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American College of Obstetricians and Gynecologists v. Thornburgh

January 28, 1983

AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, PENNSYLVANIA SECTION, ET AL.
v.
RICHARD THORNBURGH, ET AL.



Seitz, Chief Judge, Higginbotham and Sloviter, Circuit Judges. Judge Higginbotham dissents from the denial of the motion and makes the following statement:

Author: Seitz

1. Motion by certain law professors, (Rutgers-Newark and Camden, PA, Pitts., Temple) for leave to file brief amici curiae, in which it states counsel for appellants have consented, and counsel for appellees have no objection.

2. Motion by Pennsylvania NOW, The Greater Pittsburgh Y.W.C.A., and the Philadelphia Reproductive Rights Organization, for leave to file brief as amici curiae, in which it states neither counsel for appellants nor counsel for appellees object to this motion,

in the above-entitled case.

The law professors do not purport to represent any individual or organization with a legally cognizable interest in the subject matter at issue, and give only their concern about the manner in which this court will interpret the law as the basis for their brief. Since there is no indication that the parties to the law suit and those parties who have been granted leave to file a brief amicus curiae will not adequately present all relevant legal arguments, there is no persuasive reason to grant the motion, it is

Ordered that the motion of the law professors to file brief amici curiae is denied.

FURTHER ORDERED that the motion by Pennsylvania NOW, the Greater Pittsburgh Y.W.C.A., and the Philadelphia Reproductive Rights Organization to file brief as amici curiae is granted.

Judge Higginbotham dissents from the denial of the motion and makes the following statement:

I dissent from the majority's denial of a distinguished group of law professors' motion for leave to file a fifteen page brief as amici curiae. Thirty professors who teach in law schools in New Jersey and Pennsylvania have sought from this court permission to file an amici curiae brief in support of plaintiffs. They seek the court's permission to file a brief so that they may "share with this Court [their] concern that the strict standards for constitutional review of legislation impinging on fundamental rights be rigorously enforced within the Third Circuit." Brief for Amici at 1. They note that their brief "specifically addresses the appropriate substantive standard for reviewing statutes that affirmatively regulate abortion." Id. And, they claim that "the District Court committed plain legal error and ignored its basic obligation as the guardian of fundamental constitutional rights." Id. at 1, 2.

More than three centuries ago it was stressed that "the general attitude of the court was to welcome" amicus briefs,*fn1 because "it is for the honor of a court of justice to avoid error." The Protector v. Geering, 145 Eng. Rep. 326 (K.B. 1686) cited in Krislov at 695, n.5. The avoidance of unnecessary errors should be as relevant for the courts of today. Yet, the majority has denied these professors the right to file an amici curiae brief. Candidly, I am baffled by the majority's decision. I find no justification for that result in our rules, our precedent or our longstanding practices. Moreover, Professors Virginia Kerr, of the University of Pennsylvania Law School, and Susan Estrich, of Harvard Law School, as attorneys for amici, certify that the plaintiffs have consented to the filing of the brief and that the "defendants have no objection." Brief for Amici at 2.

At the outset, it must be stressed that the amici have not filed a motion to intervene as a party, nor have they requested permission to participate in oral arguments. They merely seek to share with us, in a fifteen page brief, their views on an extraordinarily important constitutional case with equally important public policy implications. Neither in our Rules nor in our Internal Operating Procedures do we have any provisions pertaining to the filing of briefs of amicus curiae, though hundreds if not thousands of amici briefs have been filed over the years.

The only relevant rule on the subject is Rule 29 of the Federal Rules of Appellate Procedure.*fn2

And, the only major caveat in Rule 29 pertains to amicus curiae who seek leave of court "to participate in the oral argument" which is only granted "for extraordinary reasons."

Rule 29 is somewhat similar to Supreme Court Rule 36.*fn3 Reviewing the Supreme Court's amicus curiae rule which was not adopted until 1949, commentators have said: "In the absence of consent, leave to file was easily obtained from the Supreme Court in almost every instance both before and after promulgation of the rule." ...


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