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No. 05-1382

In the Supreme Court of the United States

ALBERTO R. GONZALES, ATTORNEY GENERAL, PETITIONER

v.

PLANNED PARENTHOOD FEDERATION
OF AMERICA, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

PAUL D. CLEMENT
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

In the Supreme Court of the United States

No. 05-1382

ALBERTO R. GONZALES, ATTORNEY GENERAL, PETITIONER

v.

PLANNED PARENTHOOD FEDERATION
OF AMERICA, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

Respondents contend that, rather than holding the petition for a writ of certiorari pending its decision in Gonzales v. Carhart, No. 05-380, the Court should grant certiorari in this case and consolidate it with Carhart. Respondents, however, offer no compelling reason that the Court should take that duplicative ap proach. The merits briefing in Carhart is already well underway, and Carhart provides an appropriate vehicle to address the principal constitutional challenges that have been launched against the Partial-Birth Abortion Ban Act of 2003, including the overbreadth and vague ness arguments on which respondents focus. The peti tion for certiorari should therefore be held until this Court's decision in Carhart, and then disposed of ac cordingly.

1. Respondents primarily contend (Planned Parent hood Br. 8-9; San Francisco Br. 8-10) that certiorari is necessary in this case because, in Carhart, the court of appeals did not address arguments that the Act was facially invalid because it was unconstitutionally over broad and vague. Respondents do not deny, however, that this Court could address those arguments in Carhart, in light of the fact that the plaintiffs in Car hart preserved those arguments in the lower courts.1 In its supplemental brief in support of certiorari in Carhart (at 8-9 & n.2), the government explained why it would be appropriate for the Court to address those arguments, even though the court of appeals had not passed on them. The Court granted certiorari in Car hart without narrowing or reframing the government's question presented, which asked the Court to consider whether the Act is invalid "because it lacks a health exception or is otherwise unconstitutional on its face." Carhart Pet. at i (emphasis added).2 In its opening merits brief in Carhart, the government has addressed the overbreadth and vagueness issues. See Carhart Pet. Br. at 44-48. Because there is no obstacle to the Court's considering and deciding those issues in Car hart, if it so chooses, there is no reason for the Court to grant plenary review in this case as well, and thus pre cipitate an additional round of merits briefing and, pre sumably, amicus filings on issues that will already be exhaustively addressed in the briefs in Carhart itself.3

2. Respondents suggest (Planned Parenthood Br. 7, 9-10; San Francisco Br. 8-9) that this case would con stitute a better vehicle than Carhart for consideration of the overbreadth and vagueness claims because the district court made more detailed factual findings on, and the lower courts engaged in more substantial anal ysis of, those claims. There is no reason, however, that the Court cannot consider the findings and analysis of the lower courts in this case, to the extent they are rel evant, in the context of analyzing the overbreadth and vagueness claims in Carhart. Indeed, in its opening merits brief in Carhart, the government not only dis cusses the factual findings made by the district court in this case, see Carhart Pet. Br. at 40, but also discusses (or cites) the analysis of the court of appeals on the overbreadth and vagueness claims, see id. at 47 n.14, 49. Moreover, substantial portions of the record in this case were incorporated into the record before the dis trict court in Carhart, and therefore may directly be considered by the Court in that case. See, e.g., Car hart J.A. at 510-563, 622-706, 823-869.

3. Respondents also contend (Planned Parenthood Br. 10-11; San Francisco Br. 8) that the overbreadth and vagueness arguments are "threshold" arguments that the Court should consider first before addressing whether the Act is facially invalid because it lacks a health exception. That is not how the court of appeals approached the analysis in this case; it addressed the health-exception issue before the overbreadth and vagueness issues. Compare Pet. App. 14a-22a (health exception) with id. at 23a-40a (overbreadth and vague ness). In any event, the critical point is that the pri mary ground on which the Act was challenged in the lower courts-in this case, in Carhart, and in litigation in the Second Circuit, see National Abortion Fed'n v. Ashcroft, 437 F.3d 278 (2006)-was that the Act lacked a health exception. And even assuming, arguendo, that the overbreadth and vagueness arguments were "thres hold" arguments that should be addressed first, that point would provide no additional justification for granting plenary review in this case, since, as ex plained, there is no reason that the Court could not ad dress those arguments in that sequence in Carhart it self, if it chooses to do so.

4. Finally, granting certiorari in this case would precipitate another round of essentially duplicative briefing. Since the petition for a writ of certiorari was filed in this case, the government has filed its opening merits brief in Carhart, and numerous amicus briefs have been filed in support of the government. Absent an extension of time, respondents' merits brief, along with any amicus briefs supporting respondents, would be due on June 26, 2006, and the government's reply brief would be due on July 31, 2006. The case will therefore be fully briefed and ready for oral argument in the Court's October sitting. Assuming that this case would be consolidated with Carhart for purposes of oral argument, granting certiorari in this case could delay the ultimate resolution of the extraordinarily important question of the Act's constitutionality. Given that Car hart presents an opportunity to address all the princi pal challenges to the Act, there is no reason for the Court to invite such additional briefing and possible delay by granting plenary review in this case as well.4

* * * * *

For the foregoing reasons and those stated in the petition, the petition for a writ of certiorari should be held pending this Court's disposition of Gonzales v. Carhart, No. 05-380, and then disposed of accordingly.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

MAY 2006

 

 

1 Respondents correctly note (Planned Parenthood Br. 8-9; San Francisco Br. 8-9) that the plaintiffs in Carhart did not expressly argue before the court of appeals that the Act was unconstitutionally vague. Respondents do not deny, however, that the plaintiffs advanced a vagueness argument before the district court, and they appear to acknowledge that the vagueness argument overlaps, at least to some extent, with the overbreadth argument, which the Carhart plaintiffs unquestionably did advance before the court of appeals. See Planned Parenthood Br. 9; San Francisco Br. 9. While those arguments are conceptually distinct, that overlap is substantial, insofar as both argu ments turn on the construction of the same statutory language. Cf. Carhart Pet. Br. at 44-48 (discussing overbreadth and vagueness argu ments). Nor do respondents contend that their overbreadth or vague ness claims in any way differ from those advanced by the plaintiffs in Carhart.

2 Contrary to the suggestion of respondent Planned Parenthood (Br. 11 n.8), the italicized language makes clear that the question presented by the government's petition in Carhart expressly encompasses all facial challenges that have been launched against the Act.

3 Respondent San Francisco also notes (Br. 9) that the court of appeals in Carhart did not address the issue whether, assuming that the Act is unconstitutional, narrower injunctive relief would be appro priate under this Court's intervening decision in Ayotte v. Planned Parenthood of Northern New England, 126 S. Ct. 961 (2006). The Court, however, need not address the remedial issue in Carhart if it finds that the Act is constitutional. In any event, it unquestionably could address that remedial issue if it so chooses-or leave that issue to be decided on remand once the Court definitively passes on the Act's constitutionality.

4 Of course, respondents may file amicus briefs in Carhart and dis cuss, inter alia, any unique perspectives that they claim the court of appeals' decision in this case may provide with respect to the con stitutionality of the Act.