February 14, Re: Constitutionality of the Pain-Capable Unborn Child Protection Act

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1 STATE OF IDAHO OFFICE OF THE ATTORNEY GENERAL LAWRENCE G. WASDEN Via Hand Delivery The Honorable Chuck Winder Idaho Senate Re: Constitutionality of the Pain-Capable Unborn Child Protection Act Dear Senator Winder: This letter is in response to your inquiry regarding the constitutionality of the Pain-Capable Unborn Child Protection Act ("the Act"), which prohibits non-therapeutic abortions once a fetus has reached twenty weeks of gestation. As set forth below, Section 5 of the Act is unconstitutional under the Fourteenth Amendment to the United States Constitution insofar as it proscribes some non-therapeutic abortions even before a fetus has reached viability. All other provisions in the Act, however, are likely to be constitutional. These conclusions are based on the declarations of the U.S. Supreme Court over the last several decades. CONSTITUTIONAL FRAMEWORK The Supreme Court evaluates the constitutionality of abortion legislation in accordance with the analytic framework set forth in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). The focal point of that framework is the concept of fetal "viability"-i.e., "the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb." ld. at 870. Prior to viability, the state can regulate abortion in ways that further its interests in fetal life and maternal health, but cannot prohibit any woman from making the ultimate decision to terminate her pregnancy or otherwise impose an "undue burden" on the right to choose.!d. Subsequent to viability, by contrast, the state can "regulate, even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." ld. at 879. Civil Litigation Division P.O. Box 83720, Boise,ldaho Telephone: (208) , FAX: (208) Located at 954 W. Jefferson 2nd Floor

2 Page 2 A plaintiff who wishes to challenge the constitutionality of a statute under the preor post-viability standard can do so by means of either a "facial" challenge or an "asapplied" challenge. The former argues that the statute's unconstitutionality is apparent from the text-or face-of the statute itself, and without inquiry into the individualized contexts in which the statute may apply. The latter makes the narrower argument that, regardless of constitutionality in any other context, the statute is unconstitutional as it has been applied or will apply to the individual plaintiff. To prevail in a facial challenge to a statute regulating abortion, a plaintiff must show that the statute violates the pre- or postviability standard in a "large fraction of the cases" in which the statute applies. [d. at 895; see also Planned Parenthood of So. Ariz. v. Lawall, 180 F.3d 1022, (9th Cir. 1999) (adopting the "large faction of cases" test for facial challenges). To prevail in an as-applied challenge, the plaintiff need only show that the statute is unconstitutional "in the particular context in which he has acted or in which he proposes to act." Ada v. Guam Soc'y of Obstetricians & Gynecologists, 506 U.S. 1011, 1012 (1992) (Scalia, I, dissenting). Thus, under either standard, a statute can be unconstitutional even if it is theoretically capable of some constitutional applications. ANALYSIS A. The Act Regulates Abortion Both Prior to and After Fetal Viability The first step in using the Court's framework is to determine whether the Act's restrictions on abortion amount to pre- or post-viability restrictions on a woman's right to choose. To the extent that they operate pre-viability, the "undue burden" standard applies. If, on the other hand, they operate entirely post-viability, they will be constitutional as long as they include adequate exceptions for preserving the life and health of the mother. Characterizing restnctions as operating pre- or post-viability requires an understanding of what "viability" means. Several U.S. Supreme Court decisions have expounded upon the concept. In Roe v. Wade, 410 U.S. 113, 160 (1973), the Court explained that viability is the "point at which the fetus [is] potentially able to live outside the mother's womb, albeit with artificial aid." At least at the time of Roe, that point was "usually placed at about seven months (28 weeks) but [could] occur earlier, even at 24 weeks." [d. The Court subsequently affirmed this view in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, (1976), but clarified that viability is "flexib[le]" and ultimately a "matter of medical judgment, skill, and technical ability." Because the "time when viability is achieved may vary with each pregnancy," the "determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician." Danforth thus concluded that it is "not

