City of Akron v. Akron Center for Reproductive Health Brief for the NAACP Legal Defense and Educational Fund as Amicus Curiae

    Nos. 81-746 and 81-1172

In t h e

Bnpmm (Emurt nf %  MniUh
O ctober T erm , 1982

C ity  op A kbon ,
Petitioner,

A kbon Oentek  fob R eproductive H ealth , I nc ., et al.

A kbon Cen ter  pob R e prod lot iyk H ea lth , I n c ;, et al.,
Cross-Petitioners,

v.
City  of A kbon .

on  w rits of certiorari to t h e  u n it e d  states 
court of a ppea ls  for t h e  s ix t h  c ircu it

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

J ack Greenberg 
J ames; M. Nabbit, III 
J u d ith  H eed*
Pen da I). H air 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Attorneys for Amicus Curiae 
* Counsel of Record

August 1982



Table of Contents

Page

Table of Authorities................ ii
Statement of Interest
of Amicus Curiae....................  1
Summary of Argument.................  4
Argument................    4

l



Page
Table of Authorities

Cases

Brown v. Board of Education,
347 U.S. 483 (1954)...   5

Citizens Against Rent Control/
Coalition For Fair Housing
v. Berkeley, ___U.S.___,
50 U.S.L.W. 4071 (December
15, 1981)......................  8

Coker v. Georgia, 433 U.S. 584
( 1 9 7 7 ) . . . . . . . . . . 2

Cooper v. Aaron, 358 U.S. 1
(1 958).....   10

Harper v. Virginia State Board 
of Elections, 383 U.S.
663 ( 1966)............ ......... 8

In Re Primus, 436 U.S. 412
(1 978).........................  8

Phillips v. Martin Marietta 
Corp., 400 U.S. 542
( 1971 ) . .........    2

Plessy v. Ferguson, 163 U.S.
537 ( 1 896).....................  6

Reynolds v. Sims, 377 U.S.
533 (1964).........   9

- ii -



Page

Roe v. Wade, 410 U.S. 113
( 1 973 )......................... 5

Shapiro v. Thompson, 394 U.S.
61 8 ( 1 969)..................... 9

United States v. Carolene Products
Co. , 304 U.S. 144 (1938) ...... 7

West Virginia Board of Education 
v. Barnette, 319 U.S. 624 
(1943) ..................  7

Constitutional Provisions and Statutes
U.S. CONST. AMEND. XIII ...........  7
U.S. CONST. AMEND. X I V .........   7
U.S. CONST. AMEND. XV .............  7
42 U.S.C. §§ 2000e, et seg..........  2

Other Authorities
Bryce, J. The American Commonwealth

(2d ed. 1 889 ) .................. 7

- iii -



Page

Kurland, P. and Cooper, G. (eds.).
49 Landmark Briefs and Arguments 
of the Supreme Court of the 
United States: Constitutional 
Law 377 (1 975) .............. 6

38 PHYLON 280 (September 1977) ...... 4
Tocqueville, A. Democrary in America

(H. Reeves trans. 1947) ........ 7
U.S. BUREAU OF THE CENSUS, CURRENT

POPULATION REPORTS, Series P-60,
No. 119, Characteristics of the
Population Below the PovertyLevel: 1977 (1979) ............. 3

- iv -



Nos. 81-746 and 81-1172 
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1982

CITY OF AKRON,
Pet it ioner,

v.
AKRON CENTER FOR REPRODUCTIVE 
HEALTH, INC., et al.

AKRON CENTER FOR REPRODUCTIVE 
HEALTH, INC., et al.,

Cross-Pet it ioners ,
v.

CITY OF AKRON.

On Writs of Certiorari to The United States 
Court of Appeals For The Sixth Circuit

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

STATEMENT OF INTEREST OF AMICUS CURIAE
The NAACP Legal Defense and Educational



2

Fund, Inc., is a non-profit corporation 
established under the laws of the State of 
New York. It was formed to assist Black 
persons to secure their constitutional 
rights through litigation. Although the 
Legal Defense Fund's litigation program 
does not include cases involving abortion 
rights, the Fund is interested in any 
litigation which might result in formulat­
ing rules of law affecting rights of 
particular concern to Black people. The 
Fund has in the past participated in cases 
in which Blacks were not parties but the 
outcome of which might have important 
consequences for racial minorities. See, 
e . g . , Phillips v. Martin Marietta Corp., 
400 U.S. 542 (1971) (sex discrimination,
outcome of case important for implementa­
tion of Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. §2000e et sea.); Coker
v. Georgia, 433 U.S. 584 (1977) (capital



3

punishment for rape held unconstitutional; 
defendant was White but the penalty had 
been applied disparately against Blacks). 
The parties have consented to the filing of 
this brief and letters of consent have been 
filed with the Clerk.

