion cases that the Hobbs Act was based on, we see organized crime going in saying, let these people run your pension fund.

Don't do business with these people.

Fire these people.

Hire those.

Any attempt to control a lawful business decision I believe is extortion, whether it's positive or negative.

Justice Souter: Well, maybe... maybe it is, but I... I think... among other things, I think we are, and should be more concerned about the First Amendment issues which arise when you cross the line into liberty than the... than the cases were 40 years ago and--

Mr. Clayton: But the proper... excuse me, Justice Souter.

The best way to address the First Amendment issue is to apply the standards of Claiborne Hardware to any extortion at conduct, as was done here.

Make sure that the petitioners had to have specific intent that the crime be done.

Make sure it was done knowingly, willingly, wrongfully, not just accidentally.

Make sure the enterprise authorized or ratified it.

Those were the instructions given here.

There was... nothing could be a predicate act unless all those tests were met.

And then on top of that, they had to use demands, wrongful demands, to control lawful business decisions.

And I do believe that decisions either to do something or not to do something, as long as the business owner... say the company makes round widgets and square widgets.

And the... the extortionist says, we don't like round widgets.

We want you to only make the other kind.

Or maybe they don't make round and they want them to start doing it.

That's as much a control of their business decisions as all those classic organized crimes that were the basis of the Hobbs Act.

And it's just as offensive here.

Your Honor, we ask the clock not to turn back the... ask the Court not to turn back the clock on 50 years of Hobbs Act jurisprudence which protected businesses and their customers in making their lawful business decisions.

We ask the Court to decline to add any limitations like tangible or personal to... to the Hobbs Act.

By the way, even if you did, the State law--

Justice Scalia: --You want to retain the labor union exception, however, I assume.

Mr. Clayton: --And of course.

Enmons... and it's section (c), Your Honor.

It's section (c) of 1951 that says nothing in this law will affect... and then they list all the labor laws.

That's why there's a union exception.

Plus the... the New York and all the other States had not only a statutory labor exception, but common law.

And please don't--

Justice Stevens: Thank you, Mrs.... Ms. Clayton.

Mr. Clayton: --Thank you.

Thank you, Your Honors.

Justice Stevens: Mr. Englert, you have 6 minutes left.

Rebuttal of Roy T. Englert

Mr. Englert, Jr.: Thank you, Justice Stevens.

The defendants in this case objected strenuously to reading the word obtain out of the Hobbs Act.

They did not say that giving up property is enough.

If you read the 1995 opinion wrongly denying the 12(b)(6) motion, that's all over the place.

If you look at pages 4324 to 4340 of the transcript at the jury colloquy, the point that there needs to be obtaining was made quite strenuously.

Justice Breyer: Was... was this particular instruction, the one that I read from in 1998, the instruction that had the three parts to it... was that objected to?

Mr. Englert, Jr.: Yes, at the... at the pages I indicated.

People v. Barondess.

The work stoppage led to obtaining $100.

Of course, it was extortion.

That's the property in that case.

That's... it's cited in footnote 16 of our opening... of the Scheidler opening brief.

United States v. Cleveland Indians Baseball Company.

This Court reminded us members of the bar that the tendency to assume that a word used in two different legal rules always has the same meaning, has all the tenacity of original sin, and must constantly be guarded against.

To think that property's definition in tax cases and in Fifth Amendment takings cases is necessarily the definition of the Hobbs Act is simply wrong.

The Hobbs Act draws its definition of property from the common law and the New York law, not from takings cases and tax cases.

The First Amendment is in this case.

Yes, the Court did not take the First Amendment question, but the principle of constitutional avoidance always governs the construction of statutes.

And Ms. Clayton concedes that classic protest activities that are venerated in American history in retrospect would be covered as extortion by her definition.

That should give the Court pause.

Claiborne--

Justice Souter: They wouldn't... they wouldn't be if you observed the distinction I was throwing out.

Mr. Englert, Jr.: --The... the answer to that distinction, if I may, Justice Souter, is Claiborne Hardware and Carry Nation... those fact patterns certainly would be covered even under the distinction you suggest.

There were 10 acts of violence in 1966 in Claiborne Hardware.

Justice Souter: Yes, Carry Nation would be covered.

There's no question.

The... the lunch counter sit-ins would not, as I understand it.

Mr. Englert, Jr.: Well, actually I... I don't think that's historically accurate.

I think there was an effort to stop the lunch counters from serving other people in addition to getting them to... to serve black people.

But it doesn't matter.

Justice Souter: Well, the--

Mr. Englert, Jr.: It... it... there are... there are examples that this Court should be concerned, I respectfully submit, about calling extortion under Ms. Clayton's definition, and that would include the facts in Claiborne Hardware.

That would include the Carry Nation example.

The Seamless Garment Network brief goes into many other examples.

Justice Stevens: --If the conduct in Claiborne Hardware was pretty rough.

Maybe it should have been included.

Unknown Speaker: You're not going to get... you're not going to get my--

Mr. Englert, Jr.: Your Honor, the... the opinion of the Court in that case refers to it has having elements of majesty as well as elements of violence.

And the Court really should be concerned about whether the classic historical pattern... and please look at the Seamless Garment Network brief... the classic historical pattern of venerable leaders whose followers get out of hand is really what is meant by Hobbs Act extortion and RICO.

Justice Souter: --No majesty with Carry Nation.

I mean, you don't get my sympathy by saying you... you might have interfered with Carry Nation on--

Mr. Englert, Jr.: Well, I--

Justice Ginsburg: --He didn't say might have.

You said that you would.

Mr. Englert, Jr.: --There's another more legalistic reason.

Justice Ginsburg: I think both sides agree on Carry Nation.

Mr. Englert, Jr.: If... if I may, there's another more legalistic reason why Ms. Clayton's and the Solicitor General's position has to be wrong, and Justice Breyer and others have laid their finger on it, Justice Ginsburg as well.

What they're talking about is the classic example of coercion, not extortion, and for those who like legislative history, the fact that organized labor got coercion out of the statute should give you pause.

For those who don't like legislative history, the fact that there's a list of predicate acts and coercion isn't one of them should give you pause.

I think almost everyone agrees that there has to be at the very least a remand in this case, and Ms. Clayton hasn't quite conceded it.

But if this Court's decision in Griffin v. United States, a criminal case, is applicable in civil cases or if this Court's decisions in Yates v. United States, Maryland v. Baldwin, Sunkist Growers are applicable, then this jury verdict, which almost indisputably rests, at least in part, on indefensible notions of property, has to be reversed.

Justice Stevens: Can I ask you one question about that?

Did the individuals get damages here, or was it just the clinics?

Mr. Englert, Jr.: Only the clinics for extraordinary security costs.

Justice Stevens: Okay.

Mr. Englert, Jr.: Violence.

Let's talk about violence for a moment.

Please look at... at special interrogatory 4(e).

The jury was asked to find how many acts or threats of violence to persons or property were there.

The jury said four.

Ms. Clayton argued 30 in her closing argument, and the jury said 4.

So actually the jury rejected... we know to a certainty the jury rejected most of NOW's evidence, and there weren't even any allegations that Mr. Scheidler, Mr. Scholberg, or Mr. Murphy actually engaged in violence.

There were allegations they were connected to violence, not that they engaged in violence.

And I should say my clients are proponents of nonviolence.

Mr. Terry was not alleged to engage in acts of violence either, I should add.

RICO.

Section 4 of the Sherman Act is repeated almost verbatim in 1964(a) and 1964(b).

Section 7 of the Sherman Act is repeated almost verbatim in 1964(c).

Section 4 of the Clayton Act is repeated almost verbatim in 1964(c).

Section 15 of the Clayton Act is repeated almost verbatim in 1964(a) and (b).

Section 16 of the Clayton Act, the statute that authorizes injunctions, nowhere in 1964.

And as... as... thank you.

Justice Stevens: Thank you, Mr. Englert.

Attribution:

The Oyez Project

Featured:

Stenberg v. Carhart - Oral Argument

Fri, 09 Jan 2009 14:50:21 +0000

Case:

Stenberg v. Carhart

Media File:

99-830_20000425-argument.mp3

Related Transcript:

1999_99_830_argument.xml

Transcript:

Argument of Donald B. Stenberg

Chief Justice Rehnquist: We'll hear argument now in Number 99-830, Don Stenberg v. Leroy Carhart.

Mr. Stenberg.

Mr. Stenberg: Mr. Chief Justice, and may it please the Court:

In Roe v. Wade, this Court said that there is no absolute right to terminate a pregnancy at whatever time, in whatever way, and for whatever reason a woman chooses.

With that legal principle, and the Casey undue burden test in mind, the issue here today is whether a State may prohibit a little-used form of abortion that borders on infanticide when safe, alternative forms of abortion remain available to women who seek abortions.

Clearly, the State can constitutionally ban some abortion procedures.

For example, the State can unquestionably prohibit an abortion procedure that is unsafe for the woman's health.

Justice Ginsburg: General Stenberg, I just would like to clarify one thing.

You say, borders on infanticide.

I thought that this case related only to pre-viability.

Is that not so?

Mr. Stenberg: Well, that... the statute would cover both pre-viability and post viability, Your Honor, but I believe it was the legislature's observation that, whether viable or not, that it's important...

Justice Ginsburg: This case concerns only the pre-viable stage, is that not so?

Mr. Stenberg: Yes.

That's because the district judge... because Dr. Carhart testified that he did not perform post viability partial birth abortions, and therefore the Federal judge did not need to rule on the post-viability aspect of the statute.

The statute itself covers...

Justice Souter: I take it...

Mr. Stenberg: Covers both, Your Honor.

Justice Souter: I take it that save with respect to a... an exception to save the woman's life, and so on, that post viability abortions are generally precluded, by the State.

Mr. Stenberg: I'm sorry, Your Honor.

Justice Souter: Post viability abortions are generally prohibited, I assume, by separate statute.

Mr. Stenberg: Yes.

There is a separate statute that prohibits all post viability abortions except to save the life or for the health of the mother.

That is under another statute.

But I believe, Your Honor, Justice Ginsburg, that the State interest here is drawing a bright line between infanticide and abortion, and that's such a strong State interest that 30 States in our Nation have addressed this issue and have voted to ban that procedure.

In fact, in Nebraska the sentiment was so strong on the State interest to draw a bright line between infanticide...

Justice Stevens: But General, isn't the bright line between infanticide and abortion at the... a claim of viability?

Isn't that the statute that draws that bright line?

Mr. Stenberg: I think that 30 States...

Justice Stevens: It does draw that bright line, doesn't it?

Mr. Stenberg: Well, that would be a line.

That's not the bright line, however, that the legislature drew in this instance, Your Honor.

Justice Stevens: No, but that is a bright line that separates post viability from pre-viability abortions, since one is legal and the other is illegal, under Nebraska law?

Mr. Stenberg: Well, that is under one Nebraska statute, that's correct, Your Honor, but the legislature has also been concerned about the partial birth abortion procedure which led to the passage of this particular statute.

Justice Scalia: General Stenberg, I took it that what you meant when you said it bordered on infanticide had nothing to do with the viability of the fetus, but that the procedure looks more like infanticide...

Mr. Stenberg: Yes.

Justice Scalia: when the child is killed outside the womb than when it is killed inside the womb, and therefore it can coarsen public perception to other forms of killing fetuses or children outside the womb.

Is that not what the legislature was concerned about?

Mr. Stenberg: That is precisely the point, Your Honor, and that is precisely what motivated the legislature of the State of Nebraska in this case.

In fact, the State interest here was so strong that the statute passed the Nebraska legislature with only one dissenting vote, with many pro-choice State legislators voting in favor of this ban on partial birth abortion.

Now, the respondent argues that drawing a bright line between abortion and infanticide is not a valid State interest.

The respondent argues that there are only two valid State interests, one being maternal health and the other essentially discouraging abortions.

However, Casey specifically recognized that other State interests could be weighed as part of the undue burden test, and at 505 U.S. 877 the Court said, quote, a statute which, while furthering this interest in potential life or some other valid State interest, and then goes on to describe the substantial obstacle test, so the Court recognized that there could be other State interests besides merely maternal health and discouraging abortions.

Now, the respondent next argues that even if there is a valid State interest, that it can only be asserted if it creates no burden on a woman's right to have an abortion.

The respondent implicitly asks this Court to adopt a no-burden test, or perhaps reestablish a strict scrutiny test in place of Casey.

The respondent argues that, under the no-burden test that any State regulation which increases the health risk to a woman by even the slightest amount is unconstitutional.

This is contrary to Casey, which held... which upheld the 24-hour waiting period because it did not create, quote, a real health risk, unquote, or a, quote, a significant threat, unquote, to the health of a woman.

The respondent also asks this Court to in effect adopt an all-or-nothing test in place of the large fraction test to judge the facial constitutionality of abortion restrictions.

In other words, the respondent argues that unless a statute is constitutional in every conceivable application, it must be struck down as facially unconstitutional.

Chief Justice Rehnquist: Was this a facial challenge, General Stenberg?

Mr. Stenberg: This was pled as a facial challenge.

There's some language in the district court decision as being applied.

However, the State has never applied this statute.

This lawsuit was filed within 2 or 3 or 4 days after the statute took effect.

The State has never had a chance to attempt to apply the statute.

Justice Stevens: But General Stenberg, in the very first paragraph of the Judge's opinion it says, I do not reach the question of whether the law is facially invalid.

Mr. Stenberg: Well, I understand... and I mention...

Justice Stevens: He held it invalid as to this doctor.

Mr. Stenberg: And frankly I think, Your Honor, that the district court was simply wrong in its characterization of this case.

The State has not had an opportunity to apply the statute to...

Justice Stevens: Well, the injunction is just limited to against this doctor and his patients, isn't it?

Mr. Stenberg: I think what the district court may have had in mind...

Justice Stevens: Well, am I correct in that?

Mr. Stenberg: I'm sorry, Your Honor?

Justice Stevens: Am I correct that the injunction only applies to this doctor and his patients?

Mr. Stenberg: And similarly situated individuals, is the way I believe the court's order read, Your Honor.

Chief Justice Rehnquist: How did the court of appeals... did the court of appeals say whether it was treating this as a facial challenge, or an as-applied challenge?

Mr. Stenberg: It seems... my reading of the circuit court was that they viewed it as an applied... or, excuse me, as a facial challenge.

I think what the district judge may have thought when he said, as applied, he may have meant as applied to pre-viability abortions, drawing the distinction that Dr. Carhart testified that he doesn't do post viability abortions.

Justice O'Connor: Mr. Stenberg, do you take the position that the State of Nebraska could also prohibit the dilation and evacuation procedure for pre-viability abortions?

Mr. Stenberg: Well, under... under Danforth, Your Honor, that was still...

Justice O'Connor: Well, I just wanted your position.

Yes or no?

Mr. Stenberg: For purposes of this case, the State's position would be that the State could not prohibit the D&E procedure, but also the State has not attempted to prohibit the D&E procedure.

Justice O'Connor: I know that's the position you take, but it is difficult to read the statute and be certain that that is so.

They're both rather gruesome procedures, but in fact one may be very similar to the other...

Mr. Stenberg: I think...

Justice O'Connor: and I'm not certain whether the statute might not prohibit the D&E procedure as well.

Mr. Stenberg: It's our position, Your Honor, that it does not prohibit the D&E procedure, and I'd like to address that question first from a, kind of an institutional standpoint and then turn specifically to the language of the statute.

In the absence of a decision interpreting this law by our State supreme court, the foremost legal authority on the proper interpretation of State law is the Office of the State Attorney General.

The Attorney General interprets the law, gives legal advice to State agencies, the Governor, our administrative agencies, appears in State court every week, appears before the Nebraska supreme court virtually every time that it's in session interpreting and arguing points of State law.

A U.S. district court, by comparison, spends most of its time dealing with issues of Federal constitutional law and Federal statutory interpretation.

Justice Kennedy: Does the Attorney General in the State of Nebraska issue rulings or opinion letters?

Mr. Stenberg: We do, Your Honor.

We did not have the opportunity to do that.

We were not asked, while this statute was in the legislative process, to issue an interpretation.

But the point I want to make here is that there are approximately 20 of these cases in various stages in various Federal courts throughout the Nation and, at least so far as my staff can determine, no State Attorney General has interpreted this law or similar laws in their own States to ban the D&E procedure.

Justice Ginsburg: General Stenberg, one of the authorities that you cited for deference was the Arizonan's case where there was a formal opinion of the State Attorney General, and yet when that case was ultimately decided by the State's own supreme court, the Arizona supreme court, they rejected the formal opinion of the State Attorney General, so I think you can say that you deserve respectful consideration, but no more than that.

We don't know what the supreme court of your State would say about a position that you're taking in litigation.

Mr. Stenberg: Well, I understand that, Your Honor.

I guess my point is, is that for the Court to do that, this Court would have to essentially tell the Attorneys General of approximately 20 States that each and every one of them misunderstood and misinterpreted their own State law, even though that is their principal business day-in and day-out, year-in and year-out.

Justice Kennedy: Well, outside of this litigation, has your office or the Attorney General's office in Nebraska taken a formal position that this statute does not apply to the D&E procedure?

Mr. Stenberg: Well, our formal position was taken in the context of this litigation, Your Honor.

Justice Kennedy: Of this litigation, but not... in no other form and in no other venue have you made that statement or that representation?

Mr. Stenberg: No, Your Honor, but I would strongly recommend to this Court...

Justice O'Connor: Mr. Stenberg, let me ask you another question.

There is no exception under this statute, as I read it, for exceptions for the health of the woman, is that correct?

Mr. Stenberg: That is correct, Your Honor, and it's not necessary here because the D&E procedure remains available any time there is a health problem, and that procedure is available to...

Justice O'Connor: Was there no testimony to the effect that there might be circumstances in which the health of the woman required D&X versus D&E?

Mr. Stenberg: There was... there was testimony that I would regard as speculation, Your Honor, but both the American Medical Association and the American College of Obstetricians and Gynecologists have studied this issue and said that they could not identify a single circumstance when a... in which a partial birth abortion, or a D&X abortion would be the only procedure available to save the life...

Justice Ginsburg: Then why did you need an exception for life, because if you say the D&X procedure is never medically necessary, then what you're saying about no need for a health exception would seem to apply as well to a life exception.

Mr. Stenberg: I think from a legal standpoint it does apply.

I think the legislature acted, as legislative bodies do, as part of a political compromise, as part of a, perhaps an effort to be particularly careful when the life of the woman was involved, but I don't believe that it would have been necessary in order to have a constitutional statute.

Justice Breyer: If I read these correctly, and I'm not a doctor, it seems to me a lot of the amici on the other side representing medical organizations say that there could be circumstances where this D&E procedure is more risky for the health of the woman.

For example, hurting the womb so perhaps the woman couldn't have children in the future, and there are a whole lot of circumstances where labor-induced abortion... you know, induced labor can be more dangerous.

At least they list quite a few.

So what are we supposed to do where the medical opinion seems at least divided?

Mr. Stenberg: Oh, I think the medical opinion is divided, Your Honor, and I think what this Court should do when the medical opinion is divided is defer to the judgment of the State legislative body, which is the proper fact-finder when we're dealing with...

Justice Breyer: All right.

Well, if the medical opinion is divided, and then if there are doctors who feel it is necessary for the health of the mother, then what is the excuse for the legislature not putting in an exception for health, since, after all, if you're right on the facts, it would make no difference, and if you're wrong on the facts it would violate Roe and Casey?

Mr. Stenberg: Well, Your Honor, the fact is, is that the... even the experts who testified for Dr. Carhart here, that of the 60 or so doctors who have testified in these partial-birth abortion cases all across the country, only about three could be identified as actually performing this procedure themselves.

I don't think that we can conclude, as a legislative policy matter, that there are only... that almost 60 of these doctors are not properly caring, or significantly creating a health risk for their women who are patients.

This is a practice that is not used even by most abortionists in the United States, and so it's very difficult to conclude that there is any health risk when both ACOG and the American Medical Association specifically found that there are always alternatives available to a woman in need of abortion if there is a health concern.

But to return briefly to the overall picture of statutory construction, I would strongly recommend that this Court adopt the corollary proposed in the Friend of the Court brief authored by the State of Virginia, which basically says that when a Federal court is faced with a State statute that has not been construed by the State's highest court, that the Federal court either defer to the opinion of the Attorney General or... of the State, or, if the Court is unwilling, or finds that that would not be a correct interpretation of the law, to certify the question to the State supreme court, because that way...

Justice Ginsburg: Did you ask the district court to do that?

Mr. Stenberg: Pardon me, Your Honor?

Justice Ginsburg: Did you ask the district court to certify the question?

Mr. Stenberg: In our answer we... no, we did not.

We did ask the court in our answer to the complaint to abstain so that the State courts could hear the case.

Justice Ginsburg: If you didn't suggest it at the district court level, did you suggest it at the Eighth Circuit level?

Mr. Stenberg: No, Your Honor, we did not.

There was a conversation...

Justice Ginsburg: You know, that's one of the notable differences between Arizonans and this case, is they had the Attorney General from day 1 say to the district court, please certify it to our State supreme court.

They said the same thing to the Ninth Circuit.

Justice O'Connor: But you're saying it for the first time to this Court.

Mr. Stenberg: Well, yes, Your Honor, we did ask for abstention, but I suppose that...

Justice Scalia: Did the other side ask for it to be certified?

Mr. Stenberg: Not to my knowledge.

There was a discussion, Your Honor, in closing arguments between Mr. Heller, counsel for Dr. Carhart, and the district judge, closing arguments on the preliminary injunction, and Judge Kopf brought up the issue of certification, and Mr. Heller did not strongly object, but his argument was that that would not resolve the controversy, that even if the State supreme court would narrow the construction to D&X the statute was still unconstitutional, and that therefore the controversy would not be resolved by referring it to the State supreme court and in essence suggested, therefore, that the district court proceed.

Justice Scalia: Of course, if a court was going to reach that resolution it wouldn't make any sense for a court to certify it, would it?

Mr. Stenberg: If it was going to decide that the D&X was unconstitutional there would be no reason...

Justice Scalia: Even interpreted the way you say it should be interpreted, it would be wrong, I think, for the court to ask for certification.

Mr. Stenberg: Well, precisely right, and in essence Judge Kopf commented, not in those words, but generally to that effect.

Justice Ginsburg: So that it would be no more appropriate for us to certify it.

The same reasons would apply, but you've just asked us to do that.

Mr. Stenberg: Well, no, Your Honor.

If this Court is going to construe Nebraska's statute contrary to the opinion of the Attorney General that it is limited to D&X... or, excuse me, that it includes D&E, then you should certify it, but if...

Justice Scalia: Should certify it only if that makes a difference to us.

Mr. Stenberg: Only if it makes a difference.

If this...

Justice Scalia: You would acknowledge that we also should not certify if, even, we agree with your interpretation of the statute, we think it's unconstitutional.

Mr. Stenberg: Yes, that's correct.

If...

Justice Scalia: I mean, if we interpret it that way.

Mr. Stenberg: Yes.

The State's position is, this statute bans the D&X procedure.

If this Court feels that ban is unconstitutional, then there would be no need to certify that question.

But if the question is, does this statute ban the D&E procedure or not, and this Court is uncertain on that, then it should certify that question to the State supreme court, rather than, in my opinion at least, incorrectly interpret Nebraska's own statute.

Justice Souter: Is it your position that the language of the statute itself is incapable of covering D&E perhaps because of the intent requirement, or is it your position that there is a gray area, and the better interpretation is the one in accordance with the legislative intent, which was simply to get to the D&X abortion?

Which is your position?

Mr. Stenberg: I think it's fair to say the statute might be amenable to more than one construction, but we believe that the State's construction is a reasonable one.

It's one that would uphold, hopefully uphold the cons...

Chief Justice Rehnquist: Well, and we have held, have we not, that a Federal court in construing a State statute is obligated to, if there's constitutional doubt to construe in a reasonable way that will avoid the constitutional doubt?

Mr. Stenberg: Yes, that is exactly right, Your Honor, and that's of course the rule that is followed by the Nebraska supreme court as well.

Justice Ginsburg: Why is it, of course, because it wasn't in Arizonans.

In Arizonans, the State Attorney General had offered a limited construction that would remain within constitutional bounds, and then the Arizona supreme court said no, we can't read the statute that way.

We read the statute as, in covering much more than the Attorney General is arguing, and therefore it's unconstitutional.

So whatever we say about our accounting with respect to Federal legislation, certainly we can't say what the State can do with its own legislation.

Mr. Stenberg: That's true, Your Honor, and that's why I think the State certification rule offered by the State of Virginia removes the Federal court from a source of friction with the States by either accepting the interpretation placed on the statute by the Attorney General, or certifying to the State supreme...

Justice Scalia: We don't always certify State questions to the State courts, especially when there's only one interpretation that would render the statute constitutional and another one to render it unconstitutional.

It isn't the Federal law that we must certify to State courts, is it?

Mr. Stenberg: No, Your Honor, and I'm not suggesting that.

I only suggest certification if the Court places... it would place a different interpretation on the statute than placed on it by the State Attorney General.

Justice Stevens: General, may I ask you this question: let's assume your construction of the statute is correct, and then the question is whether, could the State ban just D&X, and I understood you to say earlier that the American College of Obstetricians and Gynecologists said you don't need this procedure in substance

But I notice in their brief they have a sentence, depending on the physician's skill and experience, the D&X procedure can be the most appropriate abortion procedure for some women in some circumstances, and then they have a footnote to the... a finding of the district court that there are at least 10 to 20 Nebraska women each year for whom the D&X is the most appropriate procedure.

Now, do we have to disagree with that finding to hold this statute valid?

Mr. Stenberg: No, I don't believe so, Your Honor.

I think you need to accept that the legislature could consider all of the competing...

Justice Stevens: And it can ban the most appropriate procedure for a small number of women?

Mr. Stenberg: Well, I don't... I believe that the district court was simply erroneous...

Justice Stevens: Well, that's what I'm asking you.

Do we have to find that finding erroneous in order to sustain your position?

Mr. Stenberg: I don't believe so, Your Honor.

Dr. Carhart testified that he attempts approximately 200 D&X abortions a year, but only successfully completes 10 or 20 of them, and a procedure that is completed so rarely, and that is practiced so rarely across the United States, even by persons in the practice of abortion, simply prohibiting that procedure can simply not be considered to present any significant threat to a woman's health if that procedure's not available.

Justice Souter: Well, but I mean, you could make the same argument about the exception to save life.

There are very rarely instances, probably, in the whole spectrum of abortion practice in which the life exception is necessary, but you can't thereby simply say, well, we're going to allow the legislature to ignore those cases and eliminate a life exception even in your later term prohibition, so why, I guess, should the legislature be more cavalier in overruling medical judgment in this circumstance?

Mr. Stenberg: Well, I think the overwhelming weight of medical judgment, as opposed to the district court judge's view, comes from the American Medical Association and ACOG that this particular procedure is never necessary to save the life or preserve the health of the woman.

Justice Souter: Well, I think when we're talking about most appropriate procedure, as Justice Stevens is quoting their brief as doing, I think normally we take... at least I take that to mean the procedure which is most conducive to an uncomplicated abortion and hence one that does not present any health risks that can be avoided, so I find your assumption hard to accept if we are entitled to take into consideration the position stated in the OB-GYN brief.

Mr. Stenberg: Well, under Casey, Your Honor, if the test were a no-burden test, or if there could be not even the smallest possible health consideration, then Casey would have come out differently on the 24-hour waiting period.

The whole concept of undue burden is the word, undue, and it seems the respondent wants to argue here for a no-burden test, so the...

Justice Ginsburg: General Stenberg, I thought that Casey indicated that there were two interests throughout pregnancy, and one is the health of the woman and the other is the potential life of the fetus.

And whatever this particular ban does, it certainly can't be urged that it is passed in the interests of the health of the woman, and it doesn't serve the interests of the potential life of the fetus, because it just says, as you said, there's always another way to do it.

So it doesn't serve either of the purposes that we recognized in Casey as central, and therefore seems to be out of the balance that this Court set for legitimate pre-viability regulation.

Mr. Stenberg: Well, as I mentioned earlier in my argument when I quoted from Casey, the Court in very general terms recognized other State interests, presumably to be recognized and defined in subsequent case law, and I believe that case is now here.

Mr. Chief Justice, if I might reserve the remainder of my...

Justice Scalia: Just, what does a waiting... a 24-hour waiting period, how does that affect either of those two interests?

Mr. Stenberg: Well, there was...

Justice Scalia: Either the health of the... you know, the potential viability of the fetus or the health of the mother?

Doesn't that have another interest in...

Mr. Stenberg: There was testimony in the Casey decision, recorded in the Casey decision about, that the 24-hour waiting period might require more travel.

It might, in fact, lead to delays of more than 24 hours, that any delay leads to some theoretical increase, the passage of each day...

Justice Scalia: The State interest that it protects is certainly not a State interest in either the health of the mother or the viability, the potential viability of the fetus, is it, the 24-hour wait?

Mr. Stenberg: No.

That was... that...

Justice Scalia: It's a totally different State interest.

Mr. Stenberg: That's correct, Your Honor.

Justice Souter: You don't think the waiting period, the object behind the waiting period is its tendency to induce second thoughts about having the abortion?

Mr. Stenberg: Yes, that is... that is... or, I think... I would... yes, Your Honor, I would think it...

Justice Souter: So I think that does go to the potential life involved in the viability of the fetus, when the fetus, at the stage it would become viable and hence subject to full protection.

Mr. Stenberg: Yes.

It could lead the mother to decide...

Justice Ginsburg: And indeed wasn't that the purpose that the State put forward, that by giving an interval, the woman might change her mind?

Mr. Stenberg: Yes.

Justice Ginsburg: So it quite clearly was intended to serve the... what the Court described as the interest in the potential life of the fetus.

Mr. Stenberg: Yes, that's correct, Your Honor.

If I might reserve the rest of my time.

Argument of Simon Heller

Chief Justice Rehnquist: Very well, General Stenberg.

Mr. Heller, we'll hear from you.

Mr. Heller: Mr. Chief Justice, and may it please the Court:

The Nebraska statute before this Court aims to eliminate the two central principles of Roe v. Wade and Planned Parenthood v. Casey.

It seeks to reverse the supremacy of women's health over fetal interests throughout pregnancy, and it seeks to replace the viability line established in this Court's jurisprudence with a new line, one based on the location of the fetus inside the woman's body.

I want to focus on three main reasons that the Nebraska ban is unconstitutional.

First, it's so broadly written that it could prohibit most second trimester abortions as they are performed in Nebraska today.

Chief Justice Rehnquist: Well, but are... are you defending the court of appeals' construction of the statute here?

Mr. Heller: Yes.

Chief Justice Rehnquist: Do you think the court of appeals followed our admonition that when you have two plausible constructions available and one would avoid constitutional difficulty, you should follow that, even though it's a State statute?

Mr. Heller: Absolutely, Your Honor.

That principle is... only holds where the two alternative constructions are both reasonable.

In this case, the standard canons of statutory construction, those applied by the Nebraska Supreme Court and this Court, all indicate that the Nebraska statute is much broader than a prohibition just on the D&X technique.

First, its plain language describes the elements of most second trimester abortion procedures, in particular the dilation and evacuation method, as both the district court and the court of appeals found.

And they found that based not simply on this text of the statute, but the text of the statute interpreted in light of the testimony of the witnesses, both the witnesses for Dr. Carhart and the State's own witnesses who acknowledged that this statute could be broad enough to prohibit...

Chief Justice Rehnquist: Do we ordinarily go into the testimony of witnesses?

These were witnesses at a trial?

Mr. Heller: That's correct.

Chief Justice Rehnquist: And what... what authority do they have to speak to the construction of a statute?

Mr. Heller: No, I'm not talking about their authority to speak to the construction of the statute, but describing how abortion procedures actually occur and how they are performed and then comparing that to the language of the statute to see if the steps that occur in abortion...

Chief Justice Rehnquist: These witnesses compared it to the language of the statute?

Mr. Heller: No.

The... the court did.

The court relied on the descriptions of abortion procedures by the witnesses.

Justice Scalia: Well, I... I must say I don't understand... I don't understand that conclusion.

The statute prohibits a procedure in which the person performing the abortion partially delivers vaginally a living, unborn child before killing the unborn child and completing the delivery.

Now, how does that occur in D&E?

As I understand what happens in D&E sometimes is that they... is that they... is your argument that in breaking off a leg and dismembering the fetus inside the womb, when you... when you pull the leg out of the womb, that amounts to delivering, partially delivering a living, unborn child?

Pulling out a... a torn-off leg is... is delivering a living, unborn child?

Mr. Heller: The factual findings of the district court are quite clear that the way the D&E typically occurs is that the physician partially delivers the intact, living fetus into the vagina while it... before fetal demise has occurred, so that there is a living, unborn child partially in the uterus and partially outside the uterus.

Justice Scalia: But in order to... for the purpose of killing it, partially delivers... the term partially delivers a living... the unborn child means deliberately and intentionally delivering into the vagina a living, unborn child.

Now, in... in a D&E, does... is that what the... is that what the physician tries to do, tries to intentionally deliver into the vagina a living, unborn child for the purpose of... of then killing it?

Mr. Heller: Yes.

Justice Scalia: Yes?

Mr. Heller: In every pre-viability...

Justice Scalia: That's not my understanding of the D&E at all.

My understanding is that... that you... you try to dismember it if possible before the delivery.

Mr. Heller: That's not what the district court found.

All the expert testimony shows that to... if the physician were to attempt to induce fetal demise while the fetus is still in the uterus, that would impose increased health risks on the woman.

And that's really what this case is about.

It's about shifting the location of the abortion procedure into the uterus at the expense of women's health.

Justice Breyer: You mean that some of the time D&E could be that, or all the time?

My impression in reading it was that some significant part of the time this could... this statutory wording would be satisfied with the D&E.

Mr. Heller: That's right.

In fact, in the majority of the cases...

Justice Breyer: The majority?

Mr. Heller: That's right.

That... that the way a D&E is performed matches the statutory elements.

In fact, the Attorney General of Nebraska told the district court that anytime a living fetus is brought part way into the vagina, before fetal demise has occurred, and is then killed by some step, that that constitutes a...

Justice Scalia: No, but it has to be more than just bringing it.

It has to be the object of the physician to do it that way.

And I do not understand it to be the case that this is what you set out to do when you do a D&E.

Mr. Heller: Actually Dr. Carhart, in each second trimester abortion by D&E that he performs, sets out to bring as much of the fetus out of the uterus at once as possible because it reduces risks to... to the women.

It reduces the risks of uterine perforation and infection.

Justice Kennedy: Well...

Mr. Heller: So, his intention is always to do that, if possible.

Justice Kennedy: As you describe these two procedures, which in your view seem to come close together, the American Medical Association and the Association of American Physicians and Surgeons are just confused on this point?

Mr. Heller: Well, the American Medical Association described the D&X technique as a form of D&E.

It is in the record in their report on abortion that's in the record.

They describe the D&X technique as a form of D&E, and that's because it basically involves the same steps as a D&E.

It involves the same procedure of delivering the fetus vaginally.

And pre-viability, that inevitably results in fetal demise.

Justice Scalia: Where... where is that?

Will you give us the citation in the record?

I did not understand that to be the case.

Mr. Heller: Certainly.

The citation occurs in exhibit 7, which is on pages 482 through 500 of the joint appendix.

In particular, on page 492 of the joint appendix, the AMA report calls the D&X method a form of D&E and, in fact, goes on to state... the AMA states further that the D&X technique may be preferred by some physicians precisely because it reduces risks to the woman.

That's the opinion of the American Medical Association, consistent with the opinion of the specialty group, the American College of Obstetricians and Gynecologists.

Justice Scalia: Well, they... they describe it as a form of DE... D&E not in that, like D&E, it involves partial birth of the child.

That isn't the respect in which they say it's a form of D&E.

Mr. Heller: Well, the factual findings of the district court established that in all D&E's the fetus is brought through the vagina and out of the woman's body.

That's how the abortion...

Justice Scalia: Ultimately, yes, but not... not always intact and not always alive.

Mr. Heller: Typically intact and alive.

Those are the findings in the district court, and that's what Dr. Carhart does in most of the D&E abortions he performs, including those in which he's able to perform the D&X technique.

So, that's one reason that we believe the statute encompasses the D&E method.

Justice Scalia: Why... why would you be able to do a D&E and... as I understand it, the... the D&X is only possible 90 to 95 percent of the time that he attempts it.

Right?

Mr. Heller: Well, it's possible about... he is able to do it about 10 percent of the time.

Justice Scalia: Yes.

He's... I'm sorry.

Just the opposite.

It's not possible to do it 90 to 95.

Mr. Heller: Right.

Justice Scalia: What makes it impossible?

I thought what made it impossible is the inability to take out the... the fetus from the vagina intact and still alive.

Mr. Heller: Well...

Justice Scalia: And if... if you can do it and if that... if that's the same thing you do for D&E, then I don't understand any difference at all between the two procedures.

Mr. Heller: There are a variety of factors that determine how exactly a physician, whether it's Dr. Carhart of any other physician, performs the D&E when you... if you were to measure what parts are delivered and so forth.

Justice Scalia: I mean, just... just tell me what it means to say that... that 90 percent of the time he can't do a D&X, but he can do a D&E?

What does that mean?

Mr. Heller: For example, insufficient cervical dilation may exist so that... that the D&X is not possible because there's not sufficient cervical dilation to perform it.

Justice Scalia: Which would mean he cannot get out a substantial portion of the living fetus.

Mr. Heller: Well, he...

Justice Scalia: I can understand that, but if it means something other than that, then I... it doesn't mean anything to me.

He can say that he can do a D&X only 10 percent of the time.

Mr. Heller: He nevertheless is able to, in almost all D&E's, bring a substantial portion of the living fetus into the vagina before any step is taken that causes fetal demise.

And it's very clear from the legislative history here that substantial portion was intended to be very broad by the legislature.

The chief sponsor wanted to accord legal protection to the fetus anytime more than a little bit of the fetus was brought into the vagina.

Justice Scalia: But the medical testimony certainly acknowledges a general understanding of a difference between D&X and D&E.

Isn't that right?

Mr. Heller: The medical testimony shows that they are... that the D&X is a form of D&E.

It has certain specific elements, the same way as... as any particular type of surgery might...

Justice Scalia: Let me put the question differently.

The medical testimony certainly establishes that there is a distinctive form of procedure known as D&X.

Correct?

Mr. Heller: There's a distinctive variation of the D&E that's called D&X.

Justice Scalia: Well, call it a variation, whatever.

It's a distinctive procedure.

People talk about D&X.

We've been talking about it today...

Mr. Heller: That's right.

Justice Scalia: as though it is something distinctive.

It is.

Mr. Heller: Yes, it is.

Justice Scalia: So, the only question is whether this statute covers only that distinctive procedure or something beyond that.

Mr. Heller: That's one of the questions...

Justice Scalia: Can we agree that that distinctive procedure is also generally called partial-birth abortion...

Mr. Heller: Well...

Justice Scalia: and that that term is not normally applied to D&E?

Mr. Heller: No.

There is no... first, again the district court found that there was no medical definition of partial-birth abortion.

Justice Scalia: I'm not asking whether there's a medical definition.

Is... is the term partial-birth abortion not normally applied to what we've been discussing as D&X?

Mr. Heller: No, it's not normally applied.

Justice Scalia: You don't think so.

Mr. Heller: No.

Justice Scalia: If I find to the contrary, would... would you lose?

Mr. Heller: No...

Justice Scalia: Because the statute does begin partial-birth abortion means an abortion procedure in which, and then goes on, blah, blah, blah.

Mr. Heller: No, of course, because the title of the statute doesn't control its meaning in... in the case of the definition...

Justice Scalia: It isn't the title.

It's part of the text.

Mr. Heller: or in case of the legislative history.

Justice Ginsburg: Mr. Heller, what isn't part of this statute... all of this dispute would be out of the case if the legislature had simply said, we ban D&X and not D&E.

And to me it's... it's... that's just glaring here that they could have reduced all question of ambiguity if they had simply said we ban a term that the doctors call D&X and we don't ban D&E.

Is there any explanation why they didn't simply say if they meant to cut out D&X, D&X is banned?

Mr. Heller: Well, there is.

First, they... they rejected an amendment that would have done just that.

Secondly, throughout the legislative history, it's apparent that what they wanted to do was prohibit the D&X technique, but also to prohibit many other forms of abortion in which the living fetus was brought into the vagina before demise was caused.

That was their intention.

Indeed, that's the purpose that Mr. Stenberg acknowledged today, that the purpose of the statute is to accord legal protection to the fetus once it's emerged from the womb.

But even if this statute were limited to the D&X technique by some replacement of the existing definition with, say, the ACOG definition of the D&X technique, it's nevertheless unconstitutional under this Court's precedents.

First, under both Casey and Roe, the State must show that any regulation of abortions serves one of the two recognized interests, maternal health or potential life.

There's no evidence before this Court...

Chief Justice Rehnquist: Your... your opponent argues the language in Casey suggests that those are not the only two.

You disagree with that, I take it.

Mr. Heller: Well, there is language in Casey that suggests that other valid State interests could justify regulation of abortion.

That's absolutely correct.

What I'm suggesting is that the two recognized interests are not served.

I'll turn briefly to the... the new interests that are proposed.

There's a sort of a laundry list of about seven or eight new interests that the State suggests could justify a prohibition on the D&X technique.

We believe none of those is sufficient to override the woman's health.

For example, beginning with Roe and on through Casey, this Court has consistently held that the woman's interest in her health and in her bodily integrity overrides the State interests in the fetus even after viability.

So, it follows from that some... the subsidiary interests suggested by Nebraska showing concern for potential life, showing respect for potential life... they certainly can't overcome the woman's health interests and the woman's interest in her own bodily integrity.

Justice Scalia: Certainly it depends upon how significant the health interest is.

If... if there is an insignificant difference between... between using D&X and using D&E, which... which some of the medical testimony seems to indicate, you're saying that there's no interest whatever in... in the State in... in preventing the coarsening of manners from... from having the doctor and those in attendance and those who know what goes on witnessing the... the destruction of a... of a live human creature outside the womb?

There's no State interest in that at all?

Mr. Heller: Well, first, the district court found that a prohibition on the D&X technique would impose appreciable risks on women, and that follows from the very common sense findings of the district court that the D&X technique reduces instrumentation in the uterus and reduces, therefore, the risk of uterine perforation and infection.

But even if the risks were less than appreciable, anytime a State prohibits a safe abortion technique, it is prohibiting a technique that will be the safest for some women.

And in this case, we have coupled with that the very strong interests the woman has in literally declining to have additional intrusions into her body of surgical instruments.

This is the sort of interest that this Court in Glucksberg recognized as having special protection under the Fourteenth Amendment.

So, we have a... a conjunction of strong rights here...

Justice Scalia: You can't destroy the fetus after it's born if it's viable.

Right?

We... we do make the... the distinction at that point.

Mr. Heller: That's correct, and that's a distinction that this Court made in Roe for the very good reason that once the fetus is outside the woman's body, her right to control her own body is no longer at issue.

So, here... but here what we're talking about is her right to have an abortion by the safest possible means.

And there's... there's nothing in this Court's precedents that suggests that that right can be overridden by any sort of fetal interest.

Let me just add that many of the other interests suggested by the State have no support in the record.

And it would... we believe it's appropriate that if the State is going to ask this Court to recognize new valid interests that can override constitutional rights, that the State provide some evidence at least that one of those interests is actually promoted by the statute.

Let me take one example, if I may, the interest in the integrity of the medical profession.

Quite to the contrary, all the evidence suggests that the integrity of the medical profession is promoted when physicians are able to treat their patients in the most appropriate and safest possible manner.

So...

Justice Kennedy: As... as determined by the individual physician.

Mr. Heller: As determined by the individual physician in light of medical standards and the standards of the medical community.

Justice Kennedy: Well, there are certain objective standards that the profession as a whole can adopt and... and recommend to the courts.

Is that not true?

Mr. Heller: That is true, and in... in this instance, both the specialty group of American College of Obstetricians and Gynecologists and the AMA have recognized the D&X technique is the most appropriate procedure in some circumstances.

So, with the weight of that professional support behind it, we believe it's... it undermines the integrity of the medical profession to take away the most appropriate procedure in a particular case.

In fact, most of the evolution in safety of abortion since Roe has been due to the protection that's been accorded to the physician's judgment about how to carry out the abortion prior to viability.

Justice Scalia: Roe... Roe... neither Roe nor Casey are written in the Constitution.

They may not have mentioned all of the... all of the appropriate interests that may be taken into account.

Why is it not an appropriate interest that the State is worried about rendering society callous to infanticide?

There were very many highly civilized societies, including the Ancient Greeks, who permitted infanticide, who said that the right of parents included the right not to be burdened with a child they didn't want, especially a deformed child.

And therefore, in order to prevent other societies descending into that degree of callousness, the... the numerous States that have enacted these laws... I don't think it's so much a concern with... with medical matters.

I think it's a concern with the horror of seeing, you know, a... a live human creature outside the womb dismembered.

Mr. Heller: Well, again, let me start by saying that...

Justice Scalia: Why can't that be a valid societal interest...

Mr. Heller: There's certainly...

Justice Scalia: whether it's expressed in Roe and Casey or not?

Mr. Heller: There's certainly a valid State interest in preventing or prohibiting infanticide.

And of course, Nebraska, like virtually every other State, already does so through its general homicide statutes, so that Nebraska protects the fetus, even the pre-viable fetus, if it has an independent existence from the woman.

But to say that an abortion procedure that is safest for the woman, a pre-viability abortion procedure, is so horrific and so like infanticide, any of the... any of the abortion procedures... that could be said about any abortion procedure because every abortion procedure pre-viability involves fetal demise.

They all do.

This is an interest which, if recognized and if it could override the woman's right to... to health and bodily integrity, would authorize States to prohibit any abortion method and prohibit, indeed, all abortions.

So that it's irreconcilable ultimately with the right recognized in Roe and Casey.

I want to turn also to... to a second reason that the D&X... prohibition on the D&X technique is invalid if, indeed, the statute could be so limited.

And that is the recognition in Casey that a statute which has the purpose of imposing an undue burden on the woman's right to obtain a pre-viability abortion is also invalid.

Here the only purpose suggested, indeed, the primary purpose identified by the Attorney General of Nebraska, is precisely to elevate the status of the fetus based on its location within the woman's body, not in its location once it's born, not on viability.

And this is an interest.

If this elevation were permitted, it would authorize States to prohibit all abortions.

That's an impermissible purpose under Casey.

Coupled with this impermissible effect of effectively depriving women in Nebraska of the safest and most medically appropriate method of second trimester abortion, the statute simply can't survive under this Court's decisions.

Indeed, when you... when you consider the State interests there... some of the other State interests that are proposed, not even they are served by the statute.

The interest in, for example, cruelty to the fetus.

There's no evidence that that interest is served here.

In fact, the statute doesn't say anything about cruelty to the fetus at all.

So, we're looking at a statute that doesn't serve either of the recognized State interests.

It doesn't... there's no evidence that it serves any of the proposed new State interests by permissible means, and at the same time, it imposes some health risks on women.

That sort of statute... the balancing in that sort of statute is decisively against the constitutionality of the statute under any interpretation, whether broad or narrow.

For example, again, if... if the State... if the State couldn't really prohibit a more dangerous procedure for abortions such as hysterotomy because those methods are most medically appropriate for some women.

And to take one method like the D&X technique out of the hands of physicians performing pre-viability abortions inevitably makes abortion more dangerous for women.

So, when this Court, for example, in Danforth struck down the... Missouri's prohibition on saline abortions, it took a step that enabled physicians to continue to develop newer, safer methods of abortion.

That really relates to one of the points made by Mr. Stenberg in his opening, which is that, well, why aren't all these other physicians around the country doing this if it's so safe?

The reason is that it's new.

Any new surgical technique, any new medical technique is at the beginning going to be used only in a scattered way.

Justice Scalia: So, we can look forward to this being more widespread in the years to come.

Is that right?

Mr. Heller: We don't know and that's because we don't know whether in the future even new methods will replace this method as the safest for women.

But this Court's jurisprudence has always pushed in the direction of allowing physicians to exercise judgment so that they could determine the safest possible means of performing abortion not State legislators.

It should be the doctor deciding how surgery is performed, not the Nebraska Senators.

So, with the improper purpose and with the lack of service of any State interest, we believe the statute is unconstitutional.

But I want to turn to yet an additional problem with the statute which is... which is its lack of any health exception.

This is a problem which even the Attorney General doesn't suggest, well, go ahead, we think it should be interpreted to have a health exception.

They don't want it to have a health exception.

They resist that interpretation which could ameliorate one of the constitutional problems with the statute.

Chief Justice Rehnquist: Well, but hasn't there been some criticism of the health exception as it has been used in some circumstances as a way of simply avoiding the prohibition entirely by a doctor who says there's always a health exception?

Mr. Heller: Well, there... there has certainly been criticism of that, of course.

But considering, for example, Nebraska's post-viability abortion prohibition, which has exceptions for the life and health of the woman without restriction, there's... there's no evidence, for example, that that statute has ever been misapplied by a physician in Nebraska.

Nor is there a suggestion that similar statutes have ever been misapplied by physicians in other States.

So that this sort of health exception which...

Chief Justice Rehnquist: Well, then whence the criticism?

Is it just totally based on no evidence whatever?

Mr. Heller: Well, I think there's criticism, for example, from some who oppose abortion entirely.

Chief Justice Rehnquist: But how about... are you saying that there's simply no basis for saying that a health exception could be used by doctors who wish to avoid the general prohibition to get out of it in more cases than they should?

Mr. Heller: I think there is no basis for that... that claim.

A physician who used a different abortion technique for a woman who was sick or dying and not because it was the most appropriate technique would already be subject to malpractice penalties and penalties for unprofessional conduct.

So, if this was going on, we would see evidence of it.

But in fact, what we see is just increasing safety of abortion for women in the United States.

The lack of a health exception is also one that could not be, in our view, cured by any sort of certification process, which has been suggested, because it would really require just rewriting the statute, and... and we believe the Nebraska Supreme Court would not do that, nor would the Nebraska Attorney General want them to.

Justice Scalia: Do you think when you have a... a fully viable fetus that no State restrictions upon... upon the woman's right to abort could involve any risk whatever to the woman's health?

There has to be a health exception?

Mr. Heller: Well, in... in Thornburgh, this Court required that a choice of methods statute not impose risks on the woman's health...

Justice Scalia: Any... any risk whatever.

Mr. Heller: Well...

Justice Scalia: If there's the slightest risk whatever, the... the State must allow the woman to dispose of a fully viable fetus.

Mr. Heller: I don't think Thornburgh says that.

I think Thornburgh says that the State...

Justice Scalia: Do you think that that's the rule?

Mr. Heller: I think the rule is under Thornburgh that the State cannot impose significant risks on women's health after viability.

Before viability where the State interest in the fetus is much less than after...

Justice Scalia: I understand that, but it... it's possible that there is a similar rule applicable here, that the State may not impose significant health risks upon the woman.

But that doesn't mean that there can't be, you know, a minimal, virtually nonexistent health risk, which is what your argument assumes, that you cannot have any... any risk whatever.

Mr. Heller: First, again the district court findings say that there is an appreciable health risk from prohibiting the D&X technique.

But secondly, again part of this calculus is looking at the State interests, and the State... there are no State interests served by this statute, unlike the post-viability statute which serves a very compelling interest.

Justice Scalia: What if another district court makes a different finding?

I mean, do... do we accept the district court's findings on these general medical questions as binding?

Is it... is it binding just in this case?

Or if we have another abortion case from another... from another circuit where the district judge makes a different conclusion, the... the nonmedical district judge, do... do we then accept that other conclusion too?

Mr. Heller: We believe that the conclusion here must be drawn from much of the evidence that could not be disputed in any case around the country, which is that the AMA and the... and ACOG both recognize that this, the D&X procedure...

Justice Breyer: Is it... is it the case that the risk... I thought the risks being insubstantial was of a kind where we say one in a million.

But once we've identified the woman, for that woman it's no longer insubstantial, is it?

Mr. Heller: That's absolutely correct.

The risks...

Justice Breyer: And... and therefore a health exception or a life exception helps that single woman.

Mr. Heller: Absolutely.

And so, it helps the 10 to 20 women, for example, for whom Dr. Carhart is able to perform the D&X technique.

Rebuttal of Donald B. Stenberg

Chief Justice Rehnquist: Thank you, Mr. Heller.

General Stenberg, you have 3 minutes left.

Mr. Stenberg: Thank you, Your Honor.

First of all, on May 20th, 1997, the Nebraska legislature adopted an amendment that was proposed to Congress by the American Medical Association for the purpose of making clear that the statute did not prohibit the D&E procedure.

And the best discussion of that can be found on page 418 of the joint appendix.

Justice Ginsburg: Why didn't they just say that, General Stenberg?

Why didn't they just... I mean, that was proposed, Mr. Heller told us... say that what's banned is D&X, what's not banned is D&E?

That was such a simple way of clarifying it.

Why didn't they do that?

Mr. Stenberg: Because the Nebraska legislature was relying on the American Medical Association and the Congress of the United States and patterned their legislation on that.

And they felt that if this gained the support of the American Medical Association and Congress, which it did for the 1997 law, that they wanted to pattern that and rely on the American Medical Association and their lawyers and congressional lawyers.

Justice Ginsburg: Did the medical... American Medical Association recommend this text or did they simply say, in our judgment, it's okay to ban D&X?

Mr. Stenberg: No.

They did... they did both.

They... they... what they said is if the Congress would adopt these amendments, which were the same as... as what Nebraska adopted, that they would then support the ban on D&X abortion.

Justice Ginsburg: Well, is there any question that they would have supported a ban that simply said what you tell me the legislature meant, that is, we ban D&X and nothing else?

Mr. Stenberg: There's... of course, there's more than one way to achieve the same result, Your Honor.

The Nebraska legislature chose to...

Justice Ginsburg: You would just be saying that the AMA liked this other text.

Is there anything in the world to indicate that they wouldn't have preferred the clarity that we ban D&X would have brought?

Mr. Stenberg: Well, of course, viewed from, I think, the standpoint of a State Senator in... in the State of Nebraska, they're not really in a position to go to the AMA and say, well, is there some other language that might be just as good?

They just took what was given to them.

Justice Ginsburg: But there was a medical term.

Is there any reasonable doubt that a doctor would say... a medical term is what doctors use.

Are you suggesting that any legislator in... in the State was genuinely in doubt, whether if he had used D&X, the medical association would have disapproved?

Mr. Stenberg: Well, there was some doubt because in 1997 there were several terms used to describe this procedure, the D&X, the intact D&E, the intact D&X, and the Haskell D&X.

So, there were several different, quote, medical terms that were being applied in 1997, and the legislature chose to attack it by... by describing the procedure rather than using a medical term, which I believe the legislature is free to do.

On this question of what is a D&E, Dr. Carhart addressed that in his complaint on paragraph 30 in which he pled, the intact removal of the fetus...

Chief Justice Rehnquist: Thank you, General Stenberg.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Hill v. Colorado - Oral Argument

Fri, 09 Jan 2009 14:50:16 +0000

Case:

Hill v. Colorado

Media File:

98-1856_20000119-argument.mp3

Related Transcript:

1999_98_1856_argument.xml

Transcript:

Argument of Jay A. Sekulow

Chief Justice Rehnquist: We'll hear argument now in No. 98-1856, Leila Jeanne Hill, et al. v. Colorado.