3 Page 3 the proper function of the legislature or the courts to place viability... at a specific point in the gestation period." Id. at 64. The Court further explicated these principles in Colautti v. Franklin, 439 U.S. 379 (1979). Reaffinning Roe and Danforth, the Court explained that "[v]iability is reached when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus' sustained survival outside the womb, with or without artificial support." Id. at 388. "Because this point may differ with each pregnancy, neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability-be it weeks of gestation or fetal weight or any other single factor-as the determinant of when the State has a compelling interest in the life or health of the fetus." Id. at Casey's definition, quoted earlier, merely reiterated these principles. See 505 U.S. at 870. For two reasons, this precedent establishes that the Act's various restrictions operate, at least in part, prior to viability. First, twenty weeks precedes the usual viability point, as recognized in Roe and Danforth, by at least four weeks. See Roe, 410 U.S. at 160 (explaining that viability usually occurs between 24 and 28 weeks); Danforth, 428 U.S. at 61 n.l (same). Second, although technological advances since the 1970s have made it easier to sustain life outside the womb at an earlier stage, it seems clear that, in at least a fair percentage of pregnancies today, the fetus is not viable by twenty weeks. See, e.g., Pino v. United States, 507 F.3d 1233, 1235 (10th Cir. 2007) (noting that the parties stipulated that a fetus is not viable by twenty weeks); Planned Parenthood of Wis. v. Doyle, 162 F.3d 463, 466 (7th Cir. 1998) (noting that viability occurs between twenty and twenty-seven weeks). Because the Act's restrictions apply at twenty weeks, they operate pre-viability for at least some portion of pregnancies. The legislative findings regarding fetal pain in Section 3 likely do not disturb this analysis. Regardless of whether a fetus is able to feel pain by twenty weeks, there is no legislative finding suggesting that this ability translates into or even contributes to viability. See Act 3. This omission, moreover, is unsurprising, as the capacity to sense pain is unlikely to itself enable critical organ function. Thus, there is no basis for concluding that the Section 5 prohibition becomes effective only at the advent of fetal viability. The prohibition operates prior to viability as well, generally by several weeks. Having concluded that the Act applies both before and after viability, the next step is to assess the constitutionality of the Act's provisions at both points in time.

4 Page 4 B. The Constitutionality of the Pre-Viability Provisions Insofar as the Act's restrictions operate before viability, the question is whether those restrictions impose an "undue burden" on a woman's right to choose to terminate her pregnancy. Casey, 505 U.S. at 870. A restriction imposes an undue burden if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." ld. at 877. To discern whether an improper purpose is present, courts examine statutory text, legislative history, the social and historical context of the statute's passage, other legislation on the same subject matter, and whether the statute is consistent with the clear pronouncements of the Supreme Court. See, e.g., Okpalobi v. Foster, 190 F.3d 337, (5th Cir. 1999); Jane L. v. Bangerter, 102 F.3d 1112, (loth Cir. 1996). The analysis below thus evaluates whether the key provisions of the Act that apply pre-viability impose an undue burden. Those provisions are: (1) the requirement that a physician determine gestational age before performing a non-emergency abortion (Section 4), (2) the ban on non-therapeutic abortions from twenty weeks of gestation to viability, whenever that may occur in each pregnancy (Section 5), and (3) the requirements for reporting and recordkeeping (Section 6).1 1. Mandatory Determinations of Gestational Age Are Likely Constitutional The Act's first substantive section generally requires physicians to determine gestational age prior to performing an abortion. The section states: Except in the case of a medical emergency, no abortion shall be performed or induced or be attempted to be performed or induced unless the physician performing or inducing it has first made a determination of the probable post-fertilization age of the unborn child or relied upon such a determination made by another physician. In making such a determination, the physician shall make such inquiries of the woman and perform or cause to be performed such medical examinations and tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary to perform in making an accurate diagnosis with respect to post-fertilization age. 1 The analysis omits discussion of Sections 7 (criminal penalties), 8 (civil remedies), 9 (protection of privacy in court proceedings), and 10 (litigation defense fund) because those sections are unlikely to give rise to constitutional challenges.

