John G. Roberts, Jr.: We will hear argument next in Case 12-7515, Burrage v. United States. Ms. Campbell.
Angela L. Campbell: Mr. Chief Justice, and may it please the Court: Marcus Burrage is serving a 20-year mandatory minimum sentence for selling heroin that, according to the jury instruction that was given to the jury at the time of the trial, was not the primary cause of the death, but, rather, merely played a part in the death. This lesser standard of contributing causation was neither articulated by Congress within the words of the statute, nor was it generally accepted at the time the statute was passed, as an acceptable version of causation. Congress's selection of the word “ results ” instead should be interpreted to mean the traditional notions of causation; those of factual cause or but-for cause and proximate cause. Now, the parties don't disagree that “ results in ” means causation. That it's a causation analysis. And regardless of whether you look to the common law or the treatises or the legal commentators, causation triggers, at the very minimum, a but-for causation analysis. In this particular case, but for the use of the heroin, the victim would not have died. Now, the Solicitor General suggests a lesser causation standard, one that expands the notion of but-for causation. But if we instead look to the case law and this Court's precedent, we are not actually trying to expand but-for causation in most cases, we are trying to limit it. Because but-for causation can be extrapolated beyond what we are willing to give liability for.
Ruth Bader Ginsburg: How would you respond to the hypothetical that the government poses on 24 of its brief, that it's the three drops of poison, each defendant puts in one drop, one drop will not do it, three drops will, and none of them would be chargeable because it takes three drops?
Angela L. Campbell: Well, I would disagree with the premise that they are not chargeable. Each individual person that put the drop of poison in that cup could be charged with attempted murder if they were trying to kill a person. But under standard causation analysis, you -- you do not have but-for causation. Each individual drop of poison was not the but-for causation and so you -- you don't have causation.
John G. Roberts, Jr.: But you would if -- if you knew that there were two drops in and you added the third drop after the two drops. Right?
Angela L. Campbell: Then--
John G. Roberts, Jr.: I'm sorry. I've lost sight of this. Is this each drop is enough or--
Ruth Bader Ginsburg: Three -- three drops.
John G. Roberts, Jr.: --It takes three.
Angela L. Campbell: --In the government's -- in the government's hypothetical, each person individually puts in one drop and you need three drops in order to -- to kill the person.
John G. Roberts, Jr.: All right. Well, there's but-for causation when you are the third person. Your drop caused the death, and the death would not have been caused without your drop.
Angela L. Campbell: That would be correct, that there would be but-for causation.
Antonin Scalia: But each one is the third person. I mean, each one of them is the third person. It seems to me each one is a but-for cause. And I don't know why you don't say there's but-for causation there.
Angela L. Campbell: Well--
Antonin Scalia: As I understand -- as I understood the evidence in this case, the experts testified they could not say that he would not have died but for the cocaine.
Angela L. Campbell: --That's--
Antonin Scalia: That's quite different from this case where what is put to you is he -- you could say he would not have died but for the drop that each one of them put in.
Angela L. Campbell: --Yes, you could say that. And that -- and--
Antonin Scalia: So why isn't that but-for causation?
Angela L. Campbell: --It's a form of but-for causation that I think--
Antonin Scalia: I don't care if it's a form of but-for causation. It's but-for causation.
Angela L. Campbell: --It -- it can be. And I think that certain -- that specific hypothetical, while it warrants special consideration by this Court, whether or not in criminal context, we're going to expand the criminal liability to that is not this case, Justice Scalia.
Elena Kagan: Well, I thought the hypothetical was a bit different. I thought it only takes two drops to kill him. And that's what creates the problem where you don't have but-for causation because you don't know whether you are the extraneous drop or whether you were the drop that actually killed him.
Angela L. Campbell: Correct. If there is a hypothetical that changes it just slightly, you would not have but-for causation in that circumstance, because each individual drop was not the but-for cause. And that's more like our hypothetical. And, again, with a poison hypothetical, because it's an intentional act by the defendant, you would still have liability, criminal liability for attempt or assault or something along those lines, but you would not have each individual person liable for the actual death.
Samuel A. Alito, Jr.: But part of your argument is that but-for causation isn't sufficient, right? It also has to be foreseeable.
Angela L. Campbell: Correct.
Samuel A. Alito, Jr.: Is that your argument?
Angela L. Campbell: That is our argument.
Samuel A. Alito, Jr.: Now, give me an example of a situation where a heroin dealer deals -- sells drugs to somebody, and foresees that the drugs that are sold will cause death?
Angela L. Campbell: Well, I think you can look to the actual case law. There is, for those types of hypotheticals, when the heroin dealer is actually using with the particular purchaser of the heroin and knows that he is overdosing. If the heroin dealer is the one injecting the drugs into the system, certainly those circumstances are foreseeable. And the government--
Samuel A. Alito, Jr.: Those are very unusual circumstances. In all other circumstances where somebody is just selling heroin there wouldn't be foreseeable, so the statute wouldn't -- foreseeability; the statute wouldn't apply?
Angela L. Campbell: --No, I disagree with that. Foreseeability could be read into those circumstances where you simply have a heroin dealer that is selling heroin and you would take that foreseeability question, the proximate cause question, and you would charge it to the jury.
Antonin Scalia: I think “ foreseeability ” is the wrong word. I don't think, you know, in tort law we -- we use the word “ foreseeability ” for Palsgraf. It's a matter of scope of the risk. It may not be foreseeable. It may be an unusual situation that will cause it, but it's within the scope of the risk. And when you sell drugs, you know that one of the things that can happen is that the drugs will produce an overdose. I'm not sure -- I wouldn't call it foreseeability. I would call it scope of the risk.
Angela L. Campbell: Both scope in the risk and foreseeability are versions of saying proximate cause. And either standard in this circumstance would be better than the contributing cause standard that was given to the jury, because it did not use scope of the risk language. It didn't use foreseeability language. It didn't use reasonably probable--
Sonia Sotomayor: I think this is all being sort of tied up together. I always thought foreseeability and proximate cause were the same. I think the issue doesn't do with either foreseeability, scope of risk, or proximate cause. It has to do with what you started with, which is what's the level of factual causation that we want to set. What definition are we going to give for the legal causation standard. And you're saying that it has to be but-for?
Angela L. Campbell: --Our position is -- I agree with you, Justice Sotomayor, that the main issue is this but-for causation issue, that if we are correct that but-for causation should be read into a criminal statute, as we believe it should under these circumstances under this statute, that the appropriate question is whether, but for the heroin, they would have died.
Sonia Sotomayor: All right. Let's assume that we are troubled by the examples that have been given. If two people or three people come together and each puts in a drop of blood, either knowing that only one drop is necessary or that all three drops are necessary, we don't want to let that person off because it doesn't seem logical, okay? What would save your case in it? Is there a different proximate cause standard but not involving but-for that would still get you what you are looking for?
Angela L. Campbell: Yes, and I don't think you need to look to causation to get to that answer.
Sonia Sotomayor: And what do we look to if we are not looking to causation?
Angela L. Campbell: Well, if each individual person in the poison hypothetical is working together and knows about the other people, then you have conspiracy liability. And they would be liable for the actions of the other people -- of the other person that has put the poison in and you can still--
Sonia Sotomayor: Why does it matter if you know that three people have -- three people hate someone and they are acting independently, each one intended to kill the guy and, you know, that the other two joined in was lovely, but we don't know which drop did it. We don't particularly care, do we?
Angela L. Campbell: --In that particular hypothetical then the--
Sonia Sotomayor: There is no conspiracy.
Angela L. Campbell: --There's no conspiracy.
Sonia Sotomayor: How can we save this case if there is no conspiracy?
Angela L. Campbell: Then you have attempt liability, and those people would still all be criminally liable for attempted murder.
Stephen G. Breyer: The Model Penal Code, the Brown Commission, everybody says this is a famous law school hypothetical, I thought you would never find it in reality. They say certainly there is liability where two people strike, each strikes a mortal blow independently, and everyone seems to agree there is liability there. And even though no blow -- neither blow is in fact a but-for condition, because in the absence of blow A he would be dead anyway from blow B. All right. So we start with that, I thought. And now starting with that -- you can say I don't want to start with that. I think that all Professor Wechsler and Professor Hall and all these people famous in my day were wrong. Okay. That's up to you. But if you do take that as a basic assumption, then how do you win? I think that was the question, and there may be an answer to that.
Angela L. Campbell: Yes, Justice Breyer, there is an answer to that. The hypotheticals that are posed by Professor LaFave, which is the one that you are citing, actually can be answered by the use of the substantial factor language. Now, when you have two independently sufficient causes which act upon an individual causing the death, you have a but-for problem because but for the actor A, B's blow would still kill the person. In that limited circumstance, the common law already addresses that and you use the substantial factor language, which we did at the time of the trial, tried to incorporate into our jury instruction, which was rejected by the trial court. And so that is limited to those circumstances where you have two--
Antonin Scalia: What is substantial factor? I mean, I don't follow you. I don't see how it gets you to where you want to be unless “ substantial factor ” means that it would have been a but-for cause.
Angela L. Campbell: --That is our position, that substantial factor is appropriate when it would have been a but-for cause. You either need independently sufficient cause or but-for causes only failing by another independently sufficient cause.
Elena Kagan: So when you use that language of “ substantial factor ”, what you really mean to point to is independent sufficiency? Two people shoot, either one would have killed the person, but you can't say--
Antonin Scalia: Right.
Elena Kagan: --that either is the but-for cause because of the fortuity of the second act?