Mr. Sekulow.

Mr. Sekulow: Mr. Chief Justice, and may it please the Court:

The Colorado statute at issue here, 18-9-122, section 3, converts protected speech into a crime.

The statute, which can be found at page 64a and 65a of the petition appendix, the last two pages, imposes an 8-foot floating bubble zone around every person who passes within a 100-foot radius of every entrance door to every health care facility in the State of Colorado.

Within that floating bubble zone, the statute criminalizes a knowing approach made for the purposes of engaging in constitutionally protected speech unless prior consent is obtained.

The consent provision alone invalidates the statute.

It makes the peaceful distribution of a leaflet, the display of a sign, and even specific oral communications in a traditional public forum a crime if prior consent is not obtained.

The statute targets only constitutionally protected speech.

There is no core or prescribable conduct which this statute reaches.

The bubble zone, with its consent provisions, attaches to every person who comes within a 100-foot radius of every health care facility in the State.

Justice Ginsburg: Mr. Sekulow, am I correct in understanding that no speech, no words, are prohibited.

It's only distance.

You can speak anything you want at an 8-foot distance.

Mr. Sekulow: Outside of the zone, there is no restriction on speech.

It's when you...

Justice Ginsburg: But even in the zone, as long as you're 8 feet away, you can speak.

Mr. Sekulow: Yes, but there... you have... there are two different zones here.

The 8-foot bubble zone comes into existence when someone is within a 100-foot area... radius of a health care facility.

The bubble zone which floats attaches to every person who enters that specific... specific zone.

So, you... once you're within the 8-foot of someone, if you do not ask for consent, you do not... you're not allowed to speak.

It's a...

Justice Breyer: What is it... what is it that... I mean, 8 feet.

You're 16 feet away from me.

8 feet is about the distance to Mrs. Underwood here.

What... what is it that she can't tell me?

Mr. Sekulow: I think it's...

Justice Breyer: What... what speech is it difficult for anyone to make when you're about this 8 feet, say, the distance between me and Justice Kennedy?

Mr. Sekulow: Justice Breyer, I think it's the same issues that the Court dealt with in Schenck, the distribution...

Justice Breyer: Well, in Schenck I suppose the problem was that you couldn't... you didn't know where the bubble started.

Somebody walking along the sidewalk... you carried the bubble with you.

They didn't know where they're supposed to be.

Now, there's none of that problem here.

Mr. Sekulow: Well, I... I think there is, Justice Breyer.

I think the... the bubble zone floats.

There's no doubt about that.

It attaches to everyone who is within... comes within the initial 100-foot area.

That bubble zone floats to... unless you...

Justice Breyer: That wasn't... I thought the problem in the other case was that as the person walked along the sidewalk, people who were just standing on the sidewalk would have to get out of the way as the person carrying the bubble moved along.

But here anyone on the sidewalk simply stops.

There's no problem.

They can come within 1 feet, but if the woman wants to avoid that person, the person can't chase after her.

Mr. Sekulow: This...

Justice Breyer: Now, is... am I right about that factually?

Mr. Sekulow: I think that's incorrect, Justice Breyer.

Justice Kennedy: All right.

What...

Mr. Sekulow: And here's the reason why.

The zone here does float.

You are not allowed to enter that 8-foot zone unless there is prior consent.

Justice Breyer: I'm... I'm sorry.

I didn't... I wasn't clear.

I didn't say it didn't float.

I said that a person standing on the sidewalk, as the woman approaches, if the person stands still, the person doesn't have to do anything even if the woman comes within 6 inches.

Mr. Sekulow: That's...

Justice Breyer: But if in fact the woman decides she doesn't want to go close to that person and walks around him, then he cannot chase her.

Now, that's my understanding of how it worked physically.

Is that right?

Mr. Sekulow: That's correct.

If you're standing still and you're there first.

In... in that regard, it operates... the consent provision here operates exactly as the consent provision in Madsen.

In Madsen, you could stand still.

If you weren't there first, you could stand still.

It prohibited a physical approach, which is exactly what this statute does here.

This statute actually combines the floating zone of Schenck with the no-approach zone that the Court prohibited in Madsen.

So, if you're going to enter within 8-feet of a person, if you're not there first... in other words, if you stand still, sure, you don't violate it, just like in Madsen.

But the consent provision alone in Madsen invalidates the statute.

Justice Stevens: Well, that's not like in Madsen.

In Madsen, at least the Court assumed they would have had to move out of the bubble.

That's what I remember the Chief Justice's opinion said, I think.

Mr. Sekulow: Actually, Justice Stevens, in Madsen the... the prohibition that was at issue in the injunction prohibited a physical approach.

Justice Stevens: Well, didn't the Chief Justice's opinion interpret it as requiring the stand-by to move?

Mr. Sekulow: Not in Madsen.

In Schenck that was the concern of the floating bubble zone.

Justice O'Connor: Oh, okay.

Mr. Sekulow: And in that... in that regard, here the concern was that the zone floats in Schenck.

It does here.

I mean, while the person moves, you have to move with them unless you have consent.

So, Justice Breyer, it's the same.

Justice Breyer: Remind me... my original question was this, and it may just require reminding me of what these other cases said.

But if I'm standing still and I... people can approach me, and then I'm about the distance I am from Justice Kennedy.

Mr. Sekulow: Yes.

Justice Breyer: And there's a woman coming along.

What is it... because she can walk around me... that I can't tell her?

Mr. Sekulow: I think...

Justice Breyer: This is a speech case.

What's the restriction on the speech?

Mr. Sekulow: The display of a leaflet, the showing someone written material.

In... in Schenck we talked about, Justice Breyer... we talked about the displaying of a Bible.

In Schenck, this Court at page 377 stated... and I'll... I'll quote it exactly... that the concern of the floating bubble zone was that it prevented defendants, except for two sidewalk counselors, while they are tolerated within the targeted zone, from communicating a message from a normal conversational distance or handing a leaflet to people and...

Justice Ginsburg: What was the distance, Mr. Sekulow?

It was more than 8 feet.

Mr. Sekulow: That's correct.

It was 15 feet there.

I don't think the difference between 15 feet and 8 feet would make the constitutionality any different.

The standard is still the same.

You cannot display or hand out a leaflet, say, to someone 8 feet away without, again, asking for consent.

It was in Schenck this Court said that the leafleting and commenting on matters of public concern are protected speech, especially on traditional public forum.

Chief Justice Rehnquist: But the... but the distance must make some difference, Mr. Sekulow.

Perhaps the difference between 8 feet and 15 doesn't, but if you got down to 3 feet, for example, it doesn't seem to me there's any message you can't communicate at a distance of 3 feet.

The... the distance requirement would impede you.

Mr. Sekulow: Well, interestingly in this particular case, the statute does prohibit impeding, blocking, or crowding, section 2, which is not challenged.

And I don't think, Mr. Chief Justice, that it's simply the location being 2 feet.

You could be 2 feet next to someone, as I am with co-counsel, and... and not cause any impeding.

You could be 1... about 5 feet in front of somebody and block them.

So, I don't think it's necessarily just distance.

It's location as well, and... and this is distribution of literature.

Justice Souter: It's not just impeding.

Justice Scalia: It's also intimidating.

It's also threatening.

I... I suppose you would acknowledge that... what about 2 inches?

I mean, you know, going nose to nose to someone, thrusting your... your head right in their face.

Certainly that could be prohibited.

That's intimidating behavior.

Mr. Sekulow: Well, Justice Scalia, this Court has recognized that when it comes to public debate, that it can be robust.

I think if someone is 2 inches away from somebody and they're blocking access, they should be violating section 2.

Justice Stevens: No.

Justice Scalia: They're just 2 inches away and not blocking access.

They just come up and thrust their... their face right in front of me, just like this.

Mr. Sekulow: I don't... first... first of all, this would not... that action would not violate the statute because this statute, section 3, does not prohibit simply an approach.

It is an approach with speech, and it's the speech that is the violation.

The way the statute works... and again, it's on page 64a and 65a of the petition appendix in its entirety... it states that no person shall knowingly approach another person within 8 feet for the purpose... unless there's consent, for the purpose of displaying a leaflet, displaying signs, handing out a leaflet, or for engaging in specific oral communications, oral protest, education...

Justice Stevens: Have you... I don't think you've answered the question.

Supposing it said 1 foot.

Would that be bad too?

Mr. Sekulow: I... I think it suffers from the same constitutional problem.

I... I don't think it's...

Justice Scalia: It would be the same, okay.

Mr. Sekulow: Justice Stevens, I don't think it's simply the location because you could be 6 inches away from someone and not be blocking them at all.

You could be 3 feet and block somebody.

Justice Scalia: How about an eighth of an inch?

An eighth of an inch?

Mr. Sekulow: Justice Scalia, I... I wouldn't even want to give you the eighth of the inch.

Justice Scalia: Really, your client holds some very unreasonable territory.

Mr. Sekulow: I... I don't... I don't think so because this is... this is speech on a public forum, and if you're blocking somebody, that... that's a different story.

Chief Justice Rehnquist: But speech on a public forum, the traditional concept is, you know, there's somebody on a soapbox and a bunch of people gathered around them, not that you're one on one with someone an eighth of an inch away.

Mr. Sekulow: I... I think leafleting, Mr. Chief Justice, does require close contact.

When someone distributes a leaflet, usually it's with a hand extended which if you were, by the way, 8 feet away from this particular person you were approaching, you'd violate that bubble with... with...

Chief Justice Rehnquist: Well, in Abrams against United States, they threw them out of a second story window... the leaflets.

Mr. Sekulow: Yes, and I... I take it, when it landed on the streets, it would be... have been protected speech at that point.

[Laughter]

Justice Scalia: Would you acknowledge, Mr. Sekulow... would you... no, I gather you would not acknowledge that it would be reasonable to have such a law which limited the bubble to a distance which is inherently intimidating.

You just... you just don't acknowledge that there's any distance at which you can talk to somebody which is inherently intimidating.

Mr. Sekulow: I think that the danger in that is, because it's so specific on facts and circumstances, in the context of a statute like this, that if the concern that's being addressed is access or blocking, the way to handle it... the State of Colorado did it... and that is section 2.

A person commits a class 3 misdemeanor.

It's the same offense.

7 months in jail.

If you obstruct, detain, hinder, or impede.

I would take it if you're an eighth away...

Justice Scalia: I'm not obstructing, detaining, hindering.

I'm just intimidating.

I'm just... I'm just intimidating.

What if I... my nose touched your nose?

Oh, that would be okay even though I'm...

Mr. Sekulow: No.

It probably would be an assault at that point.

Justice Scalia: What makes that okay?

Mr. Sekulow: But under the statute...

Justice Scalia: What makes that okay?

Mr. Sekulow: Because of speech activity.

This... and interestingly, under your example, if you came up to someone or a protestor came up to someone and engaged in very intimidating facial expressions and made very intimidating gestures, they don't violate this statute, but the petitioner here, Jeannie Hill, if she goes and approaches someone to hand them a leaflet or to engage in quiet conversation, a counseling, she violates the statute.

So, the intimidating conduct does not violate the statute.

The petitioner handing out a leaflet...

Justice O'Connor: Well, but you... you certainly can convey anything you want to convey orally from a distance of 8 feet.

It's just not difficult.

You can speak in a normal conversational tone and be heard fully.

And to distribute a leaflet, it doesn't matter if you're 6 inches away or 8 feet away, the person receiving it, in order to receive it, has to accept it.

Mr. Sekulow: That's correct.

Justice O'Connor: And so, this isn't some unusual provision.

Mr. Sekulow: But I... I think, Justice...

Justice O'Connor: You don't... you don't say that a person must accept the leaflet.

Mr. Sekulow: No.

They have absolutely... they do not have an obligation to accept it.

But I think what... Your Honor, Justice O'Connor, what you wrote in Kokinda... and that is people that live in metropolitan areas know that one need not ponder the contents of a leaflet to mechanically take it out of someone's hand or, for that matter, to reject it, but it's that mechanical taking out of someone's hand.

Traditional leafleting on public sidewalks, is the kind of situation where someone is out there approaching people.

People will come up and take it.

8 feet away is the same prohibition as a restriction on speech.

Justice O'Connor: Well, if the person to whom it's offered wants to take it under this statute, they can and will.

I mean, it's just...

Mr. Sekulow: And the same...

Justice O'Connor: And it would be the same if it were 1 foot or 8 feet.

Mr. Sekulow: And it... the same argument could have been and was made in Schenck, and this Court said there 15 feet was still a problem because the zone floats.

And it does, Justice Breyer...

Justice Souter: Mr. Sekulow, on... on that, I understood you to answer Justice Breyer's question by saying that the stationary speaker, so-called, could not even station... in a stationary position offer leaflets without violating the statute.

Did I understand you correctly?

Mr. Sekulow: If you're standing still and you're in... within that 8-foot zone before someone else is, you...

Justice Souter: I'm standing still and somebody...

Mr. Sekulow: Approaches you?

Justice Scalia: gets within 8 feet.

Mr. Sekulow: It's... that's correct.

That's not a problem.

It's exactly the situation...

Justice Souter: So, I can say to that person, will you take a leaflet, or just hold the leaflet out.

Justice Kennedy: No problem.

Mr. Sekulow: If you're there first.

Justice Breyer: Pardon me?

Mr. Sekulow: If you're there first.

Justice Souter: If you're there first and you're stationary...

Mr. Sekulow: Absolutely.

Justice Breyer: you can do that.

Mr. Sekulow: That operates exactly, Justice Souter, as the no-approach zone in Madsen.

Justice Breyer: Now, why then being that... if that's the case, what's exactly the problem?

I'm not just saying another case.

I'm trying to understand what the problem is.

I'm standing here.

I plunk myself down on the sidewalk in front of the abortion clinic.

Anyone who's walking into that abortion clinic has to pass me, and I simply hold out the leaflet.

Now, if a woman wants the leaflet, she'll take it, but if she walks around me, now she doesn't want it.

So, what's the problem if I can stand still, hand it out just like this, and she'd have to walk around in order to avoid taking it, but she's free to walk around under this statute?

What's the problem?

Mr. Sekulow: The problem is the assumption, Justice Breyer, that you're operating under is that you got there first, and if you got there first, you... and you stand still and someone approaches you and you're not blocking them... of course, the... the dichotomy of all this is, if you're standing still, you may well be blocking.

Generally protest activities, distribution of literature, speech, in the robust debate, people are moving, but if you're standing still and you're there first, it's not a violation.

But in Madsen, this Court dealt with exactly the same situation.

It was a no-approach zone, no physical approaches.

If you were there first, if you were standing still, it wasn't a violation.

And the Court in Madsen said that the consent provision alone invalidated the provision of the injunction in Madsen.

The same should apply here, especially since you have the combination of the floating zone in Schenck.

It does float.

If you're not there first, Justice Breyer, it does float and it floats.

You have to stay unless you have obtained consent.

You have to maintain that 8-foot distance.

And I think showing someone a Bible verse, the display of a sign, all of that type of activity which is more intimate in its communication...

Chief Justice Rehnquist: How practically?

I mean, it's not as if this were a parade, you know, of people marching double-file to get into the clinic where the question of whether you got there first might be very important.

I mean, certainly there are times when no one is coming to the clinic.

There a person has a perfect opportunity to get there first.

Mr. Sekulow: That's right, if they got there before the event opened.

But this statute, which is not limited to abortion facilities, which has the floating bubble zone, applies to everyone in that 100-foot zone.

It's not just...

Justice Breyer: Mr. Sekulow...

Mr. Sekulow: Yes.

Justice Stevens: May... may I just ask kind of a general question?

And I think it was the Heffron case, the Court made a reference to the importance of getting access to the willing listener and the willing recipient.

Now, I think you'd probably agree that this ordinance doesn't really restrict your ability to communicate with a woman who wants to receive your message.

It really does pose some limit on the leafleting to a woman who presumably doesn't want the leaflet.

Mr. Sekulow: Well, to anyone who doesn't want the leaflet.

It's not limited to people...

Justice O'Connor: Well, I understand that.

Mr. Sekulow: seeking access to or egress from the clinic.

Justice Stevens: So... so, you... you have... it's... there's kind of a dilemma, it seems to me.

You either have to assume that the... that you have a right to make the unwilling listener take the leaflet, which doesn't seem it would work in the real world...

Mr. Sekulow: You don't have the... you... you can't require someone to take a leaflet, but I think Heffron is a good example of this.

Justice Stevens: But... but you do have a constitutional right to give her an opportunity if she's a willing recipient, either the doctor or the... to have that.

And doesn't she have that... assuming it's a willing person interested in the... in the leaflet?

Mr. Sekulow: If there's... consent is given, there's no violation of the statute.

It's the requirement of consent, we think, which caused the problem.

In Heffron, which was interesting, of course, the Court said it was not a traditional public forum.

The sidewalks in front of these medical health care facilities, which could even be an ophthalmologist's office, the way the statute is written, has a provision in there that... it's very specific.

If you enter that 8-foot zone, you have to obtain consent.

In Heffron, the Court found it not to be a traditional public forum and said that...

Justice Stevens: But see, what I'm trying to suggest is that you have to be a willing listener if you're in the 8-foot zone.

And it seems to me if you're not a willing listener, you're not going to take the leaflet anyway.

Mr. Sekulow: It's... it's not simply leafleting.

I think it's the... also the oral communication.

Justice Stevens: Well, I'm just concentrating on the leafleting now because, it seems to me, that's your strongest argument.

Mr. Sekulow: Well, the... the way the leafleting works is usually, in a... in a leafleting situation, people are close, closer than 8 feet.

They're not asking may I... you know, this statute turns every literature distribution into a solicitation because you have to ask consent before you approach.

And interestingly, in Heffron the Court stated that, while finding it not to be a public forum, that in fact they did allow one-on-one, face-to-face communications to go on throughout the State fair without any restrictions.

That's absolutely...

Justice Scalia: Mr. Sekulow?

Mr. Sekulow: Yes.

Chief Justice Rehnquist: In Madsen, we said that an injunction would be judged by a more stringent standard than a statute, and here, of course, we... we have a statute, not an injunction.

Mr. Sekulow: That's correct.

Chief Justice Rehnquist: Yet, you frequently refer to Madsen as if the things were interchangeable.

Mr. Sekulow: Well, in this context.

Number one, our position is that this is a content-based prohibition on speech.

So, it would be a higher standard than the Madsen standard.

It would be strict scrutiny because of the specific limitations on oral communications that constitute protest, education, or counsel.

And also this Court in Madsen...

Justice Scalia: Why don't you talk about that one?

You've been just talking about your point that the mere... the mere consent requirement invalidates it.

You also contend that this is a... a content-based restriction.

How is that so?

Mr. Sekulow: Absolutely.

The prohibition here as... specifically on its... the face of the statute, section 3, requires consent if you're going to engage in specific oral communication: protest, education, or counsel

A prosecutor who's bringing a criminal accusation for a violation of section 3 would have to establish through the presentation of evidence what exactly was said to determine if, in fact, it constitutes protest, education, or counsel.

Justice Kennedy: Can you... can you tell me?

Suppose someone wanted to encourage a... a patient to get a particular procedure.

Would that be barred by the statute?

Mr. Sekulow: That... that's interesting.

We... we have thought about that, and if it constitutes a form of protest, education, or counsel, it would.

Justice Kennedy: It's... it's not protest.

It's... it's...

Mr. Sekulow: Encouragement?

Justice Kennedy: encouraging the person.

Mr. Sekulow: Oh, it... I think that that would not, but I think the State, if they were making an accusation, would probably say... they would argue that it may constitute a form a counseling, offering of guidance, the way they... they've drafted this.

But what is interesting here in that exact type of scenario, if a news reporter... say there was a protest going on at a particular health care facility, and a news reporter entered the 100-foot radius and then was going to approach someone, did not ask for consent, and asked a general question.

Justice Kennedy: How do you feel?

Mr. Sekulow: How do you feel?

What do you think about health care in America today?

Probably not counsel, education, or protest.

If that same news reporter were to approach a person again without consent and say something like Congress was considering changes to the health care laws in the United States allowing for private lawsuits against HMO carriers.

What do you think?

That's education and that would be a violation of the statute.

Justice Breyer: Well, but which is it?

I mean, I grant you it's... you may not have a good answer to this because I have a hard time with the cases on this one.

But it seems to me if they... if the State tries to write a... one that covers more than just abortion clinics and tries to go beyond just as you've said... you said, well, this is terrible.

It... it gets innocent things like what time is it.

But then if they try to be more narrow, you say, well, it's too... it's too... it's too... it's narrow.

I mean, either they didn't narrowly tailor it...

Mr. Sekulow: Which I think they did not.

Justice Breyer: or... or if they do narrowly tailor it, it's content discrimination.

Mr. Sekulow: And... and...

Justice Breyer: So... so, whenever the State would try to regulate anything, they'd fall into the one or the other.

Mr. Sekulow: Justice Breyer, I don't think so.

The State has argued that they're in the proverbial catch 22.

They've drafted a statute that we argue is overbroad and one that is content-based.

Justice Kennedy: Do you know of any precedent which defines narrow tailoring by whether or not it's content-based?

Mr. Sekulow: I... I think looking at it, no because the most realistic narrow tailoring case that fits this the Court found it to be content-neutral, which was United States v. Grace.

There's never been a statute, though, written like this.

Justice Ginsburg: Mr. Sekulow, I was reading your brief closely and trying to envision the statute that would be constitutional.

The Chief has reminded you that the Court has held that the statute, which is passed when it... we don't know who the particular people are, requires less rigid review.

So, reading... reading your brief, I had the impression that no statute, other than the one that bars obstruction, would do in your judgment, that you could not have a... a statute like Madsen or Schenck had an injunction.

You simply couldn't.

Mr. Sekulow: I think that's... that's a correct position.

That's the position we're asserting.

And the reason, Justice Ginsburg, that that's our position is that this is speech on a public sidewalk, and it does apply.

It's a statute.

And I think the difficulty is... and far be it for me to draft Colorado's statute...

Justice Scalia: Wait.

Justice Breyer: Go... go back for a second because certainly you would agree that you can write legislation in terms of categories like advertising or lawyer solicitation, counseling.

I mean, those aren't all unconstitutional, are they?

Mr. Sekulow: Well, the way Colorado has drafted it, I think it is.

Justice Kennedy: No, no.

Justice Breyer: But I mean, to talk about a category called advertising is okay, isn't it?

Our cases are filled with that.

Mr. Sekulow: Commercial speech would...

Justice Breyer: That isn't content-based because you...

Mr. Sekulow: That's...

Justice Breyer: treat advertising differently from... all right.

So...

Mr. Sekulow: Although it does bring up an interesting scenario here, Justice Breyer, and that is the way that this statute works... let's say someone talking about advertising, to take your example.

If someone was handing out discount pizza coupons on a public sidewalk in front... front of Denver General Hospital and failed to ask for consent before they approached someone to distribute them the free discount coupon, they violate this statute.

That's how broad the statute is written.

It prohibits...

Chief Justice Rehnquist: Well, you... you argue... my colleagues admitted you argue, on one hand, the statute is too broad and, on the other hand, it's too narrow.

I mean, that's like the old arguments we used to get here about the Establishment Clause.

If... if a... if the State tried to regulate the expenditure of funds for parochial schools, then it was said to be too much entangled, and there... under that line of thinking, there was nothing the State could do.

Are you saying, in effect, that the State can't draft a statute, any kind of a statute, to cover what it conceives to be this problem here?

Mr. Sekulow: No, I think the State can.

And... and, Mr. Chief Justice...

Chief Justice Rehnquist: Well... go ahead.

Mr. Sekulow: What I would... what I would have drafted if I was the... the State here...

Chief Justice Rehnquist: You were the State.

Mr. Sekulow: Yes, but I'm not.

[Laughter]

Is a statute that...

Chief Justice Rehnquist: That's why you should use the subjunctive.

Mr. Sekulow: [Laughter]

Mr. Sekulow: Yes.

And in the... in the... in this particular case, the State's concerns, the asserted interests here are to prevent intimidation, crowding, and threatening conduct.

This statute does not do that.

They need to draft a statute that targets the precise concerns...

Justice Ginsburg: They have that statute.

Chief Justice Rehnquist: They have...

Mr. Sekulow: Section 2.

Justice Ginsburg: Yes, and I asked you before and you, I thought, were quite candid in saying that's all they can do.

Mr. Sekulow: I think that's...

Justice Ginsburg: section 2 and there's no other statute that would satisfy your test.

Mr. Sekulow: I think that... that...

Justice Breyer: It could not go beyond that.

Mr. Sekulow: because section 2 would satisfy my test, Justice Ginsburg.

Justice Ginsburg: Yes, but I asked you if there was any statute that tried to replicate...

Mr. Sekulow: What they've done here.

Justice Ginsburg: or controls the injunctions that we have permitted...

Mr. Sekulow: I don't think so, and let me clarify my position and the reason why.

I don't think so because in Madsen and in Schenck, despite the somewhat more rigorous standard that was given there... in Madsen and in Schenck, the concern over leafleting and uninvited approaches, even if they're peaceful being prohibited... the Madsen concern... the Schenck concern about literature distribution, both of those cases dealt with... the Court relied on Boos v. Barry in... in Madsen and Boos v. Barry and United States v. Grace in Schenck... were both statutory cases.

Those were not injunction cases, and it was the concern of literature distribution and... and one-on-one advocacy that was the concern.

Justice Ginsburg: But as I remember Boos at least, that was a one viewpoint.

You couldn't picket against the embassy, but you could... no... there was no prohibition on doing something they were of.

And here, the statute is written in neutral terms.

It says you can't counsel about either side.

Mr. Sekulow: And this Court...

Justice Ginsburg: You can't educate about either side.

Mr. Sekulow: Justice Ginsburg, the... this Court in Madsen and Schenck, in dealing with the issues, said that the injunctions were content-neutral and...

Justice O'Connor: Well, this... this statute makes me think, in a way, of the City of Renton case where the concern was the secondary effects of the conduct.

It was First Amendment activity, the adult theater.

Mr. Sekulow: I...

Justice O'Connor: But there were secondary effects being addressed, and maybe...

Mr. Sekulow: Justice...

Justice O'Connor: that's the situation here, that the... the State doesn't care on which side of the message it is, but is concerned about the secondary effects of intimidation... intimidating conduct near a medical facility.

Mr. Sekulow: If that's... based on your question and... and comment, Justice O'Connor, they need to draft a statute that prohibits intimidation, crowding, or violence which I think... or threatening conduct, which I think they did in section 2.

Justice Breyer: But we...

Mr. Sekulow: This isn't...

Justice Kennedy: we take the case, I think, on the assumption that Colorado has tried to do that and cannot enforce it if there are crowds.

The problem here is crowds.

And so, what they want to do is to have a... a zone where we know who is coming up to push or pinch or shove, and that's all they're trying to do.

Is that a... is that a fair assessment of what the purpose of the statute was?

Maybe they failed, maybe they... maybe they succeeded.

Mr. Sekulow: I think they set the purpose out of the statute in section 1, which states that the General Assembly recognizes access to health care facilities for the purposes of obtaining medical counsel and treatment that's imperative for citizens, that the exercise of a person's right to protest or counsel against certain medical procedures must be balanced against another person's right to obtain medical counseling.

To me that points very closely to content-based...

Justice Stevens: Mr. Sekulow, can I ask... I'm really seeking information here on your position.

I thought there was some tension between your quoting the engaging in oral protest, education, or counseling as being content-based and not viewpoint-neutral on the one hand and saying that those words would cover the delivery of a pizza solicitation.

Mr. Sekulow: The pizza solicitation would be the distribution of literature prohibition which applies to all literature distribution.

Justice Stevens: I see.

That is not... that is not content-based...

Mr. Sekulow: We... we think it's content-based from the standpoint that it provides an opportunity for... because of the prior consent requirement, to allow for content-based determinations.

But the distribution of literature prohibition is because of the prohibition of literature.

Mr. Chief Justice, I'd like to reserve the remainder of my time for rebuttal.

Argument of Michael E. McLachlan

Chief Justice Rehnquist: Very well, Mr. Sekulow.

Mr. McLachlan, we'll hear from you.

Mr. McLachlan: Thank you, Mr. Chief Justice, and may it please the Court:

The Colorado legislature acted to protect sick, disabled, and vulnerable people on their way to and from its hospitals and doctor's offices.

And it designed the statute to keep our...

Justice Scalia: Excuse me.

Just sick, disabled, or vulnerable people?

Justice Kennedy: Is that... is the only...

Mr. McLachlan: That's what I said, Your Honor.

Justice Scalia: It only protects those people?

Mr. McLachlan: No.

The statute was designed to protect medical patients who are often sick, disabled, and who are vulnerable...

Justice Scalia: But it doesn't cover just medical patients.

How many... what... what percentage of the people going in and out of... of these facilities do you think are sick... what was it... sick, vulnerable and... and whatnot?

Mr. McLachlan: No, Your Honor...

Justice Scalia: I mean, that's a very small percentage of the... of the universe covered by this thing, isn't it?

Mr. McLachlan: Your Honor, the... the statute covers all persons within 100 feet of a medical facility, and a great percentage of those people are... are either treating individuals who are sick and vulnerable and disabled or persons who are seeking treatment from these...

Justice Kennedy: Well, in... in that respect, how does this statute work?

Suppose there's a seven-story building and on the sixth floor there are doctors' offices.

On... on the... all of the other floors, there are other businesses.

I take it this statute operates with respect to anyone who engages in the prohibited activity outside the main entrance to the building?

Mr. McLachlan: The statute operates to the extent that it is covered, public sidewalk or a public way.

And so if there's a 20-story building...

Justice Kennedy: So, if...

Mr. McLachlan: a story of any type, it would be the entrance to the building which contained the medical facility...

Justice Stevens: So...

Mr. McLachlan: and the public right-of-way.

Justice Kennedy: So, with respect to all of the businesses in those buildings, the press, lawyers, business people, people engaged in manufacturing that might affect the environment, this statute happens to apply just because there's a doctor's office there.

Justice Breyer: Isn't that right?

Mr. McLachlan: No.

Yes, because there's entrance to a medical facility.

Justice Kennedy: It seems to me that that's... that that's whimsical and imprecise and inconsistent with our speech precedents.

Mr. McLachlan: Your Honor, it was... it's narrowly designed to affect only the 100 feet within a medical facility or a hospital.

Justice Kennedy: But we've just discussed the hypothetical in which it is not.

Mr. McLachlan: Well, if a doctor's office is contained within a... a private building, the statute would not be operative because it doesn't involve a public way or a public sidewalk.

The statute requires...

Justice Kennedy: I... I... my hypothesis is a private building that has an entry off a public sidewalk...

Mr. McLachlan: That's...

Justice Kennedy: which I assume most buildings do.

Mr. McLachlan: That's correct, Your Honor.

That would operate in those circumstances to the extent that it involves 100 foot of the entrance and a public sidewalk, and also I don't think, as... as ordinary course, Your Honor, that we would have a situation where persons would be protesting within the building.

Justice Kennedy: Sorry.

Justice Breyer: I didn't... I didn't pick this up in the briefs.

So, what is the definition of a medical facility?

If you have the... the Russell Building which is 20 floors high, and on floor 18 there's a doctor, and on all the other floors it's a lawyer, is the whole Russell Building a medical facility under this statute?

I mean, if that... if that's the problem with this, I'm surprised that I didn't pick it up in the brief.

Mr. McLachlan: The statute uses the term, Justice Breyer, health care facility, and it states that a health care facility means any entity that is licensed, certified, or otherwise authorized or permitted by law to administer medical treatment in the State.

Justice Breyer: So, I guess that... that floor 18 or... has office number 1806 is the medical facility.

Is the whole building a medical facility?

Mr. McLachlan: No, Your Honor, it would not be.

It's only as to the entrance of that medical facility.

Justice Scalia: Right.

The crucial provision is the entrance... is the entrance provision.

How does that read?

To what does the 100-foot restriction apply?

Mr. McLachlan: The provision states...

Justice Scalia: Within 100 feet of what?

Mr. McLachlan: Within 100 feet of a medical... of the entrance to a medical facility.

Justice Scalia: Of the entrance to a medical facility.

Now, do you consider that to be the entrance to the building and not the entrance to the... to the office in which the... in... in a large building the facility is contained?

Mr. McLachlan: Your Honor, the statute only operates within 100... of a medical... 100 feet of a... entrance to a medical facility and on a public sidewalk.

Chief Justice Rehnquist: Now, Mr.... Mr. McLachlan, in section 2 on page 65a, it uses the term health care facility.

You said medical facility.

Is that the word used somewhere else, or is that just a synonym for health care facility?

Mr. McLachlan: I believe they're synonymous, Your Honor.

And I... I read the narrow statutory definition of health care facility which is in the statute.

Chief Justice Rehnquist: Where... where you reading from?

Mr. McLachlan: I was... Your Honor, the best location of the statute is appendix to the Solicitor General's brief where the entire statute is set out verbatim on pages...

Justice Breyer: Is... am I... where... where does this issue that Justice Kennedy just raised fit in this case, that the reason that it's too broad is it would cover offices that are located within some large, downtown office building that don't have doctors in it?

Now, has that suddenly... what's your... what's... what's the reaction to that issue in the context of...

Mr. McLachlan: Your Honor, it's narrowly drawn because the statute only operates in conjunction with entrance to a medical facility and a public side-way or walkway.

So, if there's a public...

Justice Kennedy: I don't want to distract the Court on an issue that wasn't briefed, but it seems to me that this is troublesome and I would read the statute... and I thought... and I think that's your answer, that it applies to anybody on the... on the sidewalk of that building.

But the point... the reason I brought it up at the point that I did was it indicates that your opening statement, which is that this is for the... for the vulnerable and the sick, is not a ground on which we can sustain a statute.

The... the statute... there's nothing in the record that says there's a high percentage of these people that... that are on these sidewalks fit that category.

I think you would have to make a different argument to sustain the statute.

Mr. McLachlan: Your Honor, the statute is predicated upon a finding by the Colorado legislature that it is imperative to protect access to health care facilities and that the relationship between that... that location and a public sidewalk is the object of the... of the regulation.

Those two operating together...

Chief Justice Rehnquist: But...

Mr. McLachlan: are the circumstances in which it would apply.

Chief Justice Rehnquist: Mr. McLachlan, now as I recall in Madsen, it was a free-standing clinic.

You know, we had diagrams and so forth, and the... the clinic was the only operation in... in the building.

In Justice Kennedy's hypothesis, you're really... you're curtailing a lot of other activity that would otherwise take place that may be not at all related to the health care facility.

Mr. McLachlan: Well, Your Honor, again because the statute only operates as to a public sidewalk or... or way... public way, I think, as a practical matter, the statute operates outside the facility within... within a...

Justice Kennedy: But that's... that's the whole point.

There are all kinds of people with all kinds of views and all kinds of messages and all kinds of purposes on a public sidewalk.

Mr. McLachlan: That's correct, Your Honor.

Justice Souter: Well, Mr.... Mr. McLachlan, I thought a moment ago your answer to the 18-story building hypothesis was that the medical facility was the office up on... whatever it was... the 16th floor.

It was not the whole building.

Mr. McLachlan: That's correct, Your Honor.

Justice Souter: All right.

Now...

Mr. McLachlan: But the entrance is located in conjunction with the public sidewalk and the public way.

Justice Souter: So that if there is one doctor's office on the 16th floor, the whole sidewalk and entrance is subject to this regulation by the statute as if the entire building were filled with doctors' offices?

Mr. McLachlan: No, not as if, Your Honor.

It... it would constitute an entrance to the health care facility if the building contained...

Justice Souter: No, but you're saying that if there's a doctor's office on any floor of the skyscraper, that the entrance and the sidewalk is subject to regulation under the statute.

Mr. McLachlan: That's correct, Your Honor.

Justice O'Connor: Mr. McLachlan, if there's a...

Justice Stevens: May I ask if any Colorado judge or anybody in the legislature ever discussed this hypothetical?

Mr. McLachlan: No, Your Honor.

Justice Ginsburg: And it's not for you to say.

It's for the Colorado Supreme Court to answer that hypothetical, and they have not, have they?

Mr. McLachlan: That's correct, Your Honor.

That hypothetical has not been discussed by the legislature nor has it been discussed by the court.

Chief Justice Rehnquist: But if... if you're talking about a statute that abridges freedom of speech or is alleged to, it... it can't be vague.

I mean, we've... you've got to be able to tell from reading the statute just where it applies.

Now, you've given... given an interpretation and we've often accepted the statement of the State solicitor general in the absence of any decision from... from a Colorado court on the subject.

Mr. McLachlan: Thank you, Your Honor.

Justice Breyer: Is that the case that you want us to do, that we... we now accept as the... to turn this case on your interpretation of a matter that hasn't come up before I gather, and that you're saying officially in your role as a representative of the State that it does apply to an 18-story office building on the... on the sidewalk where there's nobody but one doctor up on the 18th floor and stops everybody else from speaking about anything?

Mr. McLachlan: I'm not... I'm not asking the... the Court to accept my interpretation.

I'm simply pointing out that the Colorado Supreme Court has not looked at this issue, but the Colorado Supreme Court has reviewed the statute otherwise and has upheld it.

Justice Breyer: Well, has the statute ever been applied...

Justice Scalia: You don't... you don't want us to accept the opposite interpretation either, do you?

Do... are you willing to say that it does not apply to the... to the entrance of a facility where there's a doctor's office on the 16th floor?

Mr. McLachlan: I think it does apply in conjunction...

Justice Souter: You think it does.

Mr. McLachlan: If it's... if it's in connection with a public way and a public sidewalk.

Justice Scalia: You think it does, and although you're not willing... you're not willing to say authoritatively that it does?

Mr. McLachlan: No.

Excuse me, Your Honor.

I... I didn't mean to use the word in a haphazard fashion.

I... there's no question in the position of the State of Colorado...

Justice Breyer: That it does.

Mr. McLachlan: that it applies to the entrance of a health care facility in connection with a public sidewalk or a public way.

Justice Souter: And that is so even if the health care facility on the 18th floor is more than 100 feet away from the sidewalk.

Justice Breyer: Vertically.

Justice Souter: Yes.

Mr. McLachlan: That's correct, Your Honor, because the focus of the statute is with 100 feet of the entrance.

Justice Souter: Has the statute ever been applied in the fashion you... you maintain it would apply?

Has there ever been a prosecution...

Mr. McLachlan: No, Your Honor.

As we point out in our brief...

Justice Souter: The answer is no.

Mr. McLachlan: there has never been a prosecution under the statute.

The statute...

Justice Souter: For anybody.

Mr. McLachlan: has never been enjoined.

There's never been a civil complaint for damages, nor has there been a criminal complaint filed pursuant to the statute.

Justice Stevens: But even in the case...

There's probably never been an abortion protest outside the Empire State Building either.

Mr. McLachlan: That's correct, Your Honor.

We don't also have the Empire State Building in Colorado.

[Laughter]

Justice Scalia: Is... excuse me.

Is this statute just addressed to abortion protests?

Is... is that...

Mr. McLachlan: To the contrary, Your Honor.

It covers all...

Justice Scalia: I didn't think it was.

Mr. McLachlan: all conduct of the subject matter of the statute which occurs within 100 feet of a health care facility.

Justice Scalia: It would be bad if it was addressed just to abortion protests, wouldn't it?

Mr. McLachlan: Absolutely, Your Honor.

It would violate content neutrality.

Justice Kennedy: So... so it applies to labor picketing?

Mr. McLachlan: It would apply to labor picketing under the circumstances present in this case if you were within 100...

Justice Kennedy: So, a labor organization has a different rule if it's in front of a health facility than it's... if it's in front of a manufacturing plant.

Mr. McLachlan: That's correct, Your Honor.

Justice Kennedy: That's... is that content-based?

Mr. McLachlan: No, Your Honor, it's not because again the purpose of the statute and the scope of the statute is to govern all... all forms of...

Justice Breyer: But I suppose the NLRB, if it turned out to be a labor problem, could preempt any effect of Colorado's State law in respect to the labor unions, couldn't it?

Mr. McLachlan: That... that may well be the result, Justice Breyer, that the operation of the Federal law would... would affect the statute that way.

Justice Scalia: What...

Justice Stevens: Except in the labor law, we said there are different rules apply to medical facilities than apply to other facilities.

Mr. McLachlan: That's correct, Your Honor.

In... and in those cases, the Court recognized that the... that the patients are entitled to consideration under... under the rule and that in this particular case our statute is also designed to protect the patients.

Justice Scalia: I'm curious.

You know, I'm sure there... there has been violence in... in some abortion protests.

Are you aware that there's been more violence in that context than in labor picketing, for example?

I mean, the number... the number of people killed or the number of people intimidated in in labor protests annually.

Do you think it's...

Mr. McLachlan: I'm not aware of that, Your Honor.

I am aware that...

Justice Scalia: I'm just wondering why... you know, why this is a... a great... this particular area is of... is of great concern to the... I don't know.

People going into supermarkets that are being picketed... are they... are they any less... what... vulnerable and... I forget what your other adjectives were.

It's curious that this need to protect the innocent and vulnerable from... from being approached is... is felt only in this one... one area.

Mr. McLachlan: Your Honor, the Colorado legislature, in its review of the statute, first of all, we've never employed the term innocent.

We've simply determined that they are ill, that they are vulnerable, and that they are, as medical patients, entitled to consideration under the statute.

Justice Scalia: I just wonder whether the statute is... is, you know, although facially applicable to anybody who... who approaches this kind of facility, I think... I think we know what it's aimed at, which is abortion protests.

And I just wonder what justification there is for singling them out as being particularly intimidating as opposed to, let's say, labor picketing.

Mr. McLachlan: Your Honor, what the statute singles out and what the statute focuses upon is the approach in a... in a circumstance which can arise and become, as this Court recognized in... in the Schenck case, a constructive obstruction.

Justice Stevens: In other words...

Justice Scalia: You could... you could at least apply this rationale that you're defending here... you acknowledge that it could be applied to labor picketing.

If... if you had a similar finding by the legislature that labor picketing can be intimidating, you could require all labor pickets to... within 100 feet of whatever they're picketing, to stay 8 feet away from people.

Mr. McLachlan: I think the reason this has a different under... under-support than labor picketing is because it focuses solely on people within 100 feet of a health care facility.

Justice O'Connor: No.

Justice Scalia: I understand, but...

Mr. McLachlan: And that these people are entitled to special protection as found by our legislature.

Justice Ginsburg: And it would apply to labor people who were trying to educate the public about a labor union matter, people who were objecting to the facility charging too much money, people who were objecting to the facility's use of animals in experimenting.

They would all come under the same rules.

Mr. McLachlan: That is correct, Your Honor.

That is correct.

It... it would apply...

Justice Scalia: What...

Mr. McLachlan: It applies to both sides or all the multiple sides of the debate because it is a content-neutral statute.

Justice O'Connor: Would you tell us what this portion of the statute accomplishes that subsection 2 does not?

Mr. McLachlan: Subsection 2 only deals with, in our... in our view, physical contact between persons and...

Justice O'Connor: Well, it... it deals with knowingly obstructing, detaining, impeding, and so forth.

Now, it's... it's hard for me to know what this covers that that wouldn't also cover.

Mr. McLachlan: What this covers by the establishment of the 8-foot zone of separation is it allows a normal conversation to occur.

It is a speech inducing, it's a speech allowing, it's a speech endorsement, and that is... that is what this statute allows that the other statute doesn't address.

Justice Kennedy: But...

Mr. McLachlan: The other section just deals with physical... physical contact and... and physical obstruction without... without regard to the proximity between the... the willing listener and... and the demonstrator.

Chief Justice Rehnquist: We don't ordinarily think that to... to be able to speak you have to have State authorization or permission to speak.

The... the view is almost to the contrary that you can speak unless there's valid prohibition against speech.

Mr. McLachlan: That's correct, Your Honor, and I think it's important for us to point out again in front of this Court that from 8 feet away all forms of expression, irrespective of their content, are... are encouraged, allowed, and permitted under the statute...

Justice Scalia: Well, you... you could say that from... from 100 feet if you use a... you know, a bullhorn, but... but you can't... what the... what these abortion protestors, which is what this is directed at, generally do is... is... like to say, you know, my dear, have you really considered the consequences?

Are you going to shout this?

Justice Kennedy: My dear, have you really considered?

Justice Scalia: It's a totally different... it's a totally different enterprise when you do it from 8 feet away.

You can't really seriously say that there's no difference between approaching someone quietly, confidentially and speaking in... in that kind of a manner and shouting whatever you want to do from 8 feet away.

You... you really assert that there's no difference?

Mr. McLachlan: Your Honor, 8 feet is a normal conversational tone.

Justice O'Connor: It is?

Mr. McLachlan: Yes, it is, Your Honor.

In fact, in this courtroom...

Justice Scalia: My goodness, I... I rarely stand 8 feet away from somebody that I'm talking to.

I don't stand an eighth of an inch, and... and if that's what the distance was, I... I'd have no problem here.

But 8 feet?

Mr. McLachlan: I understand, Your Honor, but everybody that you communicate with is a willing listener.

[Laughter]

Justice Scalia: Oh, I... I think not.

Justice Kennedy: Don't be so sure.

Mr. Sekulow: [Laughter]

Mr. McLachlan: But if I may, Your Honor...

Justice O'Connor: Don't be too sure.

Mr. Sekulow: [Laughter]

Justice O'Connor: Don't be too sure.

Mr. McLachlan: Yes, ma'am.

Mr. Sekulow: [Laughter]

Mr. McLachlan: But if I may, Your Honor, 8 feet is the precise distance... on an earlier occasion, we were permitted by the Marshal to measure the distances in this courtroom and 8 feet is the distance from this podium to the edge of the Court where the Chief Justice sits.

Justice Kennedy: Why isn't this a content-based statute if what it does is foreclose discussion of all the issues Justice Ginsburg was mentioning with relation to the health... health care system?

Mr. McLachlan: I'm sorry, Your Honor.

Justice Kennedy: Why isn't this content-based because it has... imposes a special burden on people who want to discuss issues, all of the ones Justice Ginsburg raised and more, HMO cost, et cetera, with reference to the health system?

Mr. McLachlan: It's not content-based because it allows... it takes no side on the debate.

It... it simply designates a...

Justice Kennedy: It forecloses all debate on that subject.

Mr. McLachlan: All... all debates on the... no subject.

Justice Kennedy: Well, on the subject of health care.

That's the whole justification for the statute or how the health care facilities are being operated.

Mr. McLachlan: Again, within the 100... 100-foot from an entrance of a facility, it allows completely for both uninhibited debate on all topics and it allows it if the listener wants...

Justice Kennedy: You're saying the statute is not content-based if it forecloses discussions on both sides of... of a particular subject.

Mr. McLachlan: It doesn't foreclose discussions, Your Honor.

Justice Kennedy: That's not my definition of content...

Mr. McLachlan: All discussions can occur from 8 feet, and if the... if the listener is willing to allow a... a person to approach... and again, one of the reasons for the 8 feet is a very common sense thing.

Justice Stevens: This would cover a protest over the death penalty as well as something to do with health care, wouldn't it?

Would this statute apply to somebody who wants to speak about the death penalty?

Mr. McLachlan: If it... yes, yes, it would.

Justice Stevens: So, I mean, not only point of view, but also a wide range of subject matter can be spoken in... in this kind of activity.

Mr. McLachlan: That's correct, Your Honor, if it meets the statutory definition, oral protest, education, or...

Justice Kennedy: If you're interested in health care issues, do you go to a health care facility or to the zoo?

Mr. McLachlan: I think probably you would go to your insurance carrier, if you have one, or you would go to your doctor and you would want to make sure that you would have access to your doctor because the Colorado legislature has provided that you will have that access through the operation of the statute.

Justice Scalia: Why... why wouldn't it suffice for the concerns of the State here to... to prohibit any intimidating approach by speech or otherwise?

I mean, what the State has prohibited here is speech.

It's the only thing that is prohibited is speech, not intimidation, not approaching.

Why wouldn't prohibiting an intimidating approach suffice?

Mr. McLachlan: Again, Your Honor, it's our position that there is no prohibition.

There is simply a minimal restriction, a minimal burden with inside of the 8 feet.

Argument of Barbara D. Underwood

Chief Justice Rehnquist: Thank you, Mr. McLachlan.

Ms. Underwood, we'll hear from you.

Ms Underwood: Thank you.

Mr. Chief Justice, and may it please the Court:

Under this statute, petitioners are free to say and to show anything they want to people near a health care facility.

They can shout or they can talk in normal tones.

They can offer literature and hold up signs and pictures that can be seen by their target audience.

They can station themselves where the patients will have to pass by much closer than 8 feet.

They just can't move toward the target without consent once the distance between them is 8 feet or less.

Justice O'Connor: Ms. Underwood...

Justice Scalia: If... if that is so reasonable, I assume it... it could apply... could be applied to normal labor picketing at any facility.

I mean, it's so reasonable.

You can say whatever you want.

You can... you think it would be constitutional applied to normal labor picketing?

Ms Underwood: No, not a general... not... not a general statute like...

Justice O'Connor: Why not?

Ms Underwood: Well, Colorado was responding to a particular need.

If the same need existed, which is...

Justice Scalia: Well, there's violence in... you... you unaware that there... that there have occurred instances of violence and intimidation in labor picketing?

Ms Underwood: Well, the Court has...

Justice Scalia: We can make the same finding they have here and say all... all picketing... you know, we apply it generally to all... all commercial establishments.

Ms Underwood: Colorado hasn't made that finding that... I don't think that finding would be supported.

And we do expect... we have a tradition of people being of rather more robust activity...

Justice Scalia: So, there is some problem about... about not letting somebody come closer than 8 feet.

You're not...

Ms Underwood: There is a First Amendment issue.

I don't think there's a problem with this statute.

Justice O'Connor: Not a real...

Chief Justice Rehnquist: So, you're saying, Ms. Underwood, that... you know, supposing Colorado on the basis of things that happened out there in the early 20th century... read Moyer against Peabody if you want to find out about it.

And there is violence in labor picketing.

We're going to impose this same regulation.

You say that would be judged by a different standard, or that it would... that it would fail, whereas this would succeed?

That's a very strange position.

Ms Underwood: No.

No.

What I meant to say was that if... if exactly the same findings and exactly the same need were found, then the same statute would be upheld.

But it...

Justice Breyer: Well, it might or might... wouldn't it be for the labor board in the labor case... the constitutional issue has to presuppose that the labor board made findings like Colorado and then, as a labor law matter, laid it down.

And the question would be is that unconstitutional if the labor board did it.

Is that right?

Ms Underwood: That's right.

Chief Justice Rehnquist: Well, why... why do you say that's right in this very peripheral discussion?

I mean, let's suppose Colorado passes a statute affecting labor picketing this same way and it is simply challenged on a First Amendment basis.

The labor board doesn't even get into it.

I take it that the answer you gave to my question is... is the correct one.

Ms Underwood: If Colorado made findings that... that there was a problem of violence and intimidation that arose out of one-to-one close... close approaches of the sort here and that was not capable of being dealt with in any other way, as Colorado had tried to do here and that a statute like this was the least restrictive or at least the... was the most appropriate way of dealing with the problem, then such a statute would be upheld.

There is no such finding and there is...

Justice O'Connor: Is it necessary that there be hearings and findings in order to sustain a statute like this?

Ms Underwood: It is necessary that the judgment be supported.

This Court reviews the judgments of legislatures with some deference when a factual matter is concerned and hearings and findings are helpful, but the Court has never prescribed a particular method for... for...

Justice O'Connor: But is there... there is Federal legislation, is there not?

Ms Underwood: Yes.

Justice O'Connor: A Federal Freedom of Access to Clinic Entrances Act?

Ms Underwood: Yes, there is.

Justice O'Connor: And how does that differ from this?

And was that factored into the hearings and the findings, the effect of that Federal act?

Ms Underwood: Well, this statute was passed before the Federal Access to Clinics Act was passed, about a year before.

Under the Federal Access to Clinics Act, an injunction can issue and, in at least one case that we've called to the Court's attention, has issued, that imposes a similar sort of restriction.

There are differences, obviously, between the way injunctions are judged and the way statutes are judged, but that some evidence that under the Federal statute it has been found necessary by courts, pursuant to the statute, to impose a no-approach... a small no-approach zone in order to protect against intimidation and... and threats.

This is not the floating bubble of Schenck or the no-approach rule of Madsen for several reasons.

As... as has been noted, the target can't create a violation here.

The distance in question is 8 feet rather than 15.

In Madsen, while there was a no-approach rule that the Court rejected, there was in the same case a 36-foot absolute ban which covered most of the approach to the... to the facility that the Court... that the Court upheld.

The matter... there was a discussion about whether this is content-based.

This Court has found many similar bans to be content-neutral.

I understand there's an argument that there is some speech that's covered and some not.

But the Court in Grace held that the ban on displays was content-neutral; in Heffron, that the ban on demonstrating... that the ban on distributing written materials was content-neutral.

And in fact, in Schenck and Madsen, it found that those injunctions were content-neutral.

Justice Scalia: Excuse me.

In the two cases you mentioned, did those bans refer to the content of the speech as this one does?

It's only that speech that educates, that counsels, and so forth.

Ms Underwood: The ban in Grace around the Supreme Court is on flags and devices that call attention to an organization, a movement, or... there clearly... there's a communicative requirement there that's quite similar to this.

Presumably a work of art on a flag would not qualify.

And the bans in... in Schenck and Madsen, the ones that were upheld, as well as the ones that were struck down, were on demonstrating, which again is... is essentially what this language captures.

And on the question whether we can look behind the... the words to its purpose, Justice Scalia, you spoke about the purpose of this.

First of all, the clear purpose of the Colorado legislature was to reduce the risk of violence and intimidation at health care facilities, not just at reproductive health care facilities and not just from those with one particular viewpoint.

While it's true that the anti-abortion protests generated much of the activity that led to the statute, the legislature was clearly aware of and concerned about both reciprocal violence by pro-abortion protestors...

Justice Kennedy: If there were a sudden interest in the automobile industry, could Colorado have these speech regulatory zones around every auto dealership?

Ms Underwood: This isn't a... first, if exactly the same findings were made, obviously, it seems to me...

Justice Kennedy: You don't like that term speech regulatory zone?

That's what this is.

Ms Underwood: No.

It's an approach regulatory zone, and I'd like to take issue with this...

Justice Kennedy: But what about the hypothetical?

Approach regulatory zone?

Ms Underwood: Yes.

What this statute prohibits is moving in on somebody.

It doesn't...

Justice Scalia: It's not an approach... you can approach as close as you like so long as you don't speak.

Ms Underwood: No, that's not right.

You have the purpose...

Justice Scalia: It's only the person who approaches to speak or to... or to hand a leaflet...

Ms Underwood: With... with that...

Justice Scalia: who is prohibited.

Ms Underwood: With that purpose.

Actually I'd like to just on the words of the statute... what has to happen is an approach.

The... the advocacy aspect of the statute is the purpose.

You don't have to get as...

Justice Scalia: Approach with the intention of.

Ms Underwood: With the intent.

You can approach without intent...

Justice Kennedy: Right.

Justice Scalia: With the intention of speaking.

Ms Underwood: without getting to the point of speaking.

Justice Kennedy: Or you could do this just for auto dealerships...

Ms Underwood: If there were...

Justice Kennedy: or law offices.