5 February 14,2011 Page 5 Act 4(1). Failure by a physician to conform to any of these requirements constitutes "unprofessional conduct," and is a basis for administrative discipline. Id. at 4(2); see also Idaho Code The most likely challenge to Section 4 is a facial challenge arguing that mandatory gestational age determinations constitute an undue burden because they increase the cost of pre-viability abortions and in doing so make them more difficult to obtain. Such a challenge is unlikely to succeed because the Supreme Court has upheld similar requirements before. In Webster v. Reproductive Health Services, 492 U.S. 490 (1989), the Court examined a Missouri statute that required the physician to ascertain, prior to carrying out an abortion on any woman believed to be 20 or more weeks pregnant, whether the fetus was viable by performing "such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child." See Mo. Rev. Stat Concluding that the requirement "permissibly further[ed] the State's interest in protecting potential human life," a plurality held that it was constitutional notwithstanding the fact that it "increase[ d] the expense of abortion." 492 U.S. at Justices O'Connor and Stevens separately concurred in this judgment. See id. at , Casey also suggested that this conclusion was correct. See 505 U.S. at 882 (explaining that mandatory inquiries into probable gestational age further an important state interest in potential life). Thus, the mere fact that a regulation increases the cost of an abortion is not by itself a basis for a finding of unconstitutionality where the increase is insignificant. See Webster, 492 U.S. at (O'Connor, J., concurring) (explaining that a restriction can be constitutional even if it "marginally" increases the cost of an abortion); Casey, 505 U.S. at 901 (concluding that a restriction was not unconstitutional on the basis of expense because it increased the cost of some abortions only by a "slight amount") (plurality). The amount of expense imposed by Section 4 is probably insufficient to constitute a substantial obstacle. A mandatory gestational age determination likely contributes to the expense of an abortion, but it is hard to imagine that the cost of that procedure is materially greater than that imposed by the constitutionally permissible medical examinations at issue in Webster. See 492 U.S. at Therefore, the Court would be unlikely to sustain a facial challenge to Section 4 on the basis of cost. It does not follow, however, that Section 4 would necessarily survive all asapplied challenges based on cost. A woman seeking an abortion might argue that 4 imposes a substantial obstacle for her if, for example, the examination mandated by the statute were, for whatever reason, prohibitively expensive to her as an individual patient. The likelihood of this sort of challenge succeeding cannot be predicted with precision because of potential case-specific factual considerations, such as the cost of the

6 Page 6 examination and the mother's financial means, that are beyond the purview of this analysis. 2. The Ban on Non-Therapeutic Abortions Upon Twenty Weeks of Gestation is Unconstitutional Insofar as it Applies Before Viability The central feature of the Act is the prohibition on non-therapeutic abortions upon twenty weeks of gestation. The relevant section states: No person shall perform or induce or attempt to perform or induce an abortion upon a woman when it has been determined, by the physician performing or inducing or attempting to perform or induce the abortion or by another physician upon whose determination that physician relies, that the probable post-fertilization age of the woman's unborn child is twenty (20) or more weeks, unless, in reasonable medical judgment, she has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death, or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. No such condition shall be deemed to exist if it is based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function. When an abortion upon a woman whose unborn child has been determined to have a probable post-fertilization age of twenty (20) or more weeks is not prohibited by this section, the physician shall terminate the pregnancy in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive, unless, in reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk either of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the woman than would other available methods. No such greater risk shall be deemed to exist if it is based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function.

7 Page 7 Act 5 ("Section 5"). The Supreme Court has never squarely addressed the constitutionality of legislation that proposes to ban some non-therapeutic abortions prior to viability on the basis of fetal pain. Nevertheless, there is strong reason to believe that Section 5 is unconstitutional under existing precedent, as set forth below. i. Section 5 Has the Purpose of Creating a Substantial Obstacle Section 5 plainly intends to erect a substantial obstacle to the right to choose. This conclusion follows from the text of Section 5, its relation to other parts of the Act, and its clear incompatibility with the Court's abortion precedent. First, the plain language of Section 5 utilizes the most substantial kind of regulatory obstacle: a categorical ban on non-therapeutic abortions at and after twenty weeks. Courts will interpret this plain language as the primary indicia of legislative intent. See George W. Watkins Family v. Messenger, 118 Idaho 537, 540, 797 P.2d 1385, 1388 (1990). It follows that Section 5 may well be deemed to evince a legislative intent not only to erect a substantial obstacle to the right to choose a non-therapeutic abortion of a non-viable fetus upon twenty weeks, but to eliminate the right altogether. Sections 3( 11) and 10 also suggest a legislative intent to create a substantial obstacle to the right to choose. Section 3(11) states that "[i]t is the purpose of the State to assert a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain." Section loin turn establishes a "litigation defense fund" "for the purpose of providing funds to pay for any costs and expenses incurred by the state attorney general in relation to actions surrounding defense of this law." Coupled with Section 5, the plain language of these provisions evince the intent both to erect a substantial obstacle by narrowing the gestational window during which women may exercise the right to abortion, and to do so in a way that knowingly challenges the limits of the current precedent. It is telling, for example, that Sections 3(l1) and 5 pay no attention to the concept of viability even though the Court has repeatedly reaffirmed Casey and made viability the focal point of its analysis. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 146 (2007) ("Carhart ff'); Stenberg v. Carhart, 530 U.S. 914, (2000). And it is siguificant that Section 10 sets up a fund to defend the Act from legal challenges. Courts have found that such funds suggest that the statutory schemes they support are meant to serve as vehicles to change abortion doctrine, rather than operate within the doctrine's parameters. See, e.g., Jane L. v. Bangerter, 102 F.3d 1112, (loth Cir. 1996). Finally, Section 5's purpose to erect a substantial obstacle to choice is apparent from the regulation's manifest incompatibility with existing case law on abortion. As explained above, courts have made clear that in many pregnancies the fetus is non-viable