Angela L. Campbell: Correct. That is the traditional reason why you would use the substantial factor instruction.
Elena Kagan: So you don't mean that to go any further than independent sufficiency?
Angela L. Campbell: We do not mean it to go any further, and I don't believe that the case law or the treatises take it any further. There is this other hypothetical--
Antonin Scalia: It's a strange terminology for it. I mean, they really ought to get another terminology if that's what they mean.
Angela L. Campbell: --We agree.
Antonin Scalia: You can be a substantial factor without being independently sufficient.
Angela L. Campbell: You could under the common use of the word “ substantial factor ”, but at least “ substantial factor ” would have been better language than “ contributes to ” or “ plays a part in ” that this jury heard.
Antonin Scalia: Marginally.
Angela L. Campbell: It would at least give us the opportunity to argue that the heroin was not the substantial factor to a jury in a factual question if “ substantial factor ” does not mean independently sufficient cause. But it's our position that at the time of the passing of this particular provision, “ substantial factor ” meant to address the circumstance where you have two independently sufficient causes. So regardless of whether you use “ substantial factor ” as being independently sufficient cause or some other sort of formulation of the language of “ substantial factor ”, you still have this problem that the jury was not instructed on even substantial factor. They were instructed on contributing cause, that--
Ruth Bader Ginsburg: You do agree that, that an overdose -- there is a foreseeable risk that someone who purchases heroin will overdose, there is a foreseeable risk of that?
Angela L. Campbell: --I concede that in a heroin case, that is a question for the jury, that you would charge foreseeability or proximate cause to the jury in those circumstances.
Elena Kagan: I guess here's what the government might say back to you. They might say, you know, in these drug cases, people often take drugs in combination and then they overdose, and it's really impossible for anybody to be able to say what you are requiring an expert to say. In other words, it's impossible to say it was the heroin, not the cocaine, it was the cocaine and not the heroin, it was both, it was neither. It's just -- it's all we can talk about is likelihoods. You know, just as this expert did. They say the fact that he took the heroin made it much more likely that he would die. And that's all we are going to be able to show in a case like that, this, and because of that, we -- that's got to be enough.
Angela L. Campbell: And I would agree that that's their argument and that's an argument that should be presented to Congress to amend the statute to incorporate language that addresses that. Congress knows how to address a contributing cause standard. They said it in numerous other statutes that a certain act contributes to a death, that the result is in whole or in part a result of the defendant's action. They've said it. They know how to say it and they could say it again in this statute if they wanted to.
Samuel A. Alito, Jr.: Well, let's compare what -- the situation that Justice Kagan just described with this situation. The heroin dealer sells a user, I don't know, a three-day supply or four-day supply, whatever it is. And tells the -- the user, now, you should only use this much per day. But the user goes off and injects the whole amount and -- and dies as a result of an overdose. Now, why would Congress want to punish that person where the overdose -- where the heroin sold is the but-for cause of death and not the situation where there's the -- the multidrug cocktail?
Angela L. Campbell: Well, in the absence of language to the contrary, this statute actually says, the use of this substance, the substance sold by the defendant results in a death. And so when we start by looking at the words of the statute, they -- they don't say these common words that you could use to encompass those circumstances.
Samuel A. Alito, Jr.: Well, I understand that. That's a textual argument and maybe the text can be read both ways. Assuming it can be read both ways, why would Congress want to attach these severe consequences in the overdose case and not in the drug cocktail case?
Angela L. Campbell: Because Congress would want to target a situation where there has been proof beyond a reasonable doubt that the defendant's actions were the cause of the death.
Antonin Scalia: Well, for -- for any crime, there are two things. We punish the intent, the wickedness, and in both cases, the party is equally wicked, but we also punish the consequence. In one case, the party dies because of that person's act. And in the other case, nobody dies just because of that person's act. I don't know why you have to run away from that. It's -- it's common in the criminal law that -- that two acts that are equally unlawful, equally nefarious, one happens to kill somebody, the other one doesn't. We punish one person, we don't punish the other.
Angela L. Campbell: That would be true. And what I was addressing in Justice -- the justice's hypothetical was that you can't read congressional intent into the selection of the words within this statute. And if Congress intended to punish multiple drug cocktails all equally, they would instead have written the statute to address the cocktail.
Anthony M. Kennedy: Well, it said -- the statute says results, right?
Angela L. Campbell: Correct.
Anthony M. Kennedy: And so we're asking about results. Justice Alito's hypothetical, he gives a three-day supply. Suppose he gives a year's supply and he overdoses the next day, what result?
Angela L. Campbell: I believe that would be a jury question.
Anthony M. Kennedy: No, no, no. As a matter of law, is that a violation?
Angela L. Campbell: It would be if he takes the heroin, and the heroin is the cause of the death, then, yes, it's a but-for cause. We would then add that you should have a proximate cause analysis, which is the juries are in -- in a unique position to determine whether or not foreseeability is appropriate in that circumstance.
Anthony M. Kennedy: All right. Suppose we go back to Justice Alito's example and it's just a two-day supply and there are statistics that 1 percent of heroin users overdose. Is that sufficient to establish liability under your foreseeability standard?
Angela L. Campbell: Not as a matter of law and not to the degree that the Solicitor General urges that it's a per se foreseeability. Foreseeability is still always going to be instructed to the jury in that circumstance. And they can argue that certainly 1 percent is sufficient, and the defense can argue 1 percent chance is not sufficient and can attack the -- the numbers.
Anthony M. Kennedy: Well, the question is what the legal standard is. I'm the juror. I said -- I want to know does this suffice to impose liability? And you say well, if you say it is. Does it or doesn't it? That's a -- that's a fair question. Just -- you can't say, oh, well, it's up to the jury. We don't know. I want to know what the rule is. The juries have to follow a rule.
Angela L. Campbell: The rule is the language of the proximate cause instruction that you give them. And while there are different formulations of that proximate cause instruction, you would instruct the jury whether a reasonable person in the position of the defendant would be able to foresee that consequence.
Antonin Scalia: And I would say, my goodness, if only 1 percent overdose, that -- that isn't very foreseeable. I -- you know, I don't think you have to submit that to the jury. I think that's one of the reasons we -- we banned these drugs, because they are risky, and anybody should know that if somebody dies from it, it's within the scope of the risk when you sold the cocaine. Now, I guess it's different if you're selling, I don't know, sleeping pills, okay? Which are part of a cocktail that -- that causes somebody to die. That's the situation that worries me. It seems to me if the cocaine -- the person selling the cocaine can be liable for the cocktail death, I guess the person who sold the sleeping pills could, as well.
Angela L. Campbell: Well, in that circumstance, in our specific factual circumstance, each individual person that supplied any of the drugs to the victim in this case would be equally liable.
Ruth Bader Ginsburg: Well, one was -- the heroin was illegal -- was not -- the selling of a sleeping pill is not illegal. It's perfectly lawful. Selling heroin is illegal. Doesn't that make a difference?
Angela L. Campbell: Selling sleeping pills can be illegal if they're sold to someone that does not have a prescription, if they're sold on the street. The OxyContin that was used in this case was not procured legally. The marijuana in this case was not procured legally. The -- there was no evidence whether or not the other prescription drugs, the multitude of prescription drugs he had in his house were procured legally. So assuming that the conduct of the person distributing the drugs were each individually violating the other provisions of the statute, it would be equally liable under the theory that they only had to contribute to the death of the individual.
Samuel A. Alito, Jr.: I don't see how this foreseeability test would work. Well, you'd have testimony what, this particular user looked -- looked like a healthy person, so there wasn't -- it wasn't foreseeable that that person was going to overdose. This other one looked kind of shaky and irresponsible and who knows what the person might do. That's what we -- that's what the jury would have to evaluate?
Angela L. Campbell: There are certain facts that could be read to a jury. In each individual case, they would differ. And you can look at the case law, especially regarding this--
Samuel A. Alito, Jr.: Well, what sort of facts? Suppose you -- you have the heroin dealer, is a responsible heroin dealer. [Laughter] And he wants to sell heroin but doesn't want to cause anybody to die. What would be kind of the checklist that the person would go through? All right, I'm going to sell this. I take the risk of a drug conviction, but I don't want this death results business. So a person is well dressed. Person is -- what would be the factors?
Angela L. Campbell: --Well, I think you could look directly to the Eighth Circuit's opinion in the Macintosh case and the factors in that case where that particular person manufactured methamphetamine and specifically said, I do not want my methamphetamine to go to this person. None of the meth should go to this person. But his meth ended up going to that person and that person overdosed and died. In that circumstance, that would be a fact that we could argue to the jury on the defendant's behalf using the appropriate proximate cause standard that that was not foreseeable and not intended--
Samuel A. Alito, Jr.: No. But I want my -- I want the checklist for my responsible heroin dealer on the street corner. What does this person go through?
Angela L. Campbell: --Well, I -- I don't think there can be a checklist. That's why proximate cause and foreseeability is always charged to a jury. Why it's -- it's uniquely a jury question. Whether there's an experience with this particular user, whether the person that is selling the drugs knows the user has overdosed in the past, whether there's something within that particular drug that is stronger than normal heroin.
John G. Roberts, Jr.: Do you have any -- what type of heroin user is more likely to overdose and suffer death? A first-time heroin user or an experienced heroin user?