Of primary concern to Amicus in this 
case is that the United States has pro­
posed adoption of a rule of constitutional 
interpretation which, if adopted, would 
impair seriously the effectiveness of the 
Bill of Rights. We cannot help observing, 
also, that in view of economic realities 
an outcome of this case adverse to respon- 
dents-cross-petitioners could severely
affect the poor, among whom Black women

1 /are represented disproportionately.-

J_/ The percentage of all Black women who 
live below the poverty level is approxi­
mately three times the percentage of White 
women living below the poverty level. U.S.



4

SUMMARY OF ARGUMENT

The Brief of the United States as 
Amicus Curiae urges the Court to accord 
"heavy deference" to legislative determ­
inations in evaluating the constitution­
ality of burdens on fundamental rights 
which are particularly controversial. For 
the Court to establish such a precedent 
would seriously threaten the enjoyment 
of civil, political and personal liberties 
in the United States.

ARGUMENT

The case now before the Court concerns 
the constitutionality of a variety of state

] _ / continued
Bureau of the Census, CURRENT POPULATION REPORTS, Series P-60, No. 119, Character­
istics of the Population Below the Poverty 
Level: 1977 p. 50 (1979). Moreover, Black 
women use legal abortion approximately 
twice as often as do White women. 38 PHYLON 280 (September 1977).



5

regulations that erect unduly burdensome 
and expensive obstacles in the paths of 
women seeking to exercise the constitu­
tional right to terminate their pregnancies 
as recognized in Roe v. Wade, 410 U.S. 113 
(1973). The Brief for the United States as 
Amicus Curiae advances the proposition that 
the Court should give "heavy deference" to 
the pronouncements of state legislatures 
regulating controversial fundamental con­
stitutional rights, such as the right to 
abortion, and treats the regulations as 
mere public policy choices. Brief for the 
United States at 8-20.

The Brief of the United States is
strikingly reminiscent of arguments en-
countered by Blacks and other racial and
political minorities seeking vindication of 
their constitutional rights. For instance, 
during the oral argument in Brown v. Board
of Education, 347 U.S. 483 (1954), counsel



6

for the State of Virginia maintained: " [T]he
real crux of the whole matter is that there
is involved fundamentally a policy question
for legislative bodies to pass on, and not

2/for the courts."- indeed, Plessy v. Fergu­
son, 163 U.S. 537, 550 (1896), held that
the constitutionality of "separate but 
equal" was to be resolved by deciding 
"whether the statute of Louisiana [was] a 
reasonable regulation, and with respect to 
this there must necessarily be a large 
discretion on the part of the legislature."

The deference standard does not 
respect either the unique nature of consti­
tutional rights in the United States or the 
role of the federal judiciary in resolving

2/ 49 Landmark Briefs and Arguments of 
the Supreme Court of the United States: Constitutional Law 377 (P. Kurland and 
G. Cooper eds. 1975).



7

disputes over the exercise of those 
3/rights. in West Virginia Board of Ed­

ucation v. Barnette, 319 U.S. 624, 638 
(1943) Justice Jackson, writing for the 
Court, recognized that:

The very purpose of the Bill of Rights 
was to withdraw certain subjects from 
the vicissitudes of political contro-

3/ The Bill of Rights, as well as the 
Thirteenth, Fourteenth and Fifteenth Amendments, were designed to protect 
individual and majority rights against 
encroachment by majoritarian rule. See, 
e.g., United States v. Carolene Products 
Co. , 304 U.S. 144, 1 52 , n. 4 (1 938); A.
Tocqueville, Democracy in America 158-159 
(H. Reeves trans. 1947). Viscount Bryce, 
in commenting on the success of our 
federalism, lauded the role of the courts 
in our political system: "[B]y placing the 
Constitution above both the National and 
State governments, it has referred the arbitrament of disputes . . . to an
independent body, charged with the inter­
pretation of the Constitution, a body which is to be deemed not so much a third author­
ity in the government as the living voice 
of the Constitution, the unfolder of 
the mind of the people whose will stands 
expressed in that supreme instrument." J. 
Bryce, The American Commonwealth, 348 (2d
ed. 1889).