8 Page 8 at twenty weeks and even for several weeks afterward. See supra p.3. Section 5 thus proscribes some pregnancies involving non-viable fetuses. The Court, however, has made clear that the state cannot eliminate a woman's right to choose before the fetus reaches viability. See, e.g., Gonzales, 550 U.S. at 146; Stenberg, 530 U.S. at In fact, the Court has held some far less restrictive regulations to constitute "substantial obstacles." See, e.g., Casey, 505 U.S. at (striking down a spousal notification requirement). Passage of the Section 5 ban in the face of this precedent would likely be construed as suggesting a legislative intent to challenge rather than adhere to the Court's doctrine, and to create a new and previously impermissible obstacle to the right to choose. Section 5 would thus impose an undue burden, and would be unconstitutional. See id. at This method of analysis is neither new nor atypical. In Jane L. v. Bangerter, 102 F.3d 1112 (1996), for example, the Tenth Circuit found that a similar statute had an improper purpose and was therefore unconstitutional on nearly identical reasoning. The statute at issue prohibited abortion "[a]fter 20 weeks gestational age" unless the procedure was necessary to save the pregnant woman's life or health, or to prevent the birth of a child with grave defects, and established an "abortion litigation trust account" to pay for the law's defense. Id. at After examining the statutory text and its relation to existing precedent, Jane L. found that the statute was enacted with the "specific purpose of placing an insurmountable obstacle in the path of a woman seeking the non-therapeutic abortion of a non-viable fetus after twenty weeks." Id. at The creation of the litigation trust account "demonstrated" that the state's "intent in passing the abortion provisions was to provide a vehicle by which to challenge Roe v. Wade," and the attempt to "define viability in a manner specifically and repeatedly condemned by the Court evince[ d] an intent to prevent a woman from exercising her right to choose an abortion after twenty weeks in those instances in which the fetus is not viable." Id. at Because neither purpose was permissible, the statute was unconstitutional under Casey. Id. The Supreme Court denied certiorari a year later, thereby communicating that at least five justices chose to leave Jane L.'s reasoning in tact. See 520 U.S (1997). ii. Section 5 Has the Effect of Creating a Substantial Obstacle Legislative intent aside, Section 5 would also have the practical effect of creating a substantial obstacle to the right to choose non-therapeutic abortion before viability. The reasoning here follows a simple syllogism: First, because Section 5 includes within its prohibition non-therapeutic abortions of non-viable fetuses upon twenty weeks gestation, the "undue burden" standard applies. Casey, 505 U.S Second, Section 5 has the effect of imposing a substantial obstacle to the right to choose abortion in the

9 Page 9 circumstances it addresses because it erects a categorical ban on the procedure in those circumstances. Finally, because Section 5 creates a substantial obstacle to choice, it imposes an undue burden and is unconstitutional. This conclusion is also consistent with the Tenth Circuit's decision in Jane L., which held that the comparable ban had the effect of creating a substantial obstacle to the right to choose. See 102 F.3d at In fact, Section 5 is more suspect than the statute deemed unconstitutional in that case: The statute in Jane L. prohibited non-therapeutic abortion after twenty weeks, rather than after nineteen weeks, as Section 5 does. See 102 F.2d at And the statute in Jane L. included an exception that permitted abortion to "prevent the birth of a child with grave defects."!d. Section 5, by contrast, does not. The ban in Section 5 is in these ways uniquely robust: it begins earlier in the pregnancy, and contains fewer exceptions. Given that the ban in Jane L. was unconstitutional on the basis of impermissible effect, it follows, a fortiori, that the ban in Section 5 is also unconstitutional on that basis. iii. The Legislative Findings Regarding Fetal Pain Do Not JustifY Section 5 Under Current Supreme Court Precedent The foregoing analysis has examined Section 5 without discussing the statute's primary rationale-i.e., that the advent of scientific evidence of fetal pain at twenty weeks gestation justifies restricting some non-therapeutic abortions even before viability. The Supreme Court has never addressed the question of whether such evidence can justify this kind of ban. In this sense, there is no absolute basis for concluding that Section 5 is unconstitutional-it is conceivable that the Court would permit more restrictive abortion laws on the basis of fetal pain. It is unlikely, however, that the Court would find Section 5 constitutional. Several observations support this view. First, new knowledge of fetal pain does not undermine the rationale for the Court's viability-centric doctrine. Casey explained that viability is the critical point in the constitutional analysis because it is "the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that... overrides the rights of the woman." 505 U.S. at 870. As long as the capacity to sense pain does not equate with viability, see supra p. 3, scientific evidence regarding fetal pain likely would have no legal significance. Simply stated, a non-viable fetus that can feel pain is still a non-viable fetus and, therefore, cannot be an "object of state protection" that overrides the rights of the woman. Id.