Angela L. Campbell: There are no facts in the record that reflect that. The evidence within the record indicates that this particular user was an experienced heroin user and that people who use heroin on a -- on a regular basis actually develop tolerance to heroin, so it would take a higher amount of heroin for that person to overdose. That's what's in the record. Now, the -- the studies that are cited by the Solicitor General indicate that there have been some sort of research -- we don't have access to all of those documents -- but some sort of research regarding heroin addicts. And -- and when you're dealing with heroin addicts, that number is less than 1 percent using their -- their research. Heroin addicts are less than 1 percent likely to die. Those types of factors could be used in formulating a foreseeability analysis. But, of course, you can't just rely on the foreseeability analysis, you should always incorporate this but-for analysis. And in a but-for analysis, you would also be dealing with a situation where you have multiple drugs. And so it not only informs our discussion about whether or not the heroin was the but-for cause of the death, but also whether, in this particular circumstance, this particular defendant could foresee that this particular person--
Anthony M. Kennedy: I -- I just want to get your position as -- as a matter of law. Let's assume 1 percent of heroin users overdose. Dealer sells to an addict he's never seen before. Doesn't know anything about his age, background or anything. Just sells him the drug. The heroin addict overdoses. Liability or not? Can there be liability under those facts?
Angela L. Campbell: --It would be our position that there could be liability if properly instructed to a jury.
Antonin Scalia: But it's just up to the jury to decide whether it was foreseeable or not.
Angela L. Campbell: Correct.
Antonin Scalia: And you cannot say, as I -- as I think I say, that if you sell cocaine and if it is without a doubt the but-for cause of somebody's death, you're liable under this statute. You don't think that's the case.
Angela L. Campbell: We disagree. And, Justice Scalia, I would point actually to the -- this Court's precedent in the civil context where you -- you read proximate cause and foreseeability into almost exact same language.
John G. Roberts, Jr.: Yes, but in the civil--
Anthony M. Kennedy: No, but in a civil context -- excuse me, Mr. Chief Justice. In the civil context, you have strict -- you have strict liability. This is in a way strict liability and seems to me quite proper.
Angela L. Campbell: In a civil context, when it's explicit--
Anthony M. Kennedy: A drug company if it -- if it doesn't take proper steps, it is liable even if 1 percent of the users are adversely affected. Excuse me, Chief.
Angela L. Campbell: --You -- in a strict liability circumstance would have a statute which writes in strict liability. This statute doesn't write in strict liability.
Ruth Bader Ginsburg: May I just clarify before you're finished. You have used the words “ foreseeability ”, “ but for ”. Are you saying, to make it very simple, that unless the government proves that the heroin independently would cause death, then no conviction? The heroin must independently cause the death. Is that--
Angela L. Campbell: Only in the circumstance where you have two independently sufficient causes do you -- do you reach that question. We don't think you need to reach that question here. That's why we didn't argue that at the motion for judgment of acquittal stage, because you don't have standard but-for causation. And that failure was not as a result of two independently sufficient causes. If I may reserve my time.
John G. Roberts, Jr.: --Thank you, counsel.
Ruth Bader Ginsburg: --Well, are you then saying except for the heroin ingestion, the death would not have occurred?
Angela L. Campbell: The -- that's the primary argument, that except for the heroin that -- the factual basis of this case is that, if you remove the heroin, the doctors are saying he still might have died. And that is what defeats the but-for causation.
John G. Roberts, Jr.: Thank you, counsel.
Angela L. Campbell: Thank you.
John G. Roberts, Jr.: Mr. Horwich.
Benjamin J. Horwich: Mr. Chief Justice, and may it please the Court: The situation here is very much what Congress had in mind when it sought to hold drug traffickers responsible for the results of the use of the dangerous substances in which they deal. It's perfectly ordinary to speak of a drug as contributing to an overdose. And in the context of the Controlled Substances Act, there is no room to argue that a heroin user's overdose death comes as a surprise.
Elena Kagan: So Mr.--
John G. Roberts, Jr.: So one little -- one little grain of heroin that you discover is in the body, and that person's going away for whatever it is, 20 years?
Benjamin J. Horwich: No, I don't think so, Mr. Chief Justice. And let me explain, because I think the concern that arises with your hypothetical, which doesn't arise on these facts, presents a different issue than what's in dispute before the Court right now. The dispute between the parties is what kinds of -- on the causation in fact side of the case, the dispute is between what kinds of causes can qualify at all. Do they have to be but-for causes or can a contributing cause count? Now, there is a separate principle which is reflected in jury instructions and reflected in the substantial factor concept and so forth that causes that are causes in fact but are too insignificant or not important enough or too insubstantial are not properly the basis for criminal responsibility. Now, that's -- that's not the dispute before this Court.
Elena Kagan: --Well, Mr. Horwich, I mean, it seems to me that the dispute before this Court is this: You have somebody who's taken five drugs. One of them is heroin. And the -- the experts get on the stand, and they say: Did the heroin cause the death? And the experts say: Really can't say whether the heroin caused the death in the sense that if the -- if he hadn't taken the heroin, he wouldn't have died. So they say: Well, what can you say? He said: Well, what I can say is that if he hadn't -- is that the heroin made it more likely that he died. Well, how much more likely did the heroin make it? Well, the heroin made it 50 percent more likely that death resulted. Would that be sufficient?
Benjamin J. Horwich: I -- I think probably yes, although let me -- let me explain that we -- why we see the nature of the expert testimony as actually different than what you're describing there. Because--
Elena Kagan: Well, take mine.
Benjamin J. Horwich: --Yes.
Elena Kagan: Because I think that that's actually--
Benjamin J. Horwich: Oh, I'm sorry. I didn't mean the expert testimony in this case, but in general what experts are testifying to when they're testifying to that. They are not testifying to some uncertainty about whether the defendant's drugs played any role at all. This isn't the question of say, yeah, he bought heroin from two different dealers. He took one of them, and he died, but we don't know which dealer it was. In that case we totally agree that that sort of uncertainty means no liability. What the experts testified to in these cases is that the primary cause of death, which is essentially central nervous system depression that leads to asphyxiating on stomach contents or saliva or something like that, was a process to which a number of substances contributed.
Elena Kagan: --Yes, and he might have died even without the heroin, because all the other substances might have been perfectly adequate to cause death. So I really can't tell you that the heroin played -- even -- you know, even to use your language, I can't tell you whether the heroin contributed. All I can tell you is a likelihood, a probability that the heroin led to death.
Benjamin J. Horwich: Well, the experts here of course did testify specifically that the heroin did contribute to the death. So--
Elena Kagan: Well, again, that question of words, the experts were very careful to say: "I cannot tell you that in the absence of the heroin he wouldn't have died. " "He might have died even without the heroin, the experts said. " "The only thing I can tell you is that the heroin made it more likely that he died. "
Benjamin J. Horwich: --I guess -- maybe I can respond to that with a perhaps more conventional hypothetical. If you imagine that -- if you imagine that you have three assailants who independently simultaneously set upon the victim and beat him to death, and the victim could have survived any one of them. In that situation, you might well have testimony from a doctor that says, Well, I can't tell you -- he probably would have died -- even I can be sure he would have died from the other two guys. But I think in that -- in that scenario we would certainly recognize that the -- that each of the assailants is responsible for the victim's death. We wouldn't say oh, well, he--
Elena Kagan: It's a bad sign that you're using the hypotheticals rather than the facts of your case, you know? The facts of your case are that the expert gets on the stand and says: I can't tell you that the heroin was responsible for the death. I cannot tell you that in the absence of the heroin he wouldn't have died. What I can tell you is that the heroin was -- what I can do is to give you essentially a probability that the heroin caused the death. And you're saying that's enough, even if the probability is as small as 50 percent.
Benjamin J. Horwich: --I don't think -- the experts here did not testify in probability figures in that way. What they testified to was that -- was that the heroin contributed to the set of drugs that were responsible for the actual primary cause of death.
Elena Kagan: They said it contributed to the set of drugs, but they didn't say that it contributed to the death. They had no idea whether it contributed to the death. All that they were able to say is: There are five drugs; here are some probabilities; here are some likelihoods. If you don't like the probability language: Here is the likelihood. Using heroin made it more likely that he would die, but we can't say that using heroin killed him.
Benjamin J. Horwich: That -- and it is that aspect of the testimony which is why we concede that if you apply a but-for test, that testimony does not establish a but-for test.
Elena Kagan: Well, how much more likely does it have to make it that he would die? 50 percent?
Benjamin J. Horwich: It's not a--
Elena Kagan: How about 30 percent?
Benjamin J. Horwich: --The relevant question is in a contributing cause analysis, at least in the first instance, setting aside the substantiality question that the Chief Justice's hypothetical raised, the basic question of the contributing cause analysis is whether the drug in a case like this contributed to the physio -- the internal physiological effects that culminated in the death. And I would make a distinction here, for example. If you -- consider the marijuana in this case. The testimony here does not even establish the marijuana as being a contributing cause, because the toxicologists -- the toxicologist testifies -- this is at Joint Appendix 193, that the -- "Every drug on this list, with the exception of the constituents of marijuana, have central nervous system depressant effects. " and then goes on to explain why it's those effects that are -- that's what's going on in the body that's leading to the death. So again -- so we would agree that if you apply -- that if you insist on a but-for test, then, correct, these sort of probabilities don't get the government even to the jury. That's a directed verdict. But I want to -- but I would like to point out though -- so I guess what I would like to discuss is why the but-for test is not the right test to be applying here.
Samuel A. Alito, Jr.: Before -- Mr. Horwich, before we leave this hypothetical--
Benjamin J. Horwich: Yes.