How about lawyers?

Any law office?

No.

Ms Underwood: If there were a problem...

Justice Kennedy: And what I'm... what I'm trying to find out is if this isn't a basis to say that this is content-controlled and not content... that obviously underlies the question.

That's what I'd like you to address.

Ms Underwood: No, it's not content control.

It is facility protective.

There is a problem at health care facilities, a problem of intimidation and violence, that Colorado...

Justice Kennedy: Because of the message that goes on there.

Ms Underwood: No.

Actually with respect to a great many messages, although there's one that perhaps is more common than others.

There is a problem.

The legislature is not required to act with respect to problems that don't exist.

And if you're hypothesizing a world in which people are intimidating people from buying cars by coming up close to them in their face and... and showing them pictures of automobile accidents, then perhaps Colorado would want to do something and could do something like what it did here, which is to permit them to show those pictures and to permit them to give those messages, but to require them not to move in on somebody closer than 8 feet.

Justice Scalia: Ms. Underwood, what about... what about the consent requirement?

Now, you know, we... we allow people to prevent unwelcome speech in their homes.

You can cancel, you know... require mail not to be delivered.

You can have a city ordinance saying I don't want any... you need consent before hawkers can come to the door.

But in the public forum outside in the street, can... can we have a law that... that enables people to... to turn off unwelcome speech?

Ms Underwood: Not to turn off unwelcome... may I answer, Mr. Chief Justice?

Not to turn off unwelcome speech.

To repel unwanted close approaches.

This is about a close approach and not about speech at all.

Rebuttal of Jay A. Sekulow

Chief Justice Rehnquist: Thank you, Ms. Underwood.

Mr. Sekulow, you have 3 minutes remaining.

Mr. Sekulow: Thank you, Mr. Chief Justice.

With regard to the Free Access to Clinic Entrances Act, Justice O'Connor, it specifically exempts First Amendment activities.

With regard to reliance on United States v. Grace, on page 176 of this Court's opinion... I'm quoting... we also accept the Government's contention not contested by appellees about the content of the speech.

We are contesting that here.

Justice Ginsburg: Mr. Sekulow...

Mr. Sekulow: Yes.

Justice Ginsburg: am I wrong in thinking that there... there's legislation that establishes quiet zones around hospitals, around schools, which would be much more restrictive than what's involved here, based on the character of the facility?

Is that not so?

Mr. Sekulow: You often see signs even that say quiet zones.

I think the difference is here a silent approach without any words to distribute a leaflet requires consent.

Justice Breyer: Well, is it...

Mr. Sekulow: And it's not a quiet zone here that they're talking about.

There's nothing... no prohibition here that says you can't talk loud.

Justice Breyer: But... but given the fact that there is a history of women in a very vulnerable, emotionally charged state, in a difficult physical condition, and given the fact that using words like you can't harass and you can't... whatever those words are in section 2... are very hard to interpret, could you say that having 8 feet as the limit between my fist and your face, so to speak, helps the First Amendment?

It makes clear what you can do and what you can't do...

Mr. Sekulow: No.

Justice Breyer: rather than every time getting into an argument about what constitutes harassment.

Mr. Sekulow: Justice Breyer, this case... this particular statute is a criminal statute.

It requires precision of regulation.

An 8-foot prohibition here requiring consent we believe violates the First Amendment.

There is not a First Amendment health care exception.

I am sure...

Justice Breyer: That's my very point.

Why isn't it more precise to say 8 feet than to say in each case we'll... we'll litigate whether my waving my arm or something like that did or did not constitute harassment?

Mr. Sekulow: I think for the exact same reason that this Court in Madsen and in Schenck rejected the health care exception to the First Amendment.

I think it points to the situation in NAACP v. Clayborne Hardware.

I'm sure the... the gentleman that ran Clayborne Hardware would have rather not had those protestors out in front of his stores.

And maybe he had a heart condition, and if he did, I don't think you can carry a sign that says I've got a heart condition, don't approach you.

Justice Ginsburg: But, Mr. Sekulow, isn't there something different about a hospital, I mean, wholly apart from the question of abortion clinics?

Haven't there been restrictions on speech activity around schools?

I mean, mostly the problem was not that they... you couldn't have the restriction, but you couldn't favor one speaker.

Mr. Sekulow: But this Court has also said in those same contexts... Mr. Chief Justice, my time is expired.

Would the Court like me to respond?

Justice Stevens: Briefly.

Mr. Sekulow: The difference is there the question was was the conduct going to aggravate what was going on inside, and because the courts there gave a narrowing construction that only when it... it violates what's going on inside or causes a problem, that there would be a violation.

That's not the case here.

Thank you, Mr. Chief Justice.

Chief Justice Rehnquist: Thank you, Mr. Sekulow.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Schenck v. Pro-Choice Network of Western New York - Oral Argument

Fri, 09 Jan 2009 14:50:08 +0000

Case:

Schenck v. Pro-Choice Network of Western New York

Media File:

95-1065_19961016-argument.mp3

Related Transcript:

1996_95_1065_argument.xml

Transcript:

Argument of Jay A. Sekulow

Chief Justice Rehnquist: We'll hear argument first this morning in Number 95-1065, Paul Schenck and Dwight Saunders v. Pro-Choice Network of Western New York.

Mr. Sekulow.

Mr. Sekulow: Mr. Chief Justice and may it please the Court:

Whatever one thinks of abortion, this Court in both Bray and Casey has recognized that there are common and respectable reasons for opposing it.

We are not here challenging the prohibitions of the injunction which prohibit blockades, trespass, or obstruction of access.

In the Western District of New York, the opposition to abortion with which we are concerned involves demonstrations such as picketing, leafleting, the holding of a sign, or a prayer vigil.

Under the one-size-fits-all injunction issued by the district court, the petitioners are prohibited from engaging in these form of demonstrations inside overlapping speech-free zones that float without geographic limitation.

The injunction also allows, to a very limited extent, a form of demonstration that--

Unknown Speaker: Mr. Sekulow--

Mr. Sekulow: --Yes, Justice--

Unknown Speaker: --I think we can hear you quite well if you were to lower your voice a little.

Mr. Sekulow: --Yes, Mr. Chief Justice.

The other provision of the injunction that we are challenging involves a sidewalk counseling allowance.

It allows sidewalk counseling.

However, that sidewalk counseling can be terminated based on facial gestures.

In other words, what we call and the lower courts recognized as a cease-and-desist provision.

This provision of the injunction is implemented on verbal or nonverbal indications.

In fact, the injunction itself prohibits and allows for... prohibits any person being approached.

It's not just limited to women seeking the services of an abortion facility.

On page 183 of the petition appendix--

Unknown Speaker: You'd be content if we modified that so only verbal indications would suffice?

Mr. Sekulow: --No, Justice Scalia, we would not.

That would be certainly a step in the right direction.

The ACLU in their brief has acknowledged that--

Unknown Speaker: And that's not really what you're after here, is it?

Mr. Sekulow: --That is not.

We think that the no consent, and that's what this is, without consent, the speech stops, and that could be before a word is even uttered, and we think that provision of the injunction, like the no approach zone in Madsen, because it is dependent upon consent of the people speaking and the people that are listening, therefore it is unconstitutional, because without a doubt it burdens more speech than necessary to serve any of these purposes.

Unknown Speaker: How does it stop?

I mean, we're 15 feet apart now.

Mr. Sekulow: Yes.

Unknown Speaker: Even without this microphone I think I can hear you perfectly well.

Mr. Sekulow: The Chief Justice certainly said that.

Unknown Speaker: Yes.

So what is the problem?

I mean--

[Laughter]

--here we are, we're having a conversation, and we're 15 feet apart--

Mr. Sekulow: We're in the--

Unknown Speaker: --and the judge's decree allows everybody to go 15 feet apart, doesn't it?

Mr. Sekulow: --Justice Breyer, I think that in reality we're talking about, of course, in Buffalo city sidewalks and city streets, with sidewalk escorts trying to get people into the clinic.

It's the hustle and bustle of any metropolitan area, and to carry on intimate conversation, one-on-one communication with a desire to dissuade, to tell someone we really don't you... want you to go into this particular abortion facility.

That is intimate conversation.

Sure, you could be 15 feet away, but in that 15 feet, if you were to ask me, as a demonstrator, if I was the demonstrator, you wanted some information, under this injunction consensual speech is also prohibited, and that's where I think, if we look at the burdening-no-more-speech-than-necessary standard, why is it that 15 feet serves as a standard, especially--

Unknown Speaker: Let me ask you--

Mr. Sekulow: --Yes, Justice Stevens.

Unknown Speaker: --Would 5 feet be okay?

Mr. Sekulow: I don't think so in the particular situation here.

If there is--

Unknown Speaker: Two feet?

Mr. Sekulow: --Two feet I think would approach what we would consider probably blocking, certainly crowding, and crowding is prohibited by section 1(c) of the injunction and we're not challenging that, but crowding in the sense that if I were blocking your access.

One of the examples that we use, and I think it was one of the contempt proceedings... it's found in the Joint Appendix on page... beginning... commencing on page 101, actually 102 going forward.

Bonnie Behn and Carla Rainero were engaged in sidewalk counseling.

They were held in contempt.

The court held them in contempt.

On page 107 of the Joint Appendix, in describing what exactly was taking place, and then going on to page 108, and I'll refer to page 108, Bonnie Behn and Carla Rainero walked alongside the young woman, her companions and the escorts, and continued talking to the young woman.

They were engaged in a conversation.

Now, ultimately, the woman in that particular case that was seeking the abortion said, please stop talking.

There's no finding of yelling, no finding of blockades, no finding of impeding access.

She just said, stop talking.

The two individuals, Carla Rainero and Bonnie Behn, continued to communicate, and for that the court held them, the district court held them in contempt, because the injunction itself prohibits that type of speech on a public sidewalk in New York absent evidence of yelling, absent evidence of blockades.

That information or that concern is handled by the injunction, as is the noise restrictions.

We're not challenging those.

Unknown Speaker: Yelling.

Yelling.

You would accept this injunction if it prevented you from raising your voice to anyone going into the clinic?

Mr. Sekulow: Oh, no, I don't think that is the prohibition that we're concerned with.

The noise provision, Justice Scalia, excessively loud noise to be heard inside--

Unknown Speaker: To be heard inside.

Mr. Sekulow: --Yes.

Unknown Speaker: But you wouldn't say that this injunction would be okay if it prevented the counselors from shouting at the--

Mr. Sekulow: No.

I think that's robust speech, and this Court has talked about the need to protect robust speech in public forums.

This is clearly a public forum.

The fact that these sidewalks abut an abortion clinic does not mean that they become enclaves immune from the First Amendment.

Unknown Speaker: --Well, are you challenging the fixed 15-foot limit?

Mr. Sekulow: We are challenging that as well.

Justice O'Connor, the way that these zones work in operation, you have, as you acknowledge, the 15-foot fixed zone, which actually is really 45 feet, because as an individual approaches the clinic their bubble zone, their floating zone goes with them.

Unknown Speaker: I'm not talking about the floating bubble, I'm talking about the fixed buffer zone provision.

Mr. Sekulow: The fixed buffer zone in and of itself, Justice O'Connor, we are challenging.

Two reasons.

Number 1, the Court here, before... when it issued the temporary restraining order had a speech-restrictive provision initially.

I think what this Court said in Madsen as it relates to the entire issue of was there a... before a broader injunction is issued, is there a least restrictive or less restrictive injunction that just didn't do the job, and I don't think that's the facts here.

The reality is that the injunction had a speech restriction at the outset.

Then the Court increased that speech restriction in the final... the preliminary injunction.

Unknown Speaker: Is it your position that there was no post-TRO conduct that justified the 15-foot limit?

Mr. Sekulow: That is our position, and I think the record in that sense shows it, because there would have been six contempts, or actually seven contempt actions brought in an almost 18-month period, three of them involving cease and desist... yes, Justice Ginsburg.

Unknown Speaker: As I recall, Judge Meskill in the panel ruling did find that there had been violations after the issuance of the TRO, and if you would look at A-57 he refers to an incident on March 26, 1991, in which two men blocked the doorway to the clinic, and then another one on January 1, so Judge Meskill, whose position I think you are not challenging--

Mr. Sekulow: That's correct.

Unknown Speaker: --did find post-TRO conduct that violated the Court's order.

Mr. Sekulow: Yes, Justice Ginsburg, that's correct, and we've acknowledged, and they're in the Joint Appendix, there are also contempt actions that have been filed.

Unknown Speaker: But you did say in your reply brief that the district judge found no defendants physically blocked access after the issuance of the TRO, and as I read Judge Meskill's opinion that's not so.

Mr. Sekulow: What it's talking about there in the particular page A-57, the way we understand the evidence was submitted at trial and the way we've seen the case was, this was not a mass blockade, and what we were talking about in our reply brief, Justice Ginsburg, is, this is not a case involving mass blockades.

There have been occasions where protesters have trespassed, and we believe--

Unknown Speaker: But I wanted to inquire, what is the principle that limits the Court to the conduct post-TRO and pre-preliminary injunction, given the long history of discord, to use the mildest term, what is it that confines the district judge in thoughtfully drawing a preliminary injunction after trying to preserve the peace with a TRO, from crafting it in a sensible way in light of all of the past history?

Why is he confined just to this post-TRO conduct?

Mr. Sekulow: --I think that the Court should only be looking at this particular injunction in light of the facts that the district court have.

Was the injunction that was issued, Justice Kennedy, then, the question that we would submit is, did it burden more speech than necessary, and the provisions that we're challenging... we're not saying that it was inappropriate to say, as the court did... it increased the... under provision 1(c) from the TRO to the preliminary injunction, it did increase things such as no touching, no physical contact.

We're not challenging that.

But there's nothing that justifies the speech-free zones that float without any geographic limitation, and speech can be silenced on command.

Justice Scalia.

Unknown Speaker: Was that 15-foot... not the floating zone, but the 15-foot absolute, that was in the TRO originally.

That wasn't added.

Mr. Sekulow: Actually, the--

Unknown Speaker: Wasn't that in the original TRO as well?

Mr. Sekulow: --Justice Scalia, actually it was the floating zone was in the TRO.

Unknown Speaker: Ah.

Mr. Sekulow: And the fixed zone came afterwards, and I think that points to the nature of what took place here, so we have these automatic floating zones, if you will, without geographic limitation, and then a 15-foot zone is imposed, and we would--

Unknown Speaker: What Meskill says on A-57, after noting that there were these two violations after the TRO, he says, however, the Supreme Court's First Amendment jurisprudence clearly requires more than two isolated incidents over the course of 1-1/2 years before a court may banish an entire protest demonstration from a given area, and that's your contention here.

Mr. Sekulow: --And that is our contention, and also--

Unknown Speaker: But Mr. Sekulow, I think you will agree that it is a standard in law regarding injunctions that if there is no incident following the TRO... the TRO is a very temporary thing.

Mr. Sekulow: --Right.

Unknown Speaker: And if there is no violation of it, that shows the injunction is working, not that it should be stopped.

I think your proposition is extraordinary, that if the very brief TRO is working, then the injunction must be stopped, rather than maintained.

Mr. Sekulow: But Justice Ginsburg, if it is working but infringes on free speech at the same time--

Unknown Speaker: Well, then... then there was something wrong with the TRO.

Mr. Sekulow: --Well, precisely.

Unknown Speaker: But the notion that I thought you were putting forward to us was that because there was compliance with the TRO there was no longer need for that restraint.

Mr. Sekulow: We have not challenged, nor are we here challenging the restrictions other than the two speech provisions, but the district court and the court of appeals acknowledge, and it's on A-8 of the petition appendix, that the demonstrations are mostly peaceful in nature.

Twelve judges of the Second Circuit Court of Appeals stated that in fact this was very different record than in Madsen.

And in Madsen, this Court held that in fact the issue of a fixed zone was debatable.

We think the debate should tip in favor of free speech here, especially since this Court in Madsen said that precision of regulation is required, couched in the narrowest possible terms.

Unknown Speaker: We also said in Madsen, Mr. Sekulow, that some deference was due to the trial court's formulation of the thing.

Mr. Sekulow: Yes, and this Court, in looking at the... in giving some deference to the trial court struck down the no-approach zone in Madsen and also declared that a portion of the 36-foot zone burdened more speech than necessary.

Mr. Chief Justice, I think that's precisely our point, that the pinpoint precision that this Court talked about in Madsen is absent here.

This is a one... this injunction applies to every single facility where abortions are performed in the Western District of New York, and it is one size fits all.

They did not carve it to specific needs, and we think a floating zone is not justified anyways, and a cease-and-desist provision--

Unknown Speaker: May I ask on the floating zone--

Mr. Sekulow: --Yes.

Unknown Speaker: --is it your position that a floating zone, no matter how carefully tailored, could never be justified as a remedy for repetitive speech?

Say a person operated a fur store and some animal rights person wanted... day after day walked... followed the person going to business, repeating the same message over and over and over again, would the First Amendment permit or prohibit some kind of floating zone for... to protect that person from just the repetition of the same message over and over again?

Mr. Sekulow: I think it would be prohibited by the First Amendment.

I don't think we can say--

Unknown Speaker: There's no... floating zone is per se bad?

Mr. Sekulow: --There are times, Justice Stevens, where floating zones have been adopted in domestic violence situations where... of course, that's not involving speech.

Unknown Speaker: No.

I'm just talking--

Mr. Sekulow: Right.

Unknown Speaker: --about harassing only in the sense of one must listen to the same message over and over and over again, and you say you just have to... you have to swallow that.

Mr. Sekulow: Well, I think on a public sidewalk or a public street we're going to hear messages we may not like, we may disagree with, but it can--

Unknown Speaker: Yes, but I'm talking about the same message over and over and over--

Mr. Sekulow: --By one person to the same person.

Could that approach harassment?

Maybe it could.

However--

Unknown Speaker: --And then if one could do it, why is it different if, instead of one doing it 20 times, 20 different people do it in succession?

Mr. Sekulow: --I don't think that necessarily that would be inappropriate.

Unknown Speaker: Oh.

Mr. Sekulow: In the context of robust debate on a public issue like this, there is going to be a variety of speech.

This injunction, though, which is interesting, prohibits a person from... a demonstrator from approaching anyone.

In fact, interestingly, this injunction does not limit its impact to women seeking the services of an abortion clinic, or physicians and staff.

It applies to any person seeking access, and provision 1(c), the no approach zone, it's similar to the no-approach zone.

It's the cease-and-desist provision, says on its face... I mean, it's very clear that a person or a group of persons can prohibit, or use the provision and prohibit speech.

How does a group of persons do that?

Is it one individual wants to hear a message, the other does not?

What happens if--

Unknown Speaker: Is that the way you would distinguish, if you would distinguish this situation from the application of some of the new stalker laws?

Mr. Sekulow: --I think the stalker laws are different in that regard.

Unknown Speaker: Because?

Mr. Sekulow: Because the persistence is not necessarily, Number 1, protected speech.

There's a number of issues.

Unknown Speaker: Well, let's assume that the stalker does have a message, and my guess is a lot of them do.

Mr. Sekulow: And at some point that crosses the line from speech to harassment.

We've looked at that issue.

Is there a way to prohibit one-on-one persistent speech on a public forum?

I have trouble with that, because I think it leads to a dangerous provision, but if there was harassment, you had... we have the case in the Second Circuit involving Ms. Onassis, and there the court said that a zone was appropriate.

But of course, there the court out the zone.

I also think--

Unknown Speaker: This injunction doesn't prohibit following, does it?

Mr. Sekulow: --It does not.

Unknown Speaker: It prohibits speaking.

Mr. Sekulow: That's correct.

It is targeted directly at speech.

Unknown Speaker: And you would feel differently about an injunction that prohibited following.

Mr. Sekulow: It's a different scenario.

It's the purpose of the communication, but--

Unknown Speaker: But I don't think this injunction prohibits the speech.

It just requires the speaker to stay 15 feet away, which is prohibiting following.

Mr. Sekulow: --No, I think not, Justice Stevens, with respect, for two reasons.

Number 1... and I want to draw an analysis, if I could.

In NAACP v. Claiborne Hardware, one of the most effective tools for the civil rights protestors was the stationing of sidewalk-based store watchers.

They were sometimes called deacons, sometimes called black hats.

And the Court acknowledged... this Court acknowledged that, as the lower courts found, that the volition of many black citizens were just overcome by sheer fear because the presence of these black hats was so strong and it was intimidating, but the Court still said that that was protected speech, and the fact that here the speech is vigorous, and it's about an issue that is part of a debate, doesn't entitle it to less constitutional protection, or alternatively protecting platitude.

Unknown Speaker: I still don't understand, what is the word, or the idea, or the expression that one could make if you're within a 15-foot radius that you couldn't communicate being the distance, a little bit less than the distance that we are now.

Is there some word, or expression, or thought, or idea, or view that is only communicable when I'm closer to you than I am at this moment, and if so, what is it?

Mr. Sekulow: I think, Justice Breyer, all of the above.

I think someone that is on the streets of New York that wants to talk to a woman who is about to engage in an abortion procedure, or for that matter a salesman who does business with this abortion facility, wants to communicate a message one-on-one, maybe wanting to share, as the records happen in this case, a Bible verse.

It's hard to show someone a Bible 15 feet away.

Unknown Speaker: But then they can go up and do that, can't they, unless the person affirmatively says that they don't want that.

Mr. Sekulow: Actually, there's no demonstration allowed within the 15-foot zones at all.

The only carve-out is the sidewalk counseling, which is the distribution of literature, according to the lower court, to dissuade someone from not having an abortion based on a particular statement, and then, of course, the cease-and-desist language comes in.

But if someone were simply holding a sign, or handing a religious tract, or simply trying to show a Bible to someone, they cannot do it, and in the decorum of this courtroom, it's quite easy for you and I to communicate.

Unknown Speaker: Why couldn't the counselor show the person the Bible within the 15... if the person doesn't object.

Mr. Sekulow: Well, the counselor could.

Unknown Speaker: Yes.

Mr. Sekulow: Unless, of course, somebody in that group says, get away.

Unknown Speaker: You need more than two people to show the passage from the Bible?

Mr. Sekulow: Well, I don't think that's... I don't think that's what I'm saying, Justice Stevens.

What I'm saying is, the Bible itself may not be deemed a form of demonstrating... a form of sidewalk counseling.

Unknown Speaker: But you're saying that because it's small print you have to be close for the person to be able to read it.

Fifteen feet, you can't read the Bible, obviously.

Mr. Sekulow: I think it's more than print.

I think it's the communication and the print.

I think if someone wearing a button that makes a statement, a religious statement, or a sentiment, that person--

Unknown Speaker: No, but you're responding to a question about what can't you do at 15 feet that you could do in less than 15 feet, and it seems to me your point is you've got something they couldn't read.

Mr. Sekulow: --I have something they couldn't read, it's hard to shout over sidewalk counselors, the lower courts acknowledge that the sidewalk counselors, the escorts, rather, trying to get these women in the clinic create an increased atmosphere, it's noisy, and it's hard to communicate.

Unknown Speaker: I understood from the record that the... whatever you call them, the antiabortion people had people called sidewalk counselors--

Mr. Sekulow: Sidewalk counselors, yes, Justice.

Unknown Speaker: --and the clinics had people who were meant to counter the sidewalk counselors.

Mr. Sekulow: Escorts.

Unknown Speaker: Who would surround the person coming in and talk about everything and anything, make noise, which made it quite difficult to speak to that person from 15 feet.

Mr. Sekulow: Precisely, and in that nature would also inform these women about their rights under the injunction, would encourage them to engage in a communication to stop the communication, they would surround them... this was not, as I said, courtroom decorum discussion.

This is discussion on a street where there's people on both sides of the issue.

Unknown Speaker: Mr. Sekulow, you had--

--But would that solve the problem if the injunction only applied to unescorted persons?

Mr. Sekulow: I don't think so.

I think that would be like--

Unknown Speaker: So really you're not resting on the fact that they are escorts there.

Mr. Sekulow: --My response was, Justice Stevens, that Justice Breyer and Justice Scalia were asking about the issue of communicating a message.

It's difficult to communicate a message on a public sidewalk.

How does one hand someone a leaflet 15 feet away when this Court recognized that one need not ponder the contents of a leaflet to mechanically take it out of someone's hand.

You can't take it unless you have an awfully long hand.

You can't take it out of someone's hand--

Unknown Speaker: Well, you can offer it, presumably, at the 15-foot boundary and say, here, I'd like you to take this to read it.

The person can refuse, and if you were closer and offer a leaflet, the person can refuse.

Mr. Sekulow: --But I think the point is, Justice O'Connor, that 15 feet away on a city street in Buffalo, New York, is not this courtroom, and I cannot just hand the leaflet, and I think I have the right--

Unknown Speaker: I thought the injunction let you.

Mr. Sekulow: --Excuse me?

Unknown Speaker: I'm sorry.

Doesn't the injunction allow someone to go right up next to the woman and say here, I'm 1 foot away, would you like to read this, I want to counsel you, and then the woman can say no.

Mr. Sekulow: The woman can say no, which we think the consent provision alone is the reason this provision of the injunction should be declared to burden more speech than necessary and therefore unconstitutional, but that's one--

Unknown Speaker: Mr. Sekulow--

Mr. Sekulow: --Yes, Justice Ginsburg.

Unknown Speaker: --Unlike a statute that's just regulating everybody, we do have an injunction that's supposed to be tailored to these circumstances, and you had no objection, I take it, to injunction against grabbing, pushing, shoving.

Mr. Sekulow: That is correct.

Unknown Speaker: The district court did make a finding that the sidewalk counselors often crowded around the patients, and mustn't there be some kind of keep-your-distance rule to prevent the pushing, shoving, grabbing that had gone on before?

There is a past history here that the judge was taking into account.

Mr. Sekulow: I think, though, the way to... if someone pushes, if someone grabs, if someone crowds so that someone can't move forward, there's provisions of the injunction that cover that, and they should be prosecuted for contempt.

I don't think to limit speech, including prohibiting demonstrations completely... I mean, under--

Unknown Speaker: No, but isn't the answer to that, Mr. Sekulow, that the closer they are, given the history, the more likely there are going to be incidents of pushing and shoving, and you can't as a practical matter, simply as a court, prosecute 100 contempts a day under these orders, so the idea, to have something... you're making a practicality argument.

I think the court is making a practicality argument.

The court is saying, let's have some kind of a zone which isn't going to cut off speech entirely, but which is going to reduce the probability that we are going to have a multiplicity of contempt actions every time somebody walks into an abortion clinic.

Mr. Sekulow: --Justice Souter--

Unknown Speaker: Isn't that the answer?

Mr. Sekulow: --I don't think it is in this regard.

The court tailored its injunction, or attempted to tailor its injunction to say no grabbing, no physical abuse.

We're not challenging that, but this injunction itself says, no--

Unknown Speaker: No, but don't you agree that the probability of grabbing is going to be greater the closer people are in these situations?

Isn't that the point upon which the court's order rests, and isn't that point correct?

Mr. Sekulow: --Well, they made that argument.

That was one of the--

Unknown Speaker: Isn't that point correct?

Mr. Sekulow: --Public access was one of the concerns that the court raised.

Unknown Speaker: Yes.

Mr. Sekulow: But I think--

Unknown Speaker: And that's... I mean, the point is correct.

Well, do you think that the requirement of very precise tailoring is consistent with sort of a prophylactic provision like that?

Mr. Sekulow: --I think no.

It has to be tailored specifically to what's taking place, and I think that precision of regulation is the standard, and--

Unknown Speaker: Mr. Sekulow, can you enter the 15-foot zone, crowd, and even grab, so long as you don't try to talk?

Mr. Sekulow: --You know, that's interesting.

It doesn't prohibit standing.

It doesn't prohibit--

Unknown Speaker: As long as you don't have a poster, and so long as you don't try to talk to the person, you can get within the 15 feet, grab, crowd, do--

Mr. Sekulow: --Well, you know, it says that no demonstrator shall physically abuse, grab, or touch, but I mean--

Unknown Speaker: --But the 15-foot zone does not apply to someone who is not trying to communicate.

Mr. Sekulow: --That's... that is how I think this injunction can be read, and that's, I think, again--

Unknown Speaker: Is there any evidence that the people who were grabbing and shoving before were tightlipped?

Mr. Sekulow: --No, there isn't, but I think... I think that--

[Laughter]

Unknown Speaker: The two go together, don't they?

Mr. Sekulow: I think not in this context.

I think yes, they can go together in the sense, is there a need for an injunction of some type?

The answer, yes.

We're not challenging the issuance of the injunction.

However, does that mean that demonstrations, the holding of a sign, the wearing of a button within 15 foot, 15 feet of an individual, any person seeking access, is constitutional, and we think not.

It has to burden more speech than necessary.

Unknown Speaker: Mr. Sekulow, what was... what is the meaning of something that the Government emphasizes in its brief, the provision that if the court concludes that some of the relief requested by the plaintiff should be granted, that the defendants will consent to the entry of an injunction against each and every one of them, and the Government tells us that the defendants thus stipulated below that any unlawful conduct found to have been performed by any of them could be attributed to all of them for purposes of the preliminary injunction.

So that sounds like if you did have some people crowding, pushing, needing this kind of keep-your-distance rule, that that same rule could apply to all of the people.

Mr. Sekulow: There was a concession, Justice Ginsburg, in the district court regarding the nature of the evidence, and it simplified in a pretty real way, and a not necessarily beneficial one, it simplified the evidence that was presented.

It does not change the nature of what's being challenged here, though.

We're not saying that an injunction should not be issued.

We're not saying it applies to one person and not the other.

We're saying that any demonstrator is prohibited from demonstrating within a 15-foot zone and a floating zone that goes without geographic limitation whatsoever.

No geographic limitation of this zone.

It just floats, and we think that burdens more speech than necessary, and--

Unknown Speaker: Did you ask to have that clarified, because wasn't there a point where the district judge said, gee, that's not what I meant.

Mr. Sekulow: --I found that... we found that fascinating, too.

The Court said, my gosh, it would be impractical.

In fact, it says... it goes further.

He said, no one would know how to comply with the floating zone, but then he acknowledges it's floating, and the Second Circuit acknowledges it's floating, so maybe the judge at the district court level forgot what he meant, I don't know, but it burdens more speech than necessary because it does exactly what the judge was concerned about.

How does one know when to back off?

Unknown Speaker: Mr. Sekulow, was it suggested at any point in the proceedings that it was inappropriate or inadvisable for the district court to maintain pendant jurisdiction in this case?

Mr. Sekulow: Yes, it was.

It was raised below, and it was rejected.

Unknown Speaker: You don't raise that point here?

Mr. Sekulow: Well, I think we're beyond that point.

I think that at this point... we thought it was a valid issue.

It's not part of the cert petition in that sense.

Mr. Chief Justice, I'd like to reserve the remainder of my time for rebuttal.

Unknown Speaker: Very well, Mr. Sekulow.

Ms. Finley, we'll hear from you.

Argument of Lucinda M. Finley

Mr. Finley: Thank you, Mr. Chief Justice, and may it please the Court:

I think we cannot lose sight of the record and the evidence in this case.

We have here an unrelenting campaign by defendants of illegal and tortious harassment, intimidation, obstruction, and trespass at health care facilities.

We have to keep that in mind as well.

The activity that the district court found occurred repeatedly is antithetical to the need of surgical facilities and hospitals for quiet and calm.

The idea of quiet zones and buffer zones around hospitals is a well established traditional principle in law, and all we're trying to do here is make sure such a zone pertains outside these surgical facilities.

Unknown Speaker: By requiring people to speak from a distance of 15 feet--

Mr. Finley: All... sorry.

Unknown Speaker: --instead of coming up close, does that--

Mr. Finley: The--

Unknown Speaker: --make the zone quieter or noisier?

Mr. Finley: --The preliminary injunction allows sidewalk counselors to come right up to people, which is far more accommodating of defendants' free speech rights than the buffer zone affirmed by this Court in Madsen and by the buffer zone around polling places affirmed by this Court in Burson v. Freeman.

The injunction here gives far more leeway to defendants than buffer zones previously upheld by this Court, despite their record of dangerous, medically risky, intimidating and harassing activity.

I think we need to focus on... yes, from 15 feet away they can, in fact, communicate.

As Justice Breyer pointed out, we are approximately 15 feet away now, and he--

Unknown Speaker: Without any traffic and without any opposing escort.

Mr. Finley: --He refers to the hustle and bustle of streets.

In fact, the record shows most of the time when people are trying to get in it's about 7:00 in the morning, and there isn't much traffic on the streets at 7:00 in the morning.

The record also shows that the greatest amount of noise being created is by the defendants themselves.

If occasionally other people lose their cool and shout back, that's to be expected and understood in this kind of volatile situation.

The district court found that it's the persistent face-to-face harangue by the defendants that often triggers other people into starting to yell back.

It's the defendants' conduct who initiates all of this noise and cacophony outside of surgical facilities, and that is what the district court found.

Unknown Speaker: Well, Ms. Finley, are you suggesting that there's some special rule for abortion clinics that wouldn't apply in other cases where people are being perhaps harassed or counseled or argued with?

Mr. Finley: No, not at all, of course--

Unknown Speaker: Certainly Madsen doesn't say that.

Mr. Finley: --No, it does not.

Unknown Speaker: Then why do you keep stressing the quiet zone outside the abortion--

Mr. Finley: Because Madsen did recognize that the governmental interest ensuring... in ensuring safe conditions for health care is a compelling interest, and I think we must keep in mind that that interest is very present in this case.

So I think there are a different calculus of governmental interests that are involved when protest is occurring outside hospitals and surgical facilities, as this Court recognized in the labor cases, NLRB v. Baptist Hospital and Beth Israel Hospital, so sometimes what might be a no more burdensome provision than necessary at a hospital, it may be different from what is no more burdensome than necessary at another sort of facility that doesn't have the same need for people being able to get in without being in stressed-out hysterics.

Unknown Speaker: --Did Madsen suggest that there has to be some underlying violation of statutory or common law to support a preliminary injunction burdening speech?

Mr. Finley: Well, of course, to get a preliminary injunction anyone has to show a likelihood of success on the merits of some valid cause of action.

That's--

Unknown Speaker: Okay, and what is it here that you rely on?

Mr. Finley: --Our causes of action... well, the district court found that in addition to the Federal civil rights claim that the--

Unknown Speaker: I thought that claim under section 1985(3) was dismissed here.

Mr. Finley: --Dismissed, and subsequently the complaint was amended and it was reasserted, but the district court also found that the State law causes of action for trespass, which under New York law broadly protects people's use and enjoyment of their property rights, and the causes of action under New York State law for harassing people for exercising their right--

Unknown Speaker: Could there be trespass on a public street or sidewalk, or would that just apply to the property of the clinic?

Mr. Finley: --In... under New York law, trespass is not simply the physical invasion of a line-demarcated private property.

It also includes interference with the fair and unfettered use and quiet enjoyment of your property.

We also have State law claims in the case for intentional interference with business relations, infliction of emotional distress.

Our State law causes of action are virtually identical to the State law causes of action involved in Madsen.

But this issue of whether the State law claims in this case still warrant relief has never been raised by the petitioners in the lower court, which I think is the forum that should first be given the chance to look at the remaining causes of action in light of the evidence.

Unknown Speaker: Did Madsen state that the consent requirement alone invalidated the no-approach provision in that case?

Mr. Finley: That is, I believe, an accurate quotation from Madsen, yes, Justice--

Unknown Speaker: So are you asking that we ignore that here?

Mr. Finley: --No.

We do not have a no-approach-without-consent provision in this injunction.

The cease-and-desist provision is substantially different.

The cease-and-desist provision specifically allows all uninvited approaches without consent.

It specifically allows the very thing the Madsen no approach zone did not allow.

There's a substantial difference under First Amendment law between not letting someone try to go up to somebody versus saying you have to respect that other person's right to refuse you.

This Court has repeatedly emphasized that the right to refuse a messenger, and the right to make your own choices about what you do and do not listen to--

Unknown Speaker: But the reason... the reason we struck down the uninvited approach provision in Madsen is as follows, quoting from Boos v. Barry: As a general matter, we have indicated that in public debate our own citizens must tolerate insulting and even outrageous speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.

Now, if you apply that same statement to... to what... unwanted speech just as we applied it to uninvited speech, it seems to me you get the same result.

Mr. Finley: --Nobody under this injunction, Your Honor, is protected from any speech at all.

They're just protected from the forced physical proximity of an intimidating person with medical evidence that that forced physical proximity elevates health risks.

Everyone here is going to have to encounter the message whether they want to or not.

Unknown Speaker: Medical evidence that the forced physical--

Mr. Finley: Yes.

Unknown Speaker: --proximity... where is that?

Mr. Finley: Dr. Hoagland's testimony, which is extensively recounted--

Unknown Speaker: He did studies on forced physical proximity, and it's--

Mr. Finley: --Dr. Hoagland was certified as an expert in both behavioral medicine and social impact theory, and social impact theory is, in fact, the study of how invasions of personal space create physical stress reactions, and the adverse effect of such reactions on medical care.

That was her precise area of expertise, and she testified about that at great length.

Unknown Speaker: --So we have experts like that now in any case where we're talking about this sort of thing?

Mr. Finley: I... it may be advisable for people to put on medical testimony.

Unknown Speaker: What was she a specialist in, social impact theory?

Mr. Finley: Behav... it's an established area of social science.

Unknown Speaker: Would you name it again?

Mr. Finley: It's called social impact theory, a scholar named Edward Hall developed it in the fifties, and there's been an extensive body of research in the fields of psychology, medicine, and anthropology that have further studied it.

It's the idea, the basic idea that there is a zone of personal space, and it varies according to the nature of the encounter.

For example, the appropriate zone of personal space here for this sort of encounter is about 15 feet.

Unknown Speaker: But I thought we had to... the Court had to find some violation of statutory or common law to justify a preliminary injunction.

Mr. Finley: And it did.

It found a likelihood of success on the merits.

Unknown Speaker: So I don't know what this argument does to bolster that.

I mean, it's not a theory of a violation of law.

Mr. Finley: No.

I think the relevance as I was responding to Justice Scalia's question, which I understood to be is there... what is the problem with having somebody force their physical proximity on you, so I was highlighting that particularly when people are going in for medical care, that is a... it escalates the health risks, which is a factor, of course, for injunctive relief.

Unknown Speaker: But you say the preliminary injunction could be based solely on testimony of an expert--

Mr. Finley: Oh... oh, no... oh, I--

Unknown Speaker: --on this social theory?

Mr. Finley: --I'm sorry, Your Honor, if you understood me to say that.

Unknown Speaker: I did.

Mr. Finley: Certainly I misspoke if I did.

No, that is not my position.

My position is that to get a preliminary injunction you have to show likelihood of success on the merits of a valid cause of action, irreparable injury, no adequate remedy at law, which the district court found that we in fact did, amply.

Unknown Speaker: Do I understand, Ms. Finley, that that is still something that's open to inspection by the district judge?

We did start out with a 1985(3) claim that the district judge erroneously thought was solid.

Then he said, but there are these State claims that can be substituted for it, and the Second Circuit refused... did not deal with that.

Mr. Finley: Absolutely yes, Your Honor, it is very much open to the district court.

This is a preliminary injunction.

Everything is open to the district court.

The Second Circuit instructed petitioners and the panel 2 years ago that they should take these arguments to the district court where they belong, and they never have.

Unknown Speaker: So the viability of this whole case under State law has yet to be fully tested in the district court, and it hasn't been touched by the court of appeals.

Mr. Finley: That is correct, Your Honor.

Unknown Speaker: But the district judge did make a preliminary finding that you had under New York law a probability of success on the merits.

Mr. Finley: That is correct, Your Honor, yes.

Unknown Speaker: But even... regarding... you're not contending that the provisions of the injunction do not have to be designed to prevent a violation of the law, as opposed to prevent the kind of emotional upset that your expert testimony related to.

You still acknowledge that the provisions of the injunction must be ordinated to preventing a violation of law.

Mr. Finley: Yes, of course.

The expert testimony documented elevated physical medical risk, which is substantially greater than mere emotional upset.

I want to move a moment--

Unknown Speaker: I don't understand that.

Does that have anything to do with whether State law is being violated?

Mr. Finley: --No.

Your Honor.

No.

Well, it may.

We've never yet tested in the district court the State law claims for tortious harassment, for example, and whether someone is being put under medically dangerous physical stress may be highly relevant to whether you've made out a claim for harassment.

That issue has never yet been tested in the district court.

Also, the amount of stress caused, and distress, may be highly relevant to whether we've made out a claim under our State law cause of action for intentional infliction of emotional distress.

In this context of antiabortion protest, there are State law-based decisions finding that conduct very similar to what defendants here do constitutes intentional infliction of emotional distress.

Unknown Speaker: I would say that persons who walk through a picket line in order to work despite a strike face extreme stress.

Have we ever in the labor area recognized that stressed individuals is ground for enjoining picketing and labor protest activities?

Mr. Finley: In the labor context, many courts have established buffer zones to keep the picketers out of the face of people, particularly when they're picketing at hospitals.

Unknown Speaker: But this is an order to prevent violence, et cetera.

Mr. Finley: Violence and intimidation.

Unknown Speaker: Those cases do not talk about stress to the individual.

That's somewhat antithetical to very, very essential First Amendment values.

Mr. Finley: Well, I think that when people are going in for surgery, and there's medical evidence that to safely perform the surgery the stress needs to be reduced, not elevated, that is a governmental interest that is present in this context that is only present in labor contexts when people are picketing at hospitals or nursing homes, and--

Unknown Speaker: And I submit to you that anybody who walks through a picket line at any facility in order to take a job during the pendency of a strike is subjected to great emotional stress, and our cases have never recognized that as a ground for injunction.

Mr. Finley: --Well, Madsen recognized that the elevated medical risks are a governmental interest that needs to be weighed in assessing whether the restrictions on speech are no more burdensome than necessary to protect that governmental interest in ensuring safe conditions for health care.

Unknown Speaker: But only in the context of keeping the noise down outside the hospital which could be heard inside.

We studiously avoided using that as a basis for validating any of the restrictions imposed outside the facility which could not... with respect to speech that could not be heard inside.

Isn't that what we did in Madsen?

Mr. Finley: Well, I'm sure Your Honors know better what you did in Madsen than I do.

Unknown Speaker: Oh, I doubt it.

[Laughter]

Mr. Finley: That discussion was... yes, Your Honor, that discussion was linked to the noise provision, but the same interest pertains when people are having others screaming in their face.

Unknown Speaker: Well, what about a situation such as Justice Kennedy posits, where you walk through a picket line to go to work, and you've got a very important assignment that day, and you feel you're subjected to a great deal of stress, you're not going to be able to do that work.

Now, is that kind of a separate governmental interest that has to be taken into consideration, too?

Mr. Finley: Whether the protest conduct disrupts the safe and normal functioning of the place is a basic governmental interest that this Court has recognized many times in Grayned v. Rockford on, so I think yes, whether--

Unknown Speaker: Ms. Finley, why do you lay such stress on this point, when I thought the major reason for the injunction and for its provisions was that there was a history of grabbing, pushing, shoving, and the district judge thought that it was reasonable to have a keep-your-distance rule to make sure that the pushing, grabbing, and shoving didn't go on again?

I did not regard whatever you call that expert as central to your case, and perhaps you ought to clarify whether it is an extra, or whether it's pivotal.

Mr. Finley: --No, I would agree, Your Honor, with your point that the defendant's persistent, proven conduct of crowding, grabbing, punching, sometimes knocking people down is what necessitates some kind of a clear zone in this case.

I also want to emphasize this idea of floating--

Unknown Speaker: It's not enough that the zone be reasonable, though.

You use the language, necessitates.

It isn't enough that it be reasonable to establish--

Mr. Finley: --No.

In Madsen--

Unknown Speaker: --such a zone.

The zone must be no more than is necessary.

Mr. Finley: --That's right, and here the 15-feet, the length of a car, is necessary to ensure that a car can safely drive down the road.

Unknown Speaker: Well, it's 15 feet on all sides.

Mr. Finley: All sides of--

Unknown Speaker: Of the person, I take it, or the vehicle.

Mr. Finley: --Yes.

It would be like a circle around, yes.

Unknown Speaker: All right, and so if you have two people, that amounts to a 60-foot exclusion zone, I take it.

Mr. Finley: No.

Two people are walking side by side--

Unknown Speaker: No.

I have two people walking 15 feet away from each other.

Mr. Finley: --But at all points sidewalk counselors can always come right up.

Unknown Speaker: I'm talking about the extent of the zone.

It can be 60 feet if two people are walking 15 feet away from each other, each being protected by the bubble.

Mr. Finley: I think I would say it could be 30 feet but not 60, 15 in this direction and 15... that's 30.

Unknown Speaker: At the outer extremities it would be 60.

There's a 60-foot slot.

Mr. Finley: It could possibly be, although--

Unknown Speaker: Fifteen... well, it's not... it's mathematical.

It's 15 feet to the left, 15 feet to the right, 15 feet each between, that's 60, right?

Mr. Finley: --The reason I said possibly is there's no evidence in the record of that problem ever happening.

Unknown Speaker: Do we need evidence to add 15 X 4?

[Laughter]

Mr. Finley: No, Your Honor, we don't need a mathematical expert.

But this... the point you're raising--

Unknown Speaker: Of course, we don't have to limit it to two.

They could have four each, 15 feet apart.

[Laughter]

It would take care of a four-lane highway.

I don't know why Justice Kennedy limits it to two.

Mr. Finley: --I think you're alluding to the notion of the floating bubble, and I want to remind this Court that judges under a Federal statute, 18 U.S.C. 1507, have what amounts to a floating bubble around any building or residence you use or occupy.

People can't go near--

Unknown Speaker: Yes, but the building doesn't float.

[Laughter]

Mr. Finley: --But judges move from building to building, and it says building or residence used or occupied by judges, so you are protected from people demonstrating near your courthouse, your home, an office you may use off-premises--

Unknown Speaker: Yes, but I have to get... On the hypothesis you're raising, I have to get to the courthouse or to the house, or whatnot, before the zone appears.

Mr. Finley: --Yes, and it--

Unknown Speaker: It doesn't come out to meet me.

Mr. Finley: --No, and if there were a record that protestors started impeding your paths as you tried to go to work or to home, I submit someone could easily get an injunction to keep a clear zone--

Unknown Speaker: But wouldn't the--

Mr. Finley: --around you so you could get to work.

Unknown Speaker: --But wouldn't there be a difference, and isn't this the difficulty in this case, that if there were simply a 15-foot zone around one person, that's fairly easy to administer and to police, but when you've got multiple, intersecting 15-foot zones around a lot of people who may even be subject to argument as even covered by the zone, you've got something which is far more difficult to administer.

And I was suggesting a moment ago that... when Mr. Sekulow was arguing that there was a kind of a practicality consideration in having a zone at all, but there's another practicality argument, and that is when the zones are moving and intersecting like this, it may be difficult to enforce with reliable evidence, with reliable proof.

And isn't that a good argument for saying, don't have floating zones, have fixed zones.

Realize that things are going to be unpleasant outside the fixed zones, they're going to be less unpleasant inside, but everybody will know where the line is, and the First Amendment isn't going to suffer from the uncertainty.

Isn't that a fair argument?

Mr. Finley: I think it is, Your Honor, and just if I may conclude the point... I see the red light is on... that a lot of the problems you're alluding to are precisely because the district judge here gave the defendants more leeway than the fixed zone in Madsen.

He allowed them on the same side of the sidewalk, which creates the need to have a clear zone around people.

If you push them across the street, as you affirmed in Madsen, a lot of these problems would not arise, and this--

Unknown Speaker: Thank you, Ms. Finley.

Mr. Finley: --Thank you.

Unknown Speaker: General Dellinger, we'll hear from you.

Argument of Walter E. Dellinger, III

Mr. Dellinger: Thank you, Mr. Chief Justice, and may it please the Court:

In light of the questions about the practicality of how this injunction works, it might be useful to look at this case from the vantage point of the trial judge in February of 1992.

At that point, he had had several days of hearings on the preliminary injunction and weeks of testimony on the contempt proceedings against Paul and Robert Schenck and others who violated the temporary restraining order.

One of his findings, and they're set out at pages 79 to 149 of the Joint Appendix, one of his findings was that these named defendants had deliberately engaged in a technique of physically crowding in an intimidating and obstructing manner.

What's a trial judge supposed to do in the face of that kind of finding?

If he were to issue an injunction precisely in those terms ordering the defendants to cease crowding in an intimidating and obstructing manner, what problems would that cause for a police officer who is at the scene, trying to understand how to enforce that?

Unknown Speaker: Well, one of the things he's supposed to do is read the First Amendment, I take it, and what he's doing here is, he's prohibiting certain conduct based on speech, and that means that the injunction must be precisely tailored.

It's not just to eliminate harassment.

Mr. Dellinger: I'm--

Unknown Speaker: This injunction goes much further than that, and if you want to defend it as saying that everything here is necessary to avoid the touching, grabbing aspect, that's one thing, but the harassment rationale as I see it goes much further.

It protects people against repeated, very annoying, very stressful expression of views by those who differ with them--

Mr. Dellinger: --Justice Kennedy, I--

Unknown Speaker: --and that's a very difficult First Amendment case.

Mr. Dellinger: --I believe that it is not difficult because the trial judge did tailor this to burden no more speech than necessary by making it clear that this message, or messages could continue to be conveyed.

There's no speech that is silenced by this injunction.

I think the judge understood that the message that someone is about to commit a deeply immoral act is disturbing and upsetting, but that's the price of the First Amendment.

One of our citizens has a constitutional right to convey that message to another, but in this case to avoid a different kind of problem, not the message, but two aspects of the crowding that are not related to the message are at issue here.

Unknown Speaker: In--

Mr. Dellinger: Justice Breyer, if you wish... well, in further response to Justice Kennedy, one of those issues is the sheer effect of the crowding itself, that is, the use of what were called constructive blockades by having 4, 6, 10 people literally crowd around a patient as she attempted to approach the clinic, and to use that in an intimidating way.

The second--

Unknown Speaker: --I don't under... why is that a constructive blockade?

I... a blockade means preventing somebody from entering.

Were these people preventing anyone from entering?

Mr. Dellinger: --It was a construct--

Unknown Speaker: They were just annoying the person--

Mr. Dellinger: --No.

Unknown Speaker: --and that's why it was a constructive blockade.

Mr. Dellinger: Well, they were not physically barring the people from entering, but--

Unknown Speaker: Well then, it's not a blockade--

Mr. Dellinger: --Then it's not a blockade.

Unknown Speaker: --constructive or otherwise, it seems to me.

Mr. Dellinger: The term, constructive blockade I think came from those who were engaged in them, Justice Scalia, because the use of 4, 6, or 10 people to crowd around an individual and to use that effect... we had testimony, or the plaintiffs had testimony in this case of one of the women who said she felt like she was in the middle of a lynch mob.

That is intended to dissuade people from continuing to go, not by appealing to her conscience or her shame or her medical self-interest, but to dissuade her because of running this gauntlet, and if that prevents people--

Unknown Speaker: I see.

Are you going to apply that to labor picketing, too?

And Claiborne Hardware case, where the Court... this Court struck down a speech-restrictive injunction because the violence that accompanied it was episodic and isolated.

Mr. Dellinger: --Here, Justice O'Connor--

Unknown Speaker: How do you distinguish that?

Mr. Dellinger: --Here I think it is--

Unknown Speaker: And it effectively prevented people from entering a restaurant, or what have you.

Mr. Dellinger: --I think the difference is that in this case the... first of all, there was a record... the contempt proceedings are probably the most accessible place... that this was constant and ongoing, and this was an attempt that this was a medical facility, its--

Unknown Speaker: But I thought there were something like five episodes over 18 months.

Mr. Dellinger: --Those were the ones, I think, that were raised in the contempt proceedings.

The actual controversy itself, the actual proceedings were continuous and, of course, they were under, as several justices noted, under a TRO, so that, you know, ideally they're... they... there shouldn't have been any.

What the judge did in this case, faced with this situation and trying to give some kind of guidance that would be useful to the parties, to the police, is to set what Justice Ginsburg called a keep-your-distance rule.

Basically--

Unknown Speaker: In answer to Justice Kennedy and Justice O'Connor, and I wonder, I'm just asking this, is it relevant to consider this is not labor picketing or civil rights picketing because the people by and large are pregnant women who are undergoing a serious medical procedure.

You haven't brought that up, and I wonder the extent to which that is constitutionally relevant.

I would think it might be.

Mr. Dellinger: --I do think it is relevant in precisely this way.

The Court's decisions, like Grayned v. City of Rockford, about a public school, NLRB v. Baptist Hospital, cases like that, note that the Government interest is sometimes dependent upon the nature of the activities that are to occur.

You don't need social science... you don't need social science evidence to reach the conclusion that having to go through this kind of obstructive and intimidating crowding is not good for people who are on their way to see the doctor.

Unknown Speaker: Is there... well, that's it, on their way to see the doctor.

Surely it's not the case that every woman who's going in there is going in to have an abortion.

I assume they must visit the clinic at least once beforehand.

Mr. Dellinger: There are different--

Unknown Speaker: And maybe once afterwards.

Mr. Dellinger: --That is correct.

Unknown Speaker: So probably less than half of the women who are going in, just to speak of the women who are going in... does this injunction apply only to women going in?

Mr. Dellinger: No.

It applies to all of those, including staff members, who--

Unknown Speaker: Who go in, so even if you take just the women, probably less than half of them are going in to have--

Mr. Dellinger: --That is--

Unknown Speaker: --a medical procedure--

Mr. Dellinger: --Well--

Unknown Speaker: --at that time.

Mr. Dellinger: --Yes.

At least there are probably less than half of them are going in.

Some may be being treated for cervical cancer, or for a number of--

Unknown Speaker: So would the same reasoning apply simply to a group of, a building where doctors had offices but no surgical procedures were performed?

Would the same stress analysis apply?

Mr. Dellinger: --It would apply, Chief Justice Rehnquist, but with, I think, significantly less force than it does in those facilities where stress applies.

Basically these... what the judge came up with, here, while protecting the ability to convey this message, was a simple set of rules.

If you read... if you read the preliminary injunction at pages 183 and--

Unknown Speaker: Mr. Dellinger, may I interrupt you--

Mr. Dellinger: --Yes.

Unknown Speaker: --because I think you're going on to another point, and I just want to raise another point along Justice Breyer's lines.

Is your argument that when the State is... or when the court is enforcing, let's say, a trespassing law, in determining what would be an appropriate injunction to enforce that star to preclude threatened violations, it may take into consideration the activities of the victims, and if the activity of the victim may be to obtain medical treatment, then high blood pressure can be taken into account.

Is that basically your argument?

Mr. Dellinger: Yes, that is certainly part of a calculation here.

Unknown Speaker: So labor picketing in the context of air traffic controllers would be a different case?

Mr. Dellinger: I think--

Unknown Speaker: Because you don't want to upset air traffic controllers.

[Laughter]

Mr. Dellinger: --It is... it is not at all clear that there would be any prohibition in the First Amendment or elsewhere on the use of close physical proximity and an intimidating and obstructing manner whether you're dealing with judges coming to work or air traffic controllers.

I mean, I think what you want to look at the cases and be careful about, as this judge was, is that you do not want to predicate an injunction on the fact that the message would be upsetting to the air traffic controllers or the judge.

The message is something we have to tolerate.