10 Page 10 Second, although the scientific nature of the issue makes it difficult to speak with certainty in the present analysis, it cannot be taken for granted that the Court would accept all of the legislative findings in Section 3. The Court "has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty," but also "retains an independent constitutional duty to review factual findings where constitutional rights are at stake." Carhart 11,550 U.S. at 163. In executing this duty, the Court could conceivably reject the findings on fetal pain on the basis of concerns raised about their validity within the medical community. See, e.g., Note, The Science, Law, and Politics of Fetal Pain Legislation, 115 Harv. L. Rev. 2010, (2002) (discussing serious questions about the meaning and force of the scientific evidence); Hannah Stahle, Fetal Pain Legislation: An Undue Burden, 10 Quinnipiac Health LJ. 251, (2007) (same); Harper Jean Tobin, Confronting Misinformation on Abortion: Informed Consent, Deference, and Fetal Pain Laws, 17 Colum. J. Gender & L. 111, (2008) (same). The result would be to undermine the rationale for the prohibition in Section 5. Finally, insofar as the Legislature contemplates passing the Act as a way to generate litigation that will eventually give the Court an opportunity to overrule Roe and Casey, such an outcome is unlikely. Even assuming the validity of the findings in Section 3, the Court would likely invalidate Section 5 and adhere to Roe and Casey due to the doctrine of stare decisis. This doctrine was "designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case." Casey, 505 U.S. at 854. The doctrine generally requires adherence to precedent, and permits deviation only where (1) an old rule has proven "unworkable," (2) the rule could be removed "without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it," (3) the law has generally evolved in a way that renders the rule anachronistic, or (4) factual premises underlying the rule have changed enough to negate its original justification.!d. at In declining to overrule Roe v. Wade, Casey effectively eliminated each of the above factors as permissible bases for departing from the Court's abortion jurisprudence today. To begin, Casey held that the basic rule of Roe has not proven unworkable. Id. at 855. Given longstanding criticism of Roe and the general view that Casey represents, if anything, a doctrinal improvement, the Court is even less likely to conclude that the viability standard is unworkable. Next, Casey held that overturning Roe was unjustified because of substantial reliance interests in abortion rights that had developed since the case was decided.!d. at This may well be deemed even truer today, nearly twenty years after Casey and over forty years after Roe. Casey further held that the law had not evolved in a way that rendered Roe anachronistic. Id. at The same

11 Page 11 appears no less the case today, as the Court reaffirmed the basic holdings of Roe and Casey just three years ago in Carhart II See 550 U.S. at (2007). Finally, Casey held that technological advances had not undermined the Court's abortion doctrine. 505 U.S. at 860. The same is true now with respect to scientific advances in the understanding of fetal pain. Because Roe and Casey rest on the moral judgment that, before viability, maternal freedom of choice trumps the value of fetal life, there is simply no doctrinal or even normative space for fetal pain to change the analysis: if the life of a fetus cannot trump freedom of choice before viability, it follows, a fortiori, that the presumably lesser value of avoidance of fetal pain also cannot trump freedom of choice. iv. Section 5 is Unlikely to Survive a F adal Challenge The foregoing analysis suggests that a plaintiff could mount a successful facial challenge to the statute. As explained above, a facial challenge will succeed where a plaintiff can show that a law imposes an undue burden in a "large fraction of the cases" in which it applies. Casey, 505 U.S. at 895. The denominator for the "large fraction" is the "group for whom the law is a restriction," not the entire population of women who seek abortions. Id. at 894. In the case of Section 5, that group is comprised of women who seek non-therapeutic abortions of non-viable fetuses after nineteen weeks of pregnancy. The statute imposes an undue burden on not only a large fraction of this group, but the entire group. A facial challenge to Section 5 would therefore succeed, resulting in Section 5's invalidation. Id. at The Reporting and Recordkeeping Requirements Are Likely Constitutional Section 6 contains the Act's recordkeeping and reporting requirements. Physicians who provide abortions must provide information to the State about the postfertilization age of each fetus, the basis for any findings of medical emergency, the basis for any findings that an abortion was necessary to save the life or health of the mother, and abortion methods. See 6(1). The State must then issue a public report including statistics based on the information received from abortion providers. Id. at 6(2). Any physician who fails to timely comply with the recordkeeping and reporting requirements is subject to a late fee and potential professional discipline. Id. at 6(3). Throughout the reporting process, the State must take care to ensure that the identity of each woman who has had an abortion remains confidential. Id. at 6(2). The provisions of Section 6 likely do not impose an undue burden. In Danforth, the Court held that recordkeeping and reporting provisions are permissible if they "are reasonably directed to the preservation of maternal health and... properly respect a patient's confidentiality and privacy." 428 U.S. at 80. Casey upheld provisions very