Samuel A. Alito, Jr.: --may me ask you this. If I were a member of a legislative body considering what I would want to happen in this situation -- it's kind of a frightening thought. But if that were, I would want to know what kind of testimony medical experts can reasonable be expected to provide in cases like this, where there is the ingestion of multiple drugs. If it is possible in most cases, many cases, all cases, a high percentage of cases, for them to break this down probabilistically, there was a 50 -- this made it 50 percent more likely, 90 percent more likely, 10 percent more likely, I might want to go down that road. But if it's not reasonable in a lot of these cases to go further than what the experts did in this case, that would make a difference. Now, can you tell us what, realistically, can they do in these cases where there is the ingestion of multiple drugs and the consequence is death?
Benjamin J. Horwich: I -- I can't represent to be informed enough about sort of the range of cases, but I think the testimony in this case is actually informative on that point, because there are a number of uncertainties to which the -- the -- the experts testified that show why it is, from -- why it is, from their point of view, essentially impossible to disentangle the effect of one drug and another drug when they're having the same effect on the body. They're doing the same thing to the -- the victim's central nervous system. And so, it is -- it's the sort of thing that it's meaningless to speak of one drug versus the other as being “ the cause ”, because they're all in the body, they're all doing the same thing in the same way that--
Antonin Scalia: So Congress -- Congress supposedly knew that and -- and could have written a statute so that you're -- you're liable if you are a contributing cause of -- of the death. It didn't do so. It said -- it says it has to result in the death. And -- and I take that to mean at least, at least but-for causality.
Benjamin J. Horwich: --Well, we -- we--
Antonin Scalia: Why -- why should “ result in ” not -- not mean but-for causality?
Benjamin J. Horwich: --Well, we -- we would take Congress to have been incorporating the rules settled on generally in the criminal context--
Antonin Scalia: Why?
Benjamin J. Horwich: --for this sort of problem.
Antonin Scalia: Why -- why does “ result in ” refer -- refer to what -- what we do in the common law? I mean, I apply common law rules when -- when Congress adopts a common law crime, yes. It -- it brings along the -- the soil that goes with that crime, right? But this is not a common law crime, and -- and Congress used the English language “ results in ”, and I would take that to mean causes.
Benjamin J. Horwich: Well, we do take it to mean causes. But courts applying the concept of cause -- so that's why we think that Congress would be intending to borrow courts' approaches to causation in common law cases. And I think there's a key insight in those cases. Now, we cite a number of them going back 100, 120 years in our -- in our brief at pages 19 and 20, 21, 25 and 26. And the key insight in those cases, which I think Justice Sotomayor touched on, which is that if your test for causation, say a but-for test, is producing a result in a case that nothing and nobody was the cause of the victim's death, you need to rethink your test for causation. It's not producing sound results.
Stephen G. Breyer: I accept that.
Benjamin J. Horwich: And so, Justice Breyer, that's what's going on in -- in the treatises that then say, well, in these other cases, we're going to -- we're going to say, well, these independently sufficient tests, that applies as well.
Stephen G. Breyer: Well, here -- here I accept that -- first of all, there's no problem with intent for me for the reason Justice Scalia pointed out, that anyone who sells heroin to someone is reckless, at least, in respect to the possibility of a death resulting. So I think that's enough to bring them within the intent problem. Also, there was a death here; fine. But still you have to show cause. And this is this unusual situation, which the Brown Commission expresses itself upon and which the model Penal Code didn't.
Benjamin J. Horwich: Well, I think--
Stephen G. Breyer: And the model Penal Code did express itself on what they call, in the Brown Commission, concurrent causes, all right? It has to be a but-for or a concurrent cause. But a concurrent cause is the situation where there are two people striking a mortal blow. Therefore, either is sufficient. And if, in fact, the second wasn't sufficient, then the first is a necessary condition.
Benjamin J. Horwich: --Yes.
Stephen G. Breyer: All right? So here we have the separate problem which has been pointed out that not only -- we don't know if the others were sufficient, nor do we know if this was a necessary condition. And Brown and 5 States tell you what to do in such situation to fall within the definition of cause. And the model Penal Code where you have Professor Wechsler debating Professor Hall with Dean Griswald throwing in the odd comment decided not to tell us its view. Okay? So that's where I stand. And you can correct that if you want, but I'm beginning to think that probably, at least it should be important in such a situation, and that the word “ substantial ” better connotes the idea of it being an important factor than the word “ contributing ”, which means picks up all kinds of quite unimportant factors. That's where my thinking is, and anything -- I just say that in case you want to respond to that.
Benjamin J. Horwich: I do. I have, I think, two very important things to say in response to that. One of them is, as -- as I was sort of suggesting with the Chief Justice, if the dispute is over whether it should be a substantial contributing cause, then I think we're happy to argue that the jury instruction gets in that direction, and at a minimum, there's harmless error here. So--
Antonin Scalia: It depends on what you mean by substantial.
Benjamin J. Horwich: --Well, I think--
Antonin Scalia: Opposing counsel says substantial means that it would independently have sufficed.
Benjamin J. Horwich: --Well, I think -- I think that's right.
Antonin Scalia: If that's what you mean by it, we'll all cheer. But -- but I suspect that's not what you mean.
Benjamin J. Horwich: Well, it's not what -- it's not what we mean--
Antonin Scalia: That's not what was found in this case, right?
Benjamin J. Horwich: --Well, I would point out -- I would point out that -- I mean, I'm reading from the Washington State Christman decision, which is the only decision that the parties have cited that's actually -- factually deals with this scenario and it says, "Under the substantial factor test, all parties whose actions contributed to the outcome are held liable. " So I think that's -- that's very much in line with what we're saying. I'd also say that the Brown Commission and those--
Antonin Scalia: That -- that's what you call a substantial factor? That all contributed to the outcome? The one grain of heroin would -- would--
Benjamin J. Horwich: --No, because we think it does -- we think it does have to be substantial. I think that's -- that's why the word “ substantial ”--
Antonin Scalia: --Well, then -- then you don't agree with that -- that stuff that you just read point.
Benjamin J. Horwich: --Well, all parties whose actions substantially contributed to the outcome.
Anthony M. Kennedy: So then you -- you're saying that the government's position is that contributing factor should be a substantial contributing factor; you're happy with that.
Benjamin J. Horwich: I think -- I think we would not -- we wouldn't have an objection if the Court states that as the law. Now, if the Court does that, it would be appropriate, I suppose, to ask the court of appeals to examine the record here.
Antonin Scalia: Well, what is substantial? What do you think is substantial? 10 percent, 20 percent--
Benjamin J. Horwich: Well, I think substantial--
Antonin Scalia: --5 percent, what?
Benjamin J. Horwich: --substantial -- I wouldn't put it -- well, I would put it in relative terms, right? The question would be: Is this cause substantial relative to what? Well, relative to the other causes at issue. And we have here overwhelming testimony that the heroin--
Elena Kagan: So is that the question? Is -- in other words, is the heroin more likely to have caused the death than the cocaine, than the marijuana, than the sleeping pills? So we can't really say that the heroin caused the death, but it's more likely to have caused the death than anything else he took? Is that the -- is that the question?
Benjamin J. Horwich: --Well, we know that it can -- we know two things; one, it causally contributed in a way that, say, the marijuana did not contribute to what the experts are testifying was the physiological process. And two--
Elena Kagan: But -- but maybe not to the death.
Benjamin J. Horwich: --of the things that contributed to that, we would agree that the insubstantial, the one pill out of a thousand hypothetical, would certainly not be substantial. How substantial, I guess, is going to be very fact-specific. Here it's--
Elena Kagan: And is the one question is -- is how this all relates to the “ beyond a reasonable doubt ” instruction in criminal cases? I mean, the idea of a test which focuses in the way yours does on probabilities and likelihoods, and then we go tell the jury, find beyond a reasonable doubt that this was more likely to have caused the death than anything else, or find beyond a reasonable doubt that this increased the likelihood of death by 50 percent. I mean, that seems a very odd kind of question for a jury to consider, but that's exactly what you would be asking a jury to consider.
Benjamin J. Horwich: --I disagree with that. Because what we're asking the jury to decide is beyond a reasonable doubt, did this drug have the physiological effects that the medical examiners described as being the integral process that resulted in death.
Elena Kagan: But the statute -- the statute says did it result in death. It did not -- the statute does not say -- does not criminalize a drug that has physiological effects. It criminalizes a drug when it results in death. And you can't say anything about resulting in death except as -- except by reference to probabilities and likelihoods.
Benjamin J. Horwich: I -- I think that there is going to be testimony about probabilities and likelihoods that will inform the substantiality question, but it's not a question of likelihood that it -- that it contributed to the central nervous system depression that killed the victim here. That -- that is unequivocal in the testimony.
John G. Roberts, Jr.: If you wanted to incorporate in the statute your friend's understanding of but-for cause, what word would you use that would be better than “ results ”?
Benjamin J. Horwich: Well, I would -- you could use but for or accept.
John G. Roberts, Jr.: Well, I know. But you want -- you want a word that's going to be readily understandable.
Benjamin J. Horwich: Or solely. I guess I would refer the Court to the -- the jury instructions that Petitioner proposed here, which are on 238, which say that, that the -- the proximate cause must be one that except for the cause the death would not have occurred. That's the instructions that are proposed there. And our point is that the insight in -- in these sources, it's an insight that's in the Brown Commission report, it's an insight that's in the numerous cases we have cited going back, is that that is not the only test that is used.
John G. Roberts, Jr.: Mr. Horwich, just if I could get back, that is the instruction on proximate cause.
Benjamin J. Horwich: Well--
John G. Roberts, Jr.: What about the but-for cause?