Unknown Speaker: General Dellinger, what is careful about 15 feet of any personal vehicle seeking access to or leaving?

One point that was made is, there's no definition of when access begins or when leaving ends, so this could go on and on and on.

There's no stopping point and there's no starting point.

Mr. Dellinger: Justice O'Connor, at page 29 of the Joint Appendix the judge... I'm sorry.

I'm sorry, Justice Ginsburg... at page 8... 29 of the Joint Appendix the judge notes precisely that this is limited to activities that are at the sites, not anywhere you may go in doing it, and it is limited as well by the fact that it simply says, stop crowding these patients and let them walk away.

It doesn't--

Unknown Speaker: Thank you, General Dellinger.

Mr. Dellinger: --Thank you.

Unknown Speaker: Mr. Sekulow, you have 3 minutes remaining.

Rebuttal of Jay A. Sekulow

Mr. Sekulow: Thank you, Mr. Chief Justice.

Actually, what General Dellinger was referring to on page 29 says that the scope of the injunction and these injunction floating zones do float without geographic limitation.

It says that they are structured to protect the rights of all party and directed to the activities at the site chosen for demonstration.

Anyplace these individuals are demonstrating is the site chosen for demonstration.

As I understand the Government's argument and the respondents', there is now a medical exception to the First Amendment.

This Court in Madsen dealt with evidence that came to the same conclusions regarding increased stress.

Despite that increased stress, the no-approach zone was still deemed to burden more speech than necessary.

If the owner of Claiborne Hardware had a heart condition, would he now say, get these protesters away from the front of my store because I've got a heart condition that's going to be aggravated when I go in there, and I think the answer has to be no to that, that... the owner of a fur store is aggravated because there's animal rights protesters out there picketing.

I think these are the types of things which is part of our free debate.

Unknown Speaker: Sticks and stones will break my bones but words can never hurt me.

That's the First Amendment.

Mr. Sekulow: That's certainly our position of it, and that is exactly correct, and those verbs might be aggressive advocacy, and I think it's also important--

Unknown Speaker: And your point is they've never used sticks or stones.

Mr. Sekulow: --Not these clients.

Unknown Speaker: No.

Mr. Sekulow: But they do use words, but it's interesting, those words under this injunction, if they were directed at, say, a Xerox salesman who was doing business with the abortion facility and a demonstrator were to try to approach him and say, please don't do business with this facility because they're engaged in a practice that we personally find abhorrent.

That Xerox salesman... not just the woman seeking abortion... that Xerox salesman has the advantage of this injunction.

On page 183, it says it applies to any person seeking access.

Unknown Speaker: But if in fact, coming right next to a person, right in their face, screaming at them and so forth, does physically hurt them, then it's like a stick or stone.

Mr. Sekulow: Well, I think that's actually prohibited by the injunction that we're not challenging, screaming in someone's face to the point where--

Unknown Speaker: And if pressing around them and so forth hurts them as they're going into a medical procedure, then it's like a stick or stone.

Mr. Sekulow: --And I think that's why section 1(c), Justice Breyer, prohibits crowding, and we're not challenging that.

But this injunction on the cease-and-desist provision on paragraph 1(c) says that it can be imposed by any person or any group of persons, so a group of persons are entering the abortion facility, the woman seeking the abortion wants to get the information, wants to talk to the sidewalk counselor, but the companion says no.

Under this injunction, under section (c), 1(c), the cease-and-desist provision is implicated.

That's the way it's drafted.

That burdens more speech than necessary.

The citation, and it's consistent in the briefs, we think it just misses the mark, and that is the Beth Israel Hospital v. NRLB did not say you can't distribute literature inside a hospital.

It said that... which by the way, of course, as this Court knows, NLRB was not a First Amendment case, but it overturned a prohibition on leafleting and solicitation in the cafeteria and in the lunchroom in a private hospital where patients did gather on occasion, so--

Unknown Speaker: Mr. Sekulow, was there any followup to the colloquy with the district judge, who seemed to recognize that there was some ambiguity in this 15... what has been referred to here as the bubble zone within 15 feet of persons or vehicles seeking access to, or leaving the facilities... you've called our attention to that colloquy where the judge said, gosh, I didn't mean that.

Mr. Sekulow: --Your Honor, I was referring to the reply brief, the attachment at appendix A-3.

Chief Justice Rehnquist: Thank you, Mr. Sekulow.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Madsen v. Women's Health Center, Inc. - Oral Argument

Fri, 09 Jan 2009 14:49:49 +0000

Case:

Madsen v. Women's Health Center, Inc.

Media File:

93-880_19940428-argument.mp3

Related Transcript:

1993_93_880_argument.xml

Transcript:

Argument of Mathew D. Staver

Chief Justice Rehnquist: We'll hear argument now in Number 93-880, Judy Madsen v. Womens Health Care Center.

Mr. Stavers.

Mr. Staver: Mr. Chief Justice and may it please the Court:

Neither Judy Madsen, Ed Martin, nor Shirley Hobbs surrender their constitutional rights to free speech when they enter the speech free zone surrounding the Aware Clinic.

This case is about the right to peacefully display a sign and distribute literature in a traditional public forum.

Petitioners do not seek to trespass or blockade, nor are those portions of the injunction challenged here today.

In a nonpublic forum, this Court noted that one need not ponder the contents of a pamphlet or leaflet in order to mechanically take it from someone's hand.

Despite this Court's holding, the injunction totally bans literature distribution.

This Court recognized in Bray and in Casey that men and women of good conscience have common and respectable reasons for opposing abortion.

Indeed, abortion speech, or speech about abortion lies at the very core of the First Amendment.

If the First Amendment really means that speech must be uninhibited, robust, and wide open, the injunction must be dissolved.

The injunction violates petitioner's right to free speech because it is both viewpoint-based and a prior restraint, and because it lacks precision.

Viewpoint-based regulations like prior restraints come to this Court with a heavy presumption against their constitutional validity.

Unknown Speaker: Why do you say it's viewpoint-based, Mr. Staver?

Mr. Staver: Your Honor, Mr. Chief Justice, the reason why it's viewpoint-based is, Judy Madsen is restrained once she enters the 300-foot buffer zone.

When she enters that zone, she can only speak if the listener favorably reacts to that speech.

When she enters this zone, the injunction states that she can only speak if someone approaches her, extends a hand, or she can continue to speak only if they show a positive interest in what she has to say.

Also, the injunction is specifically addressing Judy Madsen's speech, which in context is more than activities which it restrains, but goes to speech.

Judy Madsen's speech at the abortion clinic is clearly on the issue of abortion.

Judy Madsen had not been to this clinic prior to the entry of the injunction.

Now when she enters the speech-free zones--

Unknown Speaker: Well, what about the application of the 36-foot limit that just says you have to stay out of that?

Do you take the position that's content-based, or viewpoint-based?

Mr. Staver: --Yes, Justice O'Connor, we do.

Unknown Speaker: Why?

Mr. Staver: The reason is, is that Judy Madsen cannot ever enter that zone, whereas other individuals expressing a contrary view can.

Unknown Speaker: Well, but on your theory, every injunction, whether it's in the labor context or any other context, would be viewpoint-based, and I don't think we've ever thought that injunctions of that type became content-based just because they were focused on a named individual, or a group of individuals.

Mr. Staver: Justice O'Connor, it wouldn't be viewpoint-based on every injunction.

This injunction, for example, in sections (1) and (2) would clearly not be viewpoint-based.

Those restrain activities which we don't challenge, but the injunction the way it was drafted and the way--

Unknown Speaker: No, but similarly, on the 36-foot zone, I don't see what makes that content-based, or a restriction that says you can't make noise within that zone, or something of that sort.

Mr. Staver: --Your Honor, on... Justice O'Connor, on page 24 of the respondent's brief, they specifically address the types of images that would be impermissible under this injunction.

They state that the images that would be impermissible are those that tend to traumatize.

Who makes that determination but the listener's reaction to speech, and the listener's reaction to speech could never be a content-neutral basis for regulating an individual's--

Unknown Speaker: I think you're really spreading this content-based and viewpoint thing all over the First Amendment area, rather than confining it.

I mean, it seems to me that answer is really a vagueness challenge, rather than a viewpoint-base challenge.

Mr. Staver: --Mr. Chief Justice, we raise the vagueness challenge as well as a viewpoint-base challenge, and I believe in this particular case, looking at Justice... or Judge McGregor, who drafted this injunction, he clearly stated that it applies to a belief, not specifically activities or individuals.

It applies to those beliefs that seem to be supportive of prolife.

Unknown Speaker: Is any part of your challenge here based on the fact that the injunction enjoined only those who wanted to protest against abortion and not those for it?

Mr. Staver: No, Mr. Chief Justice, that's not the basis of the challenge.

The basis is that in the internal workings of the injunction itself, it says that when someone enters this zone... for example, Judy Madsen... she can only speak if that individual listener shows a positive interest in what she has to say.

That listener, therefore, is empowered with ex parte adjunctive authority to censor her speech.

Unknown Speaker: That's the 300-foot zone, Mr. Staver, but what about the 36-foot zone, which is what Justice O'Connor was asking about.

Mr. Staver: Justice Scalia, the 36-foot zone would be the same way.

The way Judge McGregor intended and applied that 36--

Unknown Speaker: Well, she's not allowed within that zone at all.

Mr. Staver: --She can't ever go within that zone.

Unknown Speaker: Okay, so that's... you can't say that that's content-based because she can only go in if the people agree with her.

She can't go in at all.

Mr. Staver: No, she can't go in at all.

Unknown Speaker: So why is it content-based?

Mr. Staver: Because of... the only reason she can't go in has nothing to do with her activities but solely because of her belief.

Judge McGregor--

Unknown Speaker: In that extent, every injunction that... if you enjoin a labor union where there's been violence on the picket line you're only directing the injunction against somebody that has a particular point of view.

Doesn't it always... isn't it always content-based where it's an injunction?

Mr. Staver: --I believe it is, Justice Scalia.

Unknown Speaker: Okay, but why did you say no before?

Mr. Staver: No, well, in the sections (1) and (2)--

Unknown Speaker: It seems to me you say yes, and that's why we have to be especially careful with injunctions.

Mr. Staver: --Sections (3) through (9) would be the content-based.

Sections (1) and (2) I would say would not be, because that simply restrains an activity and not individual speech, which we are not challenging.

Unknown Speaker: May I ask you a question that seems to be the premise... one of the premises of your argument here about the 300-foot zone?

I understood you to say that within the 300-foot zone your clients could not distribute a leaflet, or offer them, and could not speak, but as I'm reading the reference, and I'm on A-9 of the petition appendix, under paragraph (5) on the 300-foot... covering the 300-foot zone, there's an injunction against physically approaching any person seeking the services of the clinic, but I don't see anything in there that prevents your clients from standing there with a picket sign or with leaflets ready for somebody who may want to take them, or even, so long as it doesn't otherwise offend the noise proscription, from saying, don't go in and get an abortion, or what-not.

It's just that they cannot go up to individuals and importune them on an individual basis, isn't that true?

Mr. Staver: That's true in part, Justice Souter, but outside of the 36-foot zone, for example, Judy Madsen could not raise her voice to reach somebody within the zone because that could be heard.

She could not display an image, for that could be seen.

Unknown Speaker: But that is... and I see what you're getting at there.

You've got a problem of images seen inside, noise penetrating the clinic, but there is in terms no limitation on speech which does not project images inside, or rise to a level that would be heard inside, within the 300-foot zone, isn't that true?

Mr. Staver: No, that's not true, Justice Souter.

Going on further, at the end of the injunction, it speaks about the invited contact portion.

It says that that portion--

Unknown Speaker: Where are you reading?

Where are you?

Mr. Staver: --I'm reading right now on the Joint Appendix, page 63, which is also reproduced in the petition for writ of cert, but it's on the last page of the injunction, just before the signature blocks.

It speaks about invited contact, and it begins with, ordered and adjudged.

Unknown Speaker: Is... just so I don't flip back and forth, is the same thing in the petition appendix?

Mr. Staver: Yes.

It's reproduced in the Petition for Writ of Certiorari, and it's also in the Joint Appendix.

Unknown Speaker: Okay.

Mr. Staver: In that section, Justice Souter, it speaks about invited contact, and that invited contact portion applies outside of the 36-foot zone.

It calls it the buffer zone.

Section (3) is the only place within the injunction that refers to a buffer zone, so the invited contact applies outside of the zone, which would be in that 300-foot zone.

It says that Judy Madsen would not be able to speak if someone didn't have a positive interest in what she had to say, nor could she distribute literature--

Unknown Speaker: Well, can you quote the text that you're relying on?

Mr. Staver: --Yes.

Unknown Speaker: What's the numbered paragraph in the injunction?

Mr. Staver: On the petition for writ of cert, Justice Souter, it is on page B-11.

Unknown Speaker: B-11?

Mr. Staver: At the bottom, and it begins with, ordered and adjudged.

It's the second ordered and adjudged on that page.

It says,

"At all times on all days, respondents will have the right of invited contact with persons protected hereby so long as it is outside the clinic buffer zone. "

which is the 36-foot zone.

""Invited contact" is defined as conduct by the person sought to be contacted which affirmatively indicates a desire to engage in conversation or to receive literature. "

"Such affirmative indication may include where the person sought to be contacted physically approaches a respondent or where such person extends his or her hand to receive literature, or speaks words indicating a positive interest in what the respondent is saying. "

It goes on down--

Unknown Speaker: Which implies that the respondent is saying something, and clearly implies that the respondent can be holding literature to distribute if somebody will take it, and that was the only point that I was trying to make.

Mr. Staver: --Justice Souter, the next sentence goes down and basically says such invited contact by a person protected hereby as it relates to conduct... contact at such person's residence is limited to conduct transmitted by the resident to a respondent at a distance from and at a time prior to the contact, so that--

Unknown Speaker: That's--

--Well, you may have a different issue--

Mr. Staver: --That's--

Unknown Speaker: --at the residence zone than you do at the 300-foot zone around the clinic, but there's nothing in there that indicates to me... in fact, the indication is to the contrary... that you cannot speak so long as you're not heard inside, or that you can't hold a placard or a leaflet.

Mr. Staver: --Justice Souter, I believe that when Judy Madsen enters this 36-foot zone, she--

Unknown Speaker: No, I'm talking about--

Mr. Staver: --I'm sorry, the--

Unknown Speaker: --the 300-foot zone.

Mr. Staver: --I'm sorry... the 300-foot zone.

She could not approach an individual if they didn't show some positive interest in her.

Unknown Speaker: That's entirely correct.

I mean, I understand that, but they can be within the 300-foot zone, speaking, I presume, at a normal voice level, holding their placard, and offering leaflets in case somebody is willing to come over and take one.

But they can't speak to anybody unless spoken to.

Mr. Staver: That's exactly right.

Prior consent equals prior--

Unknown Speaker: Well, they can't physically approach.

Mr. Staver: --They can't... but they couldn't physically approach if they're simply there with literature within the 300-foot zone.

Unknown Speaker: Mr. Staver, you've several times said, I believe, in connection with your responses.

Was there a time... did you ever seek from the trial judge a clarification or a modification?

I mean, you concede that the first injunction was valid.

Do you concede... because you said you don't challenge parts of this, that there was a violation of that first injunction, so some remedy was in order.

So my first question is, did you propose, when you got this injunction, any modifications to clarify the vague portions, and second, having conceded violation of the original injunction, what remedy would have been within the First Amendment limits?

Mr. Staver: Justice Ginsbug, let me answer both questions, and looking at the second one first, there is no conceded violation of the first injunction.

On page 375 of the Joint Appendix, respondents specifically stated that the contempt proceedings regarding any violations of the 1992 had nothing to do with Judy Madsen.

On page 436, the judge said, I understand that, and that's why Judy Madsen never testified.

But going to the first... the... question second, there were no requests specifically for modification on the 1993.

There was a request to dissolve the temporary restraining order back in 1991 and 1992.

That was denied.

Right after the entry of this '93 injunction was the only time that arrest occurred, and it wasn't petitioners.

It was those individuals penetrating the zone.

Unknown Speaker: Judy Madsen wasn't around, was she, at the time the amended injunction was entered?

Mr. Staver: Yes, she was, Justice Scalia.

She was not at the clinic.

Her name... the reason why she is here--

Unknown Speaker: I thought you said that she had come there... she had not been a party who had violated any prior injunction.

Mr. Staver: --That's correct, Justice Scalia.

Unknown Speaker: Had she been demonstrating after the first injunction was entered?

Mr. Staver: Not at the Aware Clinic, Justice Scalia.

In fact, her name appeared--

Unknown Speaker: Well then, how could she move for modification of the amended injunction if it was entered before she was even around the place?

Mr. Staver: --I don't believe that she really could, and I believe that it would have bee futile to do that, because Judge McGregor, a few days after this injunction was entered, made all of the statements that are before this court about how he interpreted this injunction.

He said it applied to anybody who seemed to be supportive of prolife.

If you had notice of the injunction, penetrated the zone, 36-foot zone, and were prolife, you were hauled off to jail.

Unknown Speaker: Is your position, then, that this injunction may be valid as to some people, but it isn't as to the particular complainants in this case?

Mr. Staver: Justice Ginsburg, it's certainly not valid as it relates to the three petitioners.

I don't believe--

Unknown Speaker: That's the limit of your argument, just these three petitioners, and for the rest, the injunction would stand?

If you're saying that Judy Madsen wasn't around, and the others weren't around, this injunction shouldn't have touched them, then is the relief you're seeking just to excise those three people from the terms of the injunction?

Mr. Staver: --No, Justice Ginsburg, it is not, because that would not give full relief to Judy Madsen, because she would be like Myrna Cheffer before the Eleventh Circuit Court of Appeals.

By simply penetrating the 36-foot zone, she would be considered to act in concert.

So we bring both an as-applied and a facial challenge to the overbreadth of how the judge... not pursuant to Rule 65, but how the judge crafted and applied the in-concert section.

He clearly tried to restrain a belief.

He clearly tries to require prior consent before even distributing pieces of literature, and prior consent would be--

Unknown Speaker: Let me--

Mr. Staver: --a prior restraint.

Unknown Speaker: --just to be sure I understand your position, are you arguing that as a matter of fact the evidence doesn't show that she was in concert with those, or are you arguing as a matter of law that if she didn't have anything to do with the protests until after the injunction was entered, she could not ever be held in concert?

Mr. Staver: I believe, Justice Stevens, as a matter of fact and law.

As a matter of fact, she was not in concert, and as a matter of law--

Unknown Speaker: And is there a finding of fact to the contrary?

Mr. Staver: --That she was in concert?

Unknown Speaker: Yes.

Mr. Staver: There is a finding of fact in the 1992 generically lumping all of the people together, but in the 1993 injunction, Justice Stevens, there's no finding--

Unknown Speaker: Well, let me just take it one step at a time, because it's hard to... this is a complicated case.

Is there, or is there not, a finding of fact that Judy Madsen acted in concert with the people who were enjoined?

Mr. Staver: --Not in the 1993 injunction.

It never--

Unknown Speaker: So that's not before us.

But then your legal position is that as a matter of law, if she came in after the injunction was entered, she could never be held in concert with the defendants?

Mr. Staver: --No.

She could be held in concert, Justice Stevens, if she were really actively aiding and abetting those named in the injunction, but that's not how the judge intended to apply the in-concert.

He commanded that a traffic sign be erected that simply said, warning, demonstrations and picketing in this area are limited by court order.

Unknown Speaker: Well, Judy Madsen has never been found guilty of anything, has she?

Mr. Staver: She has in the 1993, but not guilty as terms of criminal, no.

Unknown Speaker: She was cited for contempt?

Mr. Staver: No, Mr. Chief Justice, she was never cited for contempt, never arrested.

Unknown Speaker: Well then, what sanctions have been imposed on her by the trial court?

Mr. Staver: The 1993 injunction is the sanction of not being able to speak.

Unknown Speaker: Well, but has she been held to have violated that?

Mr. Staver: No, she has not.

Unknown Speaker: So we're not talking, then, about any sanction that was imposed on her.

You're saying that she is subject to sanctions for conduct that she shouldn't be.

Mr. Staver: Exactly right, Mr. Chief Justice.

Unknown Speaker: Well, in Broadrick v. Oklahoma, I think we used some language about an in-concert statement there, saying that we would cross that bridge when we came to it, in effect.

Mr. Staver: Mr. Chief Justice, I think this Court has come to it, because we don't have to speculate as to how far the in-concert section goes.

In fact, we have an unusual record where we see the judge's comments about how he applied it.

Secondly, we have the city police who were enforcing the injunction asking the judge to clarify, and that did come up, Justice Ginsburg, about the police enforcers wanting to clarify whether that was proper to arrest anybody who penetrated the zone.

The judge denied their motion to clarify, and that motion was opposed by the clinic.

Unknown Speaker: Mr. Staver, you said I believe in your brief that you were attacking this injunction on its face, and that's why the record didn't need to have in it any more than it already had, so when you speak of the internal operations of this, that seems to be inconsistent with your insistence that you didn't need to put very much in the record because you were attacking the injunction on its face, which seems to say that these restrictions never could be constitutional, no matter what the facts were.

Mr. Staver: Justice Ginsburg, we've argued to the Florida supreme court and also to this court that it's as applied to Judy Madsen factually and on its face as well, and in fact the same evidence that's before this Court was before the court of Florida, and the same arguments were made, and we asked them to de novo review this case.

The only pieces of testimony that were not before the Florida supreme court was that of Arick, Doyle, and Wymer, but respondents specifically stated that testimony had nothing to do with petitioners.

This particular court, as well as the Florida supreme court, had the testimony of April 12th, the record and the comments by Judge McGregor, and all the testimony that was before this particular court except for those other three testimonies, so the record evidence, looking at it de novo, does not show that the injunction was constitutionally applied properly to the three petitioners.

Unknown Speaker: Well, Mr. Staver, is everything you've said about petitioner Madsen equally true as to the other named petitioners?

None of them were found to have violated the earlier injunction?

None of them were active at this particular clinic demonstration?

Mr. Staver: That's correct, Justice O'Connor.

Let me explain that statement.

Petitioner--

Unknown Speaker: Your comments have all been directed to petitioner Madsen, but I want to be clear about the other named petitioners as well.

Mr. Staver: --Yes.

Petitioner Madsen nor Hobbs testified, because there was no allegations against them.

Petitioner Martin did testify.

There were two allegations.

However, there was never a finding of contempt.

There was only the motion... there was only the modification of the 1993 injunction.

The 1993 injunction never names any of petitioners or Rescue America by name.

In respect to petitioner Martin, the two allegations against him were, number 1) did he on one occasion stand in front of a doctor's car and move after the doctor honked the horn, and secondly, did he distribute a brochure that was published prior to the 1992 injunction after that injunction?

First, if he were there on this occasion, which he denies, that wouldn't constitute blocking.

Secondly, if he did distribute the brochure, which he denies, it doesn't incite anyone to illegal activity.

He specifically disclaimed blocking access to a clinic--

Unknown Speaker: What was the proceeding at which this testimony was taken?

Mr. Staver: --This was at a proceeding, Mr. Chief Justice, for a motion to contempt, and a motion to modify.

Unknown Speaker: At a motion to hold Martin in contempt?

Mr. Staver: Yes, Mr. Chief Justice, a motion to hold all the defendants named in the 1992 injunction in contempt.

Unknown Speaker: And Martin was one of them?

Mr. Staver: That's correct.

Unknown Speaker: Mr. Staver, I must say, you have me thoroughly confused.

You say you're challenging this injunction as applied to Judy Madsen, but you also say it has not yet been applied to Judy Madsen.

How can you challenge it as applied when it hasn't been applied?

I don't understand.

Mr. Staver: What I mean by that, Justice Scalia, is that she is presently restrained.

She has not been found in contempt, and so it's not applied in that particular sense.

Unknown Speaker: Well, you say she's restrained.

Maybe she's not.

Do we know that she's... how do we know that she's restrained?

You tell us that she's covered by the in-concert.

We don't know that she's covered by the in-concert until someone says, Judy Madsen, you're covered by the in-concert provision.

Mr. Staver: As far as the in-concert provision, we don't know that for a fact, but we don't have to speculate about the broad breadth of this in concert, because we know that 2 days after this injunction all these others were arrested for simply penetrating the zone, who were not in concert.

Unknown Speaker: Well, that seems to me not an as-applied-to-Judy-Madsen point.

That seems to me a facial challenge.

Mr. Staver: That's exactly right.

That's the section that we're bringing as a facial challenge.

Unknown Speaker: Your contention is you can't use the terms, in-concert?

I don't know how you can issue an injunction that's effective unless it applies not just to the people it's directed at but to anyone acting in concert with them.

Mr. Staver: Justice Scalia, let me explain.

The 336-foot zone.

The in-concert section is the only thing that would be facially, so if you excise Judy Madsen out, she would find herself in the same position as the Myrna Cheffer in the Eleventh Circuit court of appeals case, not being able to penetrate the zone.

But at any rate, this particular injunction certainly restrains her speech by restricting her access in this 300-foot zone.

Unknown Speaker: You're saying that "in concert" cannot be used in an injunction?

Mr. Staver: No, it certainly can, if it's used properly according to this Court's decision in Chase.

In Chase, this Court looked at how an in-concert application could be used, and that it should not be used to attempt to restrain the entire world who simply receives notice of an injunction, but it should be used if proof was shown that someone was actively in concert, aiding and abetting.

How the judge applied this, though, was to restrain the entire world.

Unknown Speaker: How do we know that?

Mr. Staver: We know it from the April 12 transcript, where the judge brought individuals who simply penetrated the zone.

On page 68 of the Joint Appendix, the judge--

Unknown Speaker: We don't have those people in front of us.

It's just... your argument is so confusing, because we don't have people here that have been found in contempt, so I don't know why we aren't just looking at this facially.

Mr. Staver: --Justice O'Connor, even aside from the in-concert, that's not the basis of the argument.

The basis of the argument is that originally this injunction should never have been applied against Judy Madsen.

This Court could not--

Unknown Speaker: But there are parts of this injunction that you say are okay.

Maybe we should clarify that by looking at the appendix.

You say you're not challenging every part of this current injunction.

Can you... by pointing us to the Joint Appendix, which parts are you saying you're not challenging, are okay?

Mr. Staver: --We would not challenge page 57, sections (1) and (2).

That section would prohibit blocking access to the clinic.

Unknown Speaker: Can you tell me where in the petitioner... the appendix--

Mr. Staver: That's Joint Appendix, Volume 1, page 57, in the Joint Appendix.

That's sections (1) and (2), and that is a reiteration, actually, of the 1992 injunction verbatim.

Unknown Speaker: --So that's what you're saying... you are challenging this new injunction wholesale.

The only thing that you're saying is okay is what was repeated from the first injunction.

Mr. Staver: Well, no, we would also not challenge the jamming phone that is part of this injunction.

We don't believe that that would be a constitutional right to call somebody's phone and jam up their phones.

Section (4) is the sound limitation.

We do challenge parts of that.

Parts of that section (4) on the sound and images limitation specifically prohibits the use of bullhorns.

We would not challenge a clearly defined volume restriction which would protect the interest of the clinic as well as sections (1) and (2), but we do challenge a prohibition on the making of any sound, or the display of any image.

In this particular injunction, someone who would be singing outside of the 36-foot zone, if that could be heard within the clinic, would violate the injunction.

Unknown Speaker: I... it seems to me that section (4) is limited to that, as far as sound goes... other sounds within earshot of the patients inside the clinic.

I read (4) as saying you only can't make such noise as would penetrate the clinic.

You don't contend that's unreasonable, do you?

Mr. Staver: We wouldn't contend that that's unreasonable, but this particular section speaks about the time limitations that these restrictions apply.

It says it applies from 7:30 a.m. to noon, Mondays through Saturdays, during surgical procedures and recovery periods.

We don't know when surgical procedures or recovery periods are, and it's not our interpretation, it's respondents' as well, because on pages 79 or so of the Joint Appendix, they specifically requested that that term be specified so that they would know when the surgery and recovery periods are.

Unknown Speaker: So that's a vagueness challenge to (4).

Mr. Staver: That's a vagueness challenge, Justice Scalia.

Unknown Speaker: But you don't contest that they can prevent people from making so much noise that it annoys patients at the clinic, inside the clinic.

Mr. Staver: No.

We wouldn't contest that, Justice Scalia.

What we would contest, though, is the limitation on sound.

If it simply said you can't intentionally shout to disturb this clinic, or to use sound amplification devices, we would have no problem with that kind of a reasonably defined--

Unknown Speaker: So you don't have an objection--

Mr. Staver: --broad restriction.

Unknown Speaker: --So you don't have an objection to the injunction against using a bullhorn.

Mr. Staver: No, we would not, Justice Souter.

Mr. Chief Justice, I would like to reserve the rest of my time for rebuttal.

Unknown Speaker: Very well, Mr. Staver.

Mr. D'Alemberte.

Argument of Talbot D'Alemberte

Mr. D'Alemberte: Mr. Chief Justice, may it please the Court:

This cases arises in context of an extensive and sustained campaign directed against the women's health care clinic in Melbourne, Florida.

This clinic provided a variety of services, including abortions.

The campaign employed tactics which included the blocking of access to the clinic and the creation of rather chaotic conditions around the clinic.

Unknown Speaker: What do you mean by the blocking of access, Mr. D'Alemberte?

Mr. D'Alemberte: Your Honor, I think the testimony showed--

Unknown Speaker: Did they specifically stop cars from going in?

Mr. D'Alemberte: --Yes, sir, Your Honor, they did, by conducting a closely ordered and slow-moving parade--

Unknown Speaker: They did not part when cars came up?

Mr. D'Alemberte: --They... they did not immediately part.

What happened Your Honor, and you can see it on the videotape which has been lodged with the Court--

Unknown Speaker: I watched the videotape.

It seemed to me they parted when the cars came up.

Mr. D'Alemberte: --They did, Your Honor.

What happened... I think as you look at the videotape and listen to the testimony of Ruth Arick, which accompanies that videotape and explains it, it shows that the people would begin to approach the car as the car moved off of U.S. 1 on Dixie Way.

As the car then moved towards the clinic, it was moving through crowds of people.

The videotape showed one of the days when there were not 400 demonstrators, as there were at other days, but they showed some number, and then what happened as they got to the clinic driveway.

People would slowly move out of the way, and you'd see, I think in the videotape, people swarming around the car, sometimes thrusting literature, attempting to thrust literature into the car.

Unknown Speaker: Is that unlawful?

Mr. D'Alemberte: Your Honor, it is in context--

Unknown Speaker: --into the car?

Mr. D'Alemberte: --It is in context of a health care facility.

It is not a violation of statutes, but it is within the discretion of a trial judge to prohibit that kind of conduct when the consequences of that conduct are shown to impair women's health, and that's the testimony in this case.

Unknown Speaker: The testimony is that... well.

Mr. D'Alemberte: Yes, sir.

The testimony is quite clearly, from Dr. Snydle and from the nurses, and from Ruth Arick, that the pulse rate, respiration rate, all the vital signs were changed, that the procedures became more dangerous to women, that sometimes people had to be delayed or turned away, they required higher sedation.

There's a strong health care interest here which is demonstrated by the facts in this record and uncontradicted.

Unknown Speaker: Mr. D'Alemberte, there was a case that didn't come to this Court but that was once very much in the news, and it was the Skokie case, where the argument was made that the people that would be subjected to this demonstration, because of their peculiar condition, would be certainly psychologically upset and even physically sick.

Do I take it from your argument that you disagree with the lower court's disposition?

Mr. D'Alemberte: No, Your Honor.

I think that demonstrations and other circumstances that upset the listener cannot be banned just because people are upset, but we are now dealing with a facility that's a health care facility.

We would not tolerate this kind of conduct around a hospital.

Unknown Speaker: Whose testimony are you relying on?

How many items of testimony?

Is it not the testimony of one doctor?

Mr. D'Alemberte: Well--

Unknown Speaker: One doctor at the abortion clinic, correct?

Mr. D'Alemberte: --One... the doctor... Dr. Snydle, yes, sir.

Unknown Speaker: Right.

Mr. D'Alemberte: --and--

Unknown Speaker: Right, and what opposing testimony would you have expected to be introduced?

Mr. D'Alemberte: --Well, Your Honor, what I would expect is that Dr. Snydle might be cross-examined in a way to make that testimony unbelievable.

It's clear from the record that the trial judge who sat on this case found Dr. Snydle's testimony quite credible, and that testimony showed not only that people's vital signs were affected and their health was affected but also it showed that people turned away from the clinic.

Unknown Speaker: So no... any speech can be prohibited if it affects people's vital signs, encourages them to be upset and may place their health at risk, is that... is that--

Mr. D'Alemberte: Well, Your Honor, in context of people who are coming to a health care facility... and we need to think of this as a hospital.

Unknown Speaker: --If I have a heart condition, can I carry a sign on me which says, heart condition, do not upset me--

[Laughter]

--and the court can issue an injunction that people shall not approach me unless I invite them to?

Mr. D'Alemberte: Well, Your Honor, I don't think that courts could do that precisely, unless there were someone... they might issue an injunction not against all the world, but if someone were coming around and stalking you, as this Court found these people, the defendants in this case were stalking the clinic personnel, yes, I think the Court can--

Unknown Speaker: What does stalking mean?

Does it mean walking after them?

Mr. D'Alemberte: --Following closely, I think, Your Honor.

Unknown Speaker: Following closely and saying nasty things to them?

Mr. D'Alemberte: Yes, sir.

Unknown Speaker: Have you ever gone near a picket line around a strike-bound plant?

Mr. D'Alemberte: Absolutely, Your Honor.

Unknown Speaker: And been called a strike-breaker?

Mr. D'Alemberte: I don't think that's been said to me, Your Honor, but--

Unknown Speaker: You've heard other people--

[Laughter]

All of these things are... this is wide, robust, wide-open debate you're talking about.

Mr. D'Alemberte: --Exactly, Your Honor, but not the kind of debate--

Unknown Speaker: You can't be stalked by people who want to say nasty things to you.

Mr. D'Alemberte: --Precisely, but not the kind of debate we have in a hospital zone.

The reason we pass by a hospital zone and we see that sign which says, quiet, hospital zone, is because we expect that to be a tranquil environment.

Unknown Speaker: How about a building of doctor's offices?

Would the same thing apply there?

Mr. D'Alemberte: It might, depending on the conditions, Your Honor.

If people were going there for treatment, and there were people crowding closely around in a way that was frankly intended to upset, intended to block... one of the things that I think is missing from the discussion so far, and certainly from counsel's presentation, is the intention of these defendants.

Not of all the world, not of all prolife advocates, but of these defendants, their intention, and announced intention before the trial court, as stipulated, they intended to block the clinics.

Unknown Speaker: Well, just before you get into that, would your heart-beat test apply to an abortion counseling facility where there is just counseling of women?

There are no abortion procedures undertaken there.

That's at some other clinic.

Mr. D'Alemberte: It clearly would not be... I mean, again I'm not familiar with all the medical tests, but it seems to me that the value would not be quite so high, because you'd not be providing treatment, and I think all of us--

Unknown Speaker: Was there a specific finding here that it was because of the treatment--

Mr. D'Alemberte: --No, sir--

Unknown Speaker: --that it was necessary to have this injunction?

Mr. D'Alemberte: --No, sir.

The trial court order cited to the doctor's testimony, and cited to the doctor's testimony relating to the impact of these... they were not just demonstrations.

The trial judge called this area through which they had to pass a gauntlet, and if you listen to the testimony and think about 400 people being in this narrow residential street, and think about what someone's going through when they're going to that facility--

Unknown Speaker: You talked about a gauntlet, and you said they were swarming, they were thrusting--

Mr. D'Alemberte: --Yes, sir.

Unknown Speaker: --I did not see this in the videotape.

I looked at the videotape, and it seemed to me to be a rather orderly demonstration, given the emotions and the philosophic differences between these people.

Mr. D'Alemberte: Well, Your Honor, the videotape was not taken on the day in which the greatest number of people were there, but if you will look at that videotape, and while you look at it think not just about the... what we see there, but think about what's being seen from inside that car as the patient is coming to the clinic, perhaps apprehensive, as of all of us would be, in going through any kind of medical procedure, and think about what happens when somebody approaches your car, somebody does indeed swarm around the car.

At least I see that in the videotape--

Unknown Speaker: Mr.--

Mr. D'Alemberte: --people thrusting literature, attempting to thrust literature in the window, sometimes people calling names of people who might have some expectation of privacy coming to a medical facility.

I just don't think it's the kind of thing that we want to permit going into a hospital facility--

Unknown Speaker: --Mr.--

Mr. D'Alemberte: --going into a medical facility.

Unknown Speaker: --Do you agree that the named petitioners here were not found in contempt?

Mr. D'Alemberte: Your Honor, I do disagree with that, and if I may--

Unknown Speaker: You think they were found--

Mr. D'Alemberte: --I'm sorry, I didn't listen to your question closely enough.

They were not, by name, found in contempt.

What they were found is the court finding said that the respondents, and I think this is finding A, and I'm reading from the appendix--

Unknown Speaker: --Where in the... is it in the Joint--

Mr. D'Alemberte: --It is in the Joint Appendix, Your Honor, and I'm sorry, I was reading from the appendix to the petition for certiorari.

Unknown Speaker: --Where is it in the petition for certiorari?

Mr. D'Alemberte: It's in... it's point A on B-5, Your Honor.

Unknown Speaker: B-5?

Mr. D'Alemberte: B-5, that the actions of the respondents and those in concert with them in the street and driveway approaches to the clinic of the plaintiffs continue to impede and obstruct both staff and patients from entering the clinic.

Unknown Speaker: Well, in any event, there's no finding by name of these three.

Mr. D'Alemberte: By name.

Unknown Speaker: Do we then have, in your view, just a facial challenge here?

Is that what we have to address?

Mr. D'Alemberte: I believe that's correct, Your Honor, indeed.

That was--

Unknown Speaker: All right, and if we have that, address, if you would, for a few minutes in your argument what standard we employ to test the validity of an injunction like this.

Mr. D'Alemberte: --Yes.

Unknown Speaker: I'm not aware of any case where we've applied time, place, and manner tests to injunctions.

Maybe we should, but I don't know that we ever have, and I'm not sure what the test is.

Some amici have said it must be a stricter test than the ordinary time, place, and manner.

How do we test out the provisions in front of us on a facial challenge?

Mr. D'Alemberte: Your Honor, in introduction I think I can find only one opinion.

It was, I think, Justice Stevens in Hirsh v. City of Atlanta mentioned that time, place, and manner should apply to injunctions as well.

Well, I think there should be no different test, in a way.

The suggestion of amici, as I understand it, is that injunctions should be looked at more closely for some reason.

The point made earlier, I believe, by Justice Ginsburg was that an injunction, unlike a statute, can be easily amended.

It can be modified.

If we're dealing with some kind of a special circumstance the courts are free to hear those special circumstances.

Unknown Speaker: A statute applies to everybody, Mr. D'Alemberte.

When a legislature says nobody shall annoy people going into hospitals, a 36-foot quiet zone around a hospital, nobody, no matter what their cause, shall be in there.

It's even-handed.

Mr. D'Alemberte: Yes, sir.

Unknown Speaker: An injunction applies to one group and says, this group shall not be within 36 feet of a hospital.

You don't see any difference between those two situations?

Mr. D'Alemberte: Yes, sir, Your Honor, and I see an important difference, and the difference, I think, favors the injunction, and the difference is that now you do not say to all the world you may not enter this zone.

You say it only to the people who have said, in open court, that they are going to block the clinic.

Please understand that that's the undertaking of these petitioners, and indeed, of all the defendants in the trial court, that their intention was to block the clinic.

They said it in a stipulation before the court, before the 1992 injunction was entered.

These people have vowed their purpose to block access to the clinic.

They've said on the record that they--

Unknown Speaker: Mr. D'Alemberte--

Mr. D'Alemberte: --do not believe that criminal law ought to prevent them from blocking the clinic.

Unknown Speaker: --They have conceded that section (2) of the injunction, which prevents them from in any manner obstructing or interfering with access to the clinic is okay.

Mr. D'Alemberte: Well--

Unknown Speaker: That's not contested.

Mr. D'Alemberte: --Well, Your Honor, on the record... and it's not in the Joint Appendix.

For some reason it got left out... at pages 64 and 65, the stipulation was that Ed Martin, Judy Madsen, and Shirley Hobbs well understand that peacefully blocking access to facilities might constitute a trespass.

They feel a violation of such a criminal statute is justified by their belief that protection of the unborn may merit breaking the criminal trespass laws.

Now, what they've said, they've announced that the spirit of Wichita is coming to Central Florida.

They've announced that they intend to close down abortion clinics, and they have said that they will conduct activity, and that they do not have to follow the law, that their... it's in the stipulation, Your Honor.

Unknown Speaker: Section (2) is in the injunction, too.

It says, you do that, you're going to go to jail.

Mr. D'Alemberte: Well, Your Honor--

Unknown Speaker: That's all right.

They don't object to that.

Mr. D'Alemberte: --Section (2) they did object to up to the point where the Fifth District Court of Appeals in Florida affirmed it in December of last year.

Unknown Speaker: They've gotten wiser.

They don't object to it now.

Mr. D'Alemberte: Well, this can be an educational process--

[Laughter]

--and yet we know--

Unknown Speaker: Mr. D'Alemberte--

Mr. D'Alemberte: --that prior to the 1993 injunction the clinic was still being harassed, and indeed, the harassment was escalating, and we do know that.

Unknown Speaker: --I'd like to go back to this point about the difference between the statute and injunction, and call your attention specifically to the point that was made in one of the many amici briefs in this case.

This was the one on behalf of the CIO... AFL-CIO, and it was that a statute of general application has little danger of censoring one set of ideas or speakers but not others, where an injunction by its very nature homes in on a particular group of speakers, so there can be a suspicion.

You gave the example of quiet around hospitals, but that's not what this regulation is.

It's quiet around this particular clinic, directed to a particular group of speakers.

Mr. D'Alemberte: It is, Your Honor, and to illustrate the point, if these particular defendants, who have a record of harassing intimidation, doing a large range of activities to block the clinic and to upset clinic personnel, to try to drive people away, if these defendants were actually to walk across the street carrying a prochoice sign, they would be prohibited.

It's these defendants, because of what their avowed purpose has been of closing down the clinic.

They have been enjoined, and they have not been enjoined as a way of trying to eliminate speech from this area.

It's--

Unknown Speaker: You say a prochoice speaker would be subject to the injunction?

Mr. D'Alemberte: --If these defendants were to carry prochoice signs, they would be subject to an injunction.

Conversely, if a prolife person not acting in concert with these defendants were to be in that zone, they would not be prohibited, unless they were operating in concert with these defendants, and so it's not a matter of what's being said, it's what these people have done.

Unknown Speaker: So these defendants were enjoined from making any sort of speech of any kind, whether prolife or prochoice?

Mr. D'Alemberte: In the 36-foot zone, because they had used that zone, the court found, to block access, and those findings were--

Unknown Speaker: And you consider that content-neutral, just as a... it's... an injunction against a labor union is content-neutral because it also prevents the labor union from saying, don't join the union, right, so it's not--

[Laughter]

Mr. D'Alemberte: --Yes, sir.

Unknown Speaker: Well, I--

--Mr. D'Alemberte--

Mr. D'Alemberte: It's simply, they're not allowed in the area, Your Honor, and the reason they're not allowed in the area, because they've avowed their purpose to close down the clinic, and they took activity to do it.

Unknown Speaker: --With respect, Mr. D'Alemberte, de facto, any injunction against a labor union or against this group is content-directed, de facto it is.

You may say in theory the union can come out for the employer, but that's not--

Mr. D'Alemberte: But Your Honor... Your Honor--

Unknown Speaker: --what it's all about.

You know what kind of speech you're stopping.

Mr. D'Alemberte: --Except, Your Honor, there's a difference here.

The difference here is that these rescue organizations do not represent all of the prolife movement.

They represent a small fraction of it, and they represent a fraction of it that's dedicated to shutting down the clinics, and one that avowedly says they will violate the law to do it.

Now, if someone shows up who is not associated with them, but is a prolife speaker, they're not subject to the injunction, and so it's not their speech, but it's their conduct--

Unknown Speaker: Well, they take their chance--

Mr. D'Alemberte: --and it's conduct which they said--

Unknown Speaker: --They take their chance at being considered in concert.

I mean, if you walk up... you know, a policeman say, he looks to me like he's in... have ever heard of chilling effect?

Mr. D'Alemberte: --Your Honor, I concede that there's a possibility of some chilling effect.

You have to make the judgments.

But let me make certain that the Court understands that the judgments being represented earlier, being made by the court... that is, the trial judge... I hope that full transcript is read in context of the fact that these people who were charged with violation of the injunction were at a preliminary hearing.

They were not under oath, not under cross-examination, and a number of their representations of the facts are now being incorporated into this argument.

That's not really what the trial judge intended by this order and I think it's clear.

Unknown Speaker: Mr. D'Alemberte, may I ask you just some factual background that would relate to the 300-foot zone around the house?

If we were to follow the suggestion of the AFL-CIO and apply something like the Carroll standard, at the very least we would require that before there was a restriction, an injunction restricting speech, there would have to have been demonstration that an injunction relating to action only had been inadequate.

Was there any prior injunction with respect to activities at the residences of the clients?

Mr. D'Alemberte: There was not, Your Honor.

Unknown Speaker: Is there anything in the record about what happened at the residences, other than the incident about the individuals going to the nurse's house when the children were at home?

Mr. D'Alemberte: Yes, there was, Your Honor.

A portion of the videotape shows a demonstration that I believe one of the clinic personnel and was commented on by Ruth Arick, a witness, and I believe that there was also a nurse... well, Nurse Pam Doyle.

There were several instances of that.

Unknown Speaker: Was there any indication that any conduct at the residences which were subject to this 300-foot injunction was unlawful?

Was there any allegation of an unlawful act committed?

Mr. D'Alemberte: Of... in the sense of violating the statute, no, Your Honor.

Unknown Speaker: Any statute, or any injunction.

Mr. D'Alemberte: No, Your Honor.

Unknown Speaker: So there'd been nothing except lawful but annoying actions?

Mr. D'Alemberte: Not in the record.

There... one of these may have been in a municipality where there was an antiresidential picketing statute... ordinance, but I don't think it's in the record, Your Honor.

Let me make the final point, and that is that the protesters now, after this injunction, may stand with their toes against the pavement, and they can be as close to the targets of their speech... indeed, the targets of the speech are the people coming into the clinic, as the width of that road, and since all people, according to this record, come to this clinic by car, they can be within a few feet of anyone who is attempting to come to the car.

They can hold up their signs, they can voice their slogans, and they can shout so long as it's not so loud that people can be heard inside the clinic.

They can stand just as close today as they could prior to this injunctive... injunction of 1993.

They cannot stand on the north side of this narrow residential street, but they can stand on the south side.

Thank you.

Unknown Speaker: Thank you, Mr. D'Alemberte.

General Days, we'll hear from you.

Argument of Drew S. Days, III

Mr. Days, III: Mr. Chief Justice and may it please the Court:

In contrast to a statute or ordinance, a court order properly addresses the particular conduct that is before the Court and is properly confined to addressing that conduct.

Consequently, we think the question before the Court presented here is whether the 1993 amended permanent injunction properly addressed the particular conduct before that court, and properly confined itself to addressing that conduct within constitutional limits.

This is a situation where Judge McGregor found that the 1992 injunction was inadequate to protect the interests of persons associated with the clinic, and that was not... that was an injunction that was not challenged.

I think the record also shows some reluctance on the part of the judge to modify that injunction, but once he did, it was because he had heard 3 days of evidence in that regard.

The constitutional limits with respect to injunctions, we would submit, are those imposed by this Court with respect to reasonable time, place, and manner.

Unknown Speaker: Do you have a case in which a challenged injunction was judged by the time, place, and manner standard?

Mr. Days, III: We do not have any additional case to the one that Mr. D'Alemberte cited, the Hirsh v. City of Atlanta.

Unknown Speaker: Yes, which wasn't a case, really, but was--

Mr. Days, III: Well, that's correct.

Unknown Speaker: --the opinions of separate justices.

Mr. Days, III: Well, Your Honor, I suppose that's one of the reasons why we're here--

[Laughter]

--because we think that's what the Court should be doing in this respect.

Unknown Speaker: Specifically, why not the Carroll standard?

Mr. Days, III: Why not the Carroll standard?

Because I think that first of all it depends on what part of the 1993 injunction you're addressing.

You were talking about the residential picketing provision.

But I think to pick up on something that my colleague said, we're talking about not just a medical facility, we're talking about conditions where interference with the ability of women to get to the clinic and get the services that the clinic provides would cause them irreparable harm.

This is not a provision that would apply across the board to medical facilities, although I think it is true that medical facilities are not factories, mines, or assembly plants, as one of the members of the court said, but no, I think a court looking at the situation has the power to enjoin certain behavior that poses a threat to people in violation of rights that are protected under State or Federal law, and that's what the judge did in this case.

Unknown Speaker: Do you think there are any special dangers that attend the use of injunctions to prohibit this conduct that do not attend the enactment of a criminal statute?

Mr. Days, III: I wouldn't... Justice Kennedy, I wouldn't call them special dangers.

I think that it's simply that the mode of analysis, the evidence that the court would look at with respect to the constitutionality of a statute that imposed time, place, or manner restrictions would be different from the type of evidence that the court would look at in dealing with an injunction.

Unknown Speaker: The punishment would be different, too, wouldn't it?

Punishment for contempt can be a good deal more summary than a criminal indictment and trial.

Mr. Days, III: That is true, but I think it's also the case that an injunction has more flexibility.

That is, the court can look at the situation and make modifications to the extent that they overreach--

Unknown Speaker: But isn't that just the point?

Mr. Days, III: --with respect to the particular problem.

Unknown Speaker: It has flexibility because it can be applied to some parties and not to others, and isn't that... I use the word "danger"... a significant concern where free speech is at issue?

Mr. Days, III: It's certainly a matter of concern, but I think that unless the Court is going to prohibit courts from issuing injunctions under circumstances like these, there has to be some ability of the courts to address problems like those presented in this particular case.

Unknown Speaker: Yes, there has to be an ability, but doesn't that ability have to be accompanied by a special solicitude for free speech rights because certain persons are being singled out, which is not the case of a statute, and I don't see anything in your argument where you've acknowledged that.

Mr. Days, III: Well, first of all, Justice Kennedy, I think it is possible for even statutes to deal with particular problems that may fall more heavily on one group than another, but once again, what the court would do is try to determine whether the legislative body that enacted the statute or ordinance was responding to an actual evil.

That would be the analysis.

But it seems to me that applying the Fair Education Association time, place, or manner approach is perfectly suitable and sufficient for situations of this kind.

I don't agree with the AFL-CIO that there has to be something you might call a time, place, manner plus test.

I simply think that, given this type of situation, the court can look at the evidence.

Unknown Speaker: Mr. Days, we're not dealing with an abstract question now.

We have... don't we have a long history in this country of enjoining labor unions, of enjoining all kinds of political protesters, students in the sixties, civil rights marchers?

Doesn't that caution particular care in dealing with injunctions, rather than a lighter brand of review than one we would apply to a statute?

Mr. Days, III: I'm not suggesting a lighter brand.

I'm simply suggesting that the same approach that's used with respect to statutes ought to be adopted by this Court, but the evidence that is considered is different, but I don't think that is any reason to think that there has to be a heavier test under these circumstances.

What this particular case establishes is that the conduct is the purpose... is the objective of the injunction.

It's not directed at content of the petitioner's speech, but rather to conduct that the trial court found--

Unknown Speaker: Excuse me.

Mr. Days, III: --Yes.

Unknown Speaker: The... what should I say?

What prompts the injunction is conduct, but what the injunction is directed to is not only conduct but attempted speech, and I assume that, you know, in some cases that can be justified if there's been a history of violence on the picket line, you can simply say okay, we've given you guys a chance.

You had a prior injunction, you ignored it.

No picket line.

You just can't be trusted.

But you know, it isn't the conduct that's being enjoined any more, it's speech that's being enjoined because of prior conduct.

Now, do you acknowledge that that's what's involved here?

Mr. Days, III: Well, certainly the restriction--

Unknown Speaker: Or do you think the speech itself is unlawful?

Mr. Days, III: --No, the speech of course is not unlawful.

That's not our assertion.

Of course, controlling the conduct, enjoining the conduct will have some impact on speech, but it is in response to the fact that people in the position, in this case close to the clinic, intimidated, harassed, interfered with people who were seeking the services of the clinic, or were providing those services, and that was sufficient in the view of the court to justify the injunction.

Unknown Speaker: What do you mean by intimidated or harassed?

Do you mean, seeking to give them leaflets?

Mr. Days, III: No, I'm not talking about that.

Unknown Speaker: Calling them names?

Mr. Days, III: I'm not talking about that.

I think, Justice Scalia, this record shows, for example, that there were ladders placed up against the fences of the clinic, signs were put down inside these privacy fences so that the patients could see it in the areas where surgery was being conducted, or they were recovering.

Some of those signs had the names of the partners of women who were going through those surgical procedures.

Those were not simply informational efforts on the part of the protesters.

Those were designed to interfere with the processes of the clinic.

Unknown Speaker: Well, just as calling names is designed to hurt.

Calling President Nixon, to speak of recent events, a murderer as happened in demonstrations when the Vietnam War was in progress is designed to hurt.

Does that make it unlawful?

Mr. Days, III: It does not make it unlawful.

I--

Unknown Speaker: May I ask--

Mr. Days, III: --Justice Ginsburg raised the Skokie issue... excuse me.

Unknown Speaker: --are you saying that it would be constitutionally protected conduct to follow someone around day after day after day, calling him a murderer and a baby killer and so forth, just... everywhere he went, a person could follow him and keep repeating the same message over and over?

Would that be constitutionally protected?

Mr. Days, III: I think, given those facts, that might approach to the point of being an assault, creating a fear for that person of some type of physical attack.

Under those circumstances, I think courts could intervene.

Indeed, under Florida law, there is a stalking statute which is simply not following people around, it's putting them in fear of some other harm to their person.

Unknown Speaker: But are you in effect saying that there does have to be at least a predicate threat of illegal conduct?

Mr. Days, III: I'm not saying that.

I think that there, in this case was illegal--

Unknown Speaker: So... well, the only reason I ask, in your answer to Justice Stevens, when you said that that might raise the... might rise to the level of an assault or a threat of harm, I thought you were saying those would in fact be criminal offenses and they would be the predicate for the injunction in that case.

Mr. Days, III: --May I finish?

Unknown Speaker: Yes.

That is not what you meant?

You may answer the question.

Mr. Days, III: That there could be a predicate for criminal action.

Unknown Speaker: But that they are not a necessary predicate.

Mr. Days, III: That's correct.

Unknown Speaker: Thank you, General Days.

Mr. Days, III: Thank you.

Unknown Speaker: Mr. Staver, you have 3 minutes remaining.

Rebuttal of Mathew D. Staver

Mr. Staver: An injunction, de facto, is content-based.

The Carroll standard is the applicable standard.

To apply the time, place, and manner standard would result in the overruling of more than 60 years of this Court's precedent, beginning in 1931 with Near.

The standard applicable to this case is that an injunction touching on free speech is a prior restraint which carries a heavy presumption against constitutional validity and which must be precisely tailored to the exact needs of the case.