12 Page 12 similar to those in Section 6 on the basis of this standard because the "collection of information with respect to actual patients is a vital element of medical research," and the provisions at issue would only "increase the cost of some abortions by a slight amount." See 505 U.S. at Section 6 is constitutional on the same reasoning. C. The Constitutionality of the Post-Viability Provisions The next question is whether the Act, and Section 5 in particular, is constitutional as a regulation of abortion after viability. As explained earlier, Casey holds that upon viability a state can "regulate, even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." 505 U.S. at 879. This standard is far more permissive of state regulation than the undueburden standard because a viable fetus constitutes a "second life" with an "independent existence" that can be the "object of state protection that... overrides the rights of the woman." Id. at 870. The post-viability standard is relevant to Section 5 in two respects. First, the only way to avoid the conclusion that Section 5 is unconstitutional under the undue-burden standard would be to interpret the statute as categorically equating viability with the capacity to feel pain. The result of that interpretation would be that Section 5 operates only post-viability-i.e., only once a fetus is capable of feeling pain-and that the statute is constitutional as long as it contains adequate exceptions for the life and health of the mother. Second, the post-viability standard is relevant because, even if Section 5 does not categorically equate viability with the capacity to feel pain, the statute's prohibition covers all non-therapeutic abortions after nineteen weeks gestation. Abortions involving viable fetuses clearly fall within that group. The following examines Section 5 from both angles, and concludes that the statute is unconstitutional from angle one, but probably permissible from angle two. 1. Section 5 is Unconstitutional Insofar it Equates Viability with the Capacity to Sense Pain First consider the interpretation that categorically equates the capacity to feel pain with viability. Undue-burden analysis would not apply under that interpretation because Section 5 would apply only post-viability, but the statute would likely run afoul of the Court's established doctrine on the definition of "viability." That doctrine holds that "[b ]ecause the viability point may differ with each pregnancy, neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability-be it weeks of gestation or fetal weight or any other single factor-as the determinant of when the State has a compelling interest in the life or health of the fetus."

13 Page 13 Colautti, 439 U.S. at Interpreting Section 5 as an exclusively post-viability ban would violate this doctrine in part because it would in effect have the statute proclaim a single physiological condition-the advent of the capacity to feel pain-to be the sole determinant of when the State has a compelling interest in the life and health of the fetus. See id. The interpretation would also violate the Court's definitional doctrine by having the statute proclaim viability as always occurring precisely at twenty weeks gestation even though, in fact, the viability point "may differ with each pregnancy." Id. 2. Section 5 's Lack of an Exceptionfor the Mental Health of the Mother is Probably Constitutional Now consider the interpretation under which Section 5 operates both before and after viability. Even though the problem of viability's definition goes away, the statue's prohibition must still contain exceptions that permit abortion "where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Casey, 505 U.S. at 879. The statute provides that abortion is permissible at twenty or more weeks if, "in reasonable medical judgment, [the mother] has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions." Act 5. Section 5 thus permits abortions at or after twenty weeks where necessary to preserve physical health, but not mental health. Whether this rule is consistent with the Court's precedent is unclear. The Court has never directly addressed whether exceptions for preserving the life and "health" of the mother must include mental health. Some have argued, however, that the Court's precedent necessitates a mental-health exception. Their reasoning proceeds in three steps: First, Roe held that after viability states may "regulate, even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." 410 U.S. at Second, two cases decided around the time of Roe suggest that the Court understood the term "health," as used in the Roe standard, to include mental health. One of these cases, United States v. Vuitch, 402 U.S. 62, 68 (1971), evaluated whether a Washington, D.C. statute was unconstitutionally vague in making it a crime to provide an abortion unless for the preservation of the mother's life or "health." The Court concluded that the statute was not vague because ordinary usage of the word "health" "includes psychological as well as physical wellbeing." The other case, Doe v. Bolton, 410 U.S. 179, 183 (1973), which was decided just a day after Roe, similarly addressed whether a Georgia statute was unconstitutionally vague in making it a crime to perform an abortion except when "necessary" in the physician's "best clinical judgment." Rejecting the vagueness challenge, the Court