Benjamin J. Horwich: --Well, the way they are structured for -- in Petitioner's submission, it's -- it's sort of built into the proximate cause instruction. They weren't separated in the way Petitioner did it. So there's -- the first part of the second sentence on 238, the "direct result or reasonably probable consequence. " gets at what we would more conventionally describe as proximate cause. But the second part is classic causation in fact: "Except for the cause the death would not have occurred. " So what Petitioner here is trying to defend is a test that produces--
Stephen G. Breyer: No, but it doesn't say -- the one they quote in their brief, all they wanted the judge to say was it could be -- they say, you are right, proximate cause, but they're interested here in is it a cause at all. And they say: "As long as the subject cause contributes substantially to producing the death. " That's what they wanted him to say. And he didn't say it. And actually when I read that, I thought, well, what they want is to say that it's an important factor, rather than just saying it's some unimportant factor. And they seem, I don't know what these words really mean, but it seems they are closer to what you're saying should be the law than you are.
Benjamin J. Horwich: --That is a convenient excerpt from the instruction on 238, but the other part of the instruction insists that except for the cause the death would not have occurred. So--
Antonin Scalia: I agree with you the language -- their position now is not that it's enough that it's an important factor. Rather, and I would like to know your view on this, your opposing counsel contends that the courts and commentators who use the “ substantial factor ” terminology mean by “ a substantial factor ” a factor that would by itself have been sufficient.
Benjamin J. Horwich: --Well, certainly, certainly they can pull up cases that say that. But what I would emphasize for this Court is that in four briefs to this Court Petitioner has not cited a single case that does what he's asking this Court to do, which is reject a contributing cause approach and exonerate him under a but-for test that applied to this case would lead to the conclusion that nothing and nobody caused the victim to die here.
John G. Roberts, Jr.: Just to get back to it, you were reading from the proximate cause instruction. They've got -- the very next instruction says: You have to find that he died as a result of using the heroin distributed by the defendant. So I think it's a little unfair to suggest that they were willing to go with the same concept of cause that you were proposing.
Benjamin J. Horwich: Well, we wouldn't -- we don't disagree that a court could just use the unadorned statutory language. That -- that -- that would not be error to do so. Our point is only -- our point is only that a contributing cause, as these courts have recognized for a long time, can be a cause in fact, particularly in these scenarios where otherwise they are going to conclude there was no cause at all.
Stephen G. Breyer: What do you want us to say? You know what's actually worrying me about this case? It took quite a long time, and there are like three levels of complexity, and we are from but for into concurrent and then the sufficient condition and the necessary condition. And we are trying to argue whether this thing that the Model Penal Code wouldn't even pick up in Brown ought to be the Federal law of the United States. And Professor Wechsler's reaction was: Look, this is -- this going to arise so infrequently, it's so complicated to talk about, that you are going to mix everybody up once we start to write on this. And that is worrying me as a real problem. Once I start to write in this area, we are going to get people so mixed up no matter what we say--
Benjamin J. Horwich: Well, I think the Court--
Stephen G. Breyer: --that I hesitate to go backwards from the very vague and open language, substantive, substantial versus contributing, and just sort of why not just say substantial and leave it there and let the lower courts figure it out, so we don't confuse the entire bar and the entire Congress and everything.
Benjamin J. Horwich: --Yes. If Your Honor is concerned about that--
Stephen G. Breyer: I am.
Benjamin J. Horwich: --I think you could write a decision that says the right instruction here is substantial factor. The test -- the cause does not have to be a but-for test, but we are not going to go on to define “ substantial factor ”.
Antonin Scalia: Because of that imprecision, some poor devils will have to go to jail for a longer period than otherwise, you know. Tough luck.
Benjamin J. Horwich: Well, I this isn't -- I think this isn't something that would catch Congress by surprise. The problem of multiple drug use is a well recognized situation. If I might turn to foreseeability.
Elena Kagan: Mr. Horwich, I just don't understand what “ substantial factor ” means in the way you are using it. I understand what Ms. Campbell said, because she said “ substantial factor ” just means independently sufficient. But you are saying “ substantial factor ” can mean more than that, but it doesn't have to mean a but-for cause. How is something that is a substantial factor in a death without their being able to say that it was a but-for cause of the death?
Benjamin J. Horwich: The situations that we're talking about here are ones in which nothing would be a for cause of the death and nothing would be independently sufficient to cause the death. So in some sense--
Elena Kagan: So it's not a substantial factor in causing the death, because that assumes that it actually played a role in causing the death and you can't say whether it played a role in causing the death. That's what creates this problem.
Benjamin J. Horwich: --I disagree with that. It absolutely played a role in causing it. That's exactly what the toxicologist--
Elena Kagan: In the sense of if it hadn't been there, the death would not have occurred.
Benjamin J. Horwich: --That's true.
Elena Kagan: You can't say that, that's the point.
Benjamin J. Horwich: Well, that's true, but I don't think, to take my example of the assailants, the three assailants beating the victim to death, I think it would be very strange to say that none of those assailants played a role in the victim dying, none of them contributed to the victim dying. That seems -- that seems to be contrary to ordinary usage and ordinary intuitions about cause and effect. Now, I agree in this situation because we are talking about something that happens at a molecular level, it's perhaps less -- it's less part of common experience and we have to rely on the doctors. But what they are saying is no different than saying that he had three drugs in there and they were each knocking him down to a state of unable to -- to repress his gag reflex, essentially.
John G. Roberts, Jr.: The problem with your hypothetical, it's the sort of thing where there's no way that a doctor could say three people beat the guy up, which one threw the fatal punch. But here we have a situation where the experts could tell you: Yes, the heroin alone would have killed him. Or, as in this case, I can't tell you the heroin alone would have killed him.
Benjamin J. Horwich: Yes, I think that's right, but I can imagine a doctor similarly testifying in the three assailants situation to exactly that point. I can't tell you which is the fatal punch, precisely. I agree with that.
John G. Roberts, Jr.: But if you can't put -- but my point is that they would not be able to tell you in any case, where here they can tell you in every case whether it's clear that the heroin caused the death or not.
Benjamin J. Horwich: That may be true, but there will be cases in which no single drug caused the death and yet the victim died. That's what produces the problem here.
John G. Roberts, Jr.: Right. But this statute does not say if you die from taking drugs, then the person who gave you drugs, who gave you any kind of drug is responsible. It says the heroin has to result, death has to result from the heroin.
Benjamin J. Horwich: It does. And I think it's ordinarily -- I think it's an ordinary usage of language to describe this as resulting from the heroin and some other things, too. But the testimony is certainly to the effect that it resulted from the heroin.
Anthony M. Kennedy: What result if a heroin dealer persuades a first time user to please try heroin, it's wonderful. He does. Three days later the addict, the new addict, the new user buys heroin from a different dealer and overdoses and dies? Does the first dealer contribute, is a substantial contributing cause?
Benjamin J. Horwich: Contributing cause there? I guess -- I guess I would need to know more medically. I suspect that yes.
Anthony M. Kennedy: No, no. The heroin has disappeared, but he has become addicted.
Benjamin J. Horwich: Okay. So he's become addicted. I think possibly yes. I am skeptical that that would be a substantial contributing cause. And then there would be -- there would be in our view questions about proximate cause that would be raised in that situation as well.
John G. Roberts, Jr.: What about you give the guy a heroin and he drives away, but as a result of using it he's driving under the influence, has an accident and is killed? Is that -- does his death result from the heroin in that case?
Benjamin J. Horwich: We think in that situation, certainly factually, causation in fact, it does. In that situation we are lying farther away from the central harms that the Controlled Substances Act is addressing, and so we think you would get into some sort of proximate cause inquiry there as well, that you wouldn't here.
Sonia Sotomayor: I'm sorry. Now I'm really confused. I thought you were pointing the causation, the factual causation, into proximate cause. You are saying there's a difference. So what do you think gets folded into proximate cause?
Benjamin J. Horwich: So in proximate cause, our basic point on proximate cause in an overdose situation is that you already have the indicia you need to know that this is the harm for which Congress wants to hold the defendant responsible. In the Chief Justice's--
Sonia Sotomayor: In one other case -- there has been one other case, but you are suggesting that there are cases in which there might be a proximate cause problem, you just--
Benjamin J. Horwich: --Absolutely.
Sonia Sotomayor: --as you just said to Justice Kennedy. In what other case have we said that you don't have to charge a jury on an element of the crime on proximate causation? Is there any in which we have ever said that?
Benjamin J. Horwich: Well, I -- I have to disagree with--
Sonia Sotomayor: Because in -- in the vast majority of cases, it won't be a problem.
Benjamin J. Horwich: --I guess I have to -- I guess my answer to your hypothetical has to be to disagree with the idea that this is an element. We're not dispensing with an element. The element is that a death resulted. The question is how, in a particular case, should a district judge explicate the scope of harms for which defendants should be held responsible? And sometimes you can do that with a foreseeability instruction. Sometimes you might do it with an intervening or superseding cause instruction or other proximate cause concepts. But in a case where you know there's an overdose at issue, and we're talking about heroin here, which is controlled, in large part, precisely because it kills people--
Sonia Sotomayor: So foreseeability--
Benjamin J. Horwich: --you don't need--
Sonia Sotomayor: --is an element in only some ways of killing people, in which some people die.
Benjamin J. Horwich: --It is necessary to instruct on it if we're in a situation where we're worried about consequences running out to infinity. That's the usual concern, the Palsgraf-type concern about foreseeability, but this is not running out to infinity. This is just--
Sonia Sotomayor: You know, I'm having a really hard time because of Carolene, where you basically admit that proximate cause, i.e., foreseeability, because I see them--
Benjamin J. Horwich: --Yes.