That standard is totally inapposite to a time, place, and manner standard precisely because it focuses on someone's speech, in this case petitioner's prior to her or them being able to speak their speech.

It criminalizes their side of the debate.

This particular case is certainly coming to this Court with a heavy presumption against constitutional validity.

It is a touchstone of First Amendment regulation to be very precise, not overkill.

This injunction is overkill.

As in Claiborne Hardware, that injunction was overkill.

As in Near, that injunction was a prior restraint.

This injunction, instead of using a surgeon's scalpel, cuts with a butcher's knife.

This injunction restrains Judy Madsen's speech from being able to distribute a piece of literature which is not offensive or distressing to anyone forever, within the 36-foot zone.

Judy Madsen can never lawfully be present on a public sidewalk, public highway, or right-of-way, period, under this injunction.

Judy Madsen must censor her speech when she goes within the 36-foot zone.

Despite page 375 of the Joint Appendix, where respondent specifically said, Judy Madsen had never been a target of the contempt proceedings, yet she's still a part of this injunction.

The clinic and the court below impermissibly lumped her protected speech with some other unknown--

Unknown Speaker: Are you arguing that if she had been the president of Operation Rescue and said, I believe in everything they're doing and I want to help them as much as I can, there'd be a different result?

Mr. Staver: --If she were, Justice Stevens, condoning and orchestrating this?

Unknown Speaker: Yes.

Mr. Staver: She was not a target of the contempt in any respect.

Unknown Speaker: But I'm asking you, if she were, if she said, I agree with everything they do, I want to help them as much as I can, would she then lose her... the rights you're describing?

Mr. Staver: No, Justice Stevens.

Unknown Speaker: Then I don't really understand what difference it makes if you've got Judy Madsen rather than the president of the organization.

Mr. Staver: I believe on page 920 of this Court's decision in Claiborne Hardware, it says that to restrain those illegal activities for individuals, not simply because they're members of a group.

Judy Madsen did no illegal activity.

Thank you, Mr. Chief Justice.

Chief Justice Rehnquist: Thank you, Mr. Staver, the case is submitted.

Attribution:

The OYEZ Project

Featured:

National Organization for Women (NOW) v. Scheidler - Oral Argument

Fri, 09 Jan 2009 14:49:53 +0000

Case:

National Organization for Women (NOW) v. Scheidler

Media File:

92-780_19931208-argument.mp3

Related Transcript:

1993_92_780_argument.xml

Transcript:

Argument of Fay Clayton

Chief Justice Rehnquist: We'll hear argument first this morning in No. 92-780, National Organization for Women, Inc. v. Joseph Scheidler.

Ms. Clayton.

Mr. Clayton: Thank you, Mr. Chief Justice, may it please the Court:

Unknown Speaker: Ms. Clayton, before you start, could I ask precisely whom you represent here?

Mr. Clayton: --Yes, Your Honor.

I represent the National Organization for Women in its capacity as a representative of its female members who might use the clinic service... the clinic services, and not in it's own capacity on the RICO claim.

We did have NOW in its individual capacity on the antitrust, which may have given some confusion.

Of course, in addition I also represent the clinics, Delaware Women's Health Center and Summit, who have standing in their own right and who also represent a class of all similarly situated clinics.

Unknown Speaker: So NOW, using the initials, is definitely a party to this proceeding here.

Mr. Clayton: Yes, it is, Your Honor.

It's seeking to protect the rights of its women members.

And in particular it's just seeking the injunctive relief, it's not seeking damages for those women.

The clinics, of course, are seeking damages for themselves and all similarly situated clinics.

Your Honors, this case involves forcible violent conduct by a highly structured enterprise called PLAN, an enterprise with a very clearly defined goal, to force every women's health center that offers abortion out of business by whatever means are necessary, including terrorist tactics.

Our case arises under RICO, which doesn't say a word about economic motive, and the question before this Court is whether to apply the statute that Congress wrote or amend it judicially to add this unstated requirement.

I'd like to discuss three points this morning.

First, that the text and structure of RICO do not allow for an economic motive requirement.

Second, that to apply the statute as Congress wrote it easily comports with the First Amendment.

And third, that an economic motive requirement would be bad policy in any event.

Starting with the text, we bring our case under section 1962(c) of RICO, which doesn't mention economic motive, and neither do the two terms where the lower court claimed to find this requirement.

Both "racketeering activity" and "enterprise" are terms that Congress expressly defined.

They're terms that this Court has called broad.

And in the Sedima case, this Court pointed out that "racketeering activity" consists of the commission of the predicate acts, no more and no less.

And in H.J. the Court recognized that this generous definition would purposefully attract a broad array of perpetrators.

We know that Congress did not want to limit racketeering activity to only those crimes that were economically motivated, because when Congress chose the 30-some-odd crimes to include in RICO as the predicate acts, it included numerous crimes that have no necessary relation to money at all.

In fact, three of the first four, arson, kidnap, and murder, have no necessary relation to money.

And none of the predicate acts is any less a crime if it's committed for some other reason like power, hatred, or revenge.

Unknown Speaker: Kidnapping is usually done for money, isn't it?

Mr. Clayton: Your Honor, it sometimes is and it sometimes isn't.

The news the other night indicated there's a new theory about the Lindbergh kidnapping, and it's my suggestion that if it turns out that it was a relative who did it because of a spurned love affair, that would be just as much kidnapping as if it were Mr. Hauptmann who had done it for the ransom.

The fact is that kidnapping doesn't require money.

That's not an element of the crime.

It sometimes includes it, it sometimes doesn't.

Sometimes even organized crime, in terms of mobsters, kidnap people to protect their turf or to avenge an insult, or for some other reason.

Unknown Speaker: Ms. Clayton, it isn't really the predicate acts so much that we're concerned about, as the organization which allegedly is supposed to have committed the predicate acts.

Mr. Clayton: Well, Your Honor, that is the alternate source that the lower court--

Unknown Speaker: Right.

And Congress does use the word "enterprise" for that.

Mr. Clayton: --It certainly does, Your Honor.

Unknown Speaker: And one of the popular proposals that's given political discussion nowadays is so-called enterprise zones.

What do you think they relate to, 4-H Clubs, voluntary associations, or commercial associations essentially?

Mr. Clayton: Well, as used in the enterprise zones that we have in Chicago, they relate to commercial businesses.

But Congress defined the term--

Unknown Speaker: And free enterprise, the term "free enterprise" is used the same way.

It doesn't mean, you know, freedom to associate; it means freedom to conduct business activities.

Mr. Clayton: --Enterprise has many definitions, including that, Your Honor, that's correct.

Unknown Speaker: One of... one of the meanings of "enterprise" at least, one of the possible meanings of "enterprise" does have a commercial element to it.

Mr. Clayton: Unquestionably.

But Congress defined the term "enterprise".

It didn't leave it to our imagination.

It didn't even leave it to dictionary definitions.

Unknown Speaker: Define it.

Now, it defines a number of terms in 1961 where it says "racketeering activity means", and it says what racketeering activity means.

But for enterprise it says "enterprise includes"--

Mr. Clayton: That's right, Your Honor.

Unknown Speaker: --And then it lists a number of things it includes: an individual partnership, corporation, association, and so forth.

Mr. Clayton: And as this Court said in Turkette, that word "includes" means that there are no restrictions on the word "enterprise".

It includes any association, in fact.

Unknown Speaker: Well, but suppose the... suppose the word... just to make the point I'm asking you about clearer, suppose that the phrase used were not "enterprise" alone but "business enterprise".

Mr. Clayton: We'd have a very different situation then, Your Honor.

Unknown Speaker: Yes, but... yeah, and if that were the case and you had this same what you call definition in 1961(4), suppose it read, "business enterprise" includes any individual partnership, corporation, association, and whatnot, would you think that to say it included all of those things would mean that it read out the business, the word "business"?

Mr. Clayton: Your Honor, I would suggest that if Congress had defined the term that way, that would have been an ambiguous definition.

We know that in a predecessor--

Unknown Speaker: Well, but that depends on whether you think enterprise--

Mr. Clayton: --Not at all, Your Honor.

Unknown Speaker: --Has a business connotation to it or not.

Mr. Clayton: Not at all, Your Honor.

I would suggest that in Your Honor's hypothetical, business enterprise seems a little inconsistent with associations, in fact which, as this Court pointed out, is an unambiguous term.

The Court has said that.

The predecessor draft of RICO did use... one of the predecessor drafts, in fact three of them used the term "business enterprise".

Not as part of a definition, I think that would have been confusing; they used it as part of the statutory text.

If 1962(c) said business enterprise, we couldn't be here, there's no question.

But that particular language was dropped by Congress.

It was dropped from Senate bill 1623.

It was dropped from Senate bill 2048 and 2049.

And the version that Congress enacted, Your Honor, doesn't have "business" in it.

Unknown Speaker: My point is that if you believe that 1961(4) alone would not eliminate the business connotation of it.

Mr. Clayton: Your Honor, I do not concede that business means... that enterprise means business.

It includes business enterprises, it includes nonbusiness enterprises.

In fact, the argument that Your Honor is articulating is so much like the one that this Court rejected in Turkette, where it refused to limit RICO's enterprises to legitimate enterprises.

The argument was meant... the argument was made that the enterprise definition meant only legitimate enterprises, but this Court said if Congress had wanted to limit the statute to only legitimate enterprises, it could have used the word.

Here not only did Congress not include the word "business enterprise" in either the statute itself or the definition, Justice Scalia, it actually dropped that term.

And that shows, one, that Congress knows how to use the words when it wants to limit a statute.

And, two, it made the decision not to do that.

Unknown Speaker: Maybe it didn't want... it didn't business there because they didn't think it had to be a business, but it had to... still had to have a commercial motivation, which is what "enterprise" connotes.

Mr. Clayton: Well, Your Honor, Congress didn't say--

Unknown Speaker: You had an antitrust claim below, didn't you?

Mr. Clayton: --We did, Your Honor, and we--

Unknown Speaker: Now, the antitrust laws don't say anything about commercial motivation either, do they?

Mr. Clayton: --They certainly don't.

And it's absolutely--

Unknown Speaker: But do we... do we apply them against, let's say, grape boycotts--

Mr. Clayton: --Your--

Unknown Speaker: --If a group of citizens for political reasons wants to boycott grapes, that's certainly a contract combination or conspiracy in restraint of trade.

Do we apply the antitrust law to them?

Mr. Clayton: --Your Honor, the answer to your question is no, but not because of the definition of what antitrust covers, but because of the First Amendment.

The First Amendment doesn't let the antitrust laws or any laws cover protected speech like a boycott, like a nonviolent boycott.

Unknown Speaker: A boycott's not speech.

It's an action.

Mr. Clayton: Your Honor, the antitrust laws are crystal clear that nonprofit organizations are covered.

This Court said that in D.C. Lawyers, it said it in Professional Engineers, and it said it from time immemorial.

The antitrust laws are clearly applicable to nonprofit organizations.

Unknown Speaker: Of course, the words "trade or commerce" have a business aspect to them too, don't they?

Mr. Clayton: They do, Your Honor.

And you know something, it's very important, Justice Stevens, to remember that RICO does have one business requirement.

It requires effects on business or property.

It requires in section 1964(c) that for a plaintiff to come before this Court in a private case it must have been injured in its business or property.

Congress spelled that out right in the statute, unlike this missing motive requirement which doesn't appear anywhere.

And by the way, Justice Stevens, that economic effect is something that even the lower court recognized we unquestionably have, because this nationwide campaign of terror has caused and continues to cause enormous business and property damages to our plaintiffs.

Another reason that we should not infer an economic motive requirement into a statute that is totally devoid of one is RICO's liberal construction clause.

This clause shows that Congress purposefully chose breadth over narrow constructions.

And as the Court pointed out in Russello, this is an unusual provision, particularly for a criminal statute, and it shows Congress' choice to be expansive, particularly in the remedial provisions of RICO's application.

I would like to address the First Amendment issue.

Justice Scalia's question about the antitrust laws certainly brought that into play.

And the respondents have argued here that their conduct is really speech, but both of the lower courts recognized how false that claim was.

PLAN, as we've pled in our complaint, is dedicated, committed to mob violence, to the use of any and all means necessary to force the clinics and patients to give up their protected rights.

PLAN ridicules peace-loving opponents of abortion.

It calls them wimps.

PLAN says it will only answer to higher laws, which are articulated by the leaders of PLAN.

It will not--

Unknown Speaker: Well those are some of your claims.

But you assert that you would... you would have a right to win here if you... if you proved acts of extortion--

Mr. Clayton: --That's correct.

Unknown Speaker: --Which you would define to include acts which intimidate someone into... simply into not doing something.

Mr. Clayton: Well--

Unknown Speaker: Extortion doesn't even mean you have to get money or property from someone, in your view.

Mr. Clayton: --That's right, Your Honor, on the first point at least.

Unknown Speaker: But just intimidating them into not doing something.

Mr. Clayton: One does not have to get property.

One has to obtain property, which has been interpreted by the courts, meaning to make someone give up property.

In Green this Court said the emphasis is on what the victim loses.

Unknown Speaker: You're getting it is the same as somebody else giving it up.

Mr. Clayton: Not always, Your Honor.

When somebody extorts--

Unknown Speaker: Not always, just for purposes of this statute.

Mr. Clayton: --In this case, Your Honor, there actually is some gain, because in many cases the clinics run by PLAN and its coconspirators actually get the business opportunities in the form of patients who they take to the... the antichoice clinics.

Unknown Speaker: Well, let's say that I want to stop somebody... just to take it out of the abortion context, which tends to inflame... inflame emotions, suppose I want to get somebody to stop selling grapes and I throw pickets across the street.

And simply in order to save... to save... urging other people to boycott.

Simply in order to save money, the supermarket, whoever, says it's just not worth it, we won't sell grapes.

They've been intimidated from selling grapes, isn't that right?

Mr. Clayton: It's protected by the First Amendment, Your Honor.

And in that example, that conduct is not extortion because First Amendment protected speech can never be extortion.

If those same boycott... if those same protesters took their picket signs and hit the... their... the grocery store on the head or forcibly blockaded the store so they could not do business and thus deprived them of their property right, then we would have extortion.

But peaceful picketing can never be extortion.

It can never be a predicate act of any sort under RICO.

Unknown Speaker: Ms. Clayton, do we have... do we have a ruling to review on that issue, as distinguished from the one that you were just discussing with Justice Scalia?

Mr. Clayton: Thank you, Justice Ginsburg.

No, we do not.

That was offered as a question for review by the respondents, but the Court did not see fit to take that issue.

And, in fact, Your Honor, even if the Court were to totally disregarded Hobbs Act extortion, we have so many other predicate acts that arise under Federal pleading standards, that arise from the very same allegations of the complaint... I mean there's Travel Act violations, State law extortion, section 659, arson, kidnap, a lot of others.

So even if we totally put aside the Hobbs Act extortion issue, we have far more than the two required predicate acts.

Unknown Speaker: Well, and if... if we rule as you ask us to in the question presented, that does not prevent the defendants from raising First Amendment defenses below.

Mr. Clayton: Your Honor, of course it doesn't.

We treasure the defendants' First Amendment rights like we treasure our own, and we do not want to in any way infringe on those rights.

We have tried in the discovery and the district court... and as the district court recognized, we've drawn such a wide margin around protected speech.

When they picket, when they pray, when they leaflet, when they petition Congress, this is protected, this can never be extortion, it can never be a predicate act.

But when they give up that protected form of speech and they turn to force and violence and the use of fear of more force and violence, particularly in a context where we have arson, we have killings, we have threatened killings, that... once and a while their advocacy can cross the line, as this Court explained in Claiborne Hardware and in Meadowmore, it can cross the line--

Unknown Speaker: But those issues are not presented here.

Mr. Clayton: --They're not, Your Honor.

They're not.

Unknown Speaker: The question is on the definition of enterprise and pattern of racketeering activity and whether economic motivation is required for those, and that's it, as far what is before us to review this morning.

Mr. Clayton: That's exactly right, Your Honor.

Those are the precise issues.

And as I... I believe I've explained, the statute and the structure of RICO do not allow for it.

Looking at the structure, we see the Organized Crime Control Act does have some business enterprise limitations, RICO does not.

There are a host of policy reasons also for not inferring an economic motive.

If the Court doesn't have any further questions, I would like to save my remaining time for rebuttal.

Unknown Speaker: Very well, Ms. Clayton.

And Mr. Estrada, we'll hear from you.

Argument of Miguel A. Estrada

Mr. Estrada: Thank you, Mr. Chief Justice, and may it please the Court:

For three reasons, RICO does not require a prosecutor or a plaintiff to prove an economic motive.

First, there is no textual basis for such a requirement.

Second, this Court has already rejected similar nontextual limitations on the scope of RICO which were also claimed to derive from Congress' purpose in passing the statute.

And third, the economic motive requirement is elusive and really has little to do with the societal effects of systematic ongoing crime, which is what the statute is about.

As to our first point, the respondents in this Court have not identified the single one textual home of the economic doctrine.

Unknown Speaker: Just... but Justice Scalia just did.

What do you say about the word "enterprise"?

Mr. Estrada: The word "enterprise", Justice Stevens, is defined by statute, and it is not new to this Court.

The notion that the word "enterprise" can include this doctrine really comes from the Ivic case in the Second Circuit, where the Government tried to use the statute to prosecute terrorism in New York City.

And in that case, the Court did point to that word as a... xx basis for the doctrine.

Everything--

Unknown Speaker: In an opinion by--

Mr. Estrada: --Judge Friendly.

Unknown Speaker: --By Judge Friendly, and a pretty good panel.

Judge Oaks, right, and who was the third one, Judge Feinberg, Chief Judge Feinberg?

Mr. Estrada: They're all good judges, Justice Scalia.

[Laughter]

And even good judges sometimes get it wrong.

[Laughter]

Everything the court said, Judge Friendly and all, in the Ivic case had been foreclosed by this Court in the Turkette case.

There is practically no argument in the Ivic opinion that does not have a counterpart in this Court's opinion in Turkette.

And the failure of the enterprise element to give content to this doctrine I think is not only demonstrated by what the Court said in the Turkette case, but also by what the Second Circuit itself did with the doctrine 3 months later in the Bagaric case.

Unknown Speaker: What did Turkette say about enterprise?

Mr. Estrada: The Court in that case noted that the definition by Congress is very broad, and it certainly includes any entity or group of individuals associated in fact, which, the Court noted, includes any group that associates for a common purpose.

The Court said nothing about what the nature of that purpose must be, and that's all the Court said.

And, in fact, as the lower courts have recognized, pinning this doctrine on the enterprise element would really cripple the role that Congress thought RICO would play.

It would take out of the reach of RICO Government entities, courts, nonprofit organizations, all of which have uniformly been recognized by the lower courts to be RICO enterprises, and which even Respondent Scheidler, I think, at page 14 of his brief concedes are RICO enterprises.

In addition, one of this Court's cases, the H.J., Inc. case, had a Government agency as a claimed RICO enterprise, and that certainly gave no pause to the Court in ruling that the complaint in that case was sufficient.

Now--

Unknown Speaker: How do you... how do you, Mr. Estrada, explain our more limited scope accorded to the Sherman Act?

Mr. Estrada: --Well--

Unknown Speaker: Not expanding that to the limit of the meaning of its words.

Mr. Estrada: --Well, there is a difference in the Sherman Act, Justice Scalia, in that it really does tend to make unlawful things that in the absence of the act could be done lawfully.

RICO takes a different tack, and it starts with conduct that is already criminal.

And while Congress said that as to the civil side of RICO, it was looking to the antitrust model, this Court has recognized that that is not a model that the Court should follow in all contexts.

For example, in the Sedima case a claim was made that based on the antitrust laws which called for some form of antitrust injury, there should be a requirement in RICO that there be racketeering injury.

And this Court turned down that argument, saying that racketeering activity is nothing more and nothing less than the commission of the predicate crimes.

Thus while Congress did have the antitrust model of civil damages in mind, I don't think this Court has ever ruled that it... that every aspect of RICO is ruled by what Congress has done in the antitrust areas.

They're similar to some extent, but they're not identical.

That brings me--

Unknown Speaker: The Government supports the interpretation of extortion that the court below adopted as well, doesn't it?

Mr. Estrada: --We haven't briefed--

Unknown Speaker: That is to say you don't have to obtain property?

Mr. Estrada: --We have not briefed the issue, Justice Scalia, but it... because it is not the question on which the Court granted cert. And in our view, whatever--

Unknown Speaker: Well, it is... it is an issue which, if... if supported, would sustain the judgment below, isn't it?

Mr. Estrada: --No--

Unknown Speaker: And therefore we could entertain it.

Mr. Estrada: --You could entertain it.

But if ruled on by the Court, and even if ruled on favorably to the respondents, it would not, in the end, support the judgment, because in our view the facts pled in the complaint, though not the legal theory, do show other predicate acts like arson and other crimes that are predicate acts under RICO, which though not pled as a legal theory, are pled as facts and which would be... and which, in our view, would be sufficient to support the judgment on the pleadings.

Though we have not briefed the Hobbs Act issue, I should say that it is far from clear that nothing was obtained in this case, taking the claims in the complaint in the light most favorable to the plaintiffs.

In the Green case, this Court essentially held that if I put a gun to your head and have you give your wallet to the first person who comes down the street, that is extortion under the Hobbs Act, even though I get nothing physically.

And the reason for that has to be that because even though I have not myself obtained your wallet, I have obtained the right to control the disposition of your wallet which is, in itself, a property right.

You have a right to give your wallet to whom you please, or even keep it yourself, and that's what you usually do all the time.

But if I put a gun to your head and make you give your wallet to the first person who comes down the street, I have taken to you a right to control who should have your wallet.

I have chosen the person who should have your wallet.

And that, in itself, is an important right of your property right to your wallet and is itself a property right.

So even though we have not briefed it--

Unknown Speaker: Mr. Estrada, why I'm concerned about it is that the combination of that broad interpretation of extortion, plus the interpretation of RICO that the petitioners favor here, leaves one in a situation where any... any national organization which has adherents and hangers-on who may commit a tort, hitting someone with a picket sign or trespassing upon property, by committing an unlawful act can be charged with committing extortion even though they're not trying to get money.

And this means that any... any national organization demonstrating for some political cause exposes itself to lawsuits nationwide... which they may win, but they may lose, but it's an enormous amount of expense... by people claiming that that is the very purpose of the organization, to extort.

And it makes... if it were applied to the NAACP in the days of civil rights activism, it would have been very debilitating.

Does it not concern you that the combination of the two can have that effect?

Mr. Estrada: --Justice Scalia, I don't think that anyone here has said anything different about the governing constitutional standards, and I don't think anyone views them any differently as the case comes to the Court.

And there is no question that, as with every other area, there will be issues at the margins.

However, the issue here is whether an economic motive doctrine should be implied to take that danger out of RICO.

And in our view, it would be a poor proxy for that danger and it's not really the issue at this stage on the pleadings.

Thank you.

Unknown Speaker: Thank you, Mr. Estrada.

Mr. Blakey, we'll hear from you.

Argument of G. Robert Blakey

Mr. Blakey: Mr. Chief Justice, and may it please the Court:

This appeal is about a misguided effort by two clinics to invoke two Federal statutes, two powerful Federal statutes, the Hobbs Act and RICO, in the context of a social protest movement.

Under their construction of the statute, it would be applicable not only to a Gotti or a King, but to a Ghandi or a Chavez.

That's a result the Congress specifically intended to avoid in 1970.

This appeal runs squarely into four... three rock-like noes: no extortion, no economic motive, and no standing.

Let me turn first to the question of extortion.

Unknown Speaker: Mr. Blakey, I assume that you're going to deal, both with respect to what you said about standing and what you said about no extortion, with our function as a court of review rather than as a court of first view.

And as I understand it, there was no ruling on standing in the district court or in the court of appeals.

Mr. Blakey: Let me answer your second question first, Your Honor.

The question of standing is always before this Court.

It is jurisdictional.

Even if not raised below, you must face it here.

Unknown Speaker: You are quite right that it's jurisdictional.

But it's usual that we have the benefit of a prior decision on that question.

It's not common that this Court makes the ruling for the first time on an issue of standing.

Was this raised in the district court?

Mr. Blakey: To my knowledge... Your Honor, the posture of this case changed over time.

For example, at the time it was in the circuit court NOW was a plaintiff under the antitrust statute and had standing.

When this Court declined to grant cert on the antitrust question, NOW then no longer was a plaintiff in the antitrust count, and its lack of standing in this Court is directly related to the fact that it is not a plaintiff in the RICO count.

That's something that could not have been raised in the lower court simply because their lack of standing on RICO was not involved in their original petition.

Unknown Speaker: I thought that Ms. Clayton had explained, in answer to Justice Blackmun's question, the capacity in which NOW is appearing at this stage, as distinguished from its position as an antitrust claimant.

Mr. Blakey: Well, if it is appearing as a representative of either the... she is appearing as a representative of the two clinics.

NOW has no standing.

We would quarrel with the standing, first, of NOW because it is not a RICO plaintiff.

We would quarrel with the standing of NOW in behalf of anyone else.

This case was not certified as a class.

They must first--

Unknown Speaker: Was... there was no ruling on that question.

Mr. Blakey: --That is correct, Your Honor.

Unknown Speaker: So it's not as though you're here after there has been a denial of certification.

At this stage, mustn't we assume that question in the light most favorable to the plaintiff?

Mr. Blakey: Yes, but even on the face of this complaint, and certainly in light of the facts set out in the RICO cases statement, NOW has no standing, neither of these clinics have standing.

And it is not only appropriate, but it's a duty on us, as an advocate of this Court, to draw that lack of standing to this Court's attention.

Unknown Speaker: I appreciate that, Mr. Blakey, and I don't want to belabor this point.

But you know that even for jurisdictional questions, this Court generally sits as a court of review.

Mr. Blakey: Yes.

Let me answer the first part of your question.

The grant of cert... contrary to Ms. Clayton's position is we did not seek a grant of cert. What we merely pointed out in our brief was that if this Court took the RICO question, it would face necessarily the question of extortion.

And since we are respondents and not petitioners, we may defend the court below, the judgment of the court below, on any ground whether it was raised below or not, and in this case it was.

Our central and strongest argument is "no extortion".

And there is no extortion in this case for two fundamental reasons.

This statute, the Hobbs Act, was modeled on New York law.

New York law was modeled on the common law.

In 1865, the field code commentary carefully explained that the extortion provisions of that code was part of the property loss series: embezzlement, larceny, robbery and extortion.

Each requires a common law taking, a trespatory taking.

What is happening in this case is they are transposing a clear common law term, extortion, and making it into a modern statutory term, coercion.

And they're doing that by taking the concept "property", which starts out to mean tangible property.

You can interpret it to be intangible property.

You can interpret it to be intangible rights.

And finally, the right is not obtained but the other is deprived of it.

That particular process of interpretation is not reading a statute, it is redrafting it.

Unknown Speaker: Mr. Blakey--

--Mr. Blakey--

--Mr. Blakey, I thought we had a case before us that comes here on a motion to dismiss.

I mean that's what happened below, pleadings and a motion to dismiss.

And I thought that the petitioners... certainly Mr. Estrada, as amicus, said that there are other allegations of predicate acts other than extortion in the pleadings that would be sufficient to withstand a motion to dismiss.

Now, I assume all these things can be addressed in the courts below if it gets back, if it survives the motion to dismiss.

I don't understand why we're really addressing that here.

Mr. Blakey: Your Honor, it is correct to say that the lower court dismissed this under Rule 12.

But the lower court relied on materials outside of the pleading, to wit, in the RICO cases statement.

Unknown Speaker: Well, but do we have to do that?

I mean, do we have to do more than look at the pleadings and are petitioners correct that in those pleadings, at least, that there are allegations of arson and kidnapping and one thing and another, that fall within the--

Mr. Blakey: If you confine yourself to the four corners of the complaint.

Unknown Speaker: --Yeah.

Mr. Blakey: There's not one word about arson, kidnapping, murder, terrorism, or any of the violent acts being alleged here.

The underlying facts in this case are no more than, no less than--

Unknown Speaker: But is there not... Mr. Blakey, is there not the counterpart of a bill of particulars here in the RICO statements that were made?

Mr. Blakey: --Your Honor, the RICO cases statement that was filed was filed after two motions were made.

One was a motion for a more definite statement under Rule 12.

That function would be, really, to explain what was already in the complaint.

You can't amend a complaint by filing an answer under Rule 12.

It was also filed in response to a motion under Rule 16, as to control the docket, and the function of the RICO cases statement here is an admission by a party opponent.

And this judge asked, in February these plaintiffs, tell me your facts consistent with Rule 11 that you rely on.

Tell me the statutes that you rely on.

They answered that in the court below, and the only answer they gave was the Hobbs Act.

We didn't hear one word about murder.

That's outside the record.

About terrorism, which happens not to be a predicate offense... we didn't hear anything about bombing.

All we heard was these acts violate the Hobbs Act.

Unknown Speaker: But, Mr. Blakey.

Mr. Blakey: Not State extortion, not coercion, but the Hobbs Act.

Unknown Speaker: But, Mr. Blakey, just looking briefly at the district court's opinion, the ground of decision both in the district court and in the court of appeals was the lack of an economic motive, as I understand it.

Mr. Blakey: That's correct.

Unknown Speaker: And if that's correct, you win and there'd be no leave to amend and the ballgame is entirely over.

But if there is a dispute about fringe facts, I would suppose the district judge would let them amend and add these additional things that might not be a complete termination of litigation.

Mr. Blakey: Your Honor, this is after almost 5 years of discovery.

Unknown Speaker: It's a judgment for the district court.

Yes, but on the specific ground that we've granted certiorari to decide, that's... both lower courts decided that issue, and it's a very important issue.

Mr. Blakey: Whether or not they could amend is not in front of this Court, because they never made a motion to amend below.

Unknown Speaker: Because, they were... they lost on the ground of no economic motive.

Mr. Blakey: Let me turn, Your Honor, if I might, to the economic motive.

Unknown Speaker: I wish you would, because that's what we really granted cert to do... to consider.

[Laughter]

Mr. Blakey: This statute can be summed up in two words, illicit gain.

The concept of illicit gain pervades the statute, the title, the findings, the definitions, the operative language in the statute, the criminal remedies, the civil remedies, statutes with which it is in pari materia, and the legislative history.

The precise words used in each section varies with the purpose of each section, but this statute can be summed up in two words, illicit gain.

Look at the title.

This is the label on the bottle.

It says Racketeering Influenced and Corrupt Organizations.

Racketeer means extortion and fraud.

Corrupt means venal.

There right in the label of the bottle is the commercial notion of gain.

Look at the findings.

There are five findings in this statute: the last deals with legal defects; the first two deal with obtaining and utilizing illicit gain; the second two deal with the effects of it when you invest and weaken.

Look at the definitions in the statute.

The word "person" describes the class who can sue and be sued, or be indicted.

It is, by the definition of the statute, limited to people who can hold a beneficial interest in property.

Look at the concept of enterprise as it's found in the statute.

Enterprise is illustrated in the statute, not defined.

It is appropriate therefore to look to its common everyday meaning.

Its common everyday meaning is precisely that of a business venture.

Unknown Speaker: Do you agree, though, that if you look specifically at the text of 1262(a), (b), and (c), that in each of those instances it is certainly possible, consistently with those texts, for there to be an enterprise which is not itself devoted to economic gain?

Mr. Blakey: That's correct.

Unknown Speaker: Okay.

Mr. Blakey: My point here is precisely that of Justice Cardozo in American Knife.

To interpret this statute and understand it, let's take a look at its average case, not the exceptional case.

The average case within the statute is going to be a commercial enterprise engaging in commercial activity.

There are penumbra issues such as a government, and... which is clearly within the statute, and was recognized by Judge Kaufman in Anginelli, in the course of the Ivic opinion.

Nothing that we say here today should be understood to suggest that governments cannot be enterprises, but only when they engage in or they are utilized to engage in a pattern of racketeering activity that has a commercial dimension.

Unknown Speaker: But you're... again, I don't think you're doing this, but you're not suggesting that the only noncommercial example of an enterprise which might fit under (a), (b), or (c), would be a government.

Mr. Blakey: No, no.

Unknown Speaker: That is simply one--

Mr. Blakey: Sheerly that to respond to the Government.

Let me go through the text of the statute, the opportunity--

Unknown Speaker: --I don't understand your test, Mr. Blakey, and both the Government and the petitioner assert that it's... it's too confusing to work with.

What is your test about whether the requirement of commerciality, or whatever you want to call it, is satisfied?

Mr. Blakey: --Well, what I think you have to meet, Your Honor, is the language of the statute.

What... the phrase commercial dimension is something that pervades the statute as a whole.

You have to go... for example, to recover damages in this case, you must show injury to business or property.

The commercial dimension is the injury to business or property.

In the example of the criminal sanctions, the characteristic criminal sanction of this statute is a forfeiture.

If you take the profit out of crime, you presuppose a profit-making crime.

Unknown Speaker: Well, how do I know whether it's an enterprise within the meaning of the act?

Mr. Blakey: It's within the meaning of the act, which means you must sit it in the text as drafted.

Unknown Speaker: Of course.

Mr. Blakey: And what we would do--

Unknown Speaker: Tell me... yeah.

Mr. Blakey: --What we would do in... and let's turn right to section 1962(c).

Section 1962 says:

"Any person employed by or associated with an enterprise that conducts that enterprise's affairs by a pattern of racketeering activity. "

Wherein lies the commercial dimension?

The commercial dimension in that provision lies in the word "affairs".

Affairs means commercial or professional business, as a matter of plain meaning.

The set--

Unknown Speaker: Then, why don't you... why don't you go the... why don't you go the whole hog, then, and say that the... that it is an absolute requirement that the commercial enterprise in fact... that the enterprise be commercial, but you instead have an alternative definition.

You say, well, it would be all right if the acts themselves, if the predicate acts were commercial.

Why... why... if your argument is as strong as you say it is, why do you have this fallback position?

Mr. Blakey: --Your Honor, let me explain it this way.

We deal here with the set.

The set is activity.

The subset is racketeering activity.

The sub-subset is racketeering activity in affairs.

It is quite possible to have a noncommercial enterprise that engages in noncommercial racketeering activity, but not in its affairs.

The affairs is the word of limitation that confines 1962--

Unknown Speaker: The Union Trust Fund would be an example, I presume.

Mr. Blakey: --Yes, yes.

Unknown Speaker: Which is certainly one of the things they were concerned with.

Mr. Blakey: A benevolent association.

Unknown Speaker: Yeah.

Mr. Blakey: A benevolent association may very well have a large pension fund and the mob wants to take it over.

That's an enterprise.

But the reason they want to take it over and the way they must take it over to fall within RICO is by engaging in, for example, extortion.

And extortion is a property-obtaining notion.

It's not coercion, which is conduct-forcing notion.

And if there were any doubt about the text of the statute, and I think when you see the word (a), (b), and (c), there ought not be any doubt--

Unknown Speaker: Just a minute, Professor Blakey, let me just be sure I understand.

Has the word "affairs" been relied on in the opinions adopting your position?

Mr. Blakey: --No.

Unknown Speaker: So this is debateable.

Thank you.

Mr. Blakey: No.

No, Your Honor, wisdom comes so late in the affairs of man.

[Laughter]

That we'll not turn it down simply because it--

Unknown Speaker: That doesn't respond to the question Justice Scalia has raised too.

That's a concern, is that the Seventh Circuit's original position seemed rather clear, but the Second Circuit seemed over the years to have somewhat withdrawn from the economic test.

And it's kind of hard to know exactly what the test is.

Mr. Blakey: --Well, if you... a careful reading of the Seventh Circuit's opinion is that it adopted the Ivic-Bagaric-Ferguson line of opinions.

And what happened from Ivic to Bagaric to Ferguson, the use of the word motivation was thought, in retrospect, to be inappropriate because it might deal with subjective motive.

Therefore the test changed from Ivic to Bagaric and became an objective characterization.

And then the question of degree came up, which the Government has raised.

In Ferguson it was clarified to be any.

It's not a question of degree, it's a question of kind.

Unknown Speaker: The... one of the cases that troubles me if you're trying to think through this thing, say you've got a terrorist organization... because we're not just dealing with the abortion situation, but terrorism and other things.

And say that their ultimate motive is... the purpose of the crusade, whatever it is, but they're doing these activities to get some money to help finance purchasing guns that the IRA needs and that sort of thing.

Would the mixed motive qualify for... under your test?

Mr. Blakey: Yes.

And the cases are clear.

Precisely in Bagaric it was the same basic terrorist group that was involved in Ivic, but in Bagaric they were only... in Ivic they were only engaging in homicides.

In Bagaric they were engaging in classic extortion, it was property obtaining.

This statute has been successfully applied to terrorist groups where they engage in commercial activity, for example to raise money.

The Order, an antisemitic group in the West that went around... you may recall, killed Alan Berg simply because he was a Jew.

Unknown Speaker: Commercial is really not the right word.

I mean, you would also apply it to a... to a terrorist group that robs banks, I assume, wouldn't you?

Mr. Blakey: The word I would prefer--

Unknown Speaker: It seems strange to call that a commercial activity.

Mr. Blakey: --Your Honor, I'm kind of stuck with the language in the cases.

I would suggest to you that the two words that summarize the statute is illicit gain.

In fact, when you find out the sense in which they're using commercial motivation or mercenary purpose or financial purpose, what they, in fact, in the cases have said meets it is some kind of a gain, a robbery that produces money.

For example, in the Order case, they were robbing banks and they were prosecuted for robbing banks--

Unknown Speaker: But then you have to give away enterprise.

You have to give away your enterprise argument.

I mean, you can rely on affairs, but you've given away enterprise, because you--

Mr. Blakey: --Your Honor, I don't--

Unknown Speaker: --Don't pull a bunch of free enterprises and a bunch of bank robbers.

Enterprise zones is not... is not bank robbers.

Mr. Blakey: --Your Honor, I would prefer not to give up anything.

[Laughter]

What I'm suggesting to you, if I may borrow the language of this Court, is the interpretation of this statute is a holistic endeavor.

We've got to look at the entire text, the punctuation, the words, the structure.

Unknown Speaker: But what if a series of very dramatic illegal acts in support of a cause generate large contributions to the cause from third parties, would that provide the economic requirement that you're talking about?

Mr. Blakey: No.

Unknown Speaker: Even though they're publicized and deliberately done for that purpose?

Mr. Blakey: No.

Unknown Speaker: Why wouldn't it be?

Because it's indirect or in--

Mr. Blakey: Well--

Unknown Speaker: --Because it would be insufficient to get you over the RICO standing?

Mr. Blakey: --Well, there are two answers to it.

In this case that argument was made.

To show in this case economic motive, you can do it either in the predicate acts or in the enterprise.

The predicate act extortion requires the money to be obtained from the victim.

Now the question is if the money was obtained merely by donations from third parties, this is a situation where precisely in this record it was held, or it was found that there's no proximate cause relationship between third-party donations and--

Unknown Speaker: Well, I'm not suggesting the facts of this case are strong enough, but I was thinking of the hypothetical where they said we are going to burn down a church, or something, to demonstrate our strong feelings about this, and we hope everybody who reads about it will send in 100 to such and such an address.

Mr. Blakey: --As you move in that--

Unknown Speaker: Would that qualify--

Mr. Blakey: --As you move in that direction... and the question is how far you take me.

Unknown Speaker: --Yeah.

Mr. Blakey: You will make those third party donors coconspirators and aid-and-abettors.

They're the people who, in effect, are hiring this crime to be done.

Unknown Speaker: Even though they send the money in after the fact only?

Mr. Blakey: Well, it's quite possible to ratify a crime.

It's certainly possible to join the conspiracy afterwards.

Let me take two items in addition to those in the text.

I think this is a text-based argument.

It rises from a holistic view of the statute, of the actual language employed in each section.

Let's look and see whether this is confirmed... not independently established, but confirmed by the legislative history.

Put yourself back in 1970.

The issue that burned in this country then was not abortion, not animal rights, not fossil fuels, not fur and the fur industry, but the war in Vietnam.

This statute was proposed and it was objected to by the American Civil Liberties Union specifically on the grounds that the definition of racketeering activity was so wide open it might apply to the takeover of the Pentagon and to the takeover of the University at Columbia.

Congress immediately turned to narrow that definition, with a specific intent of avoiding the application of RICO to demonstrations.

Not abortion demonstrations: what they had in mind was the war in Vietnam.

And they selected... this is now the problem of set and subset again.

The set for this are all State and Federal crimes.

They didn't put them all in, they selected them.

And what was the principle of selection?

And this can be determined by looking at the statutes, not the legislative history.

Unknown Speaker: But the response to that concern was not any narrowing of this definition of enterprise which, on the face of it, is about as broad as you can get.

Includes any... they didn't... in response to the concern that you just mentioned, what was the change that was made?

Mr. Blakey: The change was not to the definition of enterprise.

But, Your Honor, enterprise sits in a context, and if you don't have a pattern of racketeering activity what good does it do to have an enterprise.

And what we're looking at now is what Congress' intention was in 1970.

They modified the definition of pattern of racketeering activity specifically to avoid the application of this statute to the demonstrations on the war in Vietnam.

Unknown Speaker: And what was the precise modification?

Mr. Blakey: They took the definition of racketeering activity, which included any crime dangerous to life, limb, or property... dangerous to life, limb, or property, which clearly would have fit this facts, and they moved it down to specific crimes.

And the specific crimes that they adopted was extortion, not coercion.

In 1961 this country had promulgated in the criminal law community the model penal code.

Anyone familiar with the vocabulary of the model penal code... and McLellan, Hruska, and Paff, the principal architects of this statute were familiar with the model penal code; they served on the Brown Commission... knew the difference between extortion and coercion.

When they put in extortion and leave out coercion--

Unknown Speaker: Yes, but--

--But that, it seems to me, contradicts your argument in which you pin your entire argument on the word "affairs".

Mr. Blakey: --Your Honor, this is holistically.

You have to look at every word in context.

I am--

Unknown Speaker: Well, and I've been meaning to add as a footnote that murder is included.

That's not necessarily an economic crime.

It usually isn't in fact--

Mr. Blakey: --If... when you read the legislative history closely, you see that the addition of some offenses... murder would be one, obstruction of justice would be another... was added for the instrumental role... not the direct role, but the instrumental role... role they play in economic affairs, not independent.

Unknown Speaker: --Why isn't it... why isn't it still the case that your... the point of your argument is that extortion should be construed narrowly so that it does not include coercion, but that is irrelevant to the question of what enterprise means.

Mr. Blakey: Your Honor, absolutely.

But what I'm suggesting to you is you cannot do this word by word.

You've got to do it line by line, text by text.

Unknown Speaker: No, but Congress... by the same token, Congress doesn't have to do the same thing three different ways.

And if, in fact, it was addressing the concerns that the ACLU raised by its definition of predicate offense, that is not a premise for saying that it therefore also intended enterprise to be narrowed in the way... with the limitation that you want to place on it.

Mr. Blakey: Your Honor, I think the... the limitation comes from the word (c).

It comes from (b).

It comes from (a).

Unknown Speaker: Well, I would certainly feel betrayed if I were one of the Senators who favored a broader statute and the ACLU came in with objections and I conceded well, okay, to meet your objections what we'll do is we'll narrow the crime; we'll just have certain types of crimes instead of other crimes.

And I thought that was the deal, and the ACLU says, yeah, that's good enough, okay, and then we all go home, and then it turns out that by narrowing the crimes I've also changed the meaning of the word "affairs".

Mr. Blakey: Your Honor.

Unknown Speaker: Or I've changed the meaning of the word "enterprise".

Mr. Blakey: Your Honor, this statute was--

Unknown Speaker: It seems to me a deal is a deal.

If that's what... if that's how they meant to narrow the statute, that ought to be narrow enough.

And the argument you must rely on, then, is that this is not extortion.

Mr. Blakey: --Your Honor, I want to rely on all the arguments--

Unknown Speaker: I know you do.

Mr. Blakey: --And let me... let me turn to another one.

Unknown Speaker: Before you leave this argument, though, you suggest that in response to the concern about the Vietnam protestors they drew up... drafted a rather narrow definition of racketeering activity.

Mr. Blakey: That's correct.

Unknown Speaker: The narrowed definition includes over 2 pages and lists lots of crimes, some of which do not have an economic motive such as some of the obscenity crimes.

So I don't know how that helps here.

Mr. Blakey: Obscenity was not in it, Your Honor, in 1970.

Unknown Speaker: Well, it's in it now.

Mr. Blakey: It's in it now, and maybe Congress was unwise in doing that.

[Laughter]

Let me turn to... but we're not here to argue that, fortunately.

Unknown Speaker: No, but I think it's inconsistent with the notion that they limit it in a way which definitely excluded everything except economic gain.

Mr. Blakey: Well, Your Honor, I think whatever 1970, it remains that no matter what they do when they introduce obscenity.

Let me turn... in other words, if obscenity comes in it doesn't change the meaning of the word "affairs".

Affairs means commercial or professional business, and it's the word of limitation in this context.

Let me turn, if I might, to the statutes in pari materia with this statute.

This statute was modeled on the antitrust statutes.

The antitrust statutes have as their purpose securing freedom in the marketplace.

RICO has as its purpose securing integrity in the marketplace.

When Congress adopted RICO in 1970, it had before it the subtle jurisprudence of this Court under the antitrust laws, and that subtle jurisprudence excludes political activity, it excludes labor activity, it... and we've learned since, in Claiborne Hardware, that it excludes protest activity.

If, in fact, Carrie Nation and the Anti-Saloon League wielding an ax in a saloon is not in restraint of trade, if William Letter heading up the American Association... American Federation of Hosiery Workers in a violent sitdown strike is not restraint of trade, if Medgar Evers and the NAACP in a sometimes violent civil rights boycott is not in restraint of trade, then I suggest to you Joe Scheidler and PLAN is not conducting the affairs in the sense of business or commercial.

Unknown Speaker: Mr. Blakey, I've been thinking about affairs, and it... if Congress wanted to convey the meaning you suggested, wouldn't it have said business?

Because affairs come in all sizes and shapes.

There are private affairs, there are family affairs.

Mr. Blakey: That's why, Your Honor--

Unknown Speaker: But wouldn't business fit much better if that's what Congress was trying to portray?

Mr. Blakey: --Your Honor, let me trace the legislative history at this point.

An earlier statute indeed used the word "business" and the reason the word "business" was dropped is because two statutes were merged.

Senator McLellan's original Syndicate bill, which was aimed at the underworld generally, Senator Hruska's Infiltration bills were aimed at the upper world.

Senator Hruska's bill said "business enterprise".

When those two bills were merged, had the statutory draftsman left the word "business" in there, you would have had the very real ambiguity this Court had to deal with in Turkette as to whether this meant legitimate business only.

The word "business" was dropped not to make it beyond business--

Unknown Speaker: And you don't think you can have legitimate and illegitimate affairs?

Mr. Blakey: --Your Honor--

[Laughter]

You certainly do.

The question is whether you have them in this statute in this context.

And the answer to that question is holistic and cannot be done by the abstract analysis of the word "affairs".

Look at it in context.

Unknown Speaker: Thank you... thank you, Mr. Blakey.

Ms. Clayton, you have 5 minutes remaining.

Rebuttal of Fay Clayton

Mr. Clayton: Thank you, Mr. Chief Justice, may it please the Court:

If I heard Mr. Blakey right, his argument began with the principle that the concept of illicit gain sums up the RICO statute.

I think in... Justice Ginsburg's question just a moment ago pointed out how inaccurate that statement really is.

But I would also like to remind the Court and Mr. Blakey that in his 1980 article which is relied upon by Mr. Scheidler in his brief, he said... and more important, this Court has said on many occasion that Congress knew how to put a limitation in RICO when it wanted to.

And if Congress wanted to limit RICO to crimes done for illicit gain, two words would have solved the problem and we wouldn't see the quagmire of issues like Mr. Blakey has been forced to address this morning.

The question... the argument that he makes raises so many questions that no one can answer.

Even the lower courts couldn't say... with all the various definitions they've come up with in Ivic, in Bagaric, which took away motive and gave dimension, it still doesn't answer the question of where we're supposed to look for this economic motive or dimension or gain.

Is it supposed to be in the crimes, in the enterprise, in the criminals themselves?

Congress knew how to put limits in RICO, and as this Court said in Russello, the short answer is that Congress did not write the statute that way.

It could have... certainly it could have limited enterprises to business enterprises.

It could have limited predicate acts to ones done for gain: murder for profit, arson for profit.

It didn't do that.

Affairs certainly doesn't imply the exclusion of illegitimate affairs any more... or noneconomic affairs any more than the arguments that this Court heard in Turkette made any sense.

It just doesn't wash.

Mr. Blakey's reliance on the antitrust laws is mystifying to me, because the antitrust laws for more than three-quarters of a century have taught that good motives do not save illegal acts.

And all the authorities, his reference to antitrust cases, are entirely apart from this case, because each and every one of them involved either petitioning or protected lawful speech.

Even the Seventh Circuit, which threw out... which upheld throwing out our complaint, recognized--

Unknown Speaker: Well, that may be, but I think the point he's using them for... and this statute is modeled after the treble damage actions in the antitrust laws.

What he's using them for is to show that in another area we have imported an extratextual limitation upon the statute.

Now for whatever reasons, First Amendment reasons, whatever reasons, the point is it is an extratextual limitation.

Mr. Clayton: --But, Your Honor, it was based on the text, the phrase "restraint of trade".

Restraint of trade was not a defined term in the antitrust--

Unknown Speaker: It restrains trade to have a grape boycott.

That certainly restrains trade.

Mr. Clayton: --Your Honor, going back almost a century, we know that when the antitrust laws were enacted, the word "restraint of trade" was a highly technical, highly legalistic term, and the Court had to infer what it meant.

Unknown Speaker: In any case, it was a limitation on what, by analogy, we would call the predicate acts, wasn't it?

Mr. Clayton: I'm sorry, Justice Souter, I didn't hear your question.

Unknown Speaker: The limitations that Mr. Blakey was referring to are those which, by analogy, we would refer to as limitations on the predicate acts which would suffice?

Mr. Clayton: It would... it would seem like that would be the limitation, but he--

Unknown Speaker: It certainly would not support the argument that... that enterprise... in this case, that enterprise has to be so limited.

Mr. Clayton: --Well, Your Honor, the antitrust laws don't exclude nonprofit enterprises.

I mean... or nonprofit businesses.

We have the... all the professional, the lawyers that we had, the medical association, the people who were the association saying plastic tube was dangerous, all these nonprofit associations, they were not--

Unknown Speaker: But they're acting for commercial motives,--

Mr. Clayton: --Not always, Your Honor.

In many cases the... in fact, there's never been a case, Your Honor, where the antitrust law has been limited... except this case, where the lower court... we had wished you had taken our antitrust issue too.

But the lower court was the first one in the country to ever say motives count.

The Eighth Circuit decision in Council of Defense had said exactly the opposite.

A purely political boycott there, and a peaceable one so we didn't invoke the First Amendment problems... that the Eighth Circuit said in 1920 and that had been good law ever since, that the fact that they did it purely for politics, they didn't like Mr. Hearst's pro-German sympathy and so they called for a major commercial boycott, not a consumer boycott, of his paper, that wasn't protected.

This is the first case that's ever--

Unknown Speaker: --Do you agree with that decision?

Mr. Clayton: --Absolutely, Your Honor.

I think it's right and I think to impose a requirement on the antitrust laws that if... that if they're done for another motive, it flies in the face of all of the antitrust case law which shows that purpose and effect on commerce is what counts.

Thank you very much, Your Honors.

Chief Justice Rehnquist: Thank you, Ms. Clayton.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Planned Parenthood v. Casey - Oral Argument

Fri, 09 Jan 2009 14:49:31 +0000

Case:

Planned Parenthood v. Casey

Media File:

91-744_19920422-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Kathryn Kolbert

Chief Justice Rehnquist: We'll hear argument next 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.

Ms Kolbert: Mr. Chief Justice and may it please the Court:

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

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

This landmark decision, which necessarily and logically flows from a century of this Court's jurisprudence, not only protects rights of bodily integrity and autonomy, but has enabled millions of women to participate fully and equally in society.

The genius of Roe and the Constitution is that it fully protects rights of fundamental 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 Roe v. Wade, the strict scrutiny standard is applicable, and as this Court found in Akron and in Thornburgh, Pennsylvania's onerous restrictions must fall.

Should this Court abandon strict scrutiny, as urged by the Commonwealth and the Solicitor, not only might Pennsylvania's egregious intrusions on privacy stand and a century of this Court's privacy decisions may also be dismantled.

Equally disturbing, should this Court remove fundamental protection for the abortion right, women might again be forced to the back alleys for their medical care with grave consequences for their lives and health.

The Commonwealth argues that this Court may overrule Akron and Thornburgh and abandon strict scrutiny and nevertheless preserve Roe's central meaning.

While politically expedient, this view is certainly not based upon this Court's privacy jurisprudence.

Every other brief filed in this case agrees that the protection offered by Roe's heightened scrutiny lies at the core of this important decision.

To abandon heightened review is to overrule Roe.

This Court has repeatedly held that the doctrine of stare decisis is of fundamental importance to the rule of law.

Fidelity to precedent ensures that our law will develop in a principled and intelligible fashion, and that our guiding rules are founded in law rather than in the proclivities of individuals.

Accordingly, this Court has established that departure from precedent must be supported by some special justification, but no special justification exists here.

Only 9 years ago in Akron, this Court invoked the doctrine of stare decisis and expressly reaffirmed Roe v. Wade.

Only 3 years later, in Thornburgh, a case that is virtually identical to that before this Court today, this Court again found especially compelling reasons to reaffirm Roe and to find Pennsylvania law unconstitutional under the standard of strict scrutiny.

Nothing has changed since that time.

Indeed, millions of women continue to rely on the fundamental rights guaranteed in Roe v. Wade.

The medical conditions that led this Court to create and establish these fundamental rights remain the same.

This case, the statute, the parties, are nearly identical to those in Thornburgh.

Never before has this Court bestowed and taken back a fundamental right that has been part of the settled rights and expectations of literally millions of Americans for nearly two decades.

To regress now by permitting States suddenly to impose burdensome regulations, or to criminalize conduct, would be incompatible with any notion of principled constitutional decision-making.

Roe is both soundly based in the Constitution and sets forth a fair and workable standard of adjudication.

From as early as 1891, this Court has recognized that the rights of autonomy, bodily integrity, and equality are central to our notions of ordered liberty.

Roe lies at the heart of those interests.

While pregnancy may be a blessed act when planned or wanted, forced pregnancy, like any forced bodily invasion, is anathema to American values and traditions.

In the same way that it would be unacceptable for Government to force a man or a woman to donate bone marrow, or to compel the contribution of a kidney to another, or to compel women to undergo abortion or forced sterilization, our Constitution protects women against forced pregnancy.

If anything, because forced pregnancy will jeopardize a woman's life or health, the constitutional protections ought to be greater.

The Solicitor tries to draw a distinction between constitutional protection against forced abortion, which he agrees is fundamental, and constitutional protection against forced pregnancy, which he maligns, but once this Court removes fundamental status from the abortion right, there is no logical stopping point.

Fundamental status for all reproductive rights, decisions about birth control, pregnancy, sterilization, even high technology around reproduction, may also be jeopardized.

Particularly where there is no bright line between abortion and some methods of birth control, the fundamental right both to prevent pregnancy and to end pregnancy may be at stake.