8

versy, to place them beyond the reach 
of majorities and officials and 
to establish them as legal principles 
to be applied by the courts. One's 
right to life, liberty, and property, 
to free speech, a free press, freedom 
of worship and assembly, and other 
fundamental rights may not be sub­
mitted to vote; they depend on the 
outcome of no elections.

The deference scheme now proposed would
dangerously alter the delicate balance
between individual rights and majoritarian
sent iment.

Statutes
the exercise
been always 

4/Court.- yet

or regulations that affect 
of a fundamental right have 
closely examined by the 
now, not only is the Court

4/ The process has been variously charac­
terized as close scrutiny, Harper v. Vir­ginia State Board of Elections, 383 U.S. 
663, 670 (1966) (right to vote), or "exact­
ing scrutiny," In Re Primus, 436 U.S.
412, 432 (1978) (freedom of association),
and is undertaken whenever a fundamental 
right is threatened. See Citizens Against Rent Control/Coalition For Fair Housing
v. Berkeley, ___ U.S.___, 50 U.S.L.W. 4071,
4072 (December 15, 1981)("regulation of
First Amendment rights is always subject to



9

asked to defer to the legislative deter­
mination of what constitutes an uncon­
stitutional burden on a fundamental 
right, it is asked to believe that "[t]o 
the extent constitutional values were 
implicated, those values were taken into 
account because legislators like other 
public servants, take an oath to uphold the 
Constitution." Brief for the United States 
at 9, n.5. But that is true in every case. 
Nevertheless, this Court has recognized 
that the oath “ taken by state legislators 
has not always been sufficient protection 
for minorities in our society. The massive

4/ continued
exacting judicial review"); Shapiro v. 
Thompson, 394 U.S. 618, 638 (1969) ("[tjhe 
classification here touches on»the funda­
mental right" ) (emphasis added); Reynolds 
v. S ims, 377 U.S. 533, 562 (1964) ("any
alleged infringement of the right of 
citizens to vote must be carefully and 
meticulously scrutinized")(emphasis added).



10

resistance to the enforcement of the
mandate of Brown , frequently led by
state legislatures and other political
authorities, must surely be considered
one of the sorriest chapters in this

5/nation's history.
The United States' brief suggests 

that the impact of its deference standard 
can be limited to a narrow range of cases 
"where the issue might be fairly character­
ized as involving either a choice among 
competing policy alternatives, or a pro­
nouncement of constitutional principle .... 
Brief for the United States at 15. Careful

5/ The Court found the violence existing 
In Little Rock in 1 958 to be "directly traceable to the actions of legislators 
and executive officials of the State of Arkansas, taken in their official capac­
ities, which reflect their own deter­mination to resist this Court's decision 
in the Brown case . . .." Cooper v. Aaron,358 U.S. 1, 15 (1958).



- 1 1 -

consideration of its analysis, however, 
indicates that such a deference standard 
would apply to virtually every state and 
local action burdening any constitutional 
right. A "policy issue," in the brief of 
the government, is defined as one "subject 
to different views that are widely and 
fervently held." I_d. at 13.~'̂  it is dif­
ficult, if not impossible, to think of any

6/ The United States' brief makes 
clear that the deference scheme would 
apply to constitutional rights other 
than privacy rights or the right to an abortion. See Brief for the United 
States at 17, n.13 (right to vote).Although the United States suggests that 

need not "always yield to in areas of overlap between 
each," bd. , at 15, the United not articulate any standards 

which courts could determine when to to state or local legislative bodies.

the courts legislatures 
the power of States does 
under defer
In fact, the rationale in support of the 
deference scheme offered by the United States is so devoid of content that it is 
impossible to view the United States' position as anything other than a general 
statement of political ideology.



12 -

issue involving a fundamental right or 
liberty that does not fit this mold.

This case deals with a fundamental 
right, albeit a controversial one. To 
now begin grading constitutional rights 
according to their controversiality would 
imperil our other basic constitutional 
rights. We strongly urge that the argu­
ments proffered by the government be 
rejected by this Court.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
JUDITH REED*
PENDA D. HAIR

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

*Counsel of Record
Attorneys for NAACP Legal 

Defense and Educational 
Fund, Inc. as 
Amicus Curiae

August, 1982



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