Sonia Sotomayor: --as almost interchangeable, is almost always to be charged, is almost always an element that is required when you have a -- results from--
Benjamin J. Horwich: Yes. To be clear, we're not saying there's no proximate cause requirement. We're saying that there is a sufficient assurance that the function of proximate cause, of limiting defendant's responsibility to the matters about which Congress is concerned, is served in an overdose case when you know that you have a substance that is controlled in large part because of precisely this risk, that then it causes exactly that harm.
John G. Roberts, Jr.: Thank you, counsel. Ms. Campbell, you have three minutes remaining.
Angela L. Campbell: It's our position that but-for cause is the first question, and only when you reach a point where there is no but-for cause do you then go on to say, is this one of these circumstances where there is a -- two independently sufficient harms. If no, end of question, which was the motion for judgment of acquittal at the time of trial. There was no but-for cause. We made the motion for judgment of acquittal on but-for cause. You don't need to make that inquiry in this particular case. There may be cases where you make that inquiry. Of course, we didn't win, so we had to keep going along, and we asked for a substantial factor test because we thought maybe we could influence the judge to give us a better instruction, like the substantial factor test that the Eighth Circuit had already approved, and he rejected it and gave them a contributing cause instruction, which is clearly not encompassed within the common law standards of causation. But-for cause is substantial factor. Now, to address the concerns about letting defendants go free, that just simply doesn't play a part in this analysis. Every criminal defendant in any of these hypotheticals would have some sort of criminal liability, either a lesser included offense. This particular defendant, Mr. Burrage, could go to prison for 20 years for the lesser included offense. You have accomplice liability. You have conspiracy. You have attempt. All of these individuals are going to be punished. You have sentencing discretion. The judge can look at the fact that there was a death -- well, maybe not a primary cause in the death -- there was a death, and enhance the sentence under the -- beyond the guideline range. All of those concerns are already addressed in the criminal law, and we do not need to change the criminal law of causation and relax it to encompass more harms. Because if we aren't willing to do that in a civil context where you have contributing negligence and shifting of burdens of -- shifting of the costs in having -- your hypothetical, you have different percentages' likelihood of causing the harm. So maybe you give 5 percent to the marijuana dealer and 10 percent to the oxycodone dealer and 20 percent to the heroin dealer. We don't have that in criminal law. That's a -- that's a policy consideration that is different between civil law and criminal law. In criminal law, the person's going to go to prison under a mandatory minimum sentence, and in some cases for life with no parole based on this relaxed causation standard that the government is asking this Court to incorporate into a statute where it doesn't say it. And so we would respectfully ask for the Court not to engage in that process, not to relax causation for the criminal -- criminal statute at play here and in all of the criminal statutes that use “ result in ”, and instead rely upon the general notions of causation that are already established in the law. Thank you.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.


Warren E. Burger: We will resume arguments in 1589 and 90. Ms. Weyand, you may proceed whenever you are ready.
Ruth Weyand: Mr. Chief Justice and may it please the Court. In this case, unlike the Liberty Mutual case preceding it, as attorneys for the plaintiffs, we elected and made a deliberate choice to make as full a record as we possibly could to approve as a matter of fact and as a matter of evidence that to fail, to maintain the income of women who were disabled by childbirth or complication of pregnancy was in fact discrimination because of sex within the meaning of Title VII of the Civil Rights Act. We went into and introduced the full history of the plan. We gave and we produced annual reports of General Electric going back to 1928. The plan was voluntarily instituted as part of a large Insurance Program, including Life Insurance in 1925. We have speeches in the record of Gerard Swope who was then President of GE, who explained that the whole life insurance program was not offered to women because they did not understand the responsibilities of life, they just got married and had children. We have that from his biographer, we have it from his speech at Annals of the American Academy.
Speaker: [Inaudible]
Ruth Weyand: Yes, yes, I am bringing it down to date. However, we went through what they said in the annual reports and speeches of O&D Young and later Presidents and so on and came down to date. The plan as it stands, as it stood, in 1950 when the Union first became the bargaining agent, which was not the beginning of the plan, but was the first year in which the International Year of Electrical Radio and Machine Workers bargained, it was the first year in which any Union in the United States was accepted as a bargaining representative with regard to fringe benefits. You may remember the Inman Steel cases cited here. It was decided in 1948 in the Seventh Circuit and this Court denied certiorari as to the fringe benefit issue, there were other issues on non-communist affidavit in the case, which were reviewed here, but in the fringe benefit, that was the first year. And the International Union at that time pointed out to GE that this exclusion of women who were disabled by childbirth in pregnancy was discriminatory as to women, that General Motors one of the large competitors of GE, did pay for six weeks and other many companies paid, and this demand was repeated at the bargaining table down to through the years. And GE keeps -- refused to discuss the cost of this item with the IUE. We have a decision in the United States Court of Appeals, Second Circuit, in 1969 which is cited in our record, where we have in the record where we asked about maternity, company said that is the most costly item. The Union says what does it cost? GE says we do not bargain cost, we bargain level of benefits. We do what is right, and we have the minutes down through the years where that has been the position of GE. In the last round of negotiations, which occurred after this suit was begun, and the evident record -- what happened there is in the record, GE gave the Union an indemnity agreement going back to the preceding two agreements. The IDR (ph) position was that as a matter of law we were entitled to this and there was no need to disrupt commerce by a strike or anything to get it, so -- and GE recognized it would be settled by the Courts. There is no element of estoppel about the Union acquiescing in this. It was understood at the bargaining table we were trying it out in court, we thought we had a right to it as a matter of law, and case was -- this suit was instituted in the Court below prior to the guidelines. And the EEOC, from the very beginning taken the position and since first annual report which is cited in our record that discrimination because of pregnancy was discrimination because of sex and had issued decisions prior to the guidelines holding that failure to pay disability benefits and this case was filed on March 15, 1972 in the Federal District Court in Virginia, prior to the issuance of guidelines. The plan itself discriminates a regard to pregnancy not only by failing to pay any benefits for normal childbirth, any benefits for any complication of childbirth, but it also discontinues all coverage when a woman leaves the plant because of pregnancy. One of the plaintiffs here, Emma Furch, left the plant because of a miscarriage and went home from the hospital. She had a pulmonary embolism. Her doctor certified it had nothing to do with pregnancy. GE accepted it had nothing to do with pregnancy, pulled out some fine language of the plan, which I am a little bit embarrassed, I did not have in my complaint, I did not realize there was fine language, you canceled the whole plan, but they do cancel the whole disability coverage, and the examination by Judge Marriage (ph) is very clear here and the company admits that if a male goes off on a holiday or vacation and he has an automobile accident two days later and gets disabled he is covered, but a woman leaves a plant because of pregnancy, she is not covered until she returns to work for anything not even related to pregnancy. The coverage here of the plan for males is all-inclusive. Gerard Swope on GE’s annual reports coming right down past 1966, we have 1969 one, 1970 and 1972 ones in, explains GE's theory that it increases productivity if employees do not have to worry about any of certitude of life which they may not be able to meet. And Gerard Swope had been President of GE International before he became President of GE USA, and he tells in his speeches how he had been impressed at the higher productivity of the European worker, Italy, Germany and so on because they had the full social security coverage. But he did not want social security coverage from government. He distrusted politicians. He thought they had always upped the benefits. He thought companies should introduce it and that the consumer, their dollar benefit to the marketplace would determine how much you could pay for benefit. You would not run-up the cost like a politician to get elected on promise of an increase in social security. And so he instituted a cradle to grave plan that followed what they had in Europe. It covers old age, covers supplements on employment insurance, it supplements workman’s compensation, it supplements -- supplements social security, it supplements military benefits, it supplements everything that happens from cradle to grave except when a woman has a baby. It covers all the expenses of a male who has a baby. It covers the hospital medical expenses of a woman too, but in the record the number of males that had babies is one in one-third times that of the females. At the rate we have find it costs to have babies today, I find in cases I have been trying around the country, in Steinberg the Personnel Director said $850.00 in Rochester, combined hospital and medical. It cost $850.00 and you took the figures on the one in one-third more babies per male in the record here in 1972, you could pay the women disability for six weeks and the company would still save money on the maternity cost of women here, you sit down and you get the figures on because of increase cost to males. So, the company has never offered any figures as to what disability will cost. GE has offered figures what it thinks it is going to cost all of industry that we are not here trying that, we do not know what other industry does. As a matter of fact its own actuary said, and it is in the record, GE exhibit 13, we cite in our briefs 60% of the women covered by disability plans are today covered for an average of six weeks on disability. And the record here is that and GE’s own position is that 99% of the women have only a normal childbirth. Their figures in their brief is one-tenth to two-tenth of 1% of women have complications,. It is the way they read the record, which means 99% of the women have a normal childbirth and all of the evidence, the findings of the court below that normal childbirth is disabling for not more than six weeks. As a fact, GE's medical, Dr. Wilbanks testified that most women could return in two weeks. He had interns that did, that they were back doing their housework, that normal women where today that social economic conditions are so increased that there has been change in the whole physical structure of the women in the way they respond to childbirth and the time with which their organs respond because of the increased medical and socio economic conditions and so on. So we have a very full record here on which the Court below found that this was discriminatory. It was motivated by discriminatory attitude towards women, it was discriminatory. There are 21 different findings where discriminatory was deprived, voluntarily to females not to man, they play -- pay for voluntary hair transplants, they pay for voluntary trick knees, they pay for voluntary cosmetic, they maintain -- disability meant they maintain income for everything that happens to a man. After I went through and asked about emphysema and alcoholism, alcohol cures and drug, they kept saying -- I have asked them have you ever paid if you have paid once, is it your practice to pay, if it is not your practice to pay why did you pay them and not here? Everyone, that we have paid everyone and I have finally got grievances, is there anything a man was ever disabled for that you did not pay for, no. In collective bargaining, the first round, they in 1966, the first Post Civil Rights Act, bargaining session, GE claimed that the majority of the women did not return and that was their statement of why to the Union, they did not think it was appropriate to include sickness and accident benefits. They did not make any such claim in 1969 and the record here shows that the majority of women do return. In fact, even though the Company in the record here and their findings, up until May of 1973 required women to go on mandatory leave three-months, in most of his plants, before expected due date and remain out two-months after, a five-months time which forces many women to look for other jobs. Like in Turner, they had to look for other jobs, you may recall the woman in Turner out of employment that had gotten clerical job, even with all of that 60% of the women came back and ’60, ’70 and ’71, 40% did not. The turnover rate in the record is 40% failure turnover. I want to turn my attention now of giving you the facts, the basic facts here, to Geduldig versus Aiello and its impact on this case. Title VII has much broader language. We are concerned here with the question of Statutory construction. In the language in Title VII with which we are concerned is very, very broad. I want to turn my attention just