Our Nation's history and tradition also respects the autonomy of individuals to make life choices consistent with their own moral and conscientious beliefs.

Our Constitution has long recognized an individual's right to make private and intimate decisions about marriage and family life, the upbringing of children, the ability to use contraception.

The decision to terminate a pregnancy or to carry it to term is no different in kind.

Both the Solicitor and some Commonwealth amici argue that the Constitution only protects private decision-making within families.

It is true that the rights of privacy have been recognized in the familial context.

For example, in Griswold the Court found unconstitutional the Connecticut statute that prohibited married persons from using birth control and in Loving this Court found invalid a Virginia statute that prohibited the marriage of interracial couples.

Nevertheless, this Court has never limited the notions of privacy recognized in these cases as only arising or belonging to married couples.

Indeed, in Eisenstadt and in Carey this Court specifically rejected this view.

Nor can this Court alter its historic recognition of privacy and deny women fundamental freedoms because, as the Solicitor argues, the woman is not isolated in her privacy.

Surely if the Government cannot require individuals to sacrifice their lives or health for others or for other compelling purposes, it cannot require women to sacrifice their lives and health to further the State's interest in potential life.

Justice O'Connor: Ms. Kolbert, you're arguing the case as though all we have before us is whether to apply stare decisis and preserve Roe v. Wade in all its aspects.

Nevertheless, we granted certiorari on some specific questions in this case.

Do you plan to address any of those in your argument?

Ms Kolbert: Your Honor, I do.

However, the central question in the case is what is the standard that this Court uses to evaluate the restrictions that are 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 if you were going to address them.

Ms Kolbert: --Yes, I am, Your Honor, and I would like in particular to address the husband notification provisions, but the standard that this Court applies will well establish the outcome in this case for a variety of reasons.

This Court has already found that under the principles of Roe v. Wade the bulk of the Pennsylvania statute is unconstitutional.

There is no question that this Court struck down as unconstitutional under strict scrutiny the bias counseling provisions and the 24-hour mandatory delay both in Thornburgh and in Akron, the case in 1983, and therefore this Court must examine first the question of what's the appropriate standard before determining the constitutionality of those other provisions.

The Court cannot alter its historic recognition of privacy and deny women fundamental 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 their lives or health for human beings who are born for other compelling purposes, they cannot do so for purposes of protecting potential fetal life.

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

Particularly here, as this Court noted in Roe where there is widespread disagreement in both a philosophical and a religious sense about when life begins, this Court cannot sanction one view to the detriment of women's lives and health; nor can the state of the law in 1868 define or determine constitutional rights for all future generations.

This Court must look generally to whether a right is reflected in our Nation's history and traditions rather than at whether the activity was illegal at the time of the adoption of the Fourteenth Amendment.

Relying exclusively on what 50 States have legislated in determining the scope of liberty would imperil numerous freedoms such as rights recognized by this Court in Brown, Bolling, Griswold and Loving.

This Court has also recognized as--

Justice Scalia: Ms. Kolbert, on this last point, I am not sure what you suggest we look to.

You say we should not look to what the practice was in 1868.

Should we look to what the practice was at the time of 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 at whether the Nation's history and tradition has respected interests of bodily integrity and autonomy and whether there has been a tradition of respect for equality of women.

Those are the central and core values--

Justice Scalia: But not to abortion in particular?

Ms Kolbert: --Well, this Court is... if the Court was only to look at whether abortion was illegal in 1868, that is at the time of the adoption of the Fourteenth Amendment, it would be placed in a very difficult situation because at the time of the founding of the Nation, at the time that 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 the principles that this decision protects.

That while it is important to look... and I would not urge you to ignore the state of the law at different periods of our history, it is only one factor in a variety of factors that this Court has to look to in determining whether or not something is fundamental.

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

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

Justice Scalia: This is not an antiquarian argument you are making.

You would have made the same argument in 1868.

I think you would have said the mere fact that most States disfavor abortion is no justification for this Court's saying that it is not therefore included within it.

You would have made that same argument in 1868.

Ms Kolbert: I would, and that is the argument that this Court has made in many instances in rejecting exactly the state of the law prior to the granting of fundamental status.

That is, this Court, if we were only to look at whether State legislatures prohibited activity in determining whether or not an activity is fundamental, many of the most precious rights that we now have: rights to travel, rights to vote, rights to be free from racial segregation would not be accorded status because in fact, State legislators have acted to inhibit those rights at the time of the adoption of the Fourteenth Amendment.

Justice Scalia: Some of those are mentioned in the Constitution like racial segregation.

Ms Kolbert: Your Honor, this Court has recognized that the rights at issue here, that is, the rights of privacy, the rights of autonomy flow from the liberty clause of the Fourteenth Amendment which is also mentioned in the Constitution.

The debate centers on what is the meaning of that term liberty, and we think that the precedence of this Court that began at the end of the 19th Century and have proceeded from this Court to the very present, would logically and necessarily include fundamental rights to decide whether to carry a pregnancy to term or to terminate that pregnancy.

Justice Kennedy: I don't question the importance of your arguing that there is a fundamental right, as you have done; however, there is a fundamental right to speech and we hear any number of arguments in this case on time, place and manner.

I don't think our decision on parental notice in the Akron case is necessarily inconsistent with a fundamental right.

But one way of our understanding this fundamental rights and their parameters, their dimensions is to decide on a case-by-case basis, and you have a number of specific provisions here that I think you should address.

Ms Kolbert: The critical factor is whether, as a result of its fundamental status, this Court will accord the standard of Roe, that is, strict scrutiny because under that standard there is no dispute among the parties.

Under that standard, the bias counseling provisions, the 24 hour mandatory delay have been found unconstitutional, and significantly, this Court has also gone so far as to say that the husband consent requirements, very similar to the husband notification requirements at issue in this case, have also been found unconstitutional--

Justice Kennedy: I am suggesting that our sustaining these statutory provisions 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 to change the standard of strict scrutiny, which has been the central core of that holding, that in fact, that will undercut the holdings of this Court and effectively overrule Roe v. Wade.

To adopt a lesser standard, to abandon strict scrutiny for a less protective standard such as the undue burden test or the rational relationship test, which has been discussed by this Court on many occasions, would be the same as overruling Roe for it is the beauty of Roe, the protections of Roe flow from the fact that this Court gives, upon a proof that particular State regulations interfere with the right.

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

Justice Kennedy: Well, if you are going to argue that Roe can survive only in its most rigid formulation, that is an election you can make as counsel.

I am suggesting to you that that is not the only logical possibility in this case.

Ms Kolbert: Our position is that Roe, in establishing a trimester framework, in establishing strict scrutiny, and in also establishing that the rights of women and the health interests of women always take precedent over the State's interest in potential life.

Those hallmarks of Roe are central to this case, and are central to continuing recognition of the right as fundamental.

Should the Court abandon that--

Justice O'Connor: But did the Court hold that, even after viability of the fetus in Roe?

Ms Kolbert: --What the Court--

Justice O'Connor: Do you think that was a correct characterization of Roe's holding that you just gave, that the woman's interest always takes precedence?

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

Ms Kolbert: --Your Honor, under Roe, after the point of viability, that is the point when the fetus is capable of survival, the State is free to prohibit abortion but only so long as it is necessary, only so long as the woman's health interests and life interests are not at stake.

That is, potential fetal life is a recognized value, is a recognized State interest after the point of viability; but when in conflict, when the woman's health interest is in conflict with those State interests and potential life, those women's interest, the women's interest in health take precedent.

Now admittedly, the question of viability and the viability line is not as present in this case as it has been in many of the other cases that this Court has seen before here.

That is, all of the restrictions that are issue in Pennsylvania attach in pregnancy at the very beginning of pregnancy, and therefore, the State's interest in protection of fetal life really does not come into play.

The real issue is whether or not these health interests, that is whether or not the State's interest in protecting a compelling interest in health are present.

And frankly, this Court need only look to the record, that is, need only look to the findings of the district court to determine that this statute in no way furthers women's health interests.

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

The Commonwealth attempts to characterize the restrictions at issue here as reasonable.

For the woman who as a result of mandatory husband notification provisions will be beaten, or will see her children beaten, the restrictions are not reasonable.

For the woman who must travel 200 miles 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 pregnant as a result of marital rape, obtaining information from her doctor that her husband 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 the facts placed in evidence in this case which demonstrate that the restrictions were not enacted to improve women's decision making or health care.

After listening to the testimony of ten witnesses, including those proffered by the Commonwealth, the district court made 387 findings of fact and repeatedly concluded that the Pennsylvania restrictions will interfere with the ability of physicians to provide quality medical care and will delay and discourage the performance of abortion to further no legitimate State interest.

In particular, the lower court found that the mandatory husband notification provisions will have dangerous and potentially deadly consequences for battered women, likening force notification in a battering situation to providing the husband with a hammer with which to beat his wife.

Chief Justice Rehnquist: Was the husband notification provision the one that the court of appeals held unconstitutional?

Ms Kolbert: It was, your honor.

Chief Justice Rehnquist: And it upheld the balance of the act, is that correct?

Ms Kolbert: That's right.

The district court found, as well, that bias counseling provisions transform the physician from the impartial counselor mandated by accepted medical standards into a partisan proponent of the State's ideology.

And mandatory delay will increase both the expense and medical dangers of abortion, yet furthering no legitimate State purpose.

There is no serious contest about the effect of this law.

Nor can there be, for under rule 52 the district court's findings are not clearly erroneous.

Nor did the fact that this is a facial challenge require petitioners to prove that the statute cannot be constitutionally applied to any person.

This Court had repeatedly found statutes facially invalid after looking at facts like those present here.

For example in Hodgson, this Court relied extensively on district court findings to strike down Minnesota's two parent notification statute with no bypass, despite the fact that that statute had never yet been in effect.

The extensive record here demonstrates that the harms are not speculative nor remote, nor is this a worst case scenario.

The Court should not demand an unwanted child or a woman maimed by an illegal abortion as proof that strict scrutiny is applicable.

Pennsylvania women should not be the guinea pigs in the State's experiment with constitutional law.

To find otherwise would totally eviscerate the strict scrutiny standard of review, and would prevent Federal courts from scrutinizing legislative findings, a central role in the process of judicial review.

Let me turn now to... specifically to the husband notification provision.

There is little doubt that these provisions violate the fundamental right of privacy, marital integrity and equality.

Beginning as early as Danforth, this Court recognized that a husband cannot arbitrarily veto the childbearing decisions of his wife.

Like the Missouri law at issue in Danforth, State mandated communication between husbands and wives violates the autonomy of married women to make personal and private decisions, particularly here where a married woman is often the survivor of martial rape and where the penalty for transgressing her husband is likely to be physical violence against her or her family members.

Government has the obligation to respect her private decisions, not to involve her husband.

The solicitor dismisses the import of the State-imposed harm and believes or claims that the Constitution is not intended to remedy them.

But this approach seriously ignores that women will be seriously maimed and that harms will be invoked, and it is a callous disregard for their lives and health.

While it may be desireable for husbands and wives to share intimacies in their daily life, the concepts of this Court developed in the principles of marital integrity ensure that the Government cannot decree for those couples how that communication should occur.

To decree and direct family life is more destructive of family integrity than permitting families to resolve 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.

Imposed notification is... gives a benefit only to men, and as such they violate the dictates of the equal protection clause.

The legislative scheme that assumes that husbands are capable and authorized to make all independent decisions but wives are not, reflect an outmoded common law view that women, once married, lost their legal identities to their husbands.

In the days before Roe, thousands of women lost their lives and more were subjected to physical and emotional scars from back alley and self-induced abortions.

Recognizing that, this Court established Roe and established fundamental protection for women's childbearing decisions.

We urge this Court to reaffirm those principles today, to adopt the rulings of this Court in Akron and Thornburgh that used the Roe strict scrutiny standard, and affirm in part and reverse in part, the judgment of the court of appeals.

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

Argument of Ernest D. Preate, Jr.

Chief Justice Rehnquist: Very well, Ms. Kolbert.

General Preate, we'll hear from you.

Mr. Preate: Mr. Chief Justice and may it please the Court:

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

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

Justice Blackmun: Mr. Attorney General, I'm not so sure that's so important.

Roe itself said that--

Mr. Preate: --That's correct.

Justice Blackmun: --That this does not provide for abortion on demand.

Have you read Roe?

Mr. Preate: Yes, I have.

Justice Blackmun: Thank you.

Mr. Preate: In our view the accommodations of the woman's right and the State's legitimate interest in the unborn child is best served, short of overruling Roe, by employing the undue burden standard for reviewing State abortion regulations.

However, as we argue in part 2 of our brief, if our statute cannot be upheld under the undue burden standard, Roe, being wrongly decided, should be overruled.

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

It's important to remember, and perhaps more important in this context than any other, that the petitioners brought this action as a facial challenge to the statute.

In this kind of a challenge it's enough for the petitioners to show... it's not enough for them to show that the act might be unconstitutional-as applied to someone in some hypothetical, worst-case scenario.

Rather, the petitioners must show that the statute could not constitutionally 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 notice provision, it is not a spousal consent statute.

Justice O'Connor: Now, the provision does not require notification to a father 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, in protecting the life of the unborn child.

Justice O'Connor: Well then, why not require notice to all fathers?

It's a curious sort of a provision, isn't it?

Mr. Preate: It is that, but the legislature has made the judgment that it wanted its statute to apply in this specific instance because it wanted to further the integrity of marriages.

Justice O'Connor: Would you say that the State could similarly require a woman to notify anyone with whom she had intercourse that she planned to use some means of birth control after the intercourse that operates, let's say, as an abortifacient?

Could the State do that?

I mean, it would be the same State interest, I suppose.

Mr. Preate: The State interest would be 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 with regard to applying a statute to all women, that it might create severe obstacle, an absolute 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 whether or not the regulation would impose such an absolute obstacle, not whether it would deter or inhibit some women from obtaining an abortion.

Justice O'Connor: Well, we're talking about the provision for notification in this case under the statute to the husband, and I'm just asking whether a different type of State regulation would have to be upheld under your standard.

Mr. Preate: Well, if the State had posited its interest as protecting the life of the unborn then utilizing the rational basis standard, then I would submit that it could legitimately require that kind of notification to all people.

In this instance, however, we have a different statute.

We have a statute that provides exceptions where exceptions are appropriate, and there are five of them: medical emergency, where the husband is not the father of the child, where the husband cannot be found, where the pregnancy is the result of 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 was that some unknown number were rendered so helpless by their battering husbands that they were incapable of checking off a line on the form, the spousal notice form.

We can agree that these women are indeed cruelly burdened, but they're not burdened by the statute, and that's the compelling point.

They're not burdened by the statute, but by the circumstance, and the tragic circumstance, of their lives.

We're looking at the statute to see if the statute imposes the obstacle.

If there is a battering husband that's interposed in there, that's a different story.

Justice O'Connor: What'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 what the petitioners have posited, which is a worst-case analysis scenario, and you have to look and see if it could be constitutionally applied and value-tied to anyone, and we submit that in this particular instance the record reflects that right now, in Pennsylvania, 50,000 abortions, 20 percent of those women are married and 95 percent of those women notify their husbands.

Therefore, only 1 percent of the women are not, in Pennsylvania, notifying their husbands now, and the act's not even in effect.

There is no broad practical effect in the Pennsylvania statute to prohibiting abortion for those women.

If the act goes into effect, some of those 1 percent of women will then have to notify their husband, and the result will be they will resolve their difficulties amicably.

There will be some who will then take the exception, because they don't want to notify their husband.

They 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 to several subsets and the petitioners' burden in a facial challenge is to establish, you see, that there's a broad practical impact.

They have not met that burden.

Justice Stevens: No, but General, may I ask you a question.

Is it not true, therefore, that the only people affected by the statute, this very small group, are people who would not 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 a very limited group of people, the few women who would not otherwise notify their husbands, and those are the only people affected by the statute.

Mr. Preate: That is correct.

Justice Stevens: Everyone in that class, should we not assume, would not notify her husband but for the statute.

Mr. Preate: That is correct.

Now, in that 1 percent, not everyone would want to notify, and there are exceptions.

Justice Stevens: They 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 exceptions into account in narrowing the group very... to, you know, 1 percent, or whatever it is.

Mr. Preate: Justice--

Justice Stevens: You aren't suggesting there's no one whose decision will be affected by the statute.

Mr. Preate: --Well, that's the point.

On this record, which is what we have to go on, there is nothing established by the petitioners as to how many there are in that category.

Justice Stevens: Well, if there's no one affected by the statute, what is the State interest in upholding the statute?

Mr. Preate: The State interest in upholding the statute is the protection of the life of the unborn and the protection of the marital integrity, and to ensuring of communication, the possibility... we 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 law affect, and so it seems to me that you have to justify the law based on the effect of this 1 percent who would not otherwise... and you may have an argument.

Mr. Preate: --And... and--

Justice Kennedy: It's a very strange argument to say that the law doesn't affect 90 percent of the people so we're not concerned with the law.

I've never heard that argument.

Mr. Preate: --We're not in any way advocating that, because we think that the law is rational.

If you look at the State interests that are trying to be pursued here... protecting the life of the unborn, protecting the marriage, ensuring the possibility of communication... this statute rationally 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 the State 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 rational basis but undue burden.

Are they the same thing?

Mr. Preate: --No, they are not, Justice Scalia.

Justice Scalia: How do I go about determining whether it's an undue burden or not?

What law books do I look to?

Mr. Preate: This is a quantitative analysis, Justice Scalia.

You begin by ascertaining under undue burden the... whether it is a significant increase in cost such that it broaden the impacts, 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 be destroyed.

Would that be part of it?

Mr. Preate: That would be part of the analysis that is done on the weighing side, after you establish whether or not there is in fact... in the first instance, the threshold question is what is the broad practical impact?

If there is no broad practical impact, it's minimal, as is in Pennsylvania statute, then you reach the question of the weighing that's involved.

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 an undue burden, and I guess that again leads you to how much weight you place on that kind of an interest.

Mr. Preate: As I understand it, Justice Scalia, what you are talking about is if there is no undue burden, that is, there is no broad practical impact in the initial analysis, then you determine whether or not the statute rationally furthers the State's interest.

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

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

Justice Stevens: May I ask you a question about your understanding of the undue burden test.

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

Which is the right analysis?

Mr. Preate: I think Justice Stevens, in the initial application, it's a quantitative analysis, whether there is a broad practical impact here.

The fact that it might--

Justice Stevens: In other words, it is the number of persons affected is your answer--

Mr. Preate: --The number of persons affected--

Justice Stevens: --Regardless of how severe the burden on a particular individual?

Mr. Preate: --As the test has been posited, the question of whether or not--

Justice Stevens: I am just asking you to explain to me what your conception of the test that you are asking us to adopt is.

Mr. Preate: --It may be that some women would be deterred to some degree, but that is not sufficient to create an undue burden.

Justice Stevens: It is the number of women affected?

Mr. Preate: Initially, it is the number of women affected, the broad practical impact of it--

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 woman who has been battered, psychologically battered, and so 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 is a worst case scenario, that is not the way you test facial challenges, in that instance, the law would work.

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

Justice O'Connor: And you would apply an undue burden test there on the as-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 full reign to the interests that you have.

The woman would have, under rational basis analysis test, a liberty interest protected by the Fourteenth Amendment, or under the undue burden standard, would have a limited right--

Justice O'Connor: I would have thought you would look at the burden of the law as applied to the woman.

Mr. Preate: --And I think that you would look to that, but you are asking the court, in an as-applied mechanism to give full effect to your right, the statute given.

It is a given that it burdens you.

So you can't just look at the burden in the as-applied context, but you must look at it in that context, giving full reign to your right, and that is what the woman would be seeking from the district court or for a court of common pleas, in asking the court, in applying this spousal notice section to her particular instance because she didn't have one of the exceptions to check off because she is psychologically or economically pressured.

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 engross and decide whether, all things considered in the generality of applications, the burden is 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 be invalid in its particular application because of... is that what you are saying?

Mr. Preate: In the second instance, as applied it--

Justice Scalia: I am worried about the first one, not the second one.

I thought the--

Mr. Preate: --In a facial challenge, Justice Scalia, you are looking at not the worst scenario hypothesis, but whether this act could be applied constitutionally to anyone, and that is--

Justice Scalia: --Any single case, not engross, to any single case.

Isn't that the normal situation?

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

Mr. Preate: --That's correct.

Justice Scalia: That is not looking at it engross.

That is asking whether there is any single case where a woman would not be unduly burdened.

Mr. Preate: In this particular instance, we find that there is no undue burden in our statute, anywhere in our statute, and if the undue burden test is, as applied or understood by this Court causes our statute to fall, then we ask this Court to adopt rational basis as the appropriate analysis.

Justice O'Connor: Do you think that compelling speech requires any kind of First Amendment analysis?

Mr. Preate: Compelling--

Justice O'Connor: Speech.

The State is compelling a woman to say something to 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, this statute--

Justice O'Connor: I would have thought perhaps compelling speech would get us right into a First Amendment area.

Mr. Preate: --In this particular instance, this statute, we feel causes notification, but there is a legitimate State interest involved in furthering that interest.

Justice O'Connor: In other words, the doctor is to say certain things to the patient, do you think that is really commercial speech there?

Mr. Preate: Yes, I do, Justice O'Connor--

Justice O'Connor: Why is that?

When the doctor is giving professional advice to the patient, you think that is commercial?

Mr. Preate: --That is commercial.

The petitioners already do that right now.

They already tell their patients, the physicians and the counselors that there are medical risks associated with this procedure.

Justice O'Connor: I wouldn't have thought that was commercial speech.

What do you rely on?

Mr. Preate: In Zauderer.

Justice O'Connor: But that is advertising, that is different.

Mr. Preate: In Pennsylvania's general informed consent law, applying to every single contact between the doctor and a patient, there is the same information that must be presented and that is, the doctor must tell the patient about the medical risks of the procedure and the alternatives to it.

Justice O'Connor: Well, it might meet a First Amendment test, but I am wondering how you get to commercial speech on that kind of advice?

Mr. Preate: We think that with the... with the interests involved, the statute furthers those interests and that it can legitimately require the husband to be notified because of the interests involved.

I see that my time is running short, and I wanted to make sure the Solicitor General has some time to respond.

We think that Pennsylvania has developed an intelligent statute that fully comports with the due process clause of the Fourteenth Amendment.

It is a statute that is carefully drafted and it has been amended to reflect the teachings of this Court's jurisprudence since Roe.

We ask this Court to overturn Akron and Thornburgh's strict scrutiny approach as being unwarranted extensions of Roe.

On the facial challenge, whereby the petitioners must show that there are no set of circumstances under which these provisions can be valid, the petitioners have utterly failed to do so, done in by no small measure by, as the record demonstrates and as indicated in the Third Circuit Court of Appeals' opinion, but their own rational practices which this statute mirrors.

Justice Souter: Mr. Preate, because you have a little time left, there is one point on which I guess I never fully followed your argument, and I wonder if you would go back to it.

You got to the point, you were arguing about the number of instances, the percentage of instances in which the spousal notification would in fact make 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, 5 percent of the women who would not otherwise give notice to their spouses.

Then from that 5 percent you subtracted some number for those, I guess subject to medical emergencies, those subject to the certification that they would be physically abused, and I think by that process of elimination you got it down to about 1 percent who would actually be affected by the stricture of the statute, is that right?

Mr. Preate: That is not correct, Justice... you start with the 1 percent because 95 percent of 20 percent is 1 percent.

You are talking about 500 women that--

Justice Souter: You are talking about all women, but the spousal notification applies only to married women.

Mr. Preate: --That is correct.

Justice Souter: What is the percentage of married women?

Well, your time is up.

Mr. Preate: Sorry.

Thank you.

Argument of Kenneth W. Starr

Chief Justice Rehnquist: Thank you, Mr. Preate.

General Starr, we'll hear from you.

Mr. Starr: Thank you Mr. Chief Justice, and may it please the Court.

In view of what has been discussed, let me address very briefly three points.

The first is the standard of review which has been the subject of considerable discussion.

In a number of its cases over the last 20 years in the abortion area, the Court has articulated the governing standard of review in different ways.

And as a result, there is confusion in the law as to how legislatures, if they choose, can legislate, and how judges are to judge in this extraordinarily sensitive and divisive area.

In our view, the correct articulation of that standard is to be found in the Webster plurality opinion.

That standard has deep roots.

It finds its roots in a long line of due process cases that do not involve liberty interests which, by virtue of the nation's history and its legal traditions, rise to the level of fundamental rights to a free people.

This is the process of analysis that is quite familiar to the Court, very lengthily laid out by Justice Harlan in his dissent in Poe versus Ullman, and then adumbrated in his concurring opinion in Griswold against Connecticut.

Second, and relatedly, with all respect, we do not believe that stare decisis considerations weigh against the Court providing that needed clarification as to the standard.

This not an issue--

Justice Stevens: May I ask you one rather basic question?

Mr. 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 a fetus is a person within the meaning of the Fourteenth Amendment?

Mr. Starr: We do not have a position on that question and this Court has not addressed, or at least there is no Justice at this Court--

Justice Stevens: It's addressed in Roe.

Mr. Starr: --That, that, that is correct.

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

Justice Stevens: What is that we need not address it.

I'm just interested to know--

Mr. Starr: We do not have a position.

Justice Stevens: --Does the United States have a position on that question?

Mr. Starr: We do not, because we think it would be an extraordinarily difficult and sensitive issue by virtue of a number of questions that would flow from that, including equal protections and so forth.

Justice O'Connor: Well, the Court decided that in Roe, did it not?

Mr. Starr: The Court did, in fact, decide that there is a very keen interest on the part of the State in what the Roe Court called potential life, and that's my--

Justice O'Connor: Yes, but said the fetus is not a person under the Fourteenth Amendment.

Mr. Starr: --Well I think that that is the necessary consequence of Roe v. Wade.

But I think that the key point is that a number of the Justices of this Court have said that regardless of that legal question, that constitutional question, that the State does have a compelling interest in the potential life, in fetal life, and that that interest runs throughout pregnancy.

Justice Scalia: We did not say in Roe that a State could not have a position on whether a fetus is a person, did we?

Mr. Starr: Certainly the Court--

Justice Scalia: We said that the Constitution takes no position on whether a fetus is a person, and/or that it does take a position that a fetus is not protected by the Constitution.

Mr. Starr: --The Court seemed to admit of the possibility of State regulation to protect the unborn at all stages.

Justice Scalia: Including State regulation on the basis of the people's determination within that State that a fetus is a person.

There's nothing in Roe that says a State may not make that judgment, if it wishes.

Mr. Starr: That it says, that the State may, if it sees fit, that the State does have... I think Roe goes this far.

Roe says that there is a legitimate interest of the State in the potential life in utero throughout pregnancy, and then the nature of that interest changes and becomes stronger over time.

But it did, in fact, say that there is a legitimate interest.

And there has been an expression by a number of the Justices of this Court to suggest that that interest is, indeed, a compelling interest on the part of the State.

Justice Souter: Is that also not the position of the Government of the United States, that it is a compelling interest throughout pregnancy?

Mr. Starr: That is our position, that there is a compelling interest.

Justice Stevens: And what is context.

What is the textual basis for that position in the Constitution?

Is there any?

Mr. Starr: Well I think that, if I may, Justice Stevens, it seems to me that it goes to the recognition that we all do, that there is in fact an organism.

As, Justice....

Justice Stevens: I'm asking what is the textual basis in the Constitution?

You argue very vigorously there's no textual basis supporting your opponents position.

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

Mr. Starr: The State has--

Justice Stevens: What is the textual basis for it?

Mr. Starr: --The State has an interest in its potential citizen, it does not 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, as we have historically, regulate and legislate in the interest of those who will come into being, who will be born.

It is an interest that every member of this Court has said in potential life.

Justice Stevens: That's not responsive to my question.

My question is what is the textual basis in the Constitution.

If you're going to say there is none, fine, that's perfectly all right.

Mr. Starr: I think it's in the nature of our system.

And if nothing else, the Tenth Amendment, Justice Stevens, suggests that the State can order its relationships in ways that reflect the morality of the people, within limits.

Justice Scalia: General Starr.

Mr. 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 the environment, is there?

Mr. Starr: Of course not.

Justice Scalia: And yet that can be a compelling State interest, may it not?

Mr. Starr: Yes.

As I have said, the Constitution does not seek to order and to ordain.

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

Justice Scalia: All that Roe says is that the Constitution does not protect the fetus under the Fourteenth Amendment.

It does not say that a State may not choose to do so.

Mr. 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 compelling State interest.

There's nothing in Roe that contradicts that.

Mr. Starr: I think it calibrates it.

I think, Justice Stevens, it is, in fact, the nature of our governmental structure.

I know no... I do know of prohibitions that the Constitution sets forth.

I do not know of particular provisions, other than, indeed, perhaps the Tenth sheds light on this.

That this is a matter that ultimately is, and I think this is quite important in terms of analyzing what Pennsylvania has done here.

What Pennsylvania has said, in effect, is that we will not prohibit abortion, save for gender selection abortions.

Our colleagues on the other side believe that Roe v. Wade forbids that, that it protects that decision.

It does not prohibit; it has seen fit to regulate.

That is very much in the tradition of the Western democracies.

Justice White: What is the standard?

And you started out to tell us what the standard was?

Mr. Starr: We believe it was articulated, Justice White, by the Webster plurality.

Justice White: Well what is it?

Mr. Starr: It is the rational basis standard.

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

Justice White: And under that standard, you would think all of the provisions that are at issue here should be sustained.

Mr. Starr: Exactly.

Justice Souter: And so would complete prohibition, wouldn't it?

Mr. Starr: Complete prohibition that had no exception for the life of mother, I think could raise very serious questions under--

Justice Souter: But subject, subject to that--

Mr. Starr: --The protection of life.

Justice Souter: --Subject to that exception, it would cover complete pro... it would justify complete prohibition.

Mr. Starr: I think it best not to answer these in the abstract.

We look to the specific interests of the State as it has articulated those interests.

For example--

Justice Souter: Well I'll grant you that, but you're asking the Court to adopt a standard and I think we ought to know where the standard would take us.

Mr. Starr: --I think the rational basis standard would, in fact, allow considerable leeway to the States, if it saw fit.

Justice Stevens: Well, General Starr--

Mr. Starr: Through the democratic--

Justice Stevens: --That's not really a fair answer.

Rational basis under your analysis: there's an interest in preserving fetal life at all times during pregnancy.

It's rational, under your view.

Ergo it follows that a total prohibition, protected by criminal penalties, would be rational, it would meet your standard.

Mr. Starr: --I don't think so.

The common law, the common--

Justice Stevens: Well why not?

In what proviso... what is your rational basis standard if not the traditional one?

Mr. Starr: --Ours is the traditional one.

But under that traditional analysis there must, in fact, be a rational connection with a legitimate State interest, and the State cannot proceed in an arbitrary and capricious fashion, in my view.

If I may complete this, I think this is an important part of the answer.

It would be arbitrary and capricious.

It would, moreover, deprive an individual of her right to life if there were not an emergency exception.

And even in Roe v. Wade, the Texas statute at issue there provided for that exception.

It would be quite at war with our traditions, as embodied in the common law, not to provide, at a minimum, for that kind of 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, can be overcome in some cases by countervailing interest, which is not the normal rational basis standard.

Mr. Starr: Well, may I respond.

Unknown Speaker: Yes, you may.

Mr. Starr: I think that the traditional rational basis test does, in fact, analyze the ends.

It looks at the ends and the means.

And it requires, in fact, that the State not conduct itself in an arbitrary and capricious fashion.

That is the ultimate insight of the rational basis test.

I thank the Court.

Rebuttal of Kathryn Kolbert

Chief Justice Rehnquist: Thank you, General Starr.

Ms. Kolbert, you have 3 minutes remaining.

Ms Kolbert: Mr. Chief Justice, I'd like to address two points very quickly.

The first is in response to this last dialogue with General Starr.

Recognition of a State's interest in fetal life as compelling throughout pregnancy would denigrate and restrict the ability of women at all stages of pregnancy to have an abortion.

And certainly in the only exception that the Mr. Starr and the Solicitor General has laid out for this Court, is in the very rare instance where only the life of the woman would be excluded from a ban.

Bans of second trimester abortions, bans of certain classes of women having abortions, bans that would prevent women who have serious and long lasting health needs to have abortions, would be significantly approved by this Court if the rational basis standard were adopted, precisely because of a formulation that the State's interest is compelling throughout pregnancy and sufficient to override any liberty interests, any interests of the woman 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 recognized in Roe that is, a compelling purpose after the point of viability... should it be able to sustain a statute.

The second point I wanted to raise goes to the question of the rights by numbers approach articulated by the Commonwealth.

It is our view that the husband notification statute applies to every single married woman in Pennsylvania.

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

Justice O'Connor: Are there First Amendment values at stake there, do you think?

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 in our brief why we believe this is not commercial speech.

But in both instances, the Court is forcing the physician to be the proponent of its ideology, 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.

Attribution:

The OYEZ Project

Featured:

Bray v. Alexandria Clinic - Oral Argument

Fri, 09 Jan 2009 14:49:36 +0000

Case:

Bray v. Alexandria Clinic

Media File:

90-985_19911016-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF JAY ALAN SEKULOW ON BEHALF OF PETITIONERS

Chief Justice Rehnquist: We will hear argument on No. 90-985, Jayne Bray v. Alexandria Women's Health Clinic.

Mr. Sekulow.

Mr. Sekulow: Mr. Chief Justice, and may it please the Court:

In the Eastern District of Virginia, what would have been a State action for trespass or public nuisance has now become a Federal case through the application of the Ku Klux Klan Act of 1871 to the petitioner's antiabortion protest activities.

The U.S. District Court for the Eastern District of Virginia now monitors State obstruction actions.

This case should not be in Federal court.

The Fourth Circuit holding rests on two faulty legal premises.

First, that opposition to abortion constitutes invidious discrimination against women, and that petitioners' activities violate the respondents' constitutional right to interstate travel.

The interpretation of the lower courts goes a long way in making 1985(3) the general Federal tort law that this Court has long counselled against.

There is redress available, and that is in the circuit courts of Virginia, for trespass, for public nuisance.

And 12 State court of appeals have reviewed injunctions involving these type of activities.

All of those courts of appeal have approved the injunctions which prohibited trespass and blockades, and basically word for word, comma for comma, with regard to the same substantive issue as the Federal courts here.

And that is prohibiting trespass.

We think it is important to point out that the court operated under the assumption that opposition to abortion constitutes invidious discrimination against women.

This despite the court's finding of facts.

Judge Ellis said that it is indisputable that all the defendants share a deep commitment to the goals of stopping the practice of abortion and reversing its legalization.

He stated that the defendants and their followers hope to prevent abortion, to dissuade women from seeking the clinic's abortion services, and to impress upon members of society the moral righteousness and intensity of their anti-abortion views.

The court, however, comes to an illogical conclusion of law that those purposes constitute invidious discrimination against women.

Our position is that that statement and that conclusion is wrong, and the Fourth Circuit should be reversed.

The issue of the application of this act to the petitioner's activities has been reviewed by numerous Federal courts.

And quite frankly, most courts have applied the act.

But we think the mistake that the lower courts have made is applying the act to an activity that is not within the scope of this statute as it relates to classifications protected.

Certainly gender, in and of itself, could be and would be protected under this act.

But here, the class has been defined not by gender, but rather by an activity; seeking abortion.

There is no doubt that the opposition that the petitioners have in this case is not to women, but rather to the activity of abortion.

The court's findings of fact are detailed on that.

The court itself stated that the petitioners engaged in these activities to rescue fetuses.

That's what the court below said.

And the illogical conclusion that was made was that constituted some form of invidious discrimination against women.

Mr. Roberts: Is it your point that a group who perform a particular activity cannot qualify as a group for purposes of the invidious discrimination necessary?

Mr. Sekulow: Your Honor, yes.

Our point is that it doesn't focus on activity.

To be a violation within the scope of this act, it would have to be a violation of the... animus, if you will, would have to be, in the petitioner's mind, against the class for who they are, not on something they want to do.

And here, it was the activity of abortion--

Mr. Roberts: Why is that?

Why couldn't you oppose, let's say you have an animus against all people who oppose the... oppose the war in Kuwait, or who opposed World War II, or whatever, why isn't that a group?

Mr. Sekulow: --That's a group not defined by any mutable characteristics.

It's not a group defined as a class by who they are.

It's defining the class by something they want to do.

This Court, in Griffin, focused in on the animus that the petitioners' actions would have to be taken against the particular respondents because of who they are.

And I think the analogy could be if in fact you had a group of individuals that blocked a polling booth, if you will, because blacks were voting, and they didn't want blacks voting.

Well, there the animus is not against the activity of voting, it is against their race.

That would clearly fall within this statute.

Also here, in order for there to be a violation of--

Mr. Roberts: Well, suppose they're just interested in a particular candidate and they don't want to see that candidate win and they know blacks are going to support the candidate.

Their interest is to keep this candidate from being elected, so they block blacks from coming to the polls.

What result then?

Mr. Sekulow: --I think there it would still be focusing on the activity.

The animus would be at the activity.

Now if they--

Mr. Roberts: And therefore no liability under this statute, that's your submission?

Mr. Sekulow: --I would think in that case there would not be, although if they were letting whites in... and I think under your hypothetical that they would be.

Mr. Roberts: Well, not's play with the hypothetical too much.

But it seems to me that the law often recognizes that it can reach a necessary or a direct consequence.

And here the consequence of blocking the candidate, or in your case, blocking the access to the clinic, is to impact directly on the protected group.

Mr. Sekulow: If it is because of, in your hypothetical, who they are, in this case it would be black, they could be covered under the statute.

But in this case, the classification that the respondents have designated, and the court below, has been women seeking abortion.

And as the facts of this case establish, the opposition by the petitioners to the activity of abortion was not just aimed at women.

It was aimed at everybody involved in the entire abortion process.

These petitioners... yes, Your Honor.

Justice O'Connor: But of course your argument would... would affect racial classifications as well.

I mean, if there were a group trying to prevent integration of a public school, for example, and blocked access to the schools, by your argument, it wouldn't be covered.

Mr. Sekulow: No, I think it would be in that case, Your Honor, because the animus, Justice O'Connor, would be because they don't want, I would take it in that case, a particular racial group not in that school.

And here, it is the entire incident of abortion that is the motivating factor that animates these petitioners.

It is not men, it is not women, it is all involved.

Mr. Roberts: But Counsel, supposing you had a class of women, all of whom want abortions.

And assume they wore little pins or something so they could be readily identified.

And supposing you blockaded the polls and said, don't let any women in who wear those pins.

Would that be a class protected by the statute?

Mr. Sekulow: I don't think so, Your Honor, because it would not be motivated by women, it was because of their activity of voting.

Mr. Roberts: What in the statute, what language in the statute supports your... your argument?

Mr. Sekulow: I think the term that would support it best is where the statute says that the purpose of depriving that class and then the equal protection of laws, equal privileges, and immunities has been interpreted by this Court as to require that invidious class-based animus aimed at the class.

And here it is the purpose.

What is the purpose that animates these petitioners?

And it's not their opposition to women, it's their opposition to abortion.

Mr. Roberts: It says the purpose of preventing or hindering the constituted authorities from so forth and so on.

The purpose of preventing the people in the voting polls from letting them vote.

That's not within the statute.

Mr. Sekulow: Well, that's the second part of the statute.

This case has been brought on the first part of the statute.

But even under the hindrance clause, there still has to be an invidious discriminatory animus.

But in this case, this Court's already viewed... has viewed previously classifications based on pregnancy and has not come to the conclusion that those constitute discrimination against gender.

Now it's true that Congress and the public in the Pregnancy Discrimination Act, amended, if you will, but here is still, even in the PDA, an exemption which does not require employers to fund abortion-related insurance needs.

And I think that points to that Congress certainly was not acting with an invidious discriminatory animus in passing the exemption, the exception of PDA.

Mr. Roberts: Of course, Mr. Sekulow, it's sort of hard to parse the statute too closely, isn't it, because even the requirement for any class-based animus is not to be found in this statute, is it?

Mr. Sekulow: The statute is not clear.

The legislative history--

Mr. Roberts: If there's any person or class of persons, and we've rather made up the requirement that there has to be a class-based animus.

Mr. Sekulow: --I don't think it was made up by this Court.

I think that the words, for the purpose, if you take the context of the whole, for the purpose of depriving that class.

I think the... and then the equal privileges and immunities, that's what this Court, looking at in the legislative history... which I'm hesitant to bring up, but I will bring up... pointed to.

Justice Scalia: It just doesn't say that classes.

It says any person or class of persons.

Mr. Sekulow: Yes, but it also says, Justice Scalia, purpose.

And it also says the word, equal.

And here, if in fact, since women are the only ones that can have abortions, and that's the position that the respondents have taken, there has been no denial of equality.

Certainly in this case, where no one is permitted to get in.

This is not a situation where only women, black women can get in, or Hispanic women can get in, or some subclass.

This is a situation where no one is permitted.

It has broken up the class, if you will, not into women and men, but those involving the abortion process and those that are not.

And here, there's been no denial of equality.

And without a denial of equality, there cannot be a violation--

Justice O'Connor: Well, by that argument, just because a mob tries to prevent both blacks and whites from entering an integrated school, you would say the statute wouldn't cover it.

That's a very strange argument.

And I don't think it's consistent with this Court's precedence.

What if we were faced with an inquiry on the facts of this case about the applicability of this provision in section 1985, or for the purpose of preventing or hindering the constituted authorities of any State from giving or securing to all persons within the State the equal protection?

Mr. Sekulow: --Our position, Your Honor, Justice O'Connor, would be that it would still would not apply because there still would have to be a class-based animus.

And if you look at the purpose, the purpose was not to hinder.

Justice O'Connor: Even though it doesn't say that at all.

Mr. Sekulow: That's correct.

This Court has interpreted in Griffin, and in Scott--

Justice O'Connor: Not that clause.

Mr. Sekulow: --No, not that clause, but the wording, equal protection of the laws, is the provision on which this Court based its determination that animus was present.

And here--

Mr. Roberts: If we disagreed with you, is there evidence in the record that this was the necessary purpose and effect of the boycott?

Mr. Sekulow: --Absolutely, Your Honor.

Mr. Roberts: So that you'd lose.

Mr. Sekulow: No, no.

Not that there was the... no, excuse me.

Not that it was, the purpose was to hinder the police.

The purpose is in the record, and that is to prevent abortion, the entrance of women getting in.

If the hindrance argument was just going to be that police couldn't have done other things, well then any time someone has a ticket for speeding down an expressway, they would be deemed, quote, hindering police and in violation--

Mr. Roberts: Again, I think you're confusing the ultimate purpose with the intermediate purpose, and I think both are covered by the statute.

Mr. Sekulow: --And even if they were, Your Honor, even if they were, the animus is not towards women, it's towards an activity.

And 1985(3), this section of the Ku Klux Klan Act, section 2, does not provide substantive relief itself.

It is strictly a remedial statute.

And the substantive right, which respondents have relied on, is the right to interstate travel.

And clearly there we believe that there's no violation of interstate travel.

There's no proof that the petitioners would have engaged in their activities to deny women their right to interstate travel.

They did not ask what State they were from, they blocked all.

Not for the purposes of interfering with interstate travel, but rather to prevent the activity of abortion.

Mr. Roberts: But they did want to interfere with the interstate travel of those patrons of the facility that were from out of State, didn't they?

Mr. Sekulow: That would have been a mere effect.

Mr. Roberts: Well, maybe it was, but they did want those people not to get to the facility.

Mr. Sekulow: Yes, they wanted those people--

Mr. Roberts: And they knew in advance at least some of them crossed the State line from the District or from Maryland, didn't they?

Mr. Sekulow: --That's not established here at all.

Mr. Roberts: You don't think they knew anybody came from outside of Virginia?

Mr. Sekulow: I will assume... we can make that assumption.

It would not change, in our opinion, Justice Stevens, the test of whether there was a violation of interstate travel.

The respondents have alleged that if there's any effect on interstate travel, no mere effect would constitute a violation.

I think this Court's interpretation of interstate travel has looked more towards purposeful.

And I think in Griffin, specifically, at the end of... towards the end of the opinion, the Court looked at the interstate travel right and saying while private action against interstate travel is actionable, would be a constituted... could constitute a violation, the fact that interstate travel was prevented was not enough to be a violation of interstate travel.

The Court said what... would go back now... when this Court remanded it back down for determination, did these particular people intend to violate these rights.

Did they mean to keep out-of-state people out solely?

And in Griffin, there was an allegation that there was a distinction with the right to travel as it related to--

Mr. Roberts: Why do you say solely?

Supposing you close an airport.

You could prove that 80 percent of the people were making just intrastate flights, you don't think that would come under interstate commerce, when 20 percent come from England or someplace?

Mr. Sekulow: --It depends on the purpose for which in fact--

Mr. Roberts: Then is it entirely on the subjective purpose of the people who close down the airport.

Mr. Sekulow: --I think it is a subjective test, Your Honor.

I think the animus has to be subjective.

But even if it was an objective test, in the hypothetical that Your Honor's given, if they closed it down because of what they considered a traffic problem, or something else, that's where you have to take a look at what is motivating, what is animating these particular individuals.

And in the right to travel context, in Griffin, the allegation in the complaint was that these particular black people were not being treated equally with white people as it relates to interstate travel.

And the Court, this Court said that we need to send it back down for further factual development, that maybe they did purposely mean to do this.

And perhaps that fact and other evidence would constitute a violation of interstate travel.

But in this context, there is no evidence at all.

It was a mere conclusion of law.

I'd like to reserve the rest of my time for rebuttal.

Mr. Roberts: May I ask you one question before you do?

Mr. Sekulow: Yes, Your Honor.

Mr. Roberts: I was looking at the complaint, and correct me if I'm wrong.

Is it true that all of the defendants are nonresidents of Virginia?

Mr. Sekulow: That all of the defendants are non-residents?

I believe that's correct, Your Honor.

Mr. Roberts: So there would have been diversity jurisdiction in this case in any event.

Wouldn't there?

Mr. Sekulow: I don't think there would have been because there was no allegation that there were damages in excess of $50,000.

Mr. Roberts: I see.

Thank you, Mr. Sekulow.

We'll hear now from you, Mr. Roberts.

ORAL ARGUMENT OF JOHN G. ROBERTS, JR. ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE SUPPORTING THE PETITIONERS

Mr. Roberts: Thank you, Mr. Chief Justice, and may it please the Court:

This case is not about whether respondents have a remedy for petitioners' tortious conduct.

They do, in State court under State law.

This case is about whether they also have, in addition, a Federal civil rights remedy for that same conduct.

Mr. Roberts: They would have a Federal remedy, would they not, if they had made the $50,000 jurisdictional amount allegation?

Mr. Roberts: Well, they would... assuming--

Mr. Roberts: Assuming he knows what the compliance is.

Mr. Roberts: --It would have satisfied the jurisdictional limit, and then could have sued under State law under diversity.

Mr. Roberts: And there the findings are a violation of State law here, aren't there?

Mr. Roberts: There are those findings.

But they--

Mr. Roberts: And they could give the same remedy under State law, couldn't they?

Mr. Roberts: --Under State law.

But they would not have had a Federal remedy.

Mr. Roberts: The Federal court would have had a duty to do that.

Mr. Roberts: Yes, assuming that requirements of diversity were met.

They still would not have had a Federal civil rights remedy under section 1985(3).

The reason is that section 1985(3) is not a general cause of action for the deprivation of Federal rights.

For example, there is a Federal constitutional right to carry a picket sign on a public sidewalk.

If I come upon a picketer, and I don't think there should be such a First Amendment right, and I assault him, that interferes with his exercise of his constitutional rights.

But my conduct is a simple assault redressable under State law.

If I come upon a picketer and assault him because he's black, and I don't believe that blacks should have equal First Amendment rights, then my conduct would satisfy the class-based invidiously discriminatory animus requirement.

It would have been based in part on who that person was, not simply what he was doing.

Mr. Roberts: Mr. Roberts, in your hypothetical you talk about one person.

What if two or more persons engage in conduct that prevented somebody from carrying a picket sign?

Mr. Roberts: That would be a conspiracy to deprive that person of constitutional rights.

Mr. Roberts: And that would be covered, wouldn't it?

Mr. Roberts: That would not be covered.

Section 1985(3) is directed to the discriminatory deprivation of rights, not simply the deprivation of rights.

That was the change that Congress made from the original bill that was introduced to the one they enacted.

The original bill made it unlawful to do any act in violation of the rights, privileges, or immunities of another person.

It would cover the picketer example.

The amended act, the one that was passed, focused on the discriminatory deprivation of rights.

The deprivation of equal protection, equal privileges and immunities.

And that, as this Court explained in Griffin, introduced the class-based animus requirement.

Now respondents' basic submission is that opposition to abortion is the same as discrimination on the basis of gender.

That's wrong as a matter of law and logic.

As a matter of law, this Court rejected that line of reasoning in the Geduldig case.

There Justice Stewart, writing for the Court, explained that a classification based on pregnancy was not the same as a gender-based classification, even though only women could become pregnant.

Accepting respondents' submission that opposition to abortion is the same as discrimination on the basis of gender, because only women can have abortions, would require overruling the rationale of Geduldig.

As a matter of logic, for a conspiracy to seek to deprive persons of the equal protection of the laws or equal privileges and immunities, the conspirators must seek to deny to some what they would permit to others.

Mr. Roberts: Is Geduldig in tension with Johnson Controls?

Mr. Roberts: I think not, Your Honor.

Johnson Controls, in that case the basic problem was that fertile women were barred from certain jobs because of the danger exposure to lead would have to their offspring, while fertile men were not barred from those same jobs, even though it was shown that the same exposure could affect their offspring.

Johnson Controls, as was noted in the majority opinion, was a gender classification.

And therefore, it's fully consistent with Geduldig.

Mr. Roberts: In other words... all right.

Mr. Roberts: Here petitioners do not seek to deny to some what they would permit to others.

They seek to prohibit the practice of abortion all together.

Respondents, in their amici, bring up the analogy that opposition to women seeking abortions is just like a conspiracy against blacks seeking to vote.

If you examine the analogy closely, it breaks down.

In the conspiracy against blacks seeking to vote, what animates it is opposition to a group on the basis of race.

It is blacks that they do not want to vote.

It's not opposition to the activity of voting.

Here it is solely opposition to the activity of abortion.

As a matter of logic, you cannot deprive a class of equal protection or equal privileges and immunities with respect to a right that only that class can exercise.

You can certainly conspire to deprive them of that right, but it is not a denial of equal protection or equal privileges and immunities.

Respondents also have no cause of action under section 1985(3) because the right for which they seek a remedy, the constitutional right to travel, is not implicated in this case.

This Court has never found a violation of the right to travel in the absence of either discrimination between residents, on the one hand, and nonresidents, or newcomers, on the other, as in Doe v. Bolton, Shapiro v. Thompson, Dunn v. Blumstein, or an actual purpose to interfere with the right to travel as such, as in the Guest case.

Here, of course, petitioners' activities fall into neither of those categories.

They do not discriminate between residents and nonresidents in blocking access to the clinics.

And they do not seek to interfere with the constitutional right to travel as such.

They don't seek simply to keep out-of-staters from coming in for abortions.

That's an inaccurate description of the conspiracy in this case.

Respondents would find a violation of the constitutional right to travel based solely on two facts.

One, some of the patients at these clinics come from out of State, and two, petitioners blocked access to the clinics.

That unlimited vision of the right to travel would find a violation in every case, almost every case, for example, of a picket line, so long as some of the workers or customers were from out of State.

This Court has never accepted such an unlimited view.

Justice O'Connor: Mr. Roberts, if the evidence established that one of the purposes was to prevent or hinder local police from putting an end to the demonstration and the blockade, do you think that 1985(3) in that second clause would cover it?

Mr. Roberts: No, I don't, Your Honor.

First of all, no such allegation was made in the complaint.

Justice O'Connor: I said if that... if the facts established that.

Mr. Roberts: If the facts established that, I think that we would still be back to the class-based animus requirement.

The prevent and hinder clause has, just as the immediately preceding clause, which is the one at issue in this case, the requirement that it be a deprivation of equal protection.

This Court, in Griffin, interpreted that language in the clause at issue here to require the class-based invidiously discriminatory animus.

And I think the word equal should carry the same meaning in the second clause.

Particularly since it was added in the amendment process, just as the words equal were added in the immediately preceding clause.

To continue, there were no such findings in this case.

And I also think it would be a difficult question whether under the facts that were alleged, you prevent or hinder State authorities when you simply are arrested.

That's not preventing them from doing their job, that's allowing them to do their job.

And what the prevent and hinder clause was directed to were the classic case of lynching, where there is affirmative disruption and interference with the State authorities.

That's not alleged and has not been found here.

Mr. Roberts: Mr. Roberts, in this case are you asking that Roe v. Wade be overruled?

Mr. Roberts: No, Your Honor, the issue doesn't even come up.

Mr. Roberts: Well, that hasn't prevented the Solicitor General from taking that position in prior cases.

Three or four of them in a row.

Is it because you you're relying on Doe against Bolton here?

Mr. Roberts: We are not relying on Doe against Bolton.

We distinguish Doe against Bolton.

I believe my brother is the one relying on it.

And we distinguish it because that was an affirmative case of discrimination--

Mr. Roberts: But you cited it a little while ago affirmatively.

Mr. Roberts: --I cited it for the proposition that this Court's right to travel cases have hinged on discrimination and between residents and nonresidents.

And that's not at issue here.

If, for example, as Justice O'Connor has explained, the right to travel is based on the privileges and immunities clause, then I think it becomes quite clear that it's not implicated.

That clause states, to paraphrase, that a citizen of State A, when he moves into State B, or travels into State B, must have all the privileges and immunities of a citizen of State B.

Mr. Roberts: Of course if your office prevailed in its suggestion that Roe against Wade be overruled, Doe against Bolton would go with it, will it not?

Mr. Roberts: I'm not sure, Your Honor.

Doe against Bolton is a discrimination case.

Roe against Wade is an affirmative right case.

I think that's a separate question.

The right to an abortion is not implicated here.

Neither of the lower courts relied on that ground alleged in the complaint.

They relied solely on the constitutional right to travel, which, as I've indicated, is not implicated in this case.

Mr. Roberts: It seems to me you've slipped a stitch here somewhere.

Mr. Roberts, did your answer to Justice O'Connor's question depend on the size of the conspiracy?

For example, if you had a conspiracy of two people, only two people went to the clinic, you could answer quite plausibly as you did that they certainly were not conspiring to preclude the police from arresting them because they were easily arrestable and were arrested.

If you have 2,000 who go to the clinic, and the point of the conspiracy is to act in this massive fashion, then isn't it more reasonable to analyze the conspiracy as, one, in effect, to preclude the enforcement of laws against trespass, against assault, and so on?

And wouldn't your answer be different if you consider the size?

Mr. Roberts: If I may, the answer would be the same, Your Honor, because regardless of the size of the conspiracy, the class-based animus requirement continues under the prevent and hinder clause.

And in this case there was simply no class-based animus, either under the first clause under which the respondents have relied, or the prevent or hinder clause.

Thank you.

Mr. Roberts: Thank you, Mr. Roberts.

Mr. Schafer, we'll hear now from you.

