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American College of Obstetricians and Gynecologists v. Thornburgh


January 28, 1983


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." Krislov, supra at 713. More recently Robert L. Stern, when writing on this rule noted:

The Supreme Court's rule sounds considerably tougher than it is in practice. Although during the 1950s the Supreme Court was quite stringent in granting leave to file amicus briefs, that is no longer the case. Most motions are now granted unless the brief will not be filed on time.

Stern, Appellate Practice in the United States 338 (1981) (emphasis added). Our review of the current term of the Supreme Court's docket, from October 1982 to January 1983, reveals that 96 motions to file briefs as amicus curiae were granted, and 4 were denied, but the four denied were on petitions for rehearing.

Last year's reported opinions reveal that this Court has allowed a host of companies, professional associations, and civil rights groups, to participate as amici. These amici have run the gamut from the Pension Benefit Guaranty Corporation*fn4 and Union Carbide;*fn5 to the Jockey's Guild;*fn6 the Chamber of Commerce;*fn7 the National Association of Criminal Defense Lawyers;*fn8 the American Civil Liberties Union;;*fn9 the Equal Employment Advisory Council;*fn10 the Department of Public Welfare.*fn11 In one instance, because we thought a Freedom of Information Act issue needed further clarification, we appointed a law school professor, requested that he file a brief*fn12 and then noted "our appreciation of the articulate and helpful brief filed by the Amicus Curiae, Professor Richard Turkington of the Villanova Law School, at the request of the court." Ferri v. Bell, 645 F.2d 1213, modified 671 F.2d 769, 770 (3d Cir. 1982).

In Regents of the University of California v. Bakke, 438 U.S. 265, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (1978), there were more than fifty amici briefs filed.*fn13 With all due respect to the parties in Sweatt v. Painter, 339 U.S. 629, 94 L. Ed. 1114, 70 S. Ct. 848 (1950), perhaps the most thoughtful brief was filed by certain law school professors: Professors Thomas I. Emerson, Erwin N. Griswold, Robert Hale, Harold Havighurst and Edward Levi for the Committee of Law Teachers Against Segregation in Legal Education.

Whatever may be decided ultimately on the merits of the instant case, the relevance and distinguishability of Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973) will be of critical importance. Thus, it is particularly ironic that here we deny certain law professors the right to file an amicus brief while the Supreme Court in Roe v. Wade was willing to accept amici briefs from a broad spectrum of groups including: The Association of Texas Diocesan Attorneys; Certain Physicians, Professors and Fellows of the American College of Obstetrics and Gynecology; the National Legal Program on Health Problems of the Poor, et al ; State Community Aides Association; the National Right to Life Committee; the American Ethical Union; the American Association of University Women; New Women Lawyers, and the California Committee to Legalize Abortion. I repeat again that I find it baffling that in our court male and female law professors have fewer rights, in terms of filing amicus briefs, than the Association of Texas Diocesan Attorneys, the New Women Lawyers and the National Right to Life Committee had before the United States Supreme Court in Roe v. Wade, supra.*fn14

H. G. Wells once wrote "That civilization is a race between education and catastrophe." I submit that, even in a court as learned as ours, we might be able to avoid some unnecessary catastrophes if we have the will and the patience to listen to legal educators.

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