for a moment to the language under which we -- this Court must determine, which the Courts below determined that the guidelines were proper. We have a decision by the EEOC in this case which the Courts below gave deference to and which seven Courts of Appeals, fifteen District Court Judges have indicated there is no un-reversed decision of any Court, twenty-four states, MVP agencies, four highest Courts of States have said it constitutes sex discrimination not to pay sickness and accident benefits under similar state statutes. The language 703 (a), the Congress made it unlawful, in A1 to discriminate with respect to compensation, terms, conditions or privileges of employment. And in 2, to limit, segregate, or classify in any way which would deprive or tend to deprive -- tend to deprive or adversely affect, you hardly get broader language than that. The EEOC, when it came to dealing with what to do with pregnancy and it mentions it in its first annual reports, first annual report, tells of having found that discrimination because of pregnancy is discrimination. It says the prohibition against sex discrimination is especially difficult to apply with respect to female employees who become pregnant. In all other questions involving sex discrimination, the underlying principle is essentially equality of treatment. Then it says, the Commission decided to carry out the congressional policy of providing truly equal employment opportunities, including career opportunities for women, policies would have to be devised which afforded female employees reasonable job protection during periods of pregnancy. During 1975, there were thirty-seven million working -- women working in United States. GE's exhibit 13, the same exhibit shows 60% of the women covered by disability benefits have coverage for six weeks shows that 40% of the pregnant women in the United States were in jobs outside their home and gained full employment in 1968. Studies of why women have low wage rates, why they have four jobs, have focused on the lack of continuity of employment. And although this Court in Cleveland Board of Education versus La Fleur dealt with State action on the Due Process basis, that does not apply to private employers and unless -- unless it is sex discrimination, under Title VII, the employer may discharge a woman the minute she gets pregnant. There is nothing to protect her. This Court had repeatedly said that an employer can fire for any reason or no reason unless there is statute, said it in the Jones and Laufman (ph) case. Unless --
Potter Stewart: Or unless the statute -- unless he is contractually bound?
Ruth Weyand: That is right, that is right. Now, I must say that the Unions over the years and our Union with GE has gotten protection with GE on everything except sickness and accident, it is over the years, it in the contract, it is in our form, we treat them as illness. Arbitrators have regularly, when the issue has come up and there is no contract provision that makes it different have treated them the same as any other temporary disability. They have done it, we have the cases, and have said it sex discrimination not to. But a woman, as the Court in Cheekwood said, you just take the highlight of Title VII, if you say when a woman comes in for a job, we think you are going to get pregnant one of these days, therefore, we do not hire you.
Speaker: That is not this case?
Ruth Weyand: Is not this case, but if you look at it -- if it is -- if you think honestly, in a many, many career jobs where they say --
Speaker: Not in that --
Ruth Weyand: There are many career jobs where you do not hire them because you ask them, as they do in Wet Seal, in Wet Seal they ask the women, do you expect to have babies, are you using birth control, the first charged filed in Wet Seal raised the issue at the outset, what are your plans for a family? Now, this is what women meet when they go get a job. Now, is that employer, if he finds out they plan to have babies discriminating against them because they are women or because they are going to be out of work for a short period of time? This issue is one that comes right down in each case when come to it. Now, if you can -- if it is not sex discrimination, let us take the woman who is pregnant in the plant. The employer says we do not think we ought to have pregnant women in the plant. We do not like the way they look. We think other workers are worried about them. Now, if he can send them home unless this Act protects him, unless that is sex discrimination under this statute or tends to deprive them of jobs because I think it tends to deprive them of opportunities, no question in all the administrative agencies, all the courts. As a matter of fact the subject of discrimination because of pregnancy has listed thousands of charges in the first year of the EEOC, we had the contention yesterday it is was sort of a fluke that it got in actually. There was no record -- vote in either the house or the senate. There is no record that the people who voted against the Act voted for the amendment. There is no roll call vote in either house or senate. But the first year of the EEOC, this annual report shows there were three thousand charges of discrimination because of black, and two thousand charges because of sex, and the bulk of these charges revolve around pregnancy and the annual reports to Congress have regularly reported, if a woman, she losses her seniority. Now, if it is not discrimination because of pregnancy because of the sex, they can take seniority away. This is no way to say they take it away because she is pregnant, that has been the practice in many plants. They send them home which means they have to go out of their jobs, and the studies show that in getting a job and your seniority is all important in your continuous work history. Employers in this country place nothing as much on as someone comes in through a recommendation, have you had a continuous work history? The woman, the reason she has not had a continuous work history in this country in many, many instances is because there was no protection against her losing her job. She had no right to come back because employers said, well, you were pregnant and we could -- we do not have to, we can discharge you when you are pregnant, we could deprive you of seniority. Unless it is sex discrimination within the statute, there does not exist that protection and that has been the basic problem of women. Women get 60% of the wages of man in this country today. GE, when it comes to the cost here you look at these benefits -- these, we have in our brief, the average number of days a man was off because of disability in ’70 was forty-eight days, women fifty-one and for his forty-eight days, he got a third, again as much as the women got, he got around $600.00 and she got around $400.00, the exact figures are in here because his wage rate is so much higher, we have in the record that 43% percent of the women working for GE got less than the janitor. Now these rates --
John Paul Stevens: Let me ask, the fifty-one day figure, is that including the pregnancy disability --
Ruth Weyand: No, these are the disability claims that were --
John Paul Stevens: So if you included the pregnancy disability what would it comparative figures be, does the record show?
Ruth Weyand: Well, the -- you do not if they would be the same women or not, if you average the number of women. If the findings of the Court below are correct and that all the evidence, then the average time they are going to be off is six weeks that is forty-two days.
John Paul Stevens: So that would you add the forty-two to the fifty-one?
Ruth Weyand: It would not be the same ones, if you are averaging the number off. Now, you just do not know to what extent, women who had forty-two days might also have another day, you do not know on terms of frequency or so on. Now the figures, I remember I have looked up the figures, Mr. Justice Rehnquist, during the oral argument in Cleveland versus La Fleur, asked why did days of respiratory lose compare with other lose and the figures which are in the record here and which were secured for the purpose of studying by the agencies, the EEOC, the Women’s Commission, there were 1.2 days lost in 1968 because of respiratory conditions while other catastrophes, eight-tenths of a day, taken all the women in labor force lost time because of pregnancy. So, when these Agencies, EEOC, begun considering how you deal with this serious problem of women being disrupted, their whole continuity of employment, their seniority being disrupted by pregnancy, they look to see when men’s life are disrupted by disabilities is it the same amount of time, how comparable is it? And they have found in terms of what happens to men in terms of the amount of time that it was an entirely comparable thing, except that the consequences did not happen to men. They are, the men have four times as many heart attacks. The recent studies which deal with the difference of life-expectancy with the difference of disability shows that men -- the disparity between men and women in length of life has been increasing because there are books all written on why a women living longer than men, and of course here this same program covers life insurance. Now, to get back to Aiello this Court there was dealing with a Social Welfare program. It was dealing with the power of a sovereign state to determine what kind of a fund to setup and run, to take care of problems in its state, and it held there that it could make a judgment -- that it could cover certain disabilities and not cover others. They had by the time the case got here covered complications which our record shows the complications of pregnancy are very often due solely to a pre-existing diabetes condition, thyroid condition or something and the increase would be occur, the same complication would occur when a man gains weight. There is nothing about pregnancy except the weight gain that caused half of the complications of pregnancy in those cases. The State of California covered all of those. It did not cover normal childbirth, which again our medical evidence shows really is not different as a medical problem. There are medical procedures in connection with normal childbirth that parallel. They go to the hospital. They have an episiotomy, which involves surgery. They have stitches and so on. It is really not different from any other disability. But in Aiello, this Court was not concerned with an employment situation. We are here concerned with an employment situation. We are also concerned with the power of an agency of government, which has been vested with the authority to solve these various serious problems which is facing the nation today of the number of women, of the thirty-seven million women I have told you were working in the labor force, twenty-four million of those women worked from dire economic necessity. They have no source of support of over four-thousand dollars from her husband or anybody else. And the studies have shown that these women when they are put out, as we have in this case, as the Court below pointed out a case of economic necessity, Cheryl Steam (ph), when GE put her on mandatory unpaid leave, was forced to go on welfare and before she got her welfare check, her electricity was cut-off, she got no oil, she was waiting for the birth of a child in an unheated, unlighted house with no refrigeration. And this is not an unusual situation in that the figures, and I have got them in there in the footnote, forty-four thousand unborn fetuses received aid under the AFDC program in 1973. And this type of thing is what happens to women and they are competing with men for jobs in terms of what happens to them during the period there, they are disabled. If during the period they are disabled, they are not able to maintain income, continuity of employment. They have to go look for another job, as in Turner, she went and got clerical jobs during unemployment. In Stromberg-Carlson, cases I tried Melse, and the company said you go on mandatory leave because we have put you on mandatory leave, they nevertheless certified her as able for other jobs and she went to look for other jobs. If you want to take another job, if you are an honest women, you want to job, they are going to have to say, is it going to permanent or not, you change jobs? The problem of what happens to women, and 85% of the married women in this country have babies, they have two babies. They worked on an average of twenty-five years, the six-week to reach babies are very slight cost in the industry. Here the cost that GE, it has not put any figures, but you can take the figures we have here on, it is less than $10.00 a day for a woman on the last year you had on disability. Men was twelve, thirteen because of a higher pay rate, if you take that that is $70.00 a week, for six weeks it is $420.00. If you take these and multiply it by all the women that are pregnant, and multiply it, it comes to -- for six-weeks it comes to million dollars. They have spent $200 million on their life -- on their insurance program in 1972. When we negotiate wage increases, we negotiated ten-cent wage increase, that for 300,000 employees is $3 billion a year. This is chicken-feed compared to talk about a million eleven, a million one-hundred thousand, a million five-hundred thousand, just chicken-feed. In fact, I think the reason that you have this array of ten amicus briefs with all of industry lined up here in one side and everybody else CIO in the State of New York have -- any A National Education, ACIU our side, is the industry is not concerned about the chicken-feed of paying this little bit. It is concerned women ceased to be that new cheap force of labor in this country which they save a $140 billion a year if they were paid the same rate as women. There are thirty-seven million women in the labor force, they get 60% of the wages than men, if you take that thirty-seven and take the difference between the wage rates you up the whole labor -- not that they are in cheap, the lower paid jobs, and the men quite not have something if your dollar drifts away, but if they were to make that up there would be a $140 billion a year more wages paid in this country. And this -- this matter of making women transient workers --
John Paul Stevens: There is other legislation that requires equal pay for equal work?