14 Page 14 explained that the phrase "best clinical judgment" clearly empowered physicians to make medical judgments "in light of all factors-physical, emotional, psychological, familial, and the woman's age-relevant to the well-being of the patient," as "[a]ll [of those] factors may relate to health."!d. at 192. Third, because Roe's use of the term "health" encompasses mental health, states must provide exceptions for mental health when banning abortion after viability. At least one lower court has followed this chain of reasoning to conclude that mental health exceptions are required. See Women's Med. Prof Corp. v. Voinovich, 130 F.3d 187, (6th Cir. 1997), cert. denied 118 S.Ct (1998). At the same time, this reasoning has significant weaknesses. Perhaps most importantly, Vuitch and Doe discussed the meaning of the term "health" for the purpose of statutory construction, not as a matter of federal constitutional law. And because the question of mental health was never directly at issue, it probably reads too much into Roe to conclude that the Court intended at that time to mandate exceptions for both mental and physical health. See generally Michael J. Tierney, Post-Viability Abortion Bans and the Limits of the Health Exception, 80 Notre Dame L. Rev. 465 (2004) (making these arguments); Brian D. Wassom, The Exception that Swallowed the Rule? Women's Medical Professional Corp. v. Voinovich and the Mental Health Exception to Post Viability Abortion Bans, 49 Case W. Res. L. Rev. 799 (1999) (same). Furthermore, three justices-rehnquist, Scalia, and Thomas-dissented from the denial of certiorari in Voinovich on the ground that Doe "in no way supports the proposition that, after viability, a mental health exception is required as a matter of federal constitutional law." 118 S.Ct. at It would not be at all surprising if Justices Roberts and Alito feel similarly, and it is quite possible that Justice Kennedy does as well. Assuming these three justices do in fact hold such a view, and that Justices Scalia and Thomas retain the view they expressed in their dissent to the denial of certiorari in Voinovich, there would be a majority of five justices who believe that no mental-health exception is necessary, and Section 5 would be constitutional in that regard. 3. Section 5 's Second Paragraph is Superfluous and Should Be Deleted The Second paragraph of Section 5 is, textually, the most complicated part of the Act. That paragraph reads: When an abortion upon a woman whose unborn child has been determined to have a probable post-fertilization age of twenty (20) or more weeks is not prohibited by this section, the physician shall terminate the pregnancy in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive,

15 Page 15 unless, in reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk either of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the woman than would other available methods. No such greater risk shall be deemed to exist if it is based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function. In tandem with the other provisions of the Act, the effect of this paragraph would appear to play out as follows: A woman goes in to receive an abortion. She is more than nineteen weeks pregnant, so the general prohibition of Section 5 applies, but the physician determines that she has a "condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death." Act 5, ~ 1. The woman's pregnancy thus falls within the exception to the Section 5 prohibition. According to the second paragraph of Section 5, the physician must terminate the pregnancy in the manner "most likely to allow the child to survive," unless the use of that method would pose a greater risk of the mother's death or a "substantial and irreversible" physical impairment of one of her major bodily functions than would other available methods. The problem with the second paragraph is that it is superfluous in light of the first. In relevant part, paragraph one in essence says that the state will not prohibit a woman from obtaining an "abortion" where her medical condition "necessitate[ s]" the procedure. Section 2(1) defines "abortion," for the purposes of the Act, to describe methods used to terminate a pregnancy "with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead unborn child who died as the result of natural causes in utero, accidental trauma, or a criminal assault on the pregnant woman or her unborn child, and which causes the premature termination of the pregnancy." Because Section 5 is part of the Act, this definition applies to the first paragraph of Section 5, and we can substitute the definition for the word "abortion" whenever it occurs. The result is that paragraph one permits a physician to terminate a pregnancy "with an intention other than to increase the probability of a live birth" where doing so is necessary to preserve the mother's life or health. The opening clauses of the second paragraph are fundamentally incompatible with this result. Those clauses require a physician to terminate a pregnancy in the manner which "provides the best opportunity for the unborn child to survive" when "an abortion" is "not prohibited by [Section 5]." By the Act's own definition, a procedure which