ORAL ARGUMENT OF JOHN H. SCHAFER ON BEHALF OF RESPONDENTS

Mr. Schafer: Mr. Justice, and may it please the Court:

The question posed in this case is whether or not a Federal court has jurisdiction to protect Federal rights when because of mob violence and mob action, local law enforcement authorities are unable to maintain law and order.

It is precisely the situation for which the statute was written.

The analogy to the facts of 1865 to '71, say, when this statute was written, are striking.

There, as here, you had conspiratorial mass action which was intended to and did frustrate the exercise of Federal rights.

Local law enforcement authorities--

Justice O'Connor: Mr. Schafer, was any reliance ever placed in the courts below by your clients on this second clause of section 1985, for the purpose of hindering or preventing the constituted authorities from securing all laws?

Mr. Schafer: --This case, Justice O'Connor, was tried 9 days after the complaint was filed.

And the complaint did not make a hinder or prevent claim.

The evidence then developed it.

In my judgment, that claim is good.

Although courts below have not made findings on them, the Court may want to remand for findings on it.

But the evidence established a hinder... in my judgment... a hinder and prevent claim.

Mr. Roberts: Mr. Schafer, your position is that that hinder claim does not require any class-based animus.

Mr. Schafer: No, I would say it does.

Mr. Roberts: Oh, it does.

Mr. Schafer: No, I agree with that.

I agree with that.

I would not consent that it doesn't... I think Griffin--

Mr. Roberts: Because otherwise, the question I was going to ask you, if it doesn't require class-based animus, then I suppose you would have had to apply that clause to the freedom riders who went to the South in massive numbers violating trespass laws in the South, making it impossible--

Mr. Schafer: --Yes.

Mr. Roberts: --You wouldn't assert that it would apply to something like that?

Mr. Schafer: As I read Griffin, I think the class-based animus is written into the statute by the equal protection and equal privileges and immunities clause.

And I think that the evidence, as I say, the odd thing in this case is that under the Federal rules, we could amend our complaint today to accommodate the finding... the facts that were developed in a Court below, and we don't even have to amend a complaint under the Federal rules to make that claim, because the Federal rules provide that if the evidence establishes a claim, the pleadings will be deemed to be amended to encompass that claim.

And I think that we do have that claim based on these facts.

And these facts are basically, as I'm sure the Court knows, that the tactics of these people are to frustrate law enforcement.

They don't announce in advance where they're going to set up their blockades of clinics, which clinics are going to be blockaded.

They announce the dates, but they don't announce where, and so local police and authorities don't know where.

And so suddenly at some medical clinic someplace, there are hundreds and hundreds of people early in the morning around, blockading, and preventing ingress and egress from the clinic.

Mr. Roberts: Well, Mr. Schafer, if section 1985 does extend to gender-based class animus, how can you pick out a subset of that class and say that's the class?

Mr. Schafer: We don't do that, Your Honor.

They keep saying we do that, but that's not what we do.

Our contention is simply this; that when you target a right of a class and attempt to take away that class' constitutional right, you are discriminating against that class, the entire class.

And the class here is not women seeking abortions as they keep arguing.

The class is not defined by an activity or by an idea, or anything else.

It's defined simply by the Constitution.

All women have this right.

These people want to destroy that right.

And the way they do it is target the women who are exercising the right.

But the losers, if they win, the losers are all women.

All women.

The right of all women is lost.

And it's just like--

Justice Scalia: Excuse me, but that's not true.

The losers are not all women.

Surely the doctors who want to make a living performing abortion are deprived of their right to engage in that specialty.

They are kept out of the clinics, as well as the women, are they not?

Mr. Schafer: --Yes.

Justice Scalia: And does it not violate a right of theirs, or does it?

Mr. Schafer: In my judgment, as Novotny shows, they have their own independent cause of action for violation of 1985(3).

Justice Scalia: I think that's right.

So it is not directed just against the rights of women.

Mr. Schafer: Well, the purpose, though, the whole effort is to take away the right to choose.

Not the right of physicians to practice medicine.

Justice Scalia: The right of women to choose to have an abortion, but likewise the right of a physician to choose to give an abortion.

I gather their animus against those who perform the abortion is the same as their animus against those who receive it.

Mr. Schafer: Well, yes, Your Honor, Justice Scalia, I'm not at all sure that the doctors have a constitutional right to practice medicine, this kind of medicine.

I don't really know.

But the right that these people are targeting is a woman's right.

They are trying to destroy a woman's right.

And when you do that, just like in Johnson Controls, when an employer discriminates in the terms and conditions of employment between women and men by saying to women who are capable of bearing children, you may not have certain jobs, that's a discrimination not against just them, it's a discrimination against all women.

And in Satty, when the employer says when you get pregnant, you're going to lose your seniority rights, that's not just a discrimination against those directly impacted by the discrimination, it's a discrimination against women.

Mr. Roberts: Mr. Schafer, I have two questions that your answer raises.

The first is if the doctors themselves and the doctors alone had brought action under the statute, I think you said a moment ago that they indeed would have a separate and independent cause of action to bring under this statute.

Is that your position?

Mr. Schafer: Well, I'm not sure they do.

Novotny suggested he had one because of a violation of a Federal right.

But here, he only... under the words of the statute, they have a cause of action if they are denied any right or privilege of a citizen of the United States, or if they suffer injury by their person or property.

And if they suffer injury by their person or property via a class-based discriminatory effort to destroy the abortion right, I suppose yes, they do.

I don't know why they wouldn't, offhand.

Mr. Roberts: In other words, you could put them in the same position as the Republicans who were referred to as being one of the class to be protected by the statute at the time it was passed.

Kind of an ancillary category which essentially gets its foot in the door by being ancillary to a primarily protected category.

Mr. Schafer: As I... certainly as I read the legislative history, that was the intent there, as you, I guess suggest.

And I do think that there's no... I don't see any readings in the words of the statute.

I don't see that if that action were brought that it would be subject to a motion to dismiss by matter of course of this case.

Mr. Roberts: I'm sorry.

My second question goes back to Mr. Roberts' answer with respect to the applicability of Johnson Controls.

His response was that the... I think was that the class at Johnson Controls was the class of those who were fertile, and I guess in the broad sense of being able, being capable of engaging in the reproductive act.

And the distinction was made between women in that category and men in that category.

Do you think that's a proper answer to your claim that Johnson supports you?

Mr. Schafer: I really don't.

I don't think the Court put any emphasis on that.

I just don't think... I think the Court's analysis of Johnson Controls was that when you take this right away from fertile women, it's a discrimination against women and there's absolutely no--

Mr. Roberts: Didn't the Court also point out that men were not required, in fact, to make this election that women were?

Mr. Schafer: --It had... as I recall the opinion, one sentence referred to that fact, and I just don't know what the underlying facts were as to whether there was grounds for a distinction drawn between men and women in terms of the possibility of injury to a child or not.

But certainly the Court's opinion overall placed absolutely no emphasis on that fact.

Mr. Roberts: Was Johnson Controls a statutory case or a constitutional case?

Mr. Schafer: It was a statutory case.

Mr. Roberts: Title VII?

Mr. Schafer: Title VII case, yes, as was Satty.

So that in order to make out our cause of action here, as this Court well knows as was stated in Griffin, we have to show that there were acts done pursuant to a conspiracy and that it was animated by an invidious discrimination.

As I've tried to say, that when you target a right of women, you target all women, and that's the invidious discrimination that we rely upon.

We have never had any mention of that... it's just as if, just like Griffin, the case in Griffin, when you targeted three African-Americans who were thought to have been working for civil rights for African-Americans, that was a discrimination against all African-Americans, when you targeted three of them.

Mr. Roberts: Mr. Schafer, the courts below didn't rely on... rely on the right to an abortion, but the right to interstate travel, as the Federal right or privilege that was taken away.

Mr. Schafer: Yes.

Mr. Roberts: What would be your response to the hypothetical that was given to opposing counsel, if there... I think by Justice Stevens... if there is picketing of an airport, let's assume the employees of an airport picket unlawfully, it's trespassory picketing or something, would they be suable under 1985(3)?

Mr. Schafer: You have to show class-based animus in there someplace or other.

Mr. Roberts: You would have to show class-based--

Mr. Schafer: Animus against some group.

Mr. Roberts: --Okay.

Mr. Schafer: And our position here is--

Mr. Roberts: They would not be liable simply because they know that some people's interstate travel will be affected.

Mr. Schafer: --I think if you put a barricade against an interstate highway, you're not violating 1985(3), no.

Mr. Roberts: Even if they do it to such a degree that the police cannot enforce the law?

Mr. Schafer: Yeah, I accept the Griffin holding that this statute, as they argue, does require us to show a class-based animus... class-based discrimination, not animus, discrimination.

And as I say, I think we've shown it here when we show that women are the ones impacted by... that women's right is the one that's targeted here, and when you try to take away that right, you're trying to take away a woman's right, and you are therefore discriminating against women, just as in Griffin when you tried to take away the civil rights of African-Americans, you were discriminating against African Americans, and you had a cause of action under 1985(3).

Any conspiracy that's animated by an invidious discrimination for the purpose of depriving equal protection of the law or equal privileges and immunities is actionable by anyone injured thereby or deprived of exercising any Federal right.

We have... I think of those, as we've seen, of all those Griffin issues, the only two that are really at issue here are the discriminatory class-based animus and the travel right.

It seems to me worth at least noting that this Court is not yet directly confirmed that women are a recognizable class under this statute.

Our position is that the class... whatever class means in 1985(3), at least it means persons identifiable by immutable characteristics.

Particularly those persons historically disadvantaged in our society.

That includes women.

We don't have to go, for purposes of this case, anything beyond that.

The Court in Novotny did assume without deciding that women are a class for purposes of this statute.

And the dissent in Scott, four Justices noted that gender-based discriminations would form a class for the purpose of this statute.

And all of the lower courts that have dealt with this issue and attempted to forecast this Court's finding have forecast that this Court would confirm that women are a class.

But that's a predicate issue that's not put in issue here.

It's not one of the questions posed in petition for certiorari.

But it is a question, I think, in order to at least affirm, the Court is going to have to address.

Now the Government, of course, has relied upon Geduldig to say that targeting women seeking abortions is not an invidiously discriminatory action.

And of course, our position is (a), our class is not just women seeking abortions, but all women; but (b), Geduldig and Gilbert are really distinguishable cases.

Mr. Roberts: Would you explain to me why the class is all women and not just women seeking abortion?

I must say I don't follow.

I don't quite follow that.

Mr. Schafer: Well, it's just that the effort here is to destroy the right to choose, to frustrate it, to prevent it being exercised, hopefully to eliminate it.

Now when you do that, you're directly targeting a right of women, precisely the same as those persons who accosted those African-Americans on the highway in Alabama and went after them because of civil rights.

Mr. Roberts: You could say you're depriving a right of human beings, too, if you want to go up to the next generality.

But the fact is the narrowest class affected is simply, is pregnant women, not all women.

Mr. Schafer: Today's pregnant women, but not tomorrow's.

We're talking about a right.

Mr. Roberts: Well, I think so as far as blocking the current entrance to the facility is concerned.

Mr. Schafer: Yeah, but the purpose of this whole effort is, of course, to deprive the right of all women, not just the women who happen to want an abortion on Thursday, November 8, 1969... 1989 in Falls Church, Virginia, but all women everywhere in this country.

And it's a woman's right.

I'm not sure I understand what Your Honor alludes to when he says higher right of all people.

This is a right to choose which is peculiar to women, of course, because of their reproductive differences.

But it's a woman's right that's being targeted.

And it seems to me that it's perfectly clear that when you target a woman's right, you're targeting women.

You're discriminating against women.

It doesn't matter that they profess their love and admiration for women, the effect of their acts, and the purposeful deliberate effect of their acts is to make ineffective a woman's constitutional right.

Now if that isn't discrimination against women, it's hard for me to--

This is a statute that's aimed at the protection of rights.

It doesn't legislate love or hate, or anything like that.

It legislates for the protection of rights.

It doesn't matter if we love the people who are targeted.

The plaintiffs in these cases don't have to prove a subjective state of mind as to why they did these things.

The plaintiffs simply have to prove that what they're trying to do is take away my rights and the effect of their action is to take away my rights.

Mr. Roberts: Could a 65-year old woman bring this case?

Mr. Schafer: She'd be a peculiar plaintiff to choose, certainly, but I don't know why not, I guess, representing... particularly representing all women.

But it's hard to see--

Mr. Roberts: I mean, you have to answer that way, I suppose.

Mr. Schafer: --Yeah, I think that the Court would say, I guess the Court would say a woman who has no possibility of exercising the right probably doesn't have standing to maintain a cause of action.

I don't know.

Mr. Roberts: So this isn't a discrimination against all women.

Mr. Schafer: Well, I think it is.

I don't see why that destroys the discrimination against all women, because one woman can't sue.

I mean, I suppose that the child right out of the womb can't sue, either, but again, it's a right that if lost that's going to impact her.

Mr. Roberts: Or she might be the biblical character Sarah, too.

[Laughter]

Mr. Schafer: Now, tracking Griffin and Scott, then we do rely on the Federal right of travel, many times identified by this Court as a right or privilege of United States citizenship.

This right of travel formed the basis of the Griffin cause of action and was endorsed in the Scott decision.

We track that in this case, and we more than tracked it.

Here, the comparisons with Griffin are quite stark in our favor.

And though, although counsel misrepresented to you, in my judgment, one of the holdings of Griffin, the fact is we do not have to prove an intent to destroy this right.

Griffin itself noted on the remand that among the things that the plaintiffs would have to prove on remand would be simply whether or not they intended to travel interstate.

Then the Court went on to say, and you could also prove that the defendants tried to prevent traveling interstate.

But one... it was a disjunctive sentence, and one element of the sentence was that if you... if you simply intended, if you prove you intended to travel interstate, you've established this right.

And that to me, makes a lot of sense because this is, as I say, a basic constitutional right.

It should not depend upon the plaintiff being able to prove a defendant's subjective state of mind as to whether or not he cared about interstate travel or he didn't care about interstate travel; the effect is there.

When the effect is to prevent interstate travel, or to make interstate travel useless, then it seems to me the travel right has been established.

And we've done that here.

Mr. Roberts: Don't you go beyond Griffin when you characterize one possible sufficient proposition that it would be enough to prove that the conspirators would render the travel useless?

Griffin didn't go that far, did it?

Didn't Griffin require a proof either that the travel as such would be prevented or that individuals would be precluded from associating with those who did travel interstate?

Mr. Schafer: Yes, I think that's right, Your Honor.

But it seems to me that proving that travel would be useless is even more persuasive, if you will, than simply proving that the plaintiff might want to go... travel interstate.

The facts in Griffin were simply... the allegation was they were just driving around on interstate highways to visit friends and to do errands.

And it seems to me where you have a deliberate course of action, the purpose of which is to make useless interstate travel, which, as I say... and that that travel is for the purpose, as opposed to Griffin, that travel is for the purpose of exercising a core constitutional right, the right to choose.

If interstate travel isn't protected there, it's hard for me to understand what substance the travel right has.

Mr. Roberts: Well, doesn't the answer lie in the fact that to the extent that interstate travel would be rendered useless, so would intrastate travel be rendered useless.

And Griffin, whether with precision or not, tried to center on the peculiarity of the inter, interstate travel and the right to exercise it.

Mr. Schafer: I'm not sure I understand Your Honor's comment.

But the fact that intrastate travel may or may not be impacted, it seems to me that's not relevant.

The Government's plain wrong when it says that you don't violate the travel right unless you discriminate against intra, interstate travelers.

There's nothing to suggest that in the case.

Certainly nothing in Griffin to suggest that.

In Doe... when I talk about frustrating travel by making the travel useless, I have in mind particularly Doe v. Bolton, where basically the Court said... it said in effect, it didn't say it in these words, but people could not travel to Georgia to exercise their right to choose in Georgia, and the Court... because Georgia wouldn't permit them to do so, and the Court said that's in violation of interstate travel.

That's an impact on interstate travel, which is unconstitutional.

And it seems to me the whole thinking there is that by the Georgia statute doing what it did, it just made that interstate travel useless, so nobody's going to engage in it.

And that's what I'm talking about when I say that travel that is useless, as travel would be here if these people were allowed these blockades, it just... it just is a violation of the travel right.

And I would like, before I forget it, I'd like to--

Mr. Roberts: Mr. Schafer, it isn't just that is a violation, it has to be for the purpose of depriving them of that privilege.

That has to be the purpose.

The purpose is to--

Mr. Schafer: --To deny equal protection of the laws, right?

Mr. Roberts: --For the purpose of the depriving, either directly or indirectly, any person under the equal protection, or of equal privileges and immunities under the laws.

Mr. Schafer: Yes, that's right.

Mr. Roberts: Now here we're talking about the privilege of interstate travel.

Mr. Schafer: Yeah, right.

Mr. Roberts: So it has to be for the purpose of depriving them of that privilege.

Is that not right?

Mr. Schafer: You can... one purpose here was to satisfy... the denial of equal protections is satisfied when you show a purpose to deny the right to choose, which is the other right denied here.

And that's the discriminatory... that is a discriminatory violation.

Now in this case, you can also, if you want to say that you also have to show a purpose to implicate travel.

I don't think you really should, but even if you do, we have findings here that these people did intend to prevent interstate travel.

And as I say, our showing here of purpose, and there was a substantial volume of interstate travel involved here... 30 percent of these patients come from outside the State.

These petitioners knew that.

And the Court said--

Mr. Roberts: Suppose I kill somebody who I know is on the way to the railroad station, and he's going to be, you know, going to another State.

Am I interfering with his right to interstate travel for the purpose of this provision?

I mean, I know for a sure thing that if I kill him he's not going to be able to take the train and go to the next State.

And he has a ticket in his pocket.

I know that the effect is going to be to prevent that travel.

Have I violated 1985(3)?

Mr. Schafer: --Is your purpose invidiously discriminatory?

I mean is he... is there... no, without that, certainly not.

Mr. Roberts: All right, let's assume it's invidiously discriminatory.

Suppose I kill him because he's black and I don't like blacks, and I kill him and also know that he has in his pocket a railroad ticket, and that I'm going to prevent him from going to another State.

Mr. Schafer: We've thought about that, and I think that, of course, it's far beyond this case, but I suppose that you probably do have... you probably have violated 1985(3).

I'm not sure about that.

I think you have.

Mr. Roberts: I think for the purpose of depriving him of the privilege of interstate travel.

Mr. Schafer: That's right.

Mr. Roberts: Well, I don't know what the words for the purpose mean.

I mean, language no longer means anything anymore if that was for the purpose of--

Mr. Schafer: We have a finding here... we have a purpose here... we have a finding of purpose.

I couldn't hear, I'm sorry.

Mr. Roberts: --I may be wrong on this, but isn't the finding that you rely on a finding of impact, i.e., a high percentage of people who come to this clinic traveled in interstate commerce and the defendants knew it.

Isn't that a finding about impact, rather than a finding about... certainly it's not a finding directly about purpose.

Do you have anything more than that?

Mr. Schafer: When the Court dealt with necessary purpose for purposes of 1983, it said in Monroe v. Pape that the only intent you need to show for violation of 1985(3), of 1983, I'm sorry, is that a man intends the natural consequences of his acts.

And if you think that you need a showing of purpose here, clearly you have that in this case.

Mr. Roberts: I think your answer to my question is yes.

What you are saying is the purpose finding is essentially an impact finding.

Mr. Schafer: Yes, I think that's right, yeah.

I wouldn't stand here and argue that these people care whether these people travel interstate or not.

I'm not arguing that.

It would be silly to argue that.

I have a very short time left.

I want to say one thing.

There's been a lot of talk from the other side that this is a State case and it belongs in a State court.

It belongs in the Federal court, in our judgment, (a), because as I've tried to say, there's a Federal right that's being attacked here to the injury of a discrete class of people.

But secondly, State law... sure there's a trespass action, but would a young lady trapped in a car, bleeding in a parking lot outside of a medical clinic, unable to get in because of this action, would she have a trespass action?

It's not her property that they're on.

What kind of an action does she have?

Does she have some sort of interference with contract relationships argument?

Pretty tenuous.

And who does she sue?

She doesn't know who's surrounding the car.

I think it's a very false premise to come in here and tell this Court that this is a mere State trespass action and it ought to go back to the State courts.

Because there's no... for a number of reasons, State courts cannot afford adequate relief here, one of which I just pointed out.

Mr. Roberts: Mr. Schafer, can I ask... I mean, the most important relief here, I suppose, and most significantly, was injunction.

What's the authority for the issuance of the injunction, since as I read 1985(3), it only says that the parties may have an action for the recovery of damages?

Mr. Schafer: I think 1343 is adequate support.

Mr. Roberts: You're relying on 1343?

Mr. Schafer: Yes, I am.

Mr. Roberts: Do you know of any other instance where there's a statute that specifically says in only an action for damages it's parlayed into an injunction?

Mr. Schafer: No, I can't cite one to Your Honor.

Of course 1343 just says in terms of all actions brought under the civil rights statutes, and this is one, 1985(3) is one, the court has jurisdiction to award both damages and equity relief.

And I don't frankly feel that it's necessary to look further.

Again, a few words on the adequacies of State action.

Federal injunctions, frankly, mean more than State injunctions.

Federal injunctions are supported by more weight, by more marshals, by more people willing to make them work.

We have amicus briefs here in this case where States are asking you to complement State enforcement activity with Federal enforcement activity.

This is an exercise of complementary federalism.

The States want Federal help.

Wichita showed that this summer.

And there's no, it's just fallacious in my judgment to suggest to this Court that a State court can afford the kind of relief and the kind of protection of Federal rights that only a Federal court can do under this statute.

If there's nothing further, thank you, Your Honor.

Mr. Roberts: Thank you, Mr. Schafer.

Mr. Sekulow, you have rebuttal.

You have 4 minutes remaining.

REBUTTAL ARGUMENT BY JAY ALAN SEKULOW ON BEHALF OF PETITIONERS

Mr. Sekulow: Thank you, Mr. Chief Justice, and may it please the Court:

Just a few points.

With regard to the issue in Johnson Controls, the basis of the Court's opinion, or a significant portion of that opinion states that the bias in Johnson Control's policy is obvious.

Fertile men, but not fertile women are given a choice as to whether they wish to risk their reproductive health.

The Court went on further; first Johnson Control's policy classifies on the basis of gender and child-bearing capacity rather than fertility alone.

Respondent, and this is from the quote, does not seek to protect the unconceived children of all its employees.

The petitioners in this case, seek to protect all unborn children through their activities.

And the animus itself, or the motivation, is aimed at the entire process, all that involved with it.

With regard to the right to privacy, counsel, my brother in bar, submitted at trial that there is no State action that may stand or fall on it.

So the right to privacy claim, we think, is without merit.

With regard to the issue of the right to travel, as Justice Scalia has said, it has to be purposeful because the statute in and of itself says that the activities have to be engaged in for the purpose of depriving a class, here described as women seeking abortion, their constitutional right to interstate travel.

So the purpose has to be clear.

And my brother at bar conceded that there is in fact no purpose.

That is, they do not seek to find a difference between out-of-town people and in-town people.

The last thing I'd like to say, Your Honor--

Mr. Roberts: May I ask you a question?

Mr. Sekulow: --Yes, sir.

Mr. Roberts: And I'm not sure of the significance of it, but I notice one of the findings was that these rescues have been taking place in many places across the country and have been enjoined in New York, Pennsylvania, Washington, Connecticut, California, as well as the Washington metropolitan area.

Does that have any relevance to the interstate aspect?

Mr. Sekulow: I do not think so, Your Honor, because again, I think we have to look at what this Court has said, plus the statute itself requiring purposeful action.

And here it's clear there was not.

And as the findings of fact point out, it was Judge Ellis' determination that the activities, if they were to have taken place, of the petitioners, would have had an effect on interstate travel, not that there was a purposeful violation of the right to interstate travel.

Mr. Roberts: Do you think respondents can prevail in this case without relying on the interstate travel?

Mr. Sekulow: Do I think that respondents can prevail?

No, Your Honor.

Mr. Roberts: Why not?

Mr. Sekulow: Because their sole independent right that is at stake here is interstate travel.

Plus they... the interpretation respondents have given, Justice White, to the statute is pre the limiting amendment.

That is they've eliminated the requirement of denial of equality.

It's any constitutional action and that is not what is at stake here.

And with regard to the State action issue, the State claims, as Judge Ellis pointed out, a public nuisance can be brought by a private party in a state circuit court in Virginia, and in fact, they have been brought in Virginia circuit courts, and they have been issued.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Sekulow.

The case is submitted.

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Bray v. Alexandria Clinic - Oral Reargument

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Bray v. Alexandria Clinic

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Transcript:

IN THE SUPREME COURT OF THE UNITED STATES

JAYNE BRAY, et al., Petitioners v. ALEXANDRIA WOMEN'S HEALTH CLINIC, et al.

No. 90-985

October 6, 1992

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:02 a.m.

APPEARANCES:

JAY ALAN SEKULOW, ESQ., Washington, D.C.; on behalf of the Petitioners.

JOHN G. ROBERTS, JR., ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae, supporting the Petitioners.

DEBORAH A. ELLIS, ESQ., New York, New York; on behalf of the Respondents.

PROCEEDINGS

10:00 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument first this morning in number 90-985, Jayne Bray versus Alexandria Women's Health Clinic.

Mr. Sekulow.

ORAL REARGUMENT OF JAY ALAN SEKULOW ON BEHALF OF THE PETITIONERS

MR. SEKULOW: Mr. Chief Justice, and may it please the Court:

Through the misapplication of section 2 of the Ku Klux Klan Act of 1871, the U.S. District Court for the Eastern District of Virginia now monitors State trespass action. It has been our position from the outset of this litigation that this case should not be in Federal court.

The Fourth Circuit holding rests on two faulty legal premises. First, an opposition to abortion constitutes invidious discrimination against women, and secondly, the district court further compounded its error by misapplying this Court's jurisprudence with regard to the constitutional right to interstate travel by finding that petitioners' conduct would have an effect on interstate travel and thereby purposely violating the right to interstate travel.

The Fourth Circuit's position goes a long way in making 1985(3) the general Federal tort law that this Court has long counseled against. There is redress available, and that is in the Virginia Commonwealth courts. In fact, the circuit court in Norfolk, Virginia has issued injunctions which prohibits blockades and prohibit trespass activity.

The law does offer redress. This is not a case where redress is unavailable. It is. State court injunctions whose provisions mirror those of the Federal court here in significant areas have been upheld in numerous State courts on appeal.

This is a case of statutory construction and statutory interpretation. The question presented is, does section 2 of the Ku Klux Klan Act of 1871 cover the petitioners' activities? Our position is that it does not, and the Fourth Circuit is wrong and should be reversed.

In order for there to be a violation of section 2 of the act, there must be established, as this Court held in Griffin, a class-based, invidiously discriminatory animus behind the conspirators' actions. Here, the class has been defined as women seeking abortion. Simply put, women seeking abortion is not a valid class.

A class should be defined by who people are, not something they would like to do or an activity they would like to engage in. Respondents' class theory converts any group seeking to engage in any activity or conduct into a class, again creating a general Federal tort law.

Both the district court and the Fourth Circuit Court of Appeals entered over a dozen specific findings of facts dealing with the motivation or purpose of the petitioners' activities; yet despite these specific factual findings, the lower court came to the illogical conclusion of law that opposition to abortion constitutes invidious class-based discrimination against women.

That proposition has already been rejected by this Court in finding that classifications based on pregnancies do not constitute, per se, violations of equal protection and do not constitute invidious discrimination. That was in Geduldig.

This is especially so here, since the record establishes clearly what motivates the petitioners' conduct, and that is their opposition to the activity of abortion. This is not a case where the petitioners are using their opposition of abortion as a pretext to some type of gender discrimination.

The petitioners did not engage in their conduct, or nor would have they engaged in their conduct because of its effect on women. It is because of their opposition to abortion that these petitioners are motivated. Petitioners simply do not engage in the type of activity and do not conduct their activities with the invidious discriminatory animus required by section 2 of the Ku Klux Klan Act of 1871.

As I said, there's redress available. This is not a case where redress has been unavailable. Petitioners have been the subject of State court injunctions in other parts of the country.

There's also an issue I think that's equally important here, and that is the scope of the protections under section 1985(3), which is section 2 of the act -- of the Ku Klux Klan Act. There was a limiting amendment drafted by Representative Willard. The purpose of it was to mark a boundary with regard to the overall scope of the act.

Concerned over possible creations of a general Federal tort law, the drafters of the limiting amendment required that there not just be a deprivation of a right, but there be a deprivation of equality, of equal privileges and immunities, or equal protection of the law.

Thus, for a denial to be actionable pursuant to the act, to be a conspiratorial objective, the conspirators must seek to permit to some what they deny to others. Here, there's been no denial of equality. The scope of the petitioners' protest affects all involved in the abortion process.

As this Court recognized in Novotny, section 2 of the Ku Klux Klan Act itself is a remedial provision. It provides a remedy in damages. The rights, privileges, and immunities that it protects are to be found elsewhere.

Here, the respondents have asserted that petitioners violated their constitutional right to interstate travel. They base this assertion on the theory that by simply being engaged in interstate travel and having that right affected by petitioners' conduct, that the petitioners thereby purposely violated the respondents' constitutional right to interstate travel.

That theory of the respondents would turn any potential automobile accident involving an out-of-State driver into an interstate travel claim, because it would have an effect on interstate travel, and I would point out that the Fourth Circuit in its findings of fact held that petitioners' activities, if they were to have been engaged in, would have had an effect on interstate travel. They did not ever find under a finding of fact that there was a purposeful violation of interstate travel.

Our position is that the Fourth Circuit and the district court greatly expanded this Court's jurisprudence with regard to interstate travel. First, this is not a case where the petitioners discriminated against in-State residence versus out-of-State residence concerning access to the abortion clinic. Respondents conceded this during the previous argument.

Secondly, this Court's cases in the plain language of the statute itself require that for there to be an interstate travel violation there has to be a purposeful deprivation of the right. The purpose, as found by the district court and affirmed by the Fourth Circuit Court of Appeals here was that the petitioners engaged in their activities in order to express their opposition to abortion, not -- no findings of fact that there was purposeful deprivations of the right to interstate travel.

In fact, as I said, the trial court itself only held that petitioners, if they were to have engaged in their activities, would have had only an effect on interstate travel. There is no finding that here there was a purposeful action taken in deprivation of the right.

It is important to note again that in drafting the legislation the 42nd Congress made the determination in the concept of the limiting amendment that they were going to look at the issue through the lens of motivation and not impact. As I said, the language of itself, the statute itself requires that there must be a purposeful violation of the interstate travel right.

The question in one sense would be, did the petitioners conduct their activities for the purpose of depriving respondents of their right to travel? The record below supports that they did not.

The trial court's detailed findings of fact establishes what the animus and motivation of Jayne Bray and the other petitioners -- yes, Justice Stevens.

QUESTION: May I just ask you one question? You said that there was no district court finding with regard to intent to interfere with travel. I have before me the finding that petitioners engaged in this conspiracy for the purpose, either directly or indirectly, of depriving women seeking abortions and related medical and counseling services of the right to travel.

MR. SEKULOW: The court --

QUESTION: Isn't that a finding of fact?

MR. SEKULOW: No. That was a conclusion of law. The finding of fact here states -- and it's on page 22(a) of the joint -- the petition's appendix -- states, rescue demonstrations -- paragraph 28 specifically. Rescue demonstrations, by blocking access to clinics, therefore have the effect of obstructing and interfering with interstate travel of these women. The test, however, is that there must be purposeful activity, that their aim must have been not a mere consequence of it, which is what the -- where the illogical conclusion of law took place here.

QUESTION: But the district judge did draw the inference and stated in his conclusions of law that that was the purpose.

MR. SEKULOW: Yes. However, our position is that his -- that Judge Ellis, that the district court's findings of fact clearly cut against that, Justice Stevens, because his specific finding on right to travel talks about effect, and there is a difference between purpose and effect.

1985(3), section 2 of the Ku Klux Klan Act, requires that there be a purposeful deprivation of the right, not an impact, and that's what the motivation -- the view of what the motivation has to be on. What is it that motivated these petitioners? Here, it was clearly their opposition to the activity of abortion.

Mr. Chief Justice, I'd like to reserve the rest of my time for rebuttal.

QUESTION: Very well, Mr. Sekulow. Mr. Roberts, we'll hear from you.

ORAL REARGUMENT OF JOHN ROBERTS, JR. ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE SUPPORTING THE PETITIONERS

MR. ROBERTS: Thank you, Mr. Chief Justice, and may it please the Court:

The United States appears in this case not to defend petitioners' tortious conduct, but to defend the proper interpretation of section 1985(3). As this Court explained in Griffin, the language of that section covering conspiracies whose purpose is to deprive people of equal protection or equal privileges and immunities, means that the conspirators must be motivated by a, quote, class-based invidiously discriminatory animus, end quote.

If a group of conspirators assault someone carrying a picket sign because they don't believe there should be a First Amendment right to picket, they certainly are guilty of a tort and they interfere with that individual's exercise of constitutionally protected rights, but in no sense do they deprive him of equal protection or equal privileges and immunities simply because they assault him and not everyone else.

But if the conspirators come upon a picketer and assault him because he's black and they don't believe that blacks should have equal First Amendment rights, then they satisfy the class-based invidiously discriminatory animus requirement.

That is not what is going on here. Petitioners do not interfere with respondents' rights because respondents are women. Petitioners do what they do because they're opposed to an activity, the activity of abortion. They target their conspirators not because of who they are, but because of what they are doing. Respondents now seem to recognize this. In their brief on reargument they say that this is, quote, unlike the usual section 1985(3) case, end quote.

But it is not a section 1985(3) case at all, and the reason is that section 1985(3) is not concerned simply with the deprivation of Federal rights, however fundamental, however important. It is concerned with the discriminatory deprivation of Federal rights, and petitioners are perfectly nondiscriminatory, nondiscriminating, in their opposition to abortion.

Respondents' answer to this argument is that only women can exercise the right to an abortion, and therefore petitioners' antiabortion activities have a discriminatory impact on women. People intend the natural consequences of their acts, and therefore respondents argue, you can infer from the discriminatory impact that petitioners have a discriminatory purpose.

A few examples will show that the logic of that doesn't hold up. Consider, for example, an Indian tribe with exclusive fishing rights in a particular river. A group of ecologists get together who are opposed to fishing in the river, because they think it disturbs the ecology. They interfere with the Indians' rights.

The impact of their conspiracy is on a particular Indian group, but it would be quite illogical to infer from that they have any animus against Indians. They're opposed to fishing in the river, not Indians, even though only Indians can fish in the river. Petitioners are opposed to abortion, not women, even though only women can exercise the right to an abortion.

Another example. Suppose a group of men and women get together who are opposed to the draft and they interfere with registration. The direct impact of their conspiracy will be felt only by men, since only men are eligible for the draft. But, again, it would be quite wrong to infer from that impact that the conspirators have any animus against men. They're opposed to the draft, not men, even though only men are eligible for the draft.

This Court has, in fact, already rejected respondents' logic in the Geduldig case. There Justice Stewart, writing for the Court 3 years after he wrote for the Court in Griffin, explained that classifications based on pregnancy are not the same as gender discrimination, even though only women can become pregnant. Accepting respondents' argument that activities in opposition to abortion are the same as gender discrimination, because only women can have abortions, would require overruling the rationale of Geduldig.

The decision below should be reversed for an independent reason, the reason that petitioners did not act with the purpose of interfering with respondents' right to interstate travel. This is respondents' logic. One, petitioners' purpose is to block access to abortion clinics. Two, some of those seeking access to the abortion clinics come from out of State. Three, petitioners know this. And four, therefore petitioners' purpose is to interfere with people from out of State getting access to the abortion clinics.

That confuses purpose, which is what the statute requires in plain terms, with incidental effect, which is insufficient under the statute. For example, under respondents' logic, consider a typical picket line. The union's purpose is to keep the customers out of a particular establishment. Some of the customers are black. The union knows this.

Under respondents' logic, you would say that the union's purpose is to keep out black customers, but that's an inaccurate statement of their purpose, just as it is an inaccurate statement of petitioners' purpose to say that they keep people from -- they want to keep people from out of State from gaining access to the abortion clinics.

Last year respondents' counsel said it would be silly -- his word, silly -- to argue that the petitioners care whether the people come from out of State or not. But if the people don't -- if the petitioners don't care whether the people are from out of State or not, you cannot say that their purpose is to keep out of Staters from obtaining access to the abortion clinic.

This Court's decisions on the right to travel recognize this distinction. The Court has found that right implicated only when there has been discrimination between residents, on the one hand and nonresidents or newcomers on the other, as in Shapiro against Thompson, or Dunn v. Blumstein.

QUESTION: Mr. Roberts, was there discrimination in the Griffin case?

MR. ROBERTS: The allegations were that the -- part of the motivation of the conspirators were to keep out of State civil rights workers from traveling on the interstate highways. The Court did not articulate in that case what would satisfy a claim under the right to travel. It indicated a number of points that were open to the plaintiffs to prove on remand, and then said this evidence and other evidence might suffice to show a right to travel.

So it may be that they would have made a discrimination claim in that case -- in that case, making it to be like the Guest case, where the specific allegation was that there was a right to interfere with interstate travel as such.

Both because there is no class-based invidiously discriminatory animus in this case, and because petitioners did not interfere with the purpose of interfering with the right to travel, the decision below should be reversed.

Thank you.

QUESTION: Thank you, Mr. Roberts.

QUESTION: Counsel, may I just ask one question? Did the municipality here of Alexandria, or any State officials, make a submission to the district court that their own law enforcement authorities were being overwhelmed?

MR. ROBERTS: There is an amicus brief before this Court from the Falls Church community saying that their resources were inadequate to deal with this particular predicament.

QUESTION: Did the Falls Church municipality make any request of the Governor of the State of Virginia for assistance?

MR. ROBERTS: I'm not aware that there was any such -- such request.

QUESTION: And did the Governor make any assistance -- request to the Attorney General of the United States for assistance?

MR. ROBERTS: I'm not aware. This was done, of course, in an injunctive capacity, so there wasn't a particular incident to respond to. So there wouldn't have been any of those sorts of requests.

The ability, of course, of the Federal Government to respond to such a situation is dealt with under section 3 of the act, entirely independent of the section before the Court today.

Thank you.

QUESTION: Thank you, Mr. Roberts. Ms. Ellis, we'll hear now from you.

ORAL REARGUMENT OF DEBORAH A. ELLIS ON BEHALF OF RESPONDENTS

MS. ELLIS: Thank you, Mr. Chief Justice, and may it please the Court:

Like the black students in Little Rock in 1957 who faced angry mobs as they walked up to the entrance of integrated schools, the women in this case, many of whom came from other States to Falls Church, Virginia, faced angry, intimidating mobs who physically obstructed their freedom of movement, blocking streets, parking lots, entrances, and exits.

This case presents the Court with an issue that arises infrequently but is vitally important: whether Federal law -- Federal law prohibits a mob from nullifying the constitutional rights of a class.

Section 1985(3) was enacted, as Representative Shellabarger explained in 1871, to provide a remedy against conspirators who trampled into dust the newly acquired political rights of the freedmen. This Court's section 1985(3) jurisprudence has strived both to give effect to congressional intent and to avoid making the statute into a Federal tort law.

Far from being mere torts, the acts of petitioners here are part of a nationwide systematic conspiracy to use force to deny women in America the equal protection of the laws, to do precisely what Congress sought to prevent in enacting section 1985(3).

All of the four elements that this Court has required to make out a section 1985(3) claim were proved here --

QUESTION: Excuse me. Suppose the same thing were done to prevent unionization? I mean, suppose you have a right-to-work group that nationwide seeks to prevent unionization? Would -- that would fit the description you've just given. Would that be covered by this statute?

MS. ELLIS: Well, Your Honor, in Scott this Court held that that kind of class-based animus is not cognizable under 1985(3).

QUESTION: Well, then what you've just said is not enough for a violation of 1985(3). The mere fact that your --

MS. ELLIS: I'm sorry, Your Honor, in this Court --

QUESTION: In organized fashion you seek to prevent people from exercising a constitutional right is -- is not alone enough.

MS. ELLIS: I'm sorry, I misspoke, Your Honor. In Scott, this Court recognized that animus against union activities or economic classes are not sufficient to form a class under 1985(3). Here --

QUESTION: Yet that is a right, the right to organize.

MS. ELLIS: Okay, assuming that this Court has held that antiunion animus is sufficient to form a class, then I do believe that blocking people from an activity that only that group can engage in does suffice to prove class-based animus, especially when the right they seek to block is a constitutional right of a class, an important constitutional right that only that class has, and especially as in this case, when this Court recently recognized in Planned Parenthood v. Casey that that right is necessary in order for that class to be equal citizens.

In this case, the two elements of the conspiracy -- of section 1985(3) are not at issue, the conspiracy and the act in furtherance of the conspiracy. Although there's no dispute about those elements, I would like to note that the mob characteristics of this case are particularly important. Congress enacted section 1985(3), called the Ku Klux Klan Act, because it understood that mobs could deprive individuals of rights in a way that single -- single individuals cannot.

The petitioners here, who operate systematically in large groups nationwide, are a much closer analog to the Ku Klux Klan than the two conspirators that this Court recognized could violate section 1985(3) in Griffin, for example.

Because there's no dispute about the conspiracy in the act, I will focus on the other two elements, that the conspiracy be motivated by class-based animus, and here, that the independent right, the right to travel, be violated.

To begin with class-based animus, we must first show that women are a protected class, and indeed, neither the petitioners nor the Solicitor General dispute that women are a class under 1985(3). The broad text and legislative history of section 1985(3) dictate that conclusion.

Instead, petitioners and the Government argue that here only a subset of women are affected. That subset distinction is false. Discrimination usually occurs against the subset of a class that is exercising its rights. For example, those who blocked African-American citizens from entering integrated schools targeted only some citizens but demonstrated invidious racial animus against an entire class.

The requirement of class-based animus was created by this Court in Griffin v. Breckenridge in order to prevent section 1985(3) from becoming a Federal tort law. Animus should not be confused with personal malice or hostility, especially because much of discrimination against women throughout history has been benign.

More specifically, womens' reproductive capacity has served as the benign rationale to deny women a host of equal opportunities, as this Court has recognized many times, most recently in Johnson Controls and in Casey.

Respondents admit that there are two kinds of class-based animus. In most situations, the conspirators deny to the class a right that is available to all, but here there is class-based animus for a different reason: because petitioners engaged in unlawful behavior that denies a right that is available only to the class.

This case is a particularly strong example of class-based animus, as I was saying before, because a right blocked here has been judicially recognized to be indispensable for the equality of the class. If equal protection of the law means anything, it must encompass knowing behavior to take away a liberty right that only the protected class has.

In Casey, this Court recognized that abortion is a unique act, and that women must have control over their reproductive lives in order to be equal and autonomous citizens.

QUESTION: What -- let me go back to that statement, that it must cover an effort to take away a right that only the protected class has.

What do you do with the hypothetical that Mr. Roberts gave us of an Indian tribe that has only -- has exclusive fishing rights and ecologists seek to stop the fishing? That fits exactly the description you've just given us. This is the only class that has the rights, and you're seeking to prevent those rights from being exercised. How -- are you saying that, indeed, in Mr. Roberts' example, that would be a violation of this statute?

MS. ELLIS: I think that would show class-based animus --

QUESTION: It would.

MS. ELLIS: If -- yes, Your Honor, although I don't think that a ruling in this case would need to reach that precise conclusion, because in this case we're only asking the Court to recognize that class-based animus is present when a constitutional right is taken away. So --

QUESTION: But it seems to me you're fighting the hypothetical. The hypothetical is, ecologists want to protect fish. They don't care who's fishing.

MS. ELLIS: Uh-huh.

QUESTION: So you changed the hypothetical. If you stick with the hypothetical, then what's your answer?

MS. ELLIS: I'm sorry, Your Honor, I didn't mean to change the hypothetical. I do agree that --

QUESTION: I mean, because there's just -- it's common sense, we know there's no animus against Indians, so what result in that case?

MS. ELLIS: They are depriving Indians of a right that only that class has. Class-based animus would be present.

This Court has not required personal malice or hostility. For example, the segregationists were blocking the entrance to an integrated school, and doing that because they opposed the activity of integration, not because they opposed blacks as a class. I believe this Court would find class-based animus.

QUESTION: Well, that's -- it seems to me, that definition of animus is a legal fiction.

MS. ELLIS: I do not believe so, Your Honor. I believe that if a class has -- if there's a constitutional right that only that class has, that that must violate equal protection to take away that right.

Now, of course, in the fishing hypothetical, the class there is not exercising a constitutional right. They're exercising only an activity that that class wishes to engage in. This Court does not need to go that far in answering this case.

This case presents the question of a class such as women or African-American citizens trying to get into an integrated school exercising a fund -- an important constitutional right, and in this particular case, a constitutional right that the joint opinion in Casey recognized is crucial for women to be equal and autonomous citizens.

QUESTION: Of course, the school case is on the other end of the spectrum because there it was clear that there was an animus against people by reason of their race, an animus, a hostility.

MS. ELLIS: No, Your Honor, many segregationists say that they oppose not the black race, but they oppose the activity of integration, and even if they said that they loved the class but opposed -- physically obstructed the entrance of black children into Central High in Little Rock, I believe this Court should find class-based animus there, as it should here. I believe that taking away a right that only that class has must violate the animus requirement for section 1985(3).

The Solicitor General relies on Geduldig to argue that no class-based animus exists. Geduldig was decided in 1974 when this Court's gender-based equal protection standard was still evolving.

Geduldig differs dramatically from this case, because there the Court was asked to interpret the Constitution to provide mandatory benefits.

As recognized by Chief Justice Rehnquist in the 1977 Nashville Gas Company v. Satty decision, Geduldig by its own terms is limited to cases dealing with the distribution of benefits, not the imposition of burdens.

Here, women are asking for statutory protection from the complete denial of their rights, and they are not seeking any monetary or other benefits.

As this Court recently reaffirmed in Casey, the denial of womens' reproductive rights denies women the ability to control their destiny.

Turning to the right to travel, the independent right violated here, the right to travel here was violated in the most blatant way possible -- by actual, physical obstruction of movement.

Griffin is the only other case where this Court has addressed the right to travel under section 1985(3). The facts here track the unanimous decision of Griffin in three important ways, and in one way this case is much stronger than Griffin.

First, in both cases the defendants physically obstructed travel, although not at a State border. Here, in Griffin, there was a single episode of obstruction of travel on a public highway. Here, there was a pattern of blockades at a clinic in Falls Church, Virginia, less than 10 miles from the D.C. and Maryland borders.

The court below found that petitioners engaged in the conspiracy, as Justice Stevens noted before, for the purpose, either directly or indirectly, of depriving women of the right to travel.

Second, in Griffin the Court remanded to determine if there had been actual or intended interstate travel. And here there was a factual finding by the Court that a substantial number of respondents, in fact, engaged in interstate travel.

As the Griffin case came to this Court, there was very little evidence of interstate travel. In fact, the Solicitor General's brief in that case, which was filed on behalf of those people who had been deprived of their rights, noted in footnote 6 that they believed there had been no allegations of interference with interstate travel. That is why this Court, in Griffin, allowed the plaintiffs on remand to elect -- to prove some connection with interstate travel in a variety of ways.

QUESTION: Ms. Ellis, just out of curiosity because I don't remember, which side did the Solicitor General take in the Griffin case?

MS. ELLIS: The Solicitor General, in that case, took the side of the black plaintiffs who had been beaten up.

QUESTION: So they asked for an expansive interpretation of the statute.

MS. ELLIS: They did, Your Honor. And they said in that case that equal protection of the laws should be interpreted broadly to -- even if interstate travel wasn't violated, that because the plaintiffs there had been beaten up, their equal protection of the laws had been violated.

Third, in both Griffin and this case, the defendants blocked the travel, not because they cared about the travel per se, as we had said last time, but because they wanted to stop the activities the plaintiffs were traveling for. In Griffin it was civil rights activities, and here it was to exercise the right to privacy.

So this case tracks Griffin in the three ways of physical obstruction, actual interstate travel, and the fact that in both cases the people were traveling in order to exercise other constitutional rights.

Significantly, however, this case is stronger than Griffin because in Griffin there were only two conspirators, and here there was a mob. And as I've mentioned before, Congress was particularly concerned, in enacting section 1985(3), about the fact that mobs could deprive individuals of equal protection of the law in a way that a sole person cannot.

Nonetheless, the Solicitor General insists that respondents are opening a Pandora's box because, he argues, there's no showing that petitioners purposefully interfered with respondents' right to travel. Well here, of course, petitioners did physically block respondents' right to travel. There can be no more blatant obstruction of the right of travel. In this Court's -- in most of this Court's other travel cases, such as Shapiro v. Thompson, there is no direct interference with the right to travel. Only in Griffin and in this case was there physical obstruction.

The petitioners -- the Solicitor General's argument can be accepted only if this Court takes an unnaturally narrow view of the right to travel under section 1985(3) so that it is only violated when the defendants block only interstate travelers, and when they block them with the sole purpose to prevent crossing straight -- State lines.

That was not the case in the unanimous decision of Griffin v. Breckenridge, and yet this Court held the right to travel could be violated. This case is on all fours with Griffin.

QUESTION: Griffin, of course, involved unquestioned discrimination against -- an animus against a class, blacks, right? I mean that was just not an issue at all -- at all in Griffin.

MS. ELLIS: It was not an issue, Your Honor, because they inferred the animus from the fact that they beat them up. There was -- in Griffin in note 10, the Court said that animus should not be confused with scienter.

QUESTION: Well that's right, but they --

MS. ELLIS: And that also should not --

QUESTION: The purpose here was discrimination against blacks, the purpose in Griffin.

MS. ELLIS: That was -- that purpose was inferred from the fact that they beat them up.

QUESTION: And that's a part of it.

MS. ELLIS: They did not say that they hated blacks.

QUESTION: Well that's -- that's a big issue here.

MS. ELLIS: That's right, Your Honor.

QUESTION: Whether it is, indeed, a class of women that is the object of the activity, or whether a class of those seeking or assisting in abortion.

MS. ELLIS: Your Honor --

QUESTION: So I -- you know, I think that's a big difference between the two cases.

MS. ELLIS: Your Honor, there is no doubt that petitioners' purpose is to stop the activity of abortion. Abortion is a constitutional right of a class of women. That is the same as petitioners' -- if petitioners' were trying to block an integrated school, trying to block an activity that is a constitutional right of black citizens.

In doing that, they would also block other people coming into the school; they would block the teachers and block parents, custodians, just as here petitioners block others coming into the abortion clinic. Nevertheless, it is clear that the animus is directed towards women.

QUESTION: That's not the proper analog. It seems to me the proper analog is blocking everybody from going into the school, and then saying in blocking everybody you're also blocking blacks.

MS. ELLIS: I agree with that, Your Honor, that is a proper analog.

QUESTION: And you think that that would be a violation --

MS. ELLIS: I think --

QUESTION: If you said we don't want anybody to go to school?

MS. ELLIS: I think if the segregationists in Little Rock said that our object is to block anyone from going into this integrated school because the school is integrated, yes, Your Honor, I think that is class-based animus. In fact, I think many segregationists did try to do that. They didn't want anyone going into those integrated schools.

QUESTION: Yes, because the school is integrated.

MS. ELLIS: That's right.

QUESTION: But not because they don't want people to go to school.

MS. ELLIS: That's right. And here they're blocking because they don't --

QUESTION: The assertion here is that they're blocking because they don't want people to provide or receive abortions.

MS. ELLIS: That's right, Your Honor. And it's exactly parallel. There they did not want the class to exercise their constitutional right to an integrated education. Here, they do not want the class to exercise their constitutional right to an abortion.

QUESTION: In the one case it's because of race. In this case it remains to be established whether it's because of sex.

MS. ELLIS: Well, Your Honor, I think that the problem is it's always difficult to define -- to divine the actual malice or animosity that is motivating someone. That's why the Court said in Griffin that the class-based animus requirement should not be confused with a requirement of personal hostility.

We do not know what was in the heart of the segregationists. All we know is that they tried to block a constitutional right that that class has. Similarly, we do not know what is in the heart of petitioners, but we do know that they have a conceded purpose to block women from exercising a constitutional right.

While we believe that the violation of the right to travel is clearly sufficient to justify the injunction below, there are three other ways this injunction can be sustained.

First, respondents made a privacy claim which was not ruled on the court -- ruled on by the courts below.

Second, section 1985(3) jurisdiction is also sustained by petitioners' avowed purpose to hinder and prevent local authorities from enforcing the law, in violation of the second clause of section 1985(3), a claim which is proved below, but not fully briefed.

At this point, I would like to answer Justice Kennedy's question that you posed to opposing counsel. In this case, Your Honor, trial testimony has shown that between the time the complaint was filed and the time of the trial, that a blockade occurred at a Maryland clinic. And at that clinic the police could not guarantee safe passage to the patients who tried to get into the clinic, even though they had called on all the resources of the county and the State police.

QUESTION: Did you say the issue of interference was raised below?

MS. ELLIS: Of hindrance? The issue of hindrance, Your Honor, was proved below, but it was not fully briefed.

QUESTION: And it wasn't -- and it wasn't in the complaint, was it?

MS. ELLIS: No, Your Honor. The complaint is alleged, though, a violation of section 1985(3) generally.

QUESTION: Yes, yes. And you say it was -- you say it was litigated below?

MS. ELLIS: I'm sorry. It was proved below. The evidence showed a hindrance of the State police, of the local police.

QUESTION: But there were no findings of the district court with that -- in that respect.

MS. ELLIS: Well, the findings -- there were findings, not specifically directed towards a hindrance claim, but there findings --

QUESTION: And there was no -- but there was no conclusion of law that the second clause was violated.

MS. ELLIS: That's right.

QUESTION: And it was not addressed in the court of appeals.

MS. ELLIS: No, it wasn't, Your Honor. However, Your Honor, we do believe that under rule 15(b), the pleadings, of course, are amended to conform with the evidence, and that this question, should the Court choose to reach it, is fairly subsumed within the Fourth Circ -- question here, which was was the jurisdiction of the Federal court substantial enough to justify the injunction.

QUESTION: You want us to find that there was a purpose of hindrance?

MS. ELLIS: I think, Your Honor, the more appropriate case -- the more appropriate course in this instance would be to remand for full briefing on hindrance. But I do believe there is evidence in the record, should the Court want to address that question.

Finally, even if none of the section 1985(3) claims ultimately prevail on their merits --

QUESTION: What if we -- what if we reject your claims other than the hindrance claim, we just don't say anything about it? Let's assume we just don't say anything about hindrance, but otherwise you lose, is the case over?

MS. ELLIS: Your Honor --

QUESTION: I suppose -- I suppose the mandate would say, is remanded for further proceedings consistent with what we held.

MS. ELLIS: I think at the minimum the case should be remanded for briefing -- I'm sorry, for a decision on the privacy claim, which was alleged and briefed, but never addressed by either of the courts below. Here --

QUESTION: Oh, I thought it was addressed by the district court.

MS. ELLIS: No, Your Honor, the court decided not to reach that claim. It discussed it --

QUESTION: It thought it was problematic, I guess.

MS. ELLIS: It did say it was problematic, but it decided not to adjudicate --

QUESTION: Well, what about the hindrance claim?

MS. ELLIS: Pardon?

