LOCATION: U.S. Court of Appeals for the Fifth Circuit
DOCKET NO.: 81-1255
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Eighth Circuit
CITATION: 462 US 476 (1983)
ARGUED: Nov 30, 1982
DECIDED: Jun 15, 1983
Frank Susman - on behalf of Planned Parenthood Association of Kansas City
John Ashcroft - on behalf of John Ashcroft, Attorney General of Missouri
Facts of the case
Media for Planned Parenthood Association of Kansas City, Missouri, Inc. v. Ashcroft
Audio Transcription for Oral Argument - November 30, 1982 in Planned Parenthood Association of Kansas City, Missouri, Inc. v. Ashcroft
Warren E. Burger:
We will hear arguments next in Planned Parenthood Association of Kansas City, Missouri against John Ashcroft, Attorney General of Missouri, and the related case.
Mr. Susman, you may proceed whenever you're ready.
Mr. Chief Justice, and may it please the Court:
We are here today on a case that the Eighth Circuit decided exactly one year ago today.
Restrictions in question here, like all legislative abortion restrictions, adversely and disproportionately affect minors and indigent women who frequently lack the maturity, education, sophistication and financial resources to overcome the additional legislative hurdles placed in front of them while seeking to exercise some reasonable control over their reproductive functions.
There are basically only four of the restrictions at issue here today before this Court.
There were many others decided by the district court, and some of those were not appealed to the court of appeals; there were others that were appealed to the court of appeals and were not further appealed to this Court.
Those four issues involve minors, the in-hospital provision after 12 weeks, the requirement of two doctors being in attendance when an abortion is performed on a viable fetus, and lastly, a requirement that pathology be done by a certified pathologist on all specimens regardless of the length of pregnancy.
Before addressing those four issues, though, I would be remiss if I did not respond in part to the argument and to the brief of the Solicitor General, which brief was jointly filed in this case as well as in the Akron case, although his argument was solely taken during the time of the Akron matter.
It seems that his brief... and as supported by his oral argument and he so states on page 3 of that brief... that the primary underpinning of his argument is, and I quote,
"that the legislature has superior factfinding capabilities. "
I would submit to this Court that that is absolutely not true; that at best, it is fallacious and at worst it is probably naive.
Initially, at least certainly in Missouri and with all other state legislatures with which I am familiar, the assignment as to which committee any particular piece of legislation goes has a lot to do with whether those in power in that particular legislative body desire that piece of legislation to pass or to fail.
And secondly, the factfinding that goes on, if any,... and very little goes on in Missouri, and I have attended many of these legislative findings in these various pieces of legislation, not only in this case but in the Danforth case... they are not open hearings, they are not hearings that invite an unbiased, an impartial and a fair hearing of evidence.
Frequently, speakers only on one side of the issue are asked to attend, and there certainly is no great factfinding ability that would be superior to the type of hearing that goes on in court.
Particularly the type of open hearing, unbiased hearing, that went on in this case.
As the Court is aware in this case, it was not just one, but there were two district court trials because certain issues the appellant court felt, and particularly in regard to the in-hospital issue, had not been fully decided as to the necessary facts that needed to be resolved, so said the Eighth Circuit, and so it was remanded to the district court for a second trial.
In addition, I would suggest the bootstrap argument also suggested by the Solicitor General that appears on page 9 of his brief, that legislatures fully take into account all of the constitutional implications of those enactments which they pass judgment on because of the fact that they all take an oath to uphold the Constitution, which we are here today discussing, is awesome.
Warren E. Burger:
We've said that in a number of our opinions.
Warren E. Burger:
Why is that so startling to you?
It is not startling, but I do not feel that they accurately do it.
If, in fact, they did, these cases would not be here today.
Warren E. Burger:
Well, that's one of these generalizations which has the value of many generalizations.
But we have said as much in a number of our opinions.
--Yes, you have, Mr. Chief Justice.
But the fact that they may, even... although unintentionally, not pay the proper price for the Constitution is the reason that the cases are brought, and often successfully.
Because they have avoided or ignored or not correctly applied that oath which they have taken.
William H. Rehnquist:
Do you think that, say a judge of the court of appeals who takes an oath to follow the Constitution who writes an opinion that is reversed by this Court is not being faithful to his oath?