16 Page 16 "provides the best opportunity for the unborn child to survive" is not an "abortion"-i.e., a procedure used to terminate a pregnancy "with an intention other than to increase the probability of a live birth." Thus, where an "abortion" is "necessary" under paragraph one, the opening clauses of paragraph two would require a physician to perform a procedure other than an abortion. Such an effect would be manifestly unconstitutional under Casey, which plainly requires that abortion be available even after viability where it is necessary to preserve the mother's life or health. See 505 U.S. at Another part of the second paragraph avoids this unconstitutional effect by permitting a physician to perform an abortion if doing so would lower the risk to the life or health of the mother. See 5, ~ 2. However, in preserving the statute's constitutionality, this part of the second paragraph nullifies the effect of the paragraph's opening clauses altogether: The opening clauses apply only once it has been determined that an abortion is medically "necessary." Such a determination by definition means that abortion will carry the lowest risk to the life or health of the mother, and that it is not appropriate for the physician to "terminate the pregnancy in the manner which... provides the best opportunity for the unborn child to survive."!d. Deleting the second paragraph of Section 5 would improve the quality of the legislation. D. Severability The final issue to consider is the effect of the Act's severability provision, which provides that, in the event of partial unconstitutionality, a court should excise any portions deemed unconstitutional and preserve the remainder rather than invalidate the entire Act. See 11. In determining the scope of appropriate relief, the Court will apply Idaho's state rule on severability. Leavitt v. Jane L., 518 U.S. 137, 139 (1996). This rule requires a court to give effect to the "intent of the Legislature as expressed through a severability clause." In re SRBA Case No , 128 Idaho 246, 264, 912 P.2d 614, 632 (1995). The Court will also consider three federal constitutional guidelines in evaluating severability: First, "try not to nullify more of a legislature's work than is necessary." Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329 (2006). Second, refrain as much as possible from "rewriting state law to conform it to constitutional requirements."!d. And third, consider whether the legislature "would have preferred what is left of its statute to no statute at all." ld. at 330. It is clear from this precedent and Section 11 that a federal court should enjoin operation only of the unconstitutional portions of the Act and not invalidate the whole. As explained above, Sections 4 and 6 are likely constitutional. Section 5, by contrast, is unconstitutional to the extent that it prohibits non-therapeutic abortions before viability, and insofar as it categorically equates viability with the capacity to sense pain. Severing

17 Page 17 the unconstitutional part of Section 5 would best adhere to Idaho law and the guidelines in Ayotte: It would nullify no more of the Act than necessary. It would require less judicial "rewriting" of the Act. And it would honor the legislative intent clearly expressed in favor of severability. In summary, based on existing precedent, the most likely result of a constitutional challenge to the Act is that the Court strikes down part of Section 5 and severs it from the rest of the Act. The surviving part of Section 5 would amount to a prohibition on nontherapeutic abortion upon viability. The other provisions of the Act would likely survive as well, including the provisions mandating determinations of gestational age and recordkeeping and reporting. This response to your question is not an official response of the Attorney General, and is intended only to informally address your request for statutory interpretation. If you have any additional questions, please do not hesitate to contact me. Very truly your, SO/jd Chief, Civil Litigation Division

18 STATE OF IDAHO OFFICE OF THE ATTORNEY GENERAL LAWRENCE G. WASDEN February 23, 20 II Via Hand Delivery The Honorable Chuck Winder Idaho Senate Re: Constitutionality of the Pain-Capable Unborn Child Protection Act Dear Senator Winder: We received your February 18, 2011 follow-up letter regarding the constitutionality of the Pain-Capable Child Protection Act. You ask: "Is there a plausible possibility that 5 justices of the current United States Supreme Court might vote to uphold the [Act], and were this legislation to be passed, could the Attorney General conscientiously defend it should there be litigation challenging its constitutionality?" This letter responds to those questions in reverse order. The February 14 letter contains a detailed review of what we view as applicable decisional principles under current Supreme Court precedent and concludes that certain aspects of the proposed legislation likely would require an extension or modification of that precedent to be held constitutional This Office believes that it is inappropriate at this time to express a view on whether "the Attorney General [could] conscientiously defend" the statute without analysis of the statute as finally enacted, the specific constitutional challenges raised to the statute, and any intervening decisional authority. The Attorney General's determination would be made consistently with Fed. R. Civ. P. ll(b) if the litigation is commenced in federal court or LR.C.P. Il(a)(I) if commenced in state court. The federal rule provides that a pleading's signer represents, inter alia, that "the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law." The Idaho counterpart provides comparably. We have concluded it is not possible to evaluate with any measure of certainty whether a majority of the Supreme Court would uphold the proposed legislation if asked Civil Litigation Division P.O. Box 83720, Boise, Idaho Telephone: (208) , FAX: (208) Located at 954 W. Jefferson 2nd Floor

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