QUESTION: What about the hindrance claim? You say that the proper thing to do would be to remand on that.

MS. ELLIS: Mm-hum, I believe so, Your Honor, and I believe in any case that there is enough -- that the hindrance and the privacy claims are substantial enough so that jurisdiction exists and the injunction could be sustained on the pending State law claims which the Court found to be violated.

QUESTION: If the basis for our rejection of your other claims is the lack of -- in our view the lack of having established animus, then the hindrance claim is over as well.

MS. ELLIS: Your Honor, we have reconsidered our position on that.

QUESTION: Oh, you have reconsidered your position on that.

MS. ELLIS: We have reconsidered our position on that.

QUESTION: Last time, you said it would have been over as well.

MS. ELLIS: That's right, we did, Your Honor, and on reflection we have reconsidered our position on that. We believe that there are strong reasons that class-based animus should not be required for the hindrance claim because the class-based animus requirement was created by this Court in Griffin out of concern for not Federalizing section 1985(3) into a tort law.

Those same concerns do not exist with the hindrance claim, and we would say that this is more like Kush v. Rutledge, the case where this Court found no requirement of class-based animus for section 1985(2), and in Kush this Court also emphasized that in Griffin the Court was only addressing the clause of section 1985(3) --

QUESTION: Well, it may be -- even if you're right, there might still be a question of whether the protestors have the purpose of overwhelming city -- city police.

MS. ELLIS: That's right, Your Honor, but that was proved at trial. There was actually evidence in the record showing that one of their exhibits asked to have thousands of -- 1,000 or 1,500 people come because when that many people come there are too many people for the police to arrest --

QUESTION: Well, there may be evidence in the record to support a finding, but the finding hasn't been made.

MS. ELLIS: Well, Your Honor, in footnote 4 of the district court's opinion, the court talked about how the activities of petitioners overwhelmed the Falls Church police department and talked about a specific example.

QUESTION: That's the effect. There's no difference between purpose and effect. I mean, that's a common theme throughout your argument. The footnote you're referring to said that the effect was to overwhelm, but we're talking here about purpose. The statute requires that it be the purpose, doesn't it?

MS. ELLIS: Right, and there is evidence --

QUESTION: And there's no finding on that, is there?

MS. ELLIS: There's no finding on that. There is evidence in the record, though, to support that finding.

For the little children in Little Rock, this Court said in Cooper v. Aaron that the vitality of constitutional principles cannot be allowed to yield simply because of disagreement with them. Congress enacted section 1985(3) so that the mob no more than the State could nullify constitutional rights.

Like the plaintiffs in Griffin, women here invoke the core coverage of section 1985(3) so that they may be able to exercise their constitutional rights under the protection of the rule of law.

Thank you.

QUESTION: Just to clarify one thing in my own mind, was the injunction entered here as a preliminary injunction, or was it a final injunction?

MS. ELLIS: It was a permanent injunction that expired at a definite time. It has since been extended on five separate occasions and now is set to expire on January 8, 1993.

QUESTION: But as initially entered it was a final injunction.

MS. ELLIS: It was. The trial court consolidated the hearing -- the final hearing with a preliminary hearing.

QUESTION: The question I have is, I don't quite understand why you say that there's no danger with respect to the hinder clause of turning this provision into a general tort law and therefore we don't need to import the animus requirement. Surely, any time anyone bribed a policeman or conducted all sorts of activities that would impair law enforcement, wouldn't that be -- wouldn't that come under this provision?

MS. ELLIS: I think, Your Honor, it would have to be for the purpose of depriving an equal protection of the laws, and so I don't think bribing a policeman would come under --

QUESTION: Well, no, you're eliminating an animus requirement.

MS. ELLIS: Right.

QUESTION: You don't -- it doesn't have to be class-based. All you have to do is try to stop a policeman from protecting somebody else's rights isn't that right, so that would uniformly be covered.

MS. ELLIS: No, Your Honor, I think that hindrance should apply to acts that attempt to take away the equal protection of the laws by hindering the local authorities. It cannot just apply to bribing a policeman. The statute requires both --

QUESTION: Why not? You bribe him to do something. That is, to deprive someone of activity that he'd otherwise provide. I mean, that's the purpose of bribing.

MS. ELLIS: That is clearly not what Congress was concerned about --

QUESTION: Well, I'm sure that's true.

MS. ELLIS: -- in enacting section 1985(3).

QUESTION: I'm sure that's true, but I don't see how you avoid that without importing into the hindrance clause the same class-based animus requirement that you have imported into the other clause.

MS. ELLIS: I think the best way to avoid that is to require that you be hindering the police for the purpose of interfering with Federal constitutional rights, just as this Court has required a violation of the independent right under the first clause of 1985(3). I think that you'd also want to make sure that it was for the purpose of interfering with Federal constitutional rights, which I think is well-supported by the text of --

QUESTION: Not State constitutional rights? How can you eliminate State rights? Why do you limit the text just to Federal constitutional rights?

MS. ELLIS: Well, I think that either would be an acceptable course for this Court.

QUESTION: Do you think so?

MS. ELLIS: This Court has so far only specifically protected Federal constitutional rights under 1985(3). That, of course, is an open question.

QUESTION: Thank you, Ms. Ellis. Mr. Sekulow, you have 11 minutes remaining.

REBUTTAL REARGUMENT OF JAY ALAN SEKULOW ON BEHALF OF PETITIONERS

MR. SEKULOW: Thank you, Mr. Chief Justice. Briefly, first, reliance on Kush v. Rutledge with regard to the hindrance claim is misplaced because the legislation requires, under the prevent and hinder clause, the same word equal. The amendment process required equal to be added. The word equal, in the statute, was where the animus language derived from, and that clearly has to be here.

I understand they're now trying to pull away from their previous admission on that point, but Kush v. Rutledge certainly doesn't point to that. In fact, Justice Stevens, in finding the claim could proceed under 1985(2) there noted that, specifically, the same language in 85(2) was not present in 85(3).

Secondly, the defendants or the petitioners' hearts were read, if you will, by the district court here, what their purpose was. The court stated -- the district court found it is undisputable that all defendants share a deep commitment to the goals of stopping the practice of abortion and reversing its legalization.

There is no animus against the class of women; it is an opposition to a specific activity. Secondly, to view animus in the way respondents have would be -- using an example, if, in fact, there was a disagreement or an opposition to affirmative action by a particular group, and that would -- if their view were to carry the day, would have an effect on affirmative action.

But to translate that effect into an invidious discriminatory animus, that that now means that the group that was gaining the benefit of the affirmative action project is now the target of their animus, would be incorrect unless it was some type of pretext for the objection.

For instance, in the school example that was given if, in fact, desegregation -- the integration of the school took place -- in the situation that was referred to in Little Rock there, it was clear that the objection -- the opposition was not to children going to school, it was the opposition of children going to school with black children. The modus -- the motive, the animus in that case clearly was the opposition to blacks going to the schools.

I'd also state that our position is that Satty certainly does not support the position on discriminatory -- invidious discrimination, because Satty was a title 7 case. This Court has required invidious discriminatory animus. Clearly here the animus, as I said, is to the opposition of abortion. The fact that it has an effect on women seriously mischaracterizes the nature of the dispute, and also, I think, mischaracterizes the nature of the issue presented to this Court.

This Court, in Casey, did not state that the right to abortion was essential to equality. I think that's important here. The fact that the -- this Court's jurisprudence with regard to reproductive freedom has had an effect on women's ability to participate equally in the Nation, in the social life of the country, does not become the legal equivalent of there now being an invidious discriminatory animus.

And I think Casey, to the contrary, clearly does not support the proposition that opposition to abortion constitutes invidious discrimination against women.

First, throughout its abortion jurisprudence this Court has not found the right to exist under the equal protection clause, which would be the normal place to find restrictions being reviewed as invidiously discriminatory under the equal protection analysis. That's not what this Court has cnose to do.

Secondly, I think significantly, that the Court's opinion in Casey points to the issue that opposition to an activity does not constitute invidious discrimination against women. Specifically in the joint opinion it is stated:

Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy even in its earliest stage. Some of us, referring to members of the Court, as individuals find abortion offensive to our most basic principles of morality.

If men and women of good conscience can sincerely disagree over this issue, then how can opposition to abortion constitute per se invidious discrimination against women? It cannot.

The Court also recognized in Casey, specifically, that abortion is a unique act. And it said it is fraught with consequences for others, and included in those others was the life or potential life of the unborn child, the woman who undergoes the procedures, her family, and her spouse.

The Court further went on in Casey to recognize that there is, and I'm going to quote again:

As with abortion, reasonable people have differences of opinion. One view is based on such reverence -- excuse me -- for the wonder of creation that any pregnancy ought to be welcome and carried to full term, no matter how difficult it will be to provide for the child and ensure its well-being.

Another is that the inability to provide for the nurture and care of the infant is cruelty to the child and anguish to the parents. These are intimate views with intimate, infinite variations, and they are deep personal in character.

That -- those statements from the joint opinion in Casey clearly, unequivocally, do not support the proposition that opposition to abortion is the legal equivalent, per se, invidious discrimination against women. And I think, clearly, it cuts the other way. What this Court recognized in Casey is that the issue of abortion is one of profound national debate.

QUESTION: Of course, this case involves more than opposition to abortion.

MR. SEKULOW: I think not. Their opposition --

QUESTION: But don't you think your clients did something more than just let -- let it be known that they were opposed to abortion? Didn't they try, specifically, to interfere with people who crossed a State line to get abortions? That's more than opposition.

MR. SEKULOW: First, that -- I think that's the ultimate opposition to abortion, is interfering with abortion as the animus, the activity of abortion. It is their opposition, and it is unequivocal that that is their opposition. They seek to deter women.

And, of course, opposition is not for the purpose of keeping out of State people versus in State people. Clearly, that's not supported by this record, Justice Stevens.

But their opposition --

QUESTION: Well, would it be supported if all of the patients in the clinic came from out of State?

MR. SEKULOW: No, it would not. Because that is not the purpose of their activity. Now if it was -- I won't even speculate. But the truth here is that the animus is -- as this Court recognized, that men and women of good conscience will disagree on this issue -- these petitioners obviously take the position, and are opposed to the act, the conduct, as this Court said in Casey, of abortion.

QUESTION: They're opposed to an act that only members of the class can engage in.

MR. SEKULOW: They are -- precisely. And if that's the case, which it is only --

QUESTION: Which is entirely unlike the Indian example, because anybody can fish.

MR. SEKULOW: I don't think so. Because I think they're directly comparable. The fact that only women can exercise the right points to the fact that there cannot not be a denial of equality. And that is clearly required by the statute here. Plus the scope of the petitioners' conduct is aimed at the entire process of abortion. It is opposition to an activity of abortion. That's what is at issue here, and everyone involved in that process.

Thank you -- yes, Mr. Justice --

QUESTION: But the State causes of action --

MR. SEKULOW: There were claims here under the -- under trespass and --

QUESTION: Does the injunction rest on that?

MR. SEKULOW: Yes, there was independent grounds, the court said, for the injunction under State grounds.

QUESTION: So what would be do if we agree with you about the injunction?

MR. SEKULOW: I think that this Court would remand it to the -- back to the Fourth Circuit for determination whether there was sufficient subject matter jurisdiction. Our position is that the right to travel claim is so insubstantial not to confer it, but the issue that the injunction rests upon, and upon which attorneys' fees were issued, was the claim under 42 USC section 1985(3), which is the lineal descendant of section 2 of the Ku Klux Klan Act.

Thank you.

QUESTION: Thank you, Mr. Sekulow. The case is submitted.

(Whereupon, at 10:57 a.m., the case in the above-entitled matter was submitted.)

Attribution:

The Oyez Project

Rust v. Sullivan - Oral Argument

Fri, 09 Jan 2009 14:49:41 +0000

Case:

Rust v. Sullivan

Media File:

89-1391_19901030-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Laurence H. Tribe

Chief Justice Rehnquist: We'll hear argument first this morning in No. 89-1391, Irving Rust v. Louis W. Sullivan, and 89-1392, New York v. Louis W. Sullivan.

Mr. Tribe.

Mr. Tribe: Mr. Chief Justice, and may it please the Court:

We depend upon our doctors to tell us the whole truth, whoever is paying the medical bill... the patient or the government, whether in a Title X clinic or in the Bethesda Naval Hospital.

Especially when a medical test confirms a condition that we had worried about, we all, I think, rely on the doctor to level with us in a discussion that follows the diagnosis.

Unknown Speaker: Are doctors always involved in Title X programs?

Mr. Tribe: They supervise, Justice Kennedy.

They are not always the personal counselor, but under the Title X regulations they are responsible for supervision.

And the health care professionals to whom women speak, whether doctors or not, are ones that I think one would trust to tell one the truth.

And if the government were to play a role in the picture I think we would assume that its role is to make sure that nothing relevant is left out.

But if any of us were to discover that the government instead had arranged to have the doctor or the health care professional omit all information about one legally-available medical option and give you a referral list that is clearly tilted in the direction of the other option, regardless of what dangers there might be to your health, I would suppose that most of us would conclude that the government had used its bargaining power to betray a rather basic trust.

Its contract with the doctor, if that really were a fair description of the situation, would violate its more fundamental contract with all of us, including the First and Fifth Amendments.

By conditioning Title X grants on the regulations that we challenge in this case, the government, in the words of Judge Cardamone, concurring below, sets a trap for the unwary.

The reason, quite simply, is that under these regulations not even the petitioners' private funds, sometimes in excess of three times the size of the Federal grant, may be used to provide uncensored medical information to the patients enrolled in the petitioners' Title X family planning clinics.

Unknown Speaker: Excuse me.

I don't understand that to be the case, so long as those funds are not used in the Title X program.

The Title X program, by the way, is how much Federal money?

It's at least 90 percent, is it?

Mr. Tribe: Well, actually, Justice Scalia, the regulation makes reference to a 90-10 ratio, but, as the counsel for the Secretary explicitly conceded in oral argument in the First Circuit at footnote 59 of the Planned Parenthood brief, it's been a very long time since they have made any effort to live up with that.

The reason has been that as Federal funds have diminished and as the government, I think quite understandably, has not wanted to penalize clinics for growing, the norm now is that the Title X program project, as defined under 59.2 of the regs, is typically funded at a level of 50 percent or less, as the Secretary conceded in the First Circuit, of the Federal funds.

So that, for example, in the case of the clinics in this case, in Westchester-Rockland it's about 23 percent, in the case of the City of New York it's about 50.

Unknown Speaker: Where is the 90-10 pulled from?

Mr. Tribe: The 90-10 does have, actually, a statutory origin, and there is some confusion, I understand, about whether the statute has been properly construed by the Secretary of HHS in allowing the reach of the Federal hand to exceed this 10 percent Federal fisk.

But, in any event, there's no dispute that the entire program... the family planning program at the Hub in the Bronx, the family planning program, including, as the regs call it, the comprehensive coherent set of plans and program... including the private money, is encumbered by these regulations.

Unknown Speaker: I suppose we ought to evaluate the Federal statute and the regulations under the Federal statute on the basis of what Congress contemplated when it passed it, and Congress appears to have contemplated a program that is at least 90 percent Federal money.

Mr. Tribe: That has been argued in various courts.

It is still not resolved.

I would say that much of our argument is completely independent of whether the private funds are 10 percent or 50 percent, because we will be arguing that in this case the regulations are sufficiently viewpoint-based that it would not be permissible for the government to impose them, even as a condition of expending its own funds.

But when I reach that point, Justice Scalia, I think I will be adding a couple of thoughts about the way in which those arguments relate.

The government actually claims no general authority, even with its own money, to trick patients about their medical situation after they have come to trust a doctor in a government-assisted clinic, and they certainly don't affirmatively claim that with respect to private funds they have the power to do that.

Their basic claim is quite different.

Their claim is that once the client is diagnosed as pregnant the Title X program, the provision of services, is over, so that the further discussion that might be had about abortion is simply outside the scope of the program.

I think the fairest way to respond to that is simply to say that it just is not the case.

Much of section 59.8 of the regulations is expressly directed to post-conception services, with only abortion counseling and referral banned.

The section details the kind of information that a Title X client must be given once pregnancy is diagnosed, and indeed under the original version of the regulations it had said, and I quote,

"no medical services or counseling after pregnancy is diagnosed. "

would be allowed.

Unknown Speaker: Certainly the government in its brief, Mr. Tribe, and perhaps it is wrong, seems to take the position that this is basically a pre-pregnancy counseling program.

Mr. Tribe: That's right, Mr. Chief Justice.

We disagree with that.

We think that's incorrect.

Unknown Speaker: You say that that was not what Congress intended, or that's not what has happened in fact?

Mr. Tribe: I think neither.

That is, President Bush, when a Member of Congress, was one of the leading co-sponsors of this law, and he said that the health care service mechanism that he had in mind was not just a population control mechanism.

It should include an annual physical examination, and the regulations themselves have contemplated and the statute has said from the beginning that one must provide more than just a kind of pregnancy kit and see you later.

And indeed the original version was objected to on the dramatic ground that it would permit no "counseling which discourages abortion".

The Secretary explained at 53 Federal Register 2926 that that is why the current version does not contain any language suggesting that the program finishes when pregnancy is diagnosed.

The aim was put very clearly in 52 Federal Register at 33.2.12, and I quote: "The express purpose"... and this is the purpose of the regulations about how the dialogue after diagnosis is to proceed...

"is to ensure Title X projects do not provide counseling relating to the issue of medical indication for abortion. "

That was the express purpose.

Unknown Speaker: I don't see where this argument is going.

I suppose where is lead is since the only prohibition in the statute is a prohibition on the use of funds in programs where abortion is a method of family planning, and since you say that the program doesn't just authorize family planning but authorizes medical treatment after a woman is pregnant, then there really is no prohibition even on the conduct of abortion.

Mr. Tribe: No, Justice Scalia.

I am sorry.

If I left that impression, I surely did not mean to.

Unknown Speaker: Well, it's where your argument leads.

I mean, it seems to me you are painting with a very broad brush when you say that the program is not just a program of family planning.

Mr. Tribe: No, I didn't say that, Justice Scalia.

The concept of family planning under the program is a somewhat broader concept than would be suggested by a kind of truck stop pregnancy test.

That is, many of these women are enrolled throughout their reproductive lives.

When they are diagnosed as pregnant, the statute and the regulations in fact do not authorize the provision to these women of the gynecological, obstetrical, prenatal and other services that they might need.

But the idea is that an important part of the program is not simply to put them out on the street without advice, without information.

It is at that point to have a discussion with them about the options available, and in that discussion the regulations are quite clear in specifically prohibiting even neutral discussion about one option, namely abortion, and at the same time mandating with respect to the other option in this mutually-exclusive pair of medical choices, mandating the provision of a prenatal list, a list of prenatal care centers, which under the regulations must include all prenatal care providers in the area, must exclude all clinics specializing in abortion, and must be limited to clinics that are committed to the welfare both of the unborn child and of the mother.

So that the message, quite plainly, of your doctor handing you, after a pregnancy diagnosis, a list of this sort and saying this is a list of places that will be concerned with you welfare and that of the unborn child is basically that your welfare is not endangered by the birth of the child, and the implicit message is that abortion needn't concern you.

And, indeed, if the woman asks she may be told that the project does not consider abortion an appropriate method of family planning.

So this is all quite obviously reassuring, but it is not a--

Unknown Speaker: But isn't the program permitted to respond to a question?

Aren't there some abortion agencies around?

Aren't they permitted to identify some in response to a question?

Mr. Tribe: --No, they are not, Justice White.

That is, what would be steering and referral in clear violation of the regulations.

They are allowed to say... they would be allowed to hand the woman a copy of the regulations, I suppose, although that might be said to be handing her material that could be encouraging of abortion.

I would hope not.

If they hand her that list... that is, the information on how the list is composed... she will understand that by coincidence there might be some abortion providers in the area, but even if they include a hospital which might, for example, provide abortion, the Federal Register 53 at page 29.38 says that the referral must be specifically made to its prenatal care service.

So that if the woman finds the needle in the haystack it's not going to be by the government's design.

Indeed, the Secretary, below, said it was designed to have no loopholes.

And, when asked below whether the woman could be told that maybe under A in the Yellow Pages she would find something that could be relevant to her, the government said no.

And two of the three judges below said that that would probably be, in their view, impermissible.

So this is not a neutral--

Unknown Speaker: Is your argument now suggesting that or arguing that the regulations are inconsistent with the statute?

Mr. Tribe: --Well, we have argued throughout that the regulations go way beyond the statute, but I'm now arguing that, even if they didn't, that a government command--

Unknown Speaker: You're making a constitutional argument now.

Mr. Tribe: --That's right.

And we're saying that--

Unknown Speaker: Even though perhaps we should deal with the statutory question first?

Mr. Tribe: --We'd be entirely happy to have you say that, to avoid the constitutional question.

Unknown Speaker: Or are you just following the ordinary rule that you're arguing your strongest point first?

Mr. Tribe: Well, I don't know whether that's the best rule.

One sometimes wants to wind up and finish with a bang.

[Laughter]

But I think the point is that it's partly because of the constitutional doubt about these regulations that we would not suggest that the normal rules of Chevron in deferring to the HHS are appropriate.

And because of that we would suggest that if the constitutional cloud seems sufficiently ominous one might simply read the statute the way the Secretary himself read it for the first 11 years, simply to permit options to be presented to the woman and perhaps the way it's been read since '81, namely to require the neutral provision of options, but not the way these regs read it.

Unknown Speaker: Mr. Tribe, do you concede that the way the Secretary originally interpreted it is constitutional?

Mr. Tribe: We think in respect to that, Justice O'Connor, that permitting options to be presented is surely constitutional.

The part where I am not as certain... we were never in a position to challenge it because the clients that I represent, the City, the State of New York, and the various clinics do not themselves engage in encouraging or promoting abortion... but insofar as that was a viewpoint-based limitation I suppose an argument could be made that that part was not constitutional.

We do not make that argument here.

We do argue that when in respect to a binary choice about one's medical fate the government suppresses talk about one branch, even neutral talk, and mandates steering in the other direction, that that is the impermissible suppression of information.

Unknown Speaker: And why is that unconstitutional?

Mr. Tribe: Because, I guess, as Justice Rehnquist said in his concurring opinion in Bolger v. Youngs Drug, the central purpose of the First Amendment is to prevent the suppression of information.

Unknown Speaker: So this is a First Amendment argument?

Mr. Tribe: It's strictly a First Amendment argument.

Unknown Speaker: But is it peculiar to the medical situation here?

Because certainly if the government is talking about the Secretary of State hiring a press or public information officer or the press secretary at the White House, the press secretary or the public information officer are not free to say look, I want to tell the reporters everything I know, if the Secretary of State says you play this down.

Mr. Tribe: Some of them don't seem to realize that.

[Laughter]

Unknown Speaker: Well, some of them may not realize it, but I think they'll soon learn.

[Laughter]

Mr. Tribe: That's right.

Unknown Speaker: Would you agree that is not unconstitutional?

Mr. Tribe: Absolutely, Mr. Chief Justice.

The difference... it's not peculiar to the medical profession.

The real difference is that some people serve as mouthpieces for the state... speechwriters, spokespersons; other people serve as professionals in whom people place their trust.

That's at the other end of the spectrum.

And we suggest--

[Laughter]

I didn't quite mean it that way.

The point really is that the people in Title X clinics look like doctors.

They are dressed like doctors.

They act like doctors.

And, therefore, when they try to speak like doctors the fact that the government has selectively shaped their speech has First Amendment significance that it wouldn't have if everyone looked at them and said, these are the Solicitor... I didn't mean the Solicitor General--

[Laughter]

The Surgeon General of the United States.

In other words, these are not the Voice of America.

These are the voice of medical professionals.

Unknown Speaker: You don't challenge the statute, though, do you?

Mr. Tribe: No.

We think the statute would be unconstitutional only if it were written specifically to authorize these regulations; otherwise, excluding abortion from this funding I think is clearly permissible under Harris and under McRae.

Unknown Speaker: Under the Secretary's former interpretation, the one that you would like us to in effect go back to, suppose this medical care professional said, in our view, from your standpoint and your family situation, abortion is the recommended choice for family planning, and we urge you to have an abortion and here is the name of a place where you can obtain that.

Is that consistent with the statute?

Mr. Tribe: I think not, Justice Kennedy.

It seems to me that this statute is most plausibly implemented by maximizing the autonomy of the patient and by steering the patient in neither direction but by suppressing information in either direction.

That is, I would think that the most obviously constitutional way to implement it is to permit, as the Secretary did until 1981, or to require, as the Secretary did from 1981, the provision of a neutral set of options so that the person can make an intelligent choice.

Justice White I think--

Unknown Speaker: So that it's wrong to make a recommendation under the First Amendment?

Mr. Tribe: --It's not wrong to make a recommendation.

It is, however, consistent with a program designed to provide information and not designed to steer people toward any choice to insist that the professional stand back and play a more passive role.

Unknown Speaker: Well, I take it that a doctor could, under your view, under the statute as now interpreted or as previously interpreted, strongly recommend contraception.

Mr. Tribe: There's no doubt that the doctor could say... however, if the--

Unknown Speaker: So that's not viewpoint-neutral.

Mr. Tribe: --Total viewpoint neutrality in this area I have to concede is difficult to achieve because the very fact that these are professionals and that laws of informed consent surround this area means that they can be required to provide information without which an informed choice can't be made.

As Justice White suggested in his Thornburgh dissent, the average person has no one but his or her doctor to look to for these matters.

And that is why the American College of Obstetricians and Gynecologists and the American Medical Association have concluded that actually abiding by these regulations would be profoundly unethical, and that's why we believe it would be malpractice in a great many states.

That is, there are a great many situations generically in which a woman has no way of knowing when she comes into the clinic if abortion might be one of the things that would be medically relevant to her.

She might be quite opposed to it morally, and yet if, for example, she was using a contraceptive method like an IUD which, when left in place might create a risk of a spontaneous second trimester and possibly fatal abortion, surely that is something that she would be entitled to know.

And there a great many women like that.

There are, in addition to that, some 590,000 women who visited Title X clinics in 1988 who had some background medical complication... whether cancer or diabetes or hypertension or multiple sclerosis or chronic heart disease... who might have no idea, as most people do not, that these conditions can sometimes be induced to recur, can be aggravated by the continuation of a pregnancy.

Unknown Speaker: As a matter of public policy, that may not be a desirable thing, but the woman is in no worse position than she would have been in had the Title X clinic not existed.

So long as the clinic makes clear to her that we do not recommend abortion, we are not in that business... here is a list of providers, some of which providers, by the way, can provide abortion services... they are not excluded from referral, are they... only if their primary business is the--

Mr. Tribe: That's correct.

Justice Scalia, let me tell you why I think she is worse off.

It really goes back, in a way, to a point you made in Evans and Ulman.

On the question... well, let me why it struck me at the time as making a similar point, and I guess the court did it in Milcovitch.

It's really very hard for a disclaimer to undo the misimpression that can result from something... that is, the Evans and Novak column, with its factual misstatement, shrouded in a disclaimer saying this is opinion, or the Lorraine Daily Journal or Milcovitch, this is just opinion.

The fact is that if in the context there is something that might be injuriously misleading to the reader or to the listener, saying don't trust all of what I say, it may not be complete, may not be enough, partly because a woman will have come to rely on this doctor over the years... some of the women that I met in the clinics that I visited had gone there for a long time.

This is not just a one-stop thing.

Many of the clinics, by statutory design, induce reliance.

So a woman relies on the doctor for a period of time.

The doctor says I see you're eight weeks pregnant.

Here's a prenatal referral list.

The woman doesn't have any idea that her underlying medical condition might make that pregnancy turn into a really serious threat to her health.

The doctor isn't allowed to tell her that it might.

Under the regulations, that would be promoting the termination of the pregnancy.

She walks out of there with a prenatal referral and--

Unknown Speaker: --Excuse me.

Is it clear that the doctor can't tell her that, that the pregnancy may create a serious threat to her health?

Mr. Tribe: --Yes, I think it is clear, Justice Scalia.

The Secretary's explanation--

Unknown Speaker: Where is that?

Mr. Tribe: --Well, the Secretary's official explanation of the regulations said that they were designed to prevent any expression of medical indication for pregnancy, and I don't think there's anything in the regulations that would suggest that he could warn her in that way.

But, in any event, if she said, well, what should I do about that--

Unknown Speaker: You see, this is an important point you are on now.

I read the regulations as preventing any referral of abortion or even reference to abortion as a means of family planning, but I think they draw a clear line between abortion as a means of family planning and abortion as a medical necessity.

There is a specific reference to ectopic pregnancy in one of the exammples that they give.

Mr. Tribe: --Yes.

It's made clear at 33.2.12 of the Federal Register, Volume 52, that the point of the ectopic pregnancy example is simply to say that if there is an imminent threat to life they cannot refer her to someone who might do an abortion, but to an emergency room.

But the reference to abortion as a method of family planning, Justice Scalia, the words "family planning" I think have no meaning under the government's reading of the statute or ours, in this sense.

If a therapeutic abortion, an abortion for reasons of health, were not encompassed within that concept, then there'd be nothing in the statute that would even prevent the use of Federal funds directly for the performance of abortion to protect the woman's health.

And it seems to me that that's clearly not what the regulations mean.

That is, the regulations are clearly designed not to in any way, as 59.10 says, promote or encourage abortion.

And to tell her that if you remain pregnant it might hurt your health is surely to promote or encourage abortion.

Let me add, though, that--

Unknown Speaker: Suppose, Professor, that the doctor gives neutral advice or is permitted to give this neutral advice and provide all the information and then the patient says, well, look, I've been coming to you.

I usually want your opinion.

What should I do about this?

You say that the statute may constitutionally prevent the doctor from answering that question?

Mr. Tribe: --I guess answering truthfully what his opinion is in a way that does not steer or encourage her... these are lines that are terribly hard to draw, which is why the government oughtn't to be in the business of editing these dialogues... I think is beyond what the government could forbid.

But what it tries to forbid here--

Unknown Speaker: Well, the statute would forbid it.

Mr. Tribe: --Well, I suppose you might--

Unknown Speaker: I thought you said the statute was... you weren't challenging the statute.

Mr. Tribe: --The statute would forbid encouraging or promoting, not necessarily when pressed saying his own truthful--

Unknown Speaker: You don't think saying my opinion is you should have an abortion is promoting?

Mr. Tribe: --Justice White, I must say that I think there is no easy way to figure out where to draw that line, and insofar as the statute is read to control speech it raises a profound problem in any event.

But the worst problem is created when the regulations are as viewpoint-based as these are.

That is, these regulations draw a sharp distinction between advocacy and literature distribution which is pro-choice and which is pro-life.

The combined effect of 59.9 and 59.50 is that it is permissible with the Title X project, quite apart from this dialogue, to engage in vigorous advocacy and legislative lobbying in favor of the pro-life position, not in favor of the pro-choice position.

Unknown Speaker: Mr. Tribe, have you made a complete answer to Justice Kennedy's question of why wouldn't it not be equally viewpoint-neutral for these people to advise the use of contraceptives?

Mr. Tribe: Why it would not be viewpoint-neutral to advise?

Unknown Speaker: Yes, to take the position that it's appropriate for the people that visit the clinics to use contraceptives.

Isn't that advocating a viewpoint, too?

Mr. Tribe: Well, the point isn't that the professional cannot advocate a viewpoint.

It's that the government cannot suppress a particular kind of information in the dialogue, and that it cannot create a viewpoint-based tilt, even in the expenditure of its money.

And in this case, if I might remind the Court, given how much private money is also burdened, the case is very like League of Women Voters.

Unknown Speaker: Well, don' the regulations prevent the hiring of advice-givers who say the only form of family planning you should use is natural birth control?

You should not use artificial birth control.

Isn't that forbidden by the regulations?

Mr. Tribe: Well, the regulations do suggest that the full range of options--

Unknown Speaker: More than suggest.

It has to provide a broad range of--

Mr. Tribe: --But that's like informed consent, Justice Scalia.

Unknown Speaker: --Why is it like informed consent?

It's saying you can only give one advice.

You cannot advise the person to use only natural family planning.

Mr. Tribe: It's that you must provide the person with the full range of options.

It is not that you cannot, if asked, tell the person what you think would be best, but you are not supposed to--

Unknown Speaker: I think the full range of options is not best.

I think you should only use one.

You are not allowed to provide that kind of advice.

You have to provide the full range of options.

Mr. Tribe: --If the Court had before it a challenge, there is under the statute a conscientious exemption.

That is, someone cannot be forced under these regulations to give advice that violates his or her conscience or religion.

But it's true that any program that has programmatic requirements will exclude some possible providers.

A drug counseling program plainly is going to exclude people whose opinion is that there should be no drug counseling and that everyone should take drugs.

But here it is not as though a plausibly neutral line has been drawn in terms of the purposes of the program.

What's happened is that truthful information that may be relevant is being deliberately withheld from people who have every reason to expect it and that, on top of that, with respect to advocacy, with respect to the preparation and distribution of literature, with respect to the leaflets that are left in the waiting room, there is a censor overseeing the entire process, saying that if they advocate abortion or in any way enhance its accessibility or its availability, the regulations have been violated.

Unknown Speaker: You say the First Amendment prevents the government from refusing to fund pamphlets that promote abortion?

Mr. Tribe: It's not that the government has an obligation to fund them.

But if the government said--

Unknown Speaker: Well, I thought you just said pamphlets in the waiting room that advocated abortion.

Mr. Tribe: --Paid for by private funds, Mr. Chief Justice.

But in TWR, for example, when you wrote that the line that was drawn by the government with respect to lobbying was acceptable because veterans and non-veterans are distinguishable without regard to viewpoint, imagine in that case if they had said we will subsidize pro-life lobbying but not pro-choice lobbying.

Now the government does not have the power, the Court has said and held in Speiser v. Randall, to make a financial benefit available, even if it's a government subsidy, based on the viewpoint expressed.

It's particularly not permissible for the government, as it does here, to say that all of the literature and all of the material, even if paid for, as in the case of many of these clinics, fully by non-Federal funds, must be expelled from the project.

Unknown Speaker: Well, does it make any difference in constitutional terms whether these pamphlets in the waiting room are paid for by private funds or paid for by Federal funds?

Mr. Tribe: I think it makes a difference, Mr. Chief Justice, whether they attempt to extend their quite limited power to assure how Federal dollars are spent.

That is, otherwise it could have been said in League of Women Voters that because the parent organization could always go off and put the same editorial on CBS or could publish it somewhere else with its own money that its private money was therefore not encumbered.

But this Court did not take that view.

I had meant to save some time for rebuttal.

Unknown Speaker: But you haven't.

Thank you.

Mr. Tribe: Thank you.

Unknown Speaker: Thank you, Mr. Tribe.

General Starr.

Argument of Kenneth W. Starr

Mr. Starr: Thank you, Mr. Chief Justice, and may it please the Court:

In light of what we have heard this morning, let me begin with a few very brief points of clarification.

First, the context.

This case involves a Federal program that is specialized.

It is not Medicaid.

It is not community health services.

It is a family planning program and which the Secretary views, consistent with Congress's intent, as being a term of art.

It means, as the conference committee report suggested, preventive services, preconceptional services.

It does not mean counseling or treating a pregnant woman, other than as part of her transition out of the family planning project, the Title X project, to another health care provider.

That is what these regulations were designed to do in response to criticisms leveled at the program by the General Accounting Office, by the Inspector General, and then pursuant... and I think this is important in terms of the orderliness of the procedure.

There was a notice and comment rulemaking here which was responsive to the very kinds of concerns that had been identified by the General Accounting Office.

That is to say the Secretary, among other things, had proceeded in a very informal way.

There had never been regulations.

There had only been informal memoranda from the Office of General Counsel which were responding to ad hoc requests for essentially a no-action kind of letter or advice and the like.

Guidelines were finally promulgated in 1981.

Those guidelines themselves represented a shift in the agency's position.

Frankly, there had been, prior to the notice and comment rulemaking, great uncertainty and confusion and indeed I don't overstate it by saying chaos in the system as to precisely what was permitted and what was not.

And in the notice of proposed rulemaking and throughout the Secretary made it very clear that this program was limited.

Professor Tribe has quoted from the Federal Register.

Let me share one very brief quote as well.

The Secretary said... this is at 52 Federal Register 33.

2.11...

"as clearly contemplated by Title X and its legislative history, family planning is meant to address plans and methods for facilitating or preventing pregnancy, not for terminating it. "

"As such, medical services or counseling relating to pregnancy care after pregnancy diagnosis or any services relating to abortion as a method of family planning are outside the scope of activity supported by Title X funds. "

Unknown Speaker: General Starr, do you take the position that the way the program was being run before these current regulations went into effect somehow did not meet the requirements of the statute?

Mr. Starr: I think the answer to that is yes in this sense, Justice O'Connor.

The Secretary did come to the view that the kind of counseling that was going on was not in fact consistent with the Secretary's reading of section 1008, and at a minimum with the purpose.

What the Secretary saw as the purpose was not to encourage or promote abortion, and that was being done.

Unknown Speaker: Well, you take the position that compliance with the memos that had been sent in prior years in response to questions about providing neutral information was itself in violation of the statute?

Mr. Starr: I don't think at the time, Justice O'Connor, for this reason.

Unknown Speaker: It would be now, but not then?

Is that what you are saying?

Mr. Starr: I think so.

As odd as that may seem, I think so in light of the notice and comment rulemaking and the General Accounting Office report because, Justice O'Connor, those--

Unknown Speaker: Suppose a different rule had been adopted, one in accordance with the prior memos?

Would that be invalid under the terms of the statute, in your view?

Mr. Starr: --If it had had the effect of promoting or encouraging abortion, then I believe it would.

We would owe a deference to the Secretary.

Unknown Speaker: I'm not sure that's responsive.

Mr. Starr: I'm sorry.

Unknown Speaker: Because the prior memos at least purported to say viewpoint-neutral information may be given.

Mr. Starr: That is exactly right.

It was thought that non-directive counseling could in fact be consistent with the mandate, as those early memos, if you look at our footnote 3, the Carol Conrad memorandum said very clearly that promotion and encouragement of abortion is forbidden.

We believe, speaking on behalf of the General Counsel in this informal setting... this is not the Secretary speaking; this is not through a notice and comment rulemaking; this is an important lawyer's opinion... it was her opinion that non-directive counseling was consistent with that goal.

The Secretary, after a notice and comment rulemaking, after GAO criticism, after an Inspector General criticism, said that is not so.

And what we want to do is to return to what this program is about, which is preventive care.

Unknown Speaker: But could the Secretary have taken the position of that earlier response and been within the meaning of the statute?

Mr. Starr: I think that's problematic.

I have, frankly, serious doubts that the Secretary could have, but I don't think we have to resolve that definitively here, and reasonable minds may differ on that.

Unknown Speaker: Well, not if experience had shown that viewpoint-neutral information really wasn't consistent with the statute.

Mr. Starr: Well, especially, Justice White, and getting back to what this statute is all about, what the Secretary saw is that this is a statute about preventive pre-conceptional services, that is to say providing pregnancy care goes beyond the statute.

Unknown Speaker: General Starr, can I ask you, on that very point, the regulations, at least as quoted in the briefs, say that once a client served by a Title X project is diagnosed as pregnant, she must be referred for appropriate prenatal and/or social services by furnishing a list of available providers that promote the welfare of the mother and the unborn child.

Is that provision authorized by the statute?

Mr. Starr: Yes, I think so.

The Secretary has long felt that the program must be administered in a humane, compassionate way that in fact attends to the health needs of the individual and to refer that person to an appropriate provider of medical care.

Unknown Speaker: So the statute does require some post-pregnancy counseling?

Mr. Starr: In the sense of transition, transitional referral, and providing, I think the regulation goes on, Justice Stevens, to say--

Unknown Speaker: Never mind the regulation.

Where does the statute require that or authorize that, for that matter?

Mr. Starr: --I don't think it requires it.

I think that the Secretary, in his discretion, has determined that as a matter of common sense interpretation there must be a transition out of Title X to protect... in essence to maintain the status quo until the referral appointment can be kept.

They will assist in keeping the referral appointment.

And to ensure that the status quo is maintained the individual is given necessary information to protect the health of the mother and of the unborn child.

Unknown Speaker: Well, then why would it prohibit giving necessary health information in that rare case in which abortion might be medically indicated?

I don't understand the distinction.

Mr. Starr: If there is an emergency, then it can be.

Unknown Speaker: No, it's not an emergency, but it's the better of two options just from a purely medical point of view, not for any family planning reason... just for the health of the mother.

Why can you say in the one case it's appropriate to have post-pregnancy advice and the other it's not appropriate... under the statute only?

I'm not talking constitutionally.

Mr. Starr: Post-pregnancy advice is terribly limited.

It's terribly limited because of the humanity of the situation.

The individual needs to get to an appropriate provider of health care.

She has, as it were, graduated from Title X.

If the individual is going into detailed options counseling, providing Spock on baby care and the like, showing baby care materials and the like, that is beyond the scope of Title X.

Unknown Speaker: But this is not?

Mr. Starr: I don't think so, and certainly they have not challenged the fact that the individual should be given enough information to maintain the status quo until that short period... and we hope it would be a very short period... until she could see a physician who is in fact outside of the Title X program.

Unknown Speaker: I don't understand what you mean by the status quo.

The status quo is she is pregnant.

[Laughter]

She doesn't need advice to stay pregnant.

[Laughter]

Mr. Starr: You are quite right.

My choice of terms is infelicitous.

To maintain the circumstances so that she can in fact get... that is to say, if she needs information.

You are pregnant.

You should now in fact see an appropriate provider of medical care.

Here is information that you need to know.

I'm scheduled to go to a party tomorrow night, and I tend to be a heavy drinker.

It is completely appropriate for the physician... and of course this is typically, the counseling is typically done... and I think our colleagues on the other side realize this... by health care practitioners, by nurses and nurse practitioners, are entitled to say here's a list of appropriate care providers, but at that party don't drink at all because you may damage your health, you may damage the health of the unborn child.

That is appropriate, the Secretary has determined, in his interpretation of the statute.

There is no constitutional problem here by virtue of the Secretary following the very path that was laid down by the court in FCC v. League of Women Voters.

That is what the program integrity requirements are all about.

So that to maintain the abortion neutrality of the Title X program, to keep abortion out of that program entirely, the Secretary, through the 59.9 integrity regulations, permits the establishment of a separate vehicle.

Unknown Speaker: It isn't an abortion neutrality.

It is the one thing that is singled out that shall not be used as a means of family planning.

Mr. Starr: It certainly tilts against abortion.

There is no question about that.

But what the program integrity requirements permit is complete non-neutrality.

That is to say, the grantee... that is why the Secretary was quite precise in drawing the line between the Title X program or project and the grantee.

The grantee is at liberty to have an abortion services clinic and the like to provide abortion-related information, to provide abortion counseling.

And that is exactly what this Court said in League of Women Voters was in fact permissible, following the lead of what the Court indicated in Reagan v. Taxation with Representation.

Unknown Speaker: But not as part of this program.

Mr. Starr: Exactly, Justice Kennedy.

That is the precise point.

This is a limited program.

The prohibition runs only to the program, and that is what takes this out of the unconstitutional conditions line of cases.

Unknown Speaker: Suppose the medical care provider in the Title X program ascertains that the woman is pregnant.

That provider has a regular practice of engaging in performing therapeutic abortions.

Can he say I want you to make an appointment with me tomorrow at my other office, and I am going to give you some advice?

Mr. Starr: Not if in that latter capacity that provider's principal purpose or principal business is the providing of abortions.

Unknown Speaker: Then you are saying that this Title X grantee can still engage in abortion.

It's really meaningless.

This woman might find them out.

She might not.

Mr. Starr: But the list that can be provided, Justice Kennedy, I wouldn't focus on that one provider.

The list is to be in fact a global list, leaving out only one kind of entity, and that is entities whose principal business is the providing of abortions.

There can in fact be providers on that list who do provide abortions, in response to Justice White's question.

Unknown Speaker: Well, the lady asks the doctor in one of these Federally-funded organizations, asks the doctor, well, could you tell me where I can get an abortion.

And he says no, I can't tell you where to get an abortion.

But I'll tell you I'm going to refer you, give you a list of health care providers, and some of those people can answer questions that I can't answer.

Is that all right?

Mr. Starr: That is correct.

That is entirely correct.

In fact, part of the theme that we have heard, Justice White, is that there is distortion, there is trickery.

There should be none at all.

If the program is proceeding with integrity, as it should, it will be up front with the clients of the Title X project and say we do not counsel with respect to abortion as a method of family planning.

We do not refer to clinics whose principal business is the providing of abortions.

What we are going to give you, now that you have been diagnosed as pregnant, is a comprehensive list and on this list are appropriate providers of medical care to protect the health of the mother and the unborn child.

And on that list there can in fact be providers who do provide abortions.

Unknown Speaker: General, what do you say the statute and the regs permit in a situation in which the object is not simply to preserve the status quo but the situation in which the Title X physician in the course of his consulting or examination concludes that the mother is pregnant and in fact is in some imminent danger to health?

In that case, do you take the position that either the statute or the regs permit the Title X physician to say you are in danger to health as a result of your pregnancy and one appropriate response to that would be to have an abortion and I will refer you to a hospital or a physician who can provide it?

Would that place the program in violation of either the statute or the regs?

Mr. Starr: Part B does, Part A does not.

To say in Part A of your hypothetical your health is in danger, you do need treatment, that is absolutely fine, and to refer the person to an emergency provider of medical services is fine.

To actually go forward, as I understand the hypothetical, and to counsel you need an abortion is beyond the mandate.

And the person can say, the health care provider can say, I'm not going to trick you.

I'm not going to deceive you.

This is important.

Here is a list.

In fact, I need to get you over for emergency care, but I am not at liberty to be counseling with respect to the appropriate medical treatment.

Unknown Speaker: Even in that case he's not counseling for the purposes of family planning.

He is in fact acting as a physician for the purpose of preventing an imminent risk or removing an imminent risk to the patient's health.

Why does that violate the statute or the regs?

Mr. Starr: The problem is the context, that that advice is being given in the context of a Title X family planning program.

And in fact the Secretary reasonably reads the 1008 prohibition that the goal that Congress had in what was inherently a controversial program is let's not bring abortion and the abortion controversy into the program.

We have made the decision to bring contraceptives in.

Unknown Speaker: But isn't he going a step further?

Isn't he saying, if he follows the position that you have just outlined, isn't he saying that in fact if a Title X physician sees a professional, a standard professional need or obligation to give advice for the purpose of protecting the health of his patient from imminent danger, and in giving that advice he is not giving it for the purposes of family planning but simply for those traditional purposes, that too is forbidden?

Doesn't that go beyond the statute and the regs?

Mr. Starr: I don't think so, Your Honor, because at that point the person, the physician in your hypothetical... I think it is an extreme hypothetical, but accepting it and facing it... I think in that hypothetical the physician has transcended the boundaries of Title X.

His Title X hat, family planning services, is on.

Once he steps out of that hat and begins treating the individual's pregnancy, he is providing a different kind of medical care beyond the scope of Title X, quite apart from abortion.

Unknown Speaker: The Secretary requires him to do that, as Justice Stevens' question earlier demonstrated.

I mean, it's the Secretary that says you have to provide this kind of medical care in the regs.

Mr. Starr: That you have to provide medical care that is needed during that interim period... I won't use status quo... during the interim period when an appointment is to be made.

The key is make an appointment, and that's what I think the regulations suggest.

Make an appointment with an emergency provider of services, and you can assist the person in making sure that that emergency appointment is in fact kept.

Unknown Speaker: But in my hypothetical the interim period may be extraordinarily short.

For all we know, the high blood pressure is going to result in a stroke within the next hour, and it seems to me that you are telling us that in those circumstances... to be sure that is not what Title X was concerned with, but in those circumstances... the physician cannot perform a normal professional responsibility which is outside of the object of Title X funding, even though that responsibility does not violate the prohibition against using abortion counseling for family planning.

I think you are telling us that in that circumstance, simply because it is outside the object of Title X, the Secretary in effect may preclude professional speech.

Mr. Starr: I don't think that the program is prescribing professional speech, if I accept your hypothetical as not in fact permitting what the Secretary contemplated to take place.

Here is what the Secretary contemplated... that in cases in which emergency care is required... that's, I think, what we are dealing with... a Title X project shall be required only to refer the client immediately to an appropriate provider of emergency medical services.

Unknown Speaker: It's one thing to say it may be required only to do that.

It's another thing to say that he may be precluded, the physician may be precluded from something else, even though it does not violate the condition that Title X may not use abortion for family planning.

Mr. Starr: That may very well be.

That may very well be.

Unknown Speaker: May I expand on that?

Supposing the case is not one of emergency at the time of the conference but in the doctor's professional judgment unless steps are taken within 30 days there is a danger of an emergency, and he thinks the appropriate way of avoiding that danger is to at least consider abortion as an option.

What is he supposed to do under the regulations?

Mr. Starr: I'm sorry.

I missed the last part of the hypothetical.

Unknown Speaker: What is the doctor's... how much freedom does the doctor have to explain to the patient that in the next 30 days you ought to have some tests to see whether or not it's appropriate to have an abortion, because that may be the only way to avoid a risk that is not today an emergency but may become an emergency in three weeks?

Mr. Starr: I think that the physician is at liberty to provide medical information that is necessary, and so I think that the physician in that hypothetical could respond, provide that physician's best medical judgment, as long as the physician does not in fact steer the patient in the direction of an abortion, but, rather, steers the patient in the direction of an appropriate care provider.

Unknown Speaker: Well, but may the physician... I don't want to use the word "steer"... may the physician, as a part of his or her explanation of the problem, say that the reason I want you to see some other professional is I think it may be appropriate to avoid this danger by getting an abortion?

Mr. Starr: I think that, in my judgment, that goes beyond what is permitted under Title X.

Unknown Speaker: Well, is it permitted for him to give any other medical judgment?

Is he permitted to do anything but refer?

I mean, suppose he... is he permitted to give the judgment, in my opinion, you should have the following course of treatment?

Mr. Starr: He should not in fact, Justice Scalia, be in the business of treating pregnancy and caring for the person in her pregnant condition.

Unknown Speaker: I thought he can only refer.

Mr. Starr: Exactly right.

Unknown Speaker: And in the event of an emergency of the sort Justice Souter was referring to he can refer even to, as I read the regulations, even to an agency whose principal business is abortion.

Mr. Starr: I don't think that the regulations by their terms rule that out.

It simply says emergency and an appropriate provider of emergency services.

At that point, the health of and welfare of the mother are paramount, and the physician must in fact make the appropriate referral to an emergency provider.

Unknown Speaker: Let me ask one other question.

Again assuming it is not an immediate emergency but a concern about 30 days from now, could the doctor say I just happened to notice this, I think you ought to have your tonsils taken out?

I'm serious about that.

Mr. Starr: Yes.

I think that the physician can in fact alert the individual to a potential medical problem.

Unknown Speaker: And suggest the proper solution, in his or her judgment?

Mr. Starr: I think at that point the physician may very well be going beyond what Title X is all about.

As an enforcement matter, as a practical matter--

Unknown Speaker: It's no longer family planning, but is it something that the statute would prohibit the doctor from doing?

Mr. Starr: --I think it goes beyond the terms of the statute.

Whether an enforcement action would be brought is quite another thing.

Unknown Speaker: That's not my question.

Do you think the statute would prohibit the doctor from giving medical advice that is not specifically authorized by the statute or contemplated within the notion of family planning?

He just sees a problem with the patient and says, look, I think this is what you should do.

My understanding is he can give any medical advice he wants to, except that he cannot say that I think an abortion is indicated.

Mr. Starr: I disagree with that.

On your tonsils example, it seems to me that under a de minimis approach that is unobjectionable.

With respect to--

Unknown Speaker: Well, say it's appendix or say it's major surgery, you ought to have a bypass operation.

There are a lot of things that are... if it's important, can he do it and unimportant not?

Is that your notion?

Mr. Starr: --No.

I think that the physician is simply going beyond what Title X is all about.

Unknown Speaker: I understand he's going beyond what's been authorized.

I'm asking if it violates either the statute or the regulations to give that kind of medical advice.

Mr. Starr: I think it will violate the terms of the grant, because the grant is in fact... they are funding this physician to provide Title X services.

Unknown Speaker: So if he gave that kind of medical advice you could withdraw the grant for the future?

Mr. Starr: In terms of what... oh, I didn't say that at all.

Unknown Speaker: Suppose I thought--

Mr. Starr: Not at all.

There may have been... there are all kinds of violations.

Unknown Speaker: --What are the consequences if violating the regulation about abortion?

What can happen to the doctor for doing that?

Mr. Starr: The program may be the subject of an audit and then appropriate action taken, which could include not renewing the grant.

Unknown Speaker: Could the same action be taken if he gave advice to have a tonsillectomy, and, if not, why not?

Mr. Starr: Well, it might, because the individual is at that point transcending Title X.

Unknown Speaker: I presume you would certainly terminate the grant if indeed that were the regular practice, that people were coming in to get family planning advice simply because at the end of it the doctor said, by the way, while you're here, let me look at your tonsils.

And they were regularly treating people or giving advice about all sorts of medical conditions.

You would probably terminate the program in that event, I would assume.

Mr. Starr: That is precisely why I was suggesting the possibility of a de minimis exception.

That is to say there is no rule that--

Unknown Speaker: With respect to abortion consultation, that is much more likely to happen regularly than is advice about tonsils.

Mr. Starr: --Individuals are coming in, exactly, for the purpose of receiving family planning.

Unknown Speaker: Well, does it happen regularly that when a pregnant person comes in that there's a medical need unrelated to family planning problems?

I thought you said that was the rare exception.

Mr. Starr: Well, the individual can again be referred out.

I think we're talking about here is what you should do.

In your hypothetical, Justice Stevens, as I understand it, the physician is saying I am here as a Title X physician, but I am telling you to go have your tonsils out.

The individual is, it seems to me, at that point practicing beyond the scope of the program.

Unknown Speaker: Just if a doctor sees a medical problem, is the doctor permitted to tell the patient about the existence of the problem, with the normal recommended, what his professional advice is.

I guess you are saying no, that he cannot.

Mr. Starr: He certainly is able to say I have spotted a tonsils problem and you should go have it attended to.

It is not the purpose of this project to tell you exactly what you should do, but we will assist you in finding an appropriate health care provider.

Last point that I would like to make on the unconstitutional conditions point.

Much has been said about Perry against Sindermann and the line of cases that suggest that the government cannot in fact require someone to give up a liberty as a condition for a particular kind of benefit... Speiser against Randall and the like.

That, as I was saying before the colloquy, about what the regulations permit, is exactly why the Secretary has the program integrity requirements, to permit these kinds of services to be permitted through a separate vehicle, and by virtue of that there is in fact no extension of the prohibition beyond the program itself.

The prohibition is entirely program-specific, and by virtue of that there is no unconstitutional condition that is being mounted or imposed upon these individuals and on these clinics.

Above all, as this Court has said time and again, the law assumes a robust common sense, and a robust sense that individuals are in fact free to determine whether to participate in a government program or not.

The Secretary fashioned a program that was true to Congress's intent, as reflected in 1008 and in the statements of legislators and the conference committee report, that this program, to have integrity, must in fact be a preventive services preconceptional program.

I thank the Court.

Chief Justice Rehnquist: Thank you, General Starr.

The case is submitted.

Attribution:

The OYEZ Project

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