Ruth Weyand: If it is equal, it has to be on the same job --
John Paul Stevens: And if you had a wholly male workforce, some would be paid more than others --
Ruth Weyand: Oh yes, there is no question about --
John Paul Stevens: Because that would be the higher paying jobs than others --
Ruth Weyand: That is right.
John Paul Stevens: And in a wholly female workforce the same thing would be true?
Ruth Weyand: That is absolutely correct.
John Paul Stevens: And there is plenty of legislation requiring equal pay for equal work, so I do not really see the point of what you are --
Ruth Weyand: But the women do not go into those jobs of great deal here, at GE. GE here has -- traditionally did not pay women equally. It had a job evaluation system. When you evaluate a job you put the same number of points on male job and a female job and the book said, when you pay two-thirds of the rate for the same number of points to women that you pay for men, and thus saying they had forty-three percent as jobs, the women get the lower pay jobs. I was saying when I was mentioning before that when I said a hundred and forty billion more, of course it would not be the same jobs. The women have gone -- had to go into the lower paid jobs because the companies are able to say you do not have a continuous work history. You have been off having a baby. You would not have a continuous work history probably in all probability because you will probably have a baby and it will interrupt your work history. And this is the problem that the agencies has have to deal with, and the reason I see this is a different problem than Aiello versus Geduldig, can the agency, which have been vested with Congress with the power to deal with the problem of sex discrimination, deal with pregnancy, and treat is as all the Doctors say is actually not different than any other disability. In terms of medical terms, it is no different than an epidectomy. It is like a caesarian operation, very like a gallbladder, the men have it and the women has one this one there should be no difference, here are the medical evidence from the distinguished doctors in this record and their findings, there is no rational basis for making a difference in terms of employment, in terms of disability. GE’s plan purports to protect you to income during disability. These are the plans purport to protect you for income during disability. There is no, the finding of both the Courts below is there is no rational basis for making a difference. They have found that pregnancy discriminations are unique characteristic of women and to discriminate because of it is a discrimination because of sex. Thank you very much.
Warren E. Burger: Thank you, Ms. Weyand. Do you have anything further, Mr. Kammholz?
Theophil C. Kammholz: Yes Mr. Chief Justice, members of the Court. If I may very briefly touch on several points here. The counsel for respondent failed to note that the GE job evaluation manual relating to rates for men and women, applied only to a GE plant in Erie, New York, and this manual was prepared in 1937. The Gerard Swope dialogue to which attention has been called occurred in 1931. These of course were different times. Counsel noted I believe that the average rate of earnings for females in the country is approximately 60% that of males. At General Electric as the record shows that rate is 75% and General Electric has never had an equal pay charge sustained against it in terms of discrimination in rates of employment. Counsel noted that what we are talking about here is she characterizes as chicken feed. Well, the record without dispute shows that the cost to American industry at the time of trial for the 40% of the workforce covered by plants, with no regard to the other 60%, would run at the time of trial at the rate of one billion, three hundred and fifty-three million dollars a year, and of course with inflation that figure would be higher today. In the counsel’s brief there is considerable reference to GE’s alleged discriminatory attitude. I think that contention was obliterated here in the oral argument by counsel’s statement that GE provides to cradle to grave protection, and may I note this is for men and women with the sole exception of pregnancy-related disabilities and with that kind of protection it would be difficult to say I suggest that GE has a discriminatory attitude toward women generally.
Potter Stewart: Mr. Kammholz, what we are ultimately concerned with in this case, I think you would agree is the problem of statutory construction?
Theophil C. Kammholz: Yes, Your Honor.
Potter Stewart: The interpretation of the law enacted by the Congress of the United States, not with question of Congress’ constitutional power or with any constitutional renovation, but simply a matter of statutory construction. You would agree as a matter of power, I suppose that Congress could provide, if it were so minded --
Theophil C. Kammholz: Yes, I --
Potter Stewart: -- explicitly provide that no employer in interstate commerce shall discriminate between the sexes in his employment practices as Congress has provided in this Act and then to go on to say explicitly, and this means that if an employer in interstate commerce has a disability benefits program, the employer shall not exclude the disability of women occasioned by their pregnancy. Would you have any doubt of Congress’ power to enact such as statute?
Theophil C. Kammholz: I have no doubt as to Congress’ power.
Potter Stewart: So the question is here whether the law enacted by Congress as construed by the commission is equivalent to the enactment that I had just hypothesized, would you say that is the basic question before us?
Theophil C. Kammholz: Yes, this is the underlying question, Your Honor or to put in differently, when the Congress in 1964 enacted Title VII, did it contemplate the obliteration of the pregnancy disability differences that existed in virtually every insurance plan in effect on the American industrial scene and I think apropos of the root question here is the fact the EEOC, not until 1972 articulated this point of view from the beginnings, although the Act was enacted in ’64, it was not effective until June, '65, but from the early days, as I noted yesterday, the opinions of the EEOC’s general counsel, the view was this kind of an exclusion was not discriminatory because pregnancy and disabilities related were sui generis, and not until ’72 did the complete about face occurred. And we suggest to you, if the Court please that this being a non-contemporaneous determination by the Commission, it is not entitled to deference, as your dissent, Mr. Justice Stevens, suggested in Spogus in the Seventh Circuit. It is perfectly clear and I am going full circle now that the folks with whom you spend your evening last night have the right to do it. We say simply they have not done it and with a matter of this impact on the American industrial scene, we say simply that they are the one who ought to do it.
Thurgood Marshall: What more could they have done than to say that this applies to disability benefits for pregnancy?
Theophil C. Kammholz: They could have said precisely that.
Thurgood Marshall: Well, why would they single out one phrase? They did not propose that you are very general and very broad language, do you agree?
Theophil C. Kammholz: I agree, but I note again that the Equal Employment Opportunities Commission from 1966 until 1972 --
Thurgood Marshall: And this is ’76?
Theophil C. Kammholz: This is ’76, but the Congress has not changed the law?
Thurgood Marshall: I did not say Congress has changed the law?
Theophil C. Kammholz: Well, here again we are going full circle and it gets back to the matter of legislative content. One final note --
Potter Stewart: Has there been any proposed legislation to make this specific as a matter of law in the wake of the good Geduldig case, particularly?
Theophil C. Kammholz: I am aware of none, Your Honor. But this leads to another point which I think is relevant and which I would like to touch on. The legislative history of Equal Rights Amendment deals with this problem. Indeed in our main brief we have documented the in-depth that legislative history. The majority report of the Senate Commission of the judiciary ERA had this to say; equality does not mean seamless. As a result the resolution, this is the ERA resolution, would not prohibit reasonable classifications based on characteristics that are unique to one sex and in the legislative debate, Congresswoman Griffiths who I noted was quoted in the star last night, had this to say; ERA would not affect laws dealing with a physical characteristic unique to one sex, such as childbearing, sperm donation, or criminal acts capable of being committed by members of only one sex. So I suggest in terms of what the thinking maybe in the halls of Congress, this distinction has been kept in mind and there is thorough awareness of it. Thank you very much.
Warren E. Burger: Mr. Kammholz, thank you Ms. Weyand. The